Ninth Panel Can’t Squirm Out of Hawaii Case

Judge Andrew Kleinfeld echoed the sentiments of more than one person in an overflowing Ninth Circuit courtroom when he asked Kathleen Sullivan — the erstwhile Stanford dean, and now an appellate lawyer — for an easy way out of a tough schools case. “Is there any way we can avoid ruling on the merits?” he asked. Unfortunately for the 15 judges sitting on an en banc panel, Sullivan, representing Hawaii’s Kamehameha School, said no, and her opponent, Eric Grant, agreed.

So it looks like the panel will have to issue a ruling in the prickly case which originated when a student sued the school over its policy of admitting only students of native Hawaiian descent. Those students get preference, leaving all others on a long waiting list — behind even more native Hawaiians. 

Last year, a three-judge Ninth Circuit issued a controversial split decision which called the policy illegally discriminatory. Whether that ends up being the case remains unclear after en banc arguments, since the case bears a number of serious complications. For starters, the school is a private entity — it was set up by a princess’ 1884 will — so it doesn’t fall under public school discrimination laws. But since it’s a charity, Judge Alex Kozinski pointed out, it might not fit into the federal law governing contracts on which the plaintiff’s arguments rely. And as Sullivan argued — and most of the judges seemed to agree — there are strong arguments both that the disadvantaged population of native Hawaiians has been well served by the school, and that Congress has identified indigenous Hawaiians as a population needing special protection.

Then again, a contingent of conservatives on the court’s panel — Diarmuid O’Scannlain, Jay Bybee (who authored the earlier Kamehameha opinion), and especially Kleinfeld — were skeptical that the school’s attempts to remedy historical wrongs fit under an 1866 civil rights law. “The problem that I have with the remedial theory is that so many people are deserving of it,” Kleinfeld said. “Filipinos, people who were brought over as near slaves for pineapple plantations from China, Japan, all sorts of people.” Judge Alex Kozinski — himself a relatively conservative, though unpredictable, jurist — wasn’t so skeptical. But he had a different take. “What’s so great about having a school where everybody you meet is just like you?” he said.

Justin Scheck

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