New case may clarify court's stand on race

The conservative wing of the US Supreme Court has long expressed its distrust of the use of racial preferences to carry out government policies.

From the drafting of voting districts, to affirmative-action hiring and admissions plans, to minority contract set-aside programs, a thin majority of justices has made clear that any use of race to distribute government benefits will face a skeptical and suspicious court.

On Oct. 6, the issue once again comes before the high court as the justices consider whether a special-purpose election, open only to native Hawaiians, violates the constitu- tional rights of Hawaiians of other races who complain they are excluded from the polls because of the color of their skin.

Some analysts are hopeful the court will use the case to take an even stronger stand against racial classifications and preferences. They warn that race-based programs like Hawaii's, if upheld, could lead to the "wholesale racial balkanization" of the US.

Other analysts argue that Hawaii's exclusive special-purpose elections have nothing to do with racial preferences. They are merely a mechanism to ensure that a government program set up to compensate native Hawaiians for historic injustices is ultimately run by native Hawaiians.

These analysts see the case as a novel test of whether the court will adopt a flexible approach and include native Hawaiians within the same framework of constitutional protections and privileges enjoyed by American Indian tribes.

At issue in the Hawaii case is a state law that set up a $300 million public-trust fund for the benefit of native Hawaiians. The fund was established by Congress and administered by the state in an attempt to compensate the living ancestors of the people who lost much of their land and culture to an expansionist United States in the 1800s.

The trust fund is administered by a board of trustees selected in a statewide election open only to blood relatives of the Polynesian people who populated the islands prior to the arrival of Western ships.

Not all Hawaiians support the concept. Harold Rice is a fifth-generation Hawaiian rancher whose family traces back to missionaries in the islands in the 1800s. Mr. Rice has lived his entire life in Hawaii, but cannot vote for members of the trust-fund board because he is white.

Rice sued in federal court, citing the 15th Amendment, which bars the exclusion of anyone from an election because of the race of the potential voter. He lost, appealed to the Ninth US Circuit Court of Appeals, and lost there too.

But in the process, his plight caught the attention of a cadre of conservative lawyers and right-wing civil rights groups who saw in the case an opportunity for the high court to take a clear stand toward adoption of a completely colorblind approach to constitutional law.

"This case is one more step along the way in what I see as an inevitable conclusion within the next 10 to 20 years when the court says we are all one race in the eyes of government," says Brett Kavanaugh, a Washington-based lawyer who filed a friend-of-the-court brief in the case.

Hawaiian elections, if allowed to continue, would undermine fundamental concepts of equality in America, says Linda Chavez, former director of the US Civil Rights Commission in the Reagan administration and president of the conservative Center for Equal Opportunity.

"If states are allowed to make distinctions between persons on the basis of race in elections it would be one of the most serious assaults we've seen in many years on colorblindness," Ms. Chavez says.

Others say there is nothing wrong with designing a government program to help compensate native Hawaiians whose ancestors were treated unfairly. If the trust fund is established to benefit only native Hawaiians, then only native Hawaiians should vote to elect members of the board, they say.

"From Mr. Rice's viewpoint, this is a case about racial discrimination and voting," says Harry Sachse, a Washington-based lawyer who filed a friend-of-the-court brief for several native Hawaiian organizations. "From the native Hawaiian viewpoint, it is a case about a very decent program set up for no other purpose than to help native Hawaiians."

Mr. Sachse says the same constitutional provisions that permit Indian tribes to conduct Indian-only elections and receive federal aid for Indian-only projects also apply to native Hawaiians. "The word American Indian in the constitutional sense never referred to any particular group other than the people who were here before the Europeans came," he says.

Lawyers for Rice insist native Hawaiians are not the Indians the founding fathers mentioned and protected in the Constitution.

The US Solicitor General's Office says the case is not about race. "Congress does not extend services to native Hawaiians because of their race, but because of their unique status as the indigenous people of a once-sovereign nation," the government's brief says.

Others see a great danger if Hawaii wins. "If the state of Hawaii can identify indigenous people for the purpose of holding special elections, then Texas, Louisiana, Arizona, New Mexico, and others would be able to look at their own indigenous people and allow them special privileges at the voting booth. This is clearly not the direction that America should be going in," says Edward Blum, chairman of the Houston-based group Campaign for a Color-blind America.

(c) Copyright 1999. The Christian Science Publishing Society