Public vs. Private Discrimination

The 9th Circuit Court of Appeals has ruled that a private school in the state of Hawaii can discriminate in favor of Native Hawaiians

SAN FRANCISCO — A divided federal appeals court ruled Tuesday that a private school in Hawaii can favor Hawaiian natives for admission as a means of helping a downtrodden indigenous population.

The 8-7 decision by a 15-judge panel of the 9th U.S. Circuit Court of Appeals overturned an earlier ruling by three of the same judges that the Kamehameha Schools policy amounted to unlawful discrimination.

In making their ruling, the 9th Circuit focused on the plight of Native Hawaiians, but missed a broader distinction between this case and cases involving public discrimination:

Admission to the elite school is first granted to qualified Hawaiian students, and non-Hawaiians may be admitted if there are openings available. Only one in eight eligible applicants is admitted to the school, which serves about 5,400 students at three campuses.


The Kamehameha School was established under the 1883 will of Princess Bernice Pauahi Bishop as part of a trust now worth $6.8 billion. The trust subsidizes tuition and is designed to help remedy some of the wrongs done during the U.S.-backed overthrow of the Hawaiian kingdom in 1893.

In other words, the Kamehameha School is a completely private organization. As such, unlike a public school, it should be permitted to set whatever admissions standards it desires. Unfortunately, the distinction between public and private institutions has been seriously eroded by Supreme Court precedent over the years, so it is quite likely that this case will be treated in the same manner as the affirmative action policies of the University of Michigan were.

  • KipEsquire

    If it were any other state or “private” party, then I would be cheering you on. But Hawaii is sui generis and not a good starting point for policy extrapolations. The “private” trust was in fact from the old Hawaiian monarchy, which was at times rather oppressive toward its people and expressly agreed as part of becoming a “U.S. territory” (and later the statehood process) to accept certain financial restrictions, land diverstitures, etc.

    Take a Honolulu tour and they’ll drive by the Kamehameha School and tell you the history of its exclusionary policy.

    It’s like federal-Indian relations: all bets are off.

  • Chris Byrne

    I applaud this decision; I only regret that it will not be followed as proper precedent the next time someone tries to set up an all male, or all white school.

    Private individuals, and private institutions should have the right to support, and associate with whoever they want to; even if we find that discrimination repugnant; because they are PRIVATE.