The Unclear Policy on Race in the Courts

In light of the lawsuit against Kamehameha School’s, I’ve taken an interest in the 2003 lawsuits against the University of Michigan. While there certainly are differences, the greater policy area of these cases (of affirmative action and racial consideration) are related. In 2003, the Michigan’s undergraduate admissions policy was found to violate the constitution for their methods of racial consideration. At the same time, the Law School’s policy was found constitutional, thus affirming the consideration of race in admissions decision. While there were differences between these two policies, the Supreme Court’s decision is still slightly contradictory and their position on affirmative action unclear. (To read more on the failing of the Supreme Court to create a clear policy, click here to read, “The Constrained Court Debate the University of Michigan Lawsuits”).

This only makes Kamehameha’s case more interesting. After loosing in the 9th District appellate decision, Kamhemeha has a fresh start with the granting of a rare en banc review (the case will remain in the 9th District and all 15 judges will preside in the review, rendering the former decision moot). This move suggests that the court is attempting to make a more definitive statement on the issue before the case moves any further. However, this will be difficult given the unclear policy on the larger issue of racial consideration set forth in the Michigan cases. It is likely that the court’s decision will revolve around whether Kamehameha has a “compelling state interest” in its Hawaiians-only (by function not definition) admissions policy. However, we are left with vague doctrine open to interpretation in which the judges will have more opportunities to frame the issue on their ideology. Therefore, it remains unclear what the results will be for Kamehameha in the upcoming year, despite the hope seen by school sympathizers in the case’s second breath of life. However, what is clear is that with the dilapidated state of OHA and the seemingly inert Akaka Bill in the senate, Hawaiians are about to embark on a literally defining moment.

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