A good while ago I wrote about an effort to reserve some programs in Hawaii to people “with a drop of Hawaiian blood,” and back in May reader Fred Ray reminded me that the program was still going strong. Now, ever vigilant and reader of all things, he sends word that the Ninth Circuit has just struck down that race-based policy.
A federal appeals court struck down the exclusive Kamehameha Schools’ policy of admitting only Native Hawaiians on Tuesday, saying it amounts to unlawful racial discrimination.
Overturning a lower court’s decision, a panel of the U.S. Court of Appeals for the 9th Circuit in San Francisco ruled 2 to 1 that the practice at the private school violates federal civil rights law even though the institution receives no federal funding.
You’d think that would be the end of it … but you’d be wrong. The scofflaw spirit remains alive and well, at least in some universities. The University of Hawaii system responded to the Ninth Circuit ruling
by saying that, until the schools exhaust their appeals and the U.S. Supreme Court weighs in on the matter, it has no plans to abandon its practice of setting aside a share of its need-based tuition waivers and tuition discounts for Native Hawaiian students. The tuition waivers and discounts have already come under federal scrutiny as a result of a discrimination complaint filed with the U.S. Education Department’s Office for Civil Rights
The governor of Hawaii, Linda Lingle, a Republican, supports special preferences for native Hawaiians, as she recently testified. Perhaps next we’ll see her standing in the schoolhouse door, in a hula skirt.
But if it’s a private entity that receives no federal funds….? Shouldn’t they be allowed to do as they wish?
If you search using technorati and others, you immediately find blogs and pages where the far left aruges, with a straight face, that private organizations should be able to discriminate, that Hawaiians are a special class and thus should be able to discriminate, and that the Civil Right Laws needs to be rewritten to allow anti-white discrimination.
Private entity? Not quite
The 9th Circuit Court of Appeals, in a 2-1 ruling, said “no” to a Hawaii school’s policy of exclusive enrollment for native Hawaiians: … the private school’s policy of admitting only native Hawaiians amounted to “unlawful race discrimination” [the co…
Some Libertarians also argue that private organizations ought to be allowed to discriminate.
Note that the Civil Rights Act of 1964, which occasionally still is regarded as having the force of law, barred racial discrimination by private as well as public institutions. True, Title VI of that act cuts off federal funds to private schools that discriminate, but the rest of that act barred discrimination by businesses, etc. Also note that the Hawaii school probably has a tax deduction, which Bob Jones University, equally private and also religious, lost because of a discriminatory dance policy.
John writes:
>>>Note that the Civil Rights Act of 1964, which occasionally still is regarded as having the force of law, barred racial discrimination by private as well as public institutions.”
Would you favor amending the CRA of 1964 so that private institutions would be allowed to racially discriminate?
–Cobra
Cobra,
Allowing private discrimination (as long as it is non-whites who benefit) is exactly what the support34s of the Kam Schools have been arguing in front of the federal courts. They also are arguing that concepts such as racial deed restrictions, racially biased gifts and grants in wills, and having the state determine your exact heritage is permissible.
Super,
I think they are arguing that they are a vestige of a previous sovereign, the monarchy of Hawaii, and that they are neither private nor State, but sovereign (it would be no different than us telling the French not to discriminate). Ancillary to this, they would suggest that Hawaiian ancestry isn’t a racial category, but rather a political one (defined logically by the previous political units on the island prior to statehood) and based on the previous Hawaiian state’s declarations — like being born a US citizen is a political category. A larger question of Tribal status, treaties, etc. all looms in Hawaiian and federal politics (the Akaka bill) that relates to this.
The University of Michigan is legislatively required to admit 70% of undergraduates who are Michigan residents (I know that isn’t by birth, but…), and the comparisons, while not identical, shows what is meant by a “political” category.
This debate on the KAM school is very hairy, in that not only do racial preference issues involve, but issues of treaty, statehood, history, and tribal recognition all come into play. Its complicated.
Mr. Zarko,
The native hawaiian movement is a raced based group. Previously, to vote in the Office of Hawaiian Affairs elections, one had to demonstrated, through the use of birth certificates, that you had a certain percentage of blodd quanta. It was straight out of the Jim Crow era.
The racial aspects of the Bishop estate trust documents should be thrown on the scrap heap of history along side the racial restrictions on deeds and Jim Crow laws.
