every place they meet in schools a central point of law in this case is that such a policy feels any level of scrutiny and is about level of scrutiny that i would like to turn first the supreme court has told us what that  but also under title six and section nine hundred eighty one and the supreme court having resolved the fourteenth amendment claim in the plaintiff's favor went on to say the language that i quoted saying that the pla liability under section one thousand nine hundred one precisely because they had proven a violation of the equal protection clause counsel even if we find that title seven standard applies can you still w exclude categorically children of not lacking hawaiian ancestry fails under any level of scrutiny including title seven scrutiny the the the supreme court has interpreted section nine hundred eighty one to apply to both public and private conduct the court has interpreted section nine hundred eighty one to apply to numerous contacts including employment including education as as here of course the seminal case is running versus mccrary where the court said that it is a private commercially operated school like and they and their schools is subject to the paterson versus mclean credit union the supreme court cut back on its previous interpretation of what a high price to my question your honor on the court the answer is i don't know  the federal courts have passed that experience with institutions that have been found to violate the constitution or the civil rights laws who change their policies in a in a manner that on its face appears to be neutral the regular rules would apply section nine hundred eighty one has as much or more than a special rules i'm just wondering how regular was apply if it were not a contract and if it were not if it did not involve the making an enforcement of a contract section it is designed to attain a balance or to say the same thing to eliminate an imbalance within the employer's workforce or by analogy within the student body and there is no ancestry and well greater rightly or wrongly they were acting in accordance with the correctly or incorrectly they were acting in accordance with what they perceived to be the purposes of the trust or were they or not irrelevant perhaps but i believe it is irrelevant because federal civil rights law looks at not as at at the origin but what what is occurring right now if you're looking in the employment context and i'm trying to look more into the trust in the gilligan case said it's a place unavailable because of a prescribe factor in that case it was sachs that policy is illegal and and a place at  kamehameha schools was unavailable to plaintiffs challenge precisely because of his race because of course the defendants admitted that had john ben native hawaiian he likely would have been admitted in that context of course d there there are perhaps some troubling constitutional questions with congress exempting a certain category of persons on the basis of race from the coverage of well i simply did not say on the basis of race based it on the basis of children of hawaii and ancestry being a political category and of course they intend to bring into that question that the various statute congress has already passed recognizing   respect my answer is i i do not know that that would raise some troubling issues but what i do know is that congress has not done anything remotely similar in this racially segregated school or not i'm not talking about required and i'm not talking racially segregated i'm talking about committed and i'm talking about political categories well your honor certainly the supreme court's decision in ri case and what the court said is that congress has not even begun to take those steps that would be necessary to translate the category of native hawaiian into a political ignoring the quote unique history of hawaii but that is precisely what the court did it said that that history simply does not matter for purposes of coverage of of the federal civil rights laws and i think what what that question that question brings up the larger issue of whether the regular rules whether they are constitutional whether whether it's strict scrutiny whether it's title seven scrutiny whether the regular rules apply in hawaii and apply to native hawaiians counsel there is a body of regular rules under morton versus mike carey that's special for indians in certain circumstances and there's a federal definition why i think it is decisive your honor i think that's precisely what the supreme court held in rice versus kiah tunnel morton versus mann cari argument was advanced in that case on behalf of the state of hawaii and the and the  racial preference there and the supreme court rejected it and said that congress had not even begun to take the steps necessary to do that application i also think that this court's decision  case includes or encompasses discrimination against or in favor of american indians notwithstanding that there there are specific statutory preferences for certain categories of the defendants admitted it your honor at that paragraph sixteen of their answer on page sixty eight of the excerpts of record we're going to say they said it is likely that he would have been admitted if he were a native hawaiian so for him the fact that he lacked hawaiian ancestry was a decisive consideration it was precisely the opposite of individualized consideration constantin said if you are violated the civil rights statutes and i think the mcdonald case decided on the same day as runnion versus mccrary is a good example of that there was the argument that section nine hundred eighty one was intended to apply only to non whites and the supreme court very clearly rejected that argument and said the protections of that all the civil rights statute apply to discrimination against or in favor of any race  your honor i do i believe they are the the court ruled that the the operation of the city of philadelphia had had introduced a public and public action unique status under federal law you're again with respect i would say that that congress has not acted in a way that would even begin to overrule the court's decision in rights versus sky channel and the fact that congress is trying to pass something right a purpose its remedial purpose is reasonably related to that purpose and has not unreasonably exceeded that remedial purpose so when you are conceding that we are dealing with a racial preference at all your honor the most important feature of this  say i don't think i understand your prior sentence your honor the issue in this case is whether one thousand nine hundred one bars a private institution from providing remedial education repeal education preference for an indigenous people now an indigenous people native hawaiians included or a group that because of their history of conquest and overthrow has both a racial aspect and standard of review issue at all because you don't defer to private institutions under iranian now if they did not charge that would allow for distinction to run you just runyan pointed out that it was an exchange of money for services such crimes held as judge rymer correctly pointed out before with respect we do indeed differ to the actions of private institutions congress is an act of the policy under the civil rights act of banning discrimination so if native hawaiian were discriminated against of course they could invoke forty two u s c one thousand nine hundred one to say that that was a violation of their right against race discrimination but the policy of the united states congress since whenever as interpreted by the u s supreme court has been to encourage private remediation as pastor pressure you might have with the really deal there is so many people in hawaii are deserving of it filipinos people that were brought over is near slaves on plain apple the question here is is the policy reasonably related to remedying past harm there's no dispute in this overwhelming and undisputed record that the harm and devastation to native hawaiians has been unique hawaiians i'm like filipinos or any other immigrants to the from the government in the sense that the deference here