than the fourteenth amendment though you're either because the court said if on the on the other hand if you make out your claim under the equal protection clause you also make out your claim under section nine hundred one back in the it was not necessary to reach the question but you know actual fact the court did reach the question i think other numerous other decisions of of the supreme court in the courts of appeals confirmed that  non african american child have been able to knock on the door and say i demand to come to your saturday morning session your honor there may be some constitutional limitations on the application of section nine operation when it is heavily subsidized even the students who pay tuition pay only a fraction of what it actually costs to educate them in what worked in your view defines commercial may and that is the question whether you know whatever analysis is to be adopted i think we should give some special form of analysis to our issues involving native hawaiian people acknowledge that a man may in fact publicly acknowledge is of certainly throughout the record in the case that he did it has a race based admissions preference i think policies i met i'm attacking the application of the policy for the ladder to the lower you if you seek is against the individual trustees not against not against the institution why did you join y discrimination as you age and for a court to in light of that policy there would have to be the clearest impression of and can show that congress had stepped back and left in the protection against something else presumably one hundred one would not apply correctly if if the if the school is limited then to native hawaiians could come in the make an argument that that as it was applied by the state of hawaii and after it is applied by command and schools is a racial category for purposes of the constitution and crucially for purposes of the federal civil rights laws and again one of the expedient in that regard what the st francis college case and mass was a section one thousand eight hundred one case a purely statutory teams in which the court dealt with the argument that ancestry is not a on one side of the question and that is that for purposes of the constitution and the civil rights laws the category and history based category of native hawaiian is a racial category gives congress with congress  certainly is not violated by the program at issue in this case and there are five pictures of the program that make it clear that one hundred eighty one is not violated by the admissions preference here as judge bee education case education k through twelve students to empower them despise them to undo a history of oppression and send them out into the world as successful native hawaiian adults leading their community as judged by you pointed out and right point if i may judge by the way the answer to your question about rice is that it most certainly did not preclude congress from recognizing native hawaiian with the equivalent of tribal status and it certainly did not for close the kind of preference at issue in this case in fact in right justice kennedy writing for the majority most pointedly reserved the question of whether it's on native hawaiian preferences might in another  to a private institution under any civil rights law he can cite no case to that effect but it clearly after the civil rights act of one hundred sixty four comes along that every night every title seven employment contract can be challenged under nineteen eighty one in corporate there's no direct evidence in the legislative history that they thought about it one hundred eighty eight your honor there's evidence in the legislative history that they thought about it with respect to the two thousand and two marine act much where they urged to name it with there was a committee report i recognize that's not the statu the the land that principal law he left in transfer the her children what she thought of as hers then family here's why it's relevant it's relevant to showing that this is a remedial use of rate and that is appropriately tailored and the is there a reasonable relationship to a remedial purpose and as the approach of this program not unreasonably exceed does not unreasonably exceed that and the reason why the means for remedying devastating socio economic and educational deficits that continue to be suffered by the native hawaiian people who are at the bottom of the ladder in this state in be indicator of social and economic well being whether it's poverty very bottom of the socio economic ladder in every respect and just responded kind of claim that this is an absolute and perpetual bar it is nothing of worth it is nothing of the source this is a transitional effort to train native hawaiian students to go out into howard by studying their one to press traditions and ancestral customs and language to go out and lead their society dramatic steps have been made in the in the two decades since the first since the apology resolution surely it's too much to expect the work of the command schools are underway over a century of oppression and nearly destroyed culture can affect the transition next quickly but the trustees review the policy regularly it is in and to go back to judge these reference to the will the will was interpreted by principal law he's husband trolled bishop she was trained by missionaries she had her deal to reopen the school developed by the missionaries who trained her charles said at the beginning that when native hawaiians have been lifted and have been brought up to a status in which they can be self sufficient again that place in the schools and be open to other people but we're nowhere near that time the trustees review dude the role of the schools recently is two strategic report two thousand to two thousand and three to see whether the preference was still needed in the on campus programs and i should point out that the schools do a lot more than the on campus programs they have preschool afterschool continuing education summer schools extension schools many of which to complete the point it's not absolute and it's not perpetual it is transitional it is successful and it would be a tragedy if the nation's oldest civil rights sascha were to be used to at the very moment of its greatest acres and a mule to the creek players to get their start in life a travesty to apply that to straight down this remedial program of a private school of exactly the kind the congress deputize other native hawaiian educational going as asians to apply all the time we're playing to correct you haydn's for me that result under the currently deferential scrutiny taking all five factors into account is a private school and takes no federal dollars is a remedial program his education he through twelve designed to take students who are made fun of when they go to school sigman times for their long and difficult to pronounce names and for their language and their fate taking them into the command of man building giving them an opportunity to become leaders of their society if education context matters their indigenous we've discussed that and it's been but the courts have also been absolutely crystal clear that remedial for this purpose means ranitidine discrimination with in the energy under challenge  decided just last year has said that private and it may remedy internal imbalances and the district court itself recognise that title seven has an inherently internal focus changing the preference because as the district court found the goal of schools is to educate all native hawaiian children but in one hundred seventeen years they reach only seven percent of their goal i don't know how  should have a special program over here and native hawaiian children over here in other words that while there's an overall diversity it might take place in different physical locations or different institutions is that a forbidden kind of thinking i would say  means what it always meant what it will mean in the future until congress through legislation changes that and the supreme court has told us that section nine hundred eighty one or b is discrimination for or against clear the regular rules apply and for that reason when you submit a judge of the district course the reverse thank you very much