Here's a weird historical irony: Right around the same time that the country observed the 40th anniversary of the landmark civil rights legislation, the Voting Rights Act, a court has ruled against a Hawaiian school sytems' longstanding preferential policy toward ethnic Hawaiians:
A 117-year-old policy of admitting only Native Hawaiians to the exclusive Kamehameha Schools amounts to unlawful racial discrimination, a federal appeals court has ruled.
Overturning a lower court, a panel of the 9th U.S. Circuit of Appeals in San Francisco ruled 2-1 Tuesday that the practice at the private school violates federal civil rights law even though the institution receives no federal funding….
The Kamehameha Schools were established under the 1883 will of a Hawaiian princess to educate "the children of Hawaii." The admission policy was created to remedy the disadvantages suffered by Hawaiians after the overthrow of the Hawaiian monarchy.
But the appeals court judges said they "do not read that document to require the use of race as an admissions prerequisite."
About 5,100 Hawaiian and part-Hawaiian students from kindergarten through 12th grade attend the three campuses, which are partly funded by a trust now worth $6.2 billion. Admission is highly prized in Hawaii because of the quality of education and the relatively low cost.
The case was brought by an unidentified non-Hawaiian student who was turned down for admission in 2003….
Non-Hawaiians may be admitted if there are openings after Hawaiians who meet the criteria have been offered admission, school officials have said.
Whole AP story, via San Jose Merc-News, here.
The school has signalled that it will seek a full decision from the appeals court and go to the Supreme Court if necessary.
Here's one complication: The school system is private, which showcases one complication of the civil rights legislation passed in the early- to mid-'60s: In the name of eradicating discrimination in all corners of American society, it eroded the distinction between private and public spaces, classifying businesses (including schools, country clubs, restaurants, hotels, and more) as public.
The rationale for that was straightforward: Such places were where huge amounts of discrimination took place. But by moving beyond places where the state (at whatever level) was acting in a discriminatory way, the laws effectively destroyed the possibility of outfits such as the Kamehameha Schools. That sticking point was the reason that principled libertarians such as Barry Goldwater were against the '64 Civil Rights Acts. Goldwater, who had helped integrate various aspects of Phoenix life in the '50s and '60s and who had supported local civil rights laws that banned discriminatory governmental policies noted that the '64 act "reintroduces through the back door the very principle of allocation by race that makes compulsory segregation morally wrong and offensive to freedom…Our aim, as I understand it, is neither to establish a segregated society nor to establish an integrated society…It is to preserve a free society."
It's worth recapturing just how odious and poisonous race relations were even in the mid-'60s. Private discrimination in housing, education, and other areas was widspread. And so was public discrimination too: Virginia's Prince Edward County, for instance, went so far as to close its public schools from 1959 to 1963 rather that integrate.
While I agree with the basic Goldwater position, I also think it's extremely easy to see why legislation passed at the time failed to respect any distinction between public and private space, especially when a lot of the opposition to civil rights legislation came not from principled types like Goldwater but from racist opportunists ranging from Strom Thurmond to Watkins Abbit and others. These guys were not about maintaining a "free society" predicated upon limited government and maximum individual freedom: They were about maintaining an odious status quo.
A while back in Reason, maverick legal theorist Richard Epstein asked whether affirmative action can be reconciled with liberal individualism. His suprising answer is here.