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In a case of first impression, the 9th U.S. Circuit Court of Appeals ruled Tuesday that a private Hawaiian school’s policy of accepting only native Hawaiian students amounts to racial discrimination and breaks federal law. Ninth Circuit Judge Jay Bybee, writing for a 2-1 majority, said he disagreed with a U.S. district judge that the Kamehameha Schools’ policy “constituted a valid, race-conscious remedial affirmative action program.” Senior Judge Robert Beezer concurred. “We acknowledge that the status of native Hawaiians and their relationship … to the federal government presents difficult questions of serious import, complicated both by history and by politics,” Bybee wrote. “Nonetheless, it does not follow … that Congress may authorize a private school to exclusively restrict admission on the basis of an express racial classification.” The ruling was a victory for Eric Grant of Sacramento’s Sweeney & Grant, who represented a high school student who was denied admission to Kamehameha Schools repeatedly after filling out a survey on ethnicity. Grant said his client, whose identity is unknown, plans to enter 12th grade at Kamehameha in several weeks. Attorneys and supporters of Kamehameha Schools had asked the court to consider the “larger context” of Hawaiians’ historical and cultural experience. “The preferential policy is meant to remediate many of the past wrongs done against Hawaiians and to remedy [their] social-economic status,” said Patrick Richardson, a San Mateo, Calif., attorney and Kamehameha Schools alumnus who filed an amicus curiae brief on behalf of student and parent groups. Ninth Circuit Judge Susan Graber concurred in part and dissented in part, arguing that Congress has expressly treated native Hawaiians as a unique group and has previously supported private funding of native Hawaiian children at Kamehameha Schools. “In the absence of more specific Supreme Court guidance, we should look directly to congressional intent,” Graber wrote in her dissent. “Congress clearly meant to allow for the private education of Native Hawaiian children at the Kamehameha Schools.” The school’s attorneys, former Stanford Law School Dean Kathleen Sullivan and David Schulmeister of Honolulu firm Cades Schutte, did not return calls seeking comment. Kamehameha Schools receives no public money and is funded through an endowment created in 1887 by descendants of Hawaiian royalty. It says it does admit students of non-Hawaiian descent, but only after Hawaiians who meet the criteria have been offered admission. Grant said he got the case through a mutual friend who knew Hawaiian litigator and co-counsel John Goemans. “For a school to survive this long and very brazenly and openly say ‘no non-Hawaiians need apply’ very much intrigued me,” he said. The case is Doe v. Kamehameha Schools.

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