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  » The Hawaiian Voyage
   by Thomas K. Kalukukui, Jr.
 
Historical Background
Key Points in Hawaiian History (PDF)
Ke Ali’i Bernice Pauahi Bishop
Will and Codicils
Charles Reed Bishop
Mr. Bishop’s Founder’s Day Speech
   

 

 
Kamehameha Schools
Admissions Challenge
 
LEGAL SUMMARY & DOCUMENTS

 

SUMMARY

The legal claim

In June 2003, a plaintiff identified as "John Doe" filed suit against the Kamehameha Schools, a private educational institution founded through the Last Will and Testament of a Princess in the Hawaiian Kingdom to provide educational opportunities for Native Hawaiian children and funded by the revenues from its private endowment.

In keeping with the wishes of its benefactress, Kamehameha Schools offers admissions preference to applicants of Native Hawaiian ancestry. Doe has sought admission to Kamehameha four times. In at least one instance, he met the scholastic requirements for admission, but was not invited to attend because all of the available spaces were filled by Native Hawaiians under the preference policy. Doe's lawsuit claims the policy violates section 1981 of the Civil Rights Act of 1866. His lawsuit asked the court to (1) order his admission to any of the three Kamehameha Schools campuses, (2) overturn the preference policy, and (3) order Kamehameha to pay unspecified monetary damages.

In November 2003, the lawsuit was dismissed on summary judgment in U.S. District Court in Honolulu. Federal Judge Alan Kay ruled that the policy is legally justified because of Kamehameha's unique circumstances as a private institution that exists to remedy past harms and present imbalances and whose policy is continually reviewed and will be utilized only as long as the manifest imbalances exist. Specifically, Judge Kay ruled:

"[T]his case involves exceptionally unique circumstances involving a private school, which receives no federal funding, with a remedial race-conscious admissions policy to rectify socioeconomic and educational disadvantages of indigenous Native Hawaiians resulting from the influx of western civilization."

"The Court finds the plan has a legitimate justification and serves a legitimate remedial purpose by addressing the socioeconomic and educational disadvantages facing Native Hawaiians, producing Native Hawaiian leadership for community involvement, and revitalizing Native Hawaiian culture thereby remedying current manifest imbalances resulting from the influx of western civilization."

In August 2005, Judge Kay's ruling was overturned in a 2-1 decision by a three-judge panel of the 9th Circuit Court of Appeals. In February 2006, the 9th Circuit Court granted an en banc review of the case, vacating the August panel ruling. Arguments were presented to a 15-judge panel in San Francisco on June 20, 2006. During the arguments, the plaintiff’s attorney acknowledged that his client has graduated from high school.

On December 5, 2006, in an 8-7 ruling, the en banc panel upheld the legality of Kamehameha Schools’ preference policy. In the majority ruling, Judge Susan Graber wrote:

“We took this case en banc to reconsider whether a Hawaiian private, non-profit K-12 school that receives no federal funds violates chapter 1981 by preferring Native Hawaiians in its admissions policy. We now answer “no” to that question and, accordingly, affirm the district court.”

The majority opinion acknowledged the educational imbalances faced by