I will give Chetly a lot of credit here, because he does look at this situation without the bumper-sticker, boiler plate, formula response that many seem to respond with in these sensitive situations. I only wish that he would broaden that view when it comes to situations in his home state, but that’s his right.
–Cobra
Cobra,
If you really believe what you had written about in the past, you should be leading the charge against the government enforcing racist provisions of wills. However, if we interpret your beliefs in that they are based upon bigotry toward whites, then your stand for enforcing racist provisions that discriminate against whites makes complete sense.
PS, I recommend you talk to African-American who have lived in Hawaii to find out what happens to a society where overt bigotry and racism by non-whites in tolerated and codified.
Cobra, thanks, I guess, but would you vote to confirm me to a judicial post if I had the technical qualifications?
By the way, I have broadened my view in my home state – that’s why I have come to the conclusions I have, with equally deep thought. You just don’t like the conclusion.
Superdestroyer,
I presume then, you’d make the same argument for mainland Tribal status. Should we completely dismantle the sovereignty that we’ve granted through treaty with all Native American tribes that are federally recognized?
There is in fact a tiny movement within the Native community to do this (and they may or may not be “right”, but I suspect it won’t occur), on the grounds that tribal authorities have and continue to routinely exercise their power arbitrarily against individual tribal members. They want the US Constitution’s protections to extend to tribal government and members.
And there is a “racial” element to both the mainland issue and Hawaiian issue – but there is the strictly sovereign and historical “political” category elements, as well. You say it “is so” that this is “racial” – surely, you wouldn’t elevate the Hawaiian people to a racial category that is as distinct as say, black or hispanic (which of course is itself just an artificial construct with little scientific or genetic meaning)? In fact, would you want to enshrine them as a category – as an independent “race.” Historically, it seems to me that it is accurate to call them a national subdivision asians. Now, it may be that they ceded any such claims when they became a State and accepted the priveleges and immunities there granted, but that’s a different ball of wax.
I think the votes in the Office of Hawaiian Affairs issue was already dealt with by a Court – in ruling that the Office was a part of the (U.S.) State of Hawaii, it ruled that the practice was illegal (note: the equal protection clause would reach beyond just racial category, since it is supposed to apply to all individuals and combines with other Amendments to ensure that all would be entitled to vote).
Superdestroyer, I want you to understand that I find the Kam’s practice to be deplorable and unwise, but I find alumni preferences to be both as well. It strikes me that both alumni preferences and this practice are based on birth and give an uncontrollable, non-meritorious advantage. The Kam practice does have more of a racial element to it, which is why I said this case is “hairy”, and if I were on a court I simply don’t know which side I’d come down on.
chet,
I suggest you follow up on Hawaiian history. The term Hawaiian as used by the sovereigntist means that a separate set of rules and laws would apply to people who can trace their heritage back to linage to those who lived on the Hawaiian Islands before contact with Captain Cook. In other words it applies to a subgroup of Polynesians. Hawaiian is a much more specific definition than either black or Hispanic. And the definition is very racially motivied. As far as considering them the same as American Indiains, at the time of contact with Captain Cook, the islands were ruled by a full group of tribes. There was no Kingdom of Hawaii until after contact with the West. That Kingdom was also very racially motivated. Why should we care what their laws said in 1840. We don
I agree with the writer who said that Cobra should look at the status of blacks in Hawaii. Any situation where that kind of discrimination is tolerated, is very bad for blacks, worse than for other groups. People like Cobra are thinking in terms that it will somehow benefit blacks. It won’t.
Anita writes:
>>>Any situation where that kind of discrimination is tolerated, is very bad for blacks, worse than for other groups. People like Cobra are thinking in terms that it will somehow benefit blacks. It won’t.”
I think it’s best not to reply to this type of message, as it will only divert attention from a specific, important thread. Anita, there’s no secret about my feelings on discrimination against African Americans. Simply scroll back to the dozens of messages I’ve posted here.
–Cobra
Super,
You raise several interesting points.
Why should we care what their laws said in 1840. We don
The only racists are whites.
how can hawains be racist against a colorless race who overthrew hawaii illegal and fucked the native americans.
its just like me going into your home and shiting on your floor and telling you this is how its going to be.