Ka Wai Ola - Office of Hawaiian Affairs, Volume 25, Number 3, 1 March 2008 — Breyer speaks on merit of minority-preference programs [ARTICLE+ILLUSTRATION]

Breyer speaks on merit of minority-preference programs

Supreme Court justice sidesteps direct comment on Kamehameha Schools policy

By Liza Simon Public Affairs Specialist Does affirmative action redress the effects of past wrongful discrimination against minorities or does it dangerously depart from the democratic principle of equal protection under the law for all citizens? This was the rhetorical question put forth to a University of Hawai'i law school audience by U.S. Supreme Court Associate Iustice Stephen Breyer, whose liberal affinnative-action stance could be the deciding vote in court challenges to programs that help Native Hawaiians. Breyer, a Clinton-appointee to the nine-member heneh that now includes two Bush-appointees, said that cases involving legal protection of minorities have divided the nation's top court into two opposing camps, reflected in narrowly split 5-4 decisions. "One view looks at existing legal structures as sufficient in supporting minority rights and insists on applying the color-blind principle of Constitutional law," Breyer said. Clearly favoring the other view, Breyer said it is better that our Constitution "works harder at bringing people into society" by providing fair access to employment and education. "Otherwise, we will end up with all-white institutions where subordinates are all minorities. It will be a 'them' and an 'us.' Our best leaders know that is a system that just won't work," he said. Breyer was one of several panelists that met to discuss Kamehameha Schools' Hawaiianpreference admission policy. In a case known as lohn Doe v.

Kamehameha Schools, a nonHawaiian student challenged the school to stop giving preference to Native Hawaiians. The lawsuit ended last year in a confidential out-of-court settlement, but a day after the UH panel discussion, an attorney for the plaintiff revealed that Kamehameha Schools agreed to pay the student's family $7 million. Citing the possibility that similar challenges would make their way into the nation's high court, Breyer said he would not eomment directly on the Kamehameha Schools lawsuit, but he criticized the argument by plaintiffs in similar court cases, where groups have claimed that exclusionary programs for minorities violate civil rights law. This argument was used successfully in a recent Supreme Court decision that overturned partly the Equal Pay Act, originally established to protect the rights of minorities in the workplace. Supporters of minority programs, including the privately run Kamehameha Schools, see increased legal challenges by members of majority groups as distorting the original intent of civil rights law. "Let us not lose sight of why the court is involved in guaranteeing minorities equal protection from discrimination," said Breyer, citing mistreatment of AfricanAmericans that lingered through eight decades of segregation. "We suffered through this even after post-Civil War laws guaranteed slave descendants would not be treated badly, and so we need the flexibility to deviate from principle for affmnative action," Breyer said. While Breyer talked broadly

about the history of affirmative action and minority rights, other panelists offered more pointed comments on Kamehameha Schools, including Stanford law schoolprofessorKathleenSullivan, who defended the school's admission policy and California-based attorney Eric Grant, who represented the non-Hawaiian applicant to the school. Grant said legal protection of minority rights was not at stake in his client seeking admission to Kamehameha Schools: "You adopt those affirmative action rules only when (the minority) faces an imhalanee within an institution - (that's) not the case at a 100 percent Hawaiian institution." Sullivan said the courts use a wider view of society to remedy

discrimination. "Education is the groundwork on whieh all society is built and Kamehameha Schools (admissions) has fundamentally been about assuring that Native Hawaiians will no longer be excluded from society." Prior to the 1964 landmark Civil Rights Act and subsequent affirmative action rulings, Congress had long recognized that Native Hawaiians deserve special preferences as redress for the destruction that followed the overthrow and annexation, Sullivan added. "It would it be inharmonious for the court to undo on one hand what it has pursued on the other." Breyer said court controversies over affirmative action are likely to continue. He said mueh work must be done toward a better

understanding of an increasingly diverse America and "figuring out the circumstances that count as criteria." Breyer, 69, sided with the majority opinion in the Rice v. Cayetano Supreme Court decision that gave non-Hawaiians the right to vote in Office of Hawaiian Affairs elections. A publicly financed election must guarantee all voters' rights, not the civil rights of minorities, he said. Striking a note of amiability on his first-ever visit to Hawai'i, Breyer said he was impressed by UH law school's diverse student body. "You are the heart of the Western rim," he said. "You are living the diversity that will bring new experiences to the field of law." □

NŪ HOU • NEWS

BEL0W: U.S. Supreme Court Justice Stephen Breyer, center, at the UH William Richardson School of Law. From left are: Stanford law professor Kathleen Sullivan, U.S. District Judge David Ezra and attorneys David Forman and Eric Grant.- Photo: Courtesy of Mrey Galicinao