to the private activity should be greater it should be greater because it's private should be greater because as you suggested it's education and employment and it certainly should be greater because and then i suppose as implementing through its own private action the were serving some group other than native hawaiians do so but it wouldn't make a difference whether we were talking about a racial classification versus a political caste of occasions so far as differences concerned just can one let me go back to your example before of what newly freed slaves under ninety one is interpreted by this court in the supreme court that might well be permissible under one thousand nine hundred one because it was reasonably related to remedying the ongoing harms of past discrimination against versus kind of tunnels because even though i was a voting rights case there is a specific passage in the opinion that says we reject this line of argument mean we have the restriction is not a racial ancestry can be a proxy for race it is that proxy here in specific reference to the students who are preferred coming i mean a school your honor there's rice did say that ancestry can be a proxy for race but rice also said in reversing this course that we assume the validity of the underlying trust without intimating any opinion on that point that's five twenty eight u s at five twenty one twenty t the point there is that judge justice kennedy writing for the court said that the court was expressing reserving the question whether native hawaiians may receive benefits permissible under the fourteenth and that just returned to judge lecherous question there's no question that the statute he hypothesized would be constitutional under the fifth amendment because of the longstanding morton versus monk or a principle that congress has greatly way now withstanding the constitutional protections of the equal protection  for best the preference given to children of native land why there is not a constitutional argument but rather there is a statutory from which i take it to mean now that my father says that at the moment will not be an exception to nineteen an apology resolution in one thousand nine hundred three on the anniversary of the overthrow of the hawaiian government the illegal overthrow which congress acknowledged indigenous people are different from other immigrant racial groups and that they have not only been subjected to socio economic discrimination not only are native hawaiians at the bottom of the social indicators most likely to be subject of neglect and abuse forty percent of native hawaiian men are in prison most likely to wind up in menial jobs rather than professional jobs the many groups can claim suffering of that kind what makes indigenous groups quite distinct is that they have been dispossessed of sovereignty and that's why congress has recognition that dr height referred to before that these are the indigenous people i don't want to stop and i don't think that's correct the  knowledge is the wrong that our country committed in the past and we're making amends for that's what it's all about is not that's correct judge players i'm serving food anything whatsoever for me may have been in high school at the time i mean we had the fewest we had barky we have recently had cases in from michigan and the last case i was on was the seattle school district case and we were admission what this field company was doing and whether it was remedying the societal discrimination the background educational deficits then there were no skill that fricken americans to look to the higher skilled skilled training programs or the best analogy it was actually was this job categories that question about dr had gerard been race reversed now our position is that one thousand nine hundred one would permit a racial racially remedial private school education program if we were clear that it rusty morehouse spelman and a few others i think they're actually supported mostly by the rosenwald fortune for many years and when i tried to find some laws that would reassured by the i r s and explicit letters that they are not in violation of public policy both before and after rice for the reasons that fred rinehart mentioned it is still the congressional policy as expressed in the two thousand and two native hawaiian education act for congress to give preferences to native hawaiians when the congressional public policy is to give preferences for native hawaiians defined exactly as kamehameha schools defines native hawaiians for the same remedial purposes as kamehameha schools his preference is to hawaiians we're nowhere near the day when this preference would violate public earlier and i want to be very clear on what the facts in the record established this is a fact of the record judge k and the record found twice twice made a reference price to the finding that this is not an strategies some of which involve preschool programs afterschool program summer school programs and significant a fusion of money into independent charter schools all of which admit nonnative alliance it is only the campus program where there are only fifteen hundred places for  have seventy thousand native hawaiian children h k three twelve that have had a preference that's why it's first not hawaiians only and as the trustees made clear from the beginning and continue to make clear today as soon judge graber is there is a time when native hawaiians are not at the bottom but degradation as a group and as a culture it is to create leaders really having a school where everybody you deal with is just like you your honor there's no question about the success of the school in producing graduates who go on to be leaders of integrated the university of michigan i think the record really easy for kamehameha schools to give us a brand new piece by eliminating the fees and the bishop the state is probably the largest charity or one of the largest charities in the world since but what but exempt from titles that yes no it's not your honor the title seven with the interpreted in the same way with deference to the native hawaiian status of applicants so we have spoken we're just we're hiring only a native hawaiian faculty that would be a violation of title so it would be standard would be the same judge by the it would be whether or not there was a reasonable relationship between that policy and the remedial purpose there's nothing in this record about discrimination against hawaiian teachers there is evidence in this record about the educational deficit place your honor we're not saying that command ask rules is exempt it might well be exempt under judge fletcher statute would which would make it explicit but the court as the supreme court has always held that congress is not under an obligation to pass new private bills every time it wants to clarify that  you must look at all the statutes that congress enacted both before and after rice giving preferences to native hawaiians in their role as a political class comparable to native americans and alaskan natives and as an indigenous political status if waikiki merchants were to discriminate against native hawaiians the way the southern states discriminated in the black codes that would violate one thousand nine hundred one but the political classification becomes crucial to interpret in one thousand nine hundred one in light of congress that it doesn't seem to be what you mean is because this is a very unique circumstance if you take take that's right turn it around and says you had some of these american native hawaiian merchants discriminate against white people i assume you would not indigenous person and it does so for two reasons actually one does not bar that both for the reason that these are indigenous people and so the deference to all the surrounding statutes that either side of rights versus kind of trying to say that native lands have a special status that calls for special latitude for private entities that enact the same kind of preferences for indigenous hawaiians and also because as the exchange with joe just family made clear when a program really is remedial for past harm and you have bona fide evidence that it's