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Equal
Justice Society, JACL-Hawai'i and Centro Legal de la Raza File
Brief in Support of Kamehameha Schools
Civil
rights groups' brief says admissions policy of private school
for Native Hawaiian children "does not violate civil rights"
SAN
FRANCISCO (Aug. 30, 2005) - Eric K. Yamamoto, a professor with
The William S. Richardson School of Law at the University of Hawai'i,
and Hawai'i civil rights lawyer David Forman, today announced
that three civil rights groups have filed an amicus curiae
("friend of the court") brief in support of Kamehameha
Schools' petition for a rehearing en banc by the Ninth
Circuit Court of Appeals on Doe v. Kamehameha.
The
San Francisco-based Equal Justice Society, Japanese American Citizens
League-Hawai'i Chapter and Centro Legal de la Raza filed the brief
to inform the court that civil rights groups with roots in communities
of color see Kamehameha Schools' admissions policy as restorative
justice for an indigenous people whose culture, property and self-governance
were nearly destroyed by 19th and 20th century colonialism.
"Our
brief says that the Kamehameha Schools' admissions policy does
not imperil the civil rights of racial minorities," said
Yamamoto, who is counsel to the three amici and also a
board member of the Equal Justice Society. "The Native Hawaiian
experience is unique and these civil rights groups support restorative
justice for Native Hawaiians."
"There
is a critical difference between an affirmative action or diversity
program and the efforts of a private institution to help an indigenous
people almost wiped out by Western influence," added Forman,
who is also a member of the JACL-Hawai'i board. "The civil
rights of Americans are not threatened with a program by Native
Hawaiians designed to uplift their own people."
The
brief contends that the appeals court panel was incorrect in comparing
the Schools' admissions policy to an affirmative action diversity
program in private businesses. Unlike programs by other ethnic
groups, a private program for indigenous peoples that uses race
as a determining factor is legitimate as long as it is crafted
as a "restorative response" to the devastation of colonialism.
Both Congress and other court cases have supported this distinction.
The
brief cites a 1974 Supreme Court decision in Morton v. Mancari
that hiring preferences favoring Native Americans, do not conflict
with the Constitution. "The Indian preference does not constitute
'racial discrimination' or even 'racial' preference," said
the high court in that ruling.
"Indeed
race/ancestry had to be an integral factor in the political restoration
process because race/ancestry had been key originally in the U.S.'s
justification for the confiscation of land … and the destruction
of culture and self-governance," said the brief about Morton.
Ninth
Circuit Judge Susan Graber, in partially dissenting from the three-judge
appeals court panel argued that Congress has expressly considered
Native Hawaiians as a unique group. "In the absence of more
specific Supreme Court guidance, we should look directly to congressional
intent," wrote Graber. "Congress intended that a preference
for Native Hawaiians, in Hawaii, by a Native Hawaiian organization,
located on the Hawaiian monarchy's ancestral lands, be upheld
because it furthers the urgent need for better education of Native
Hawaiians…"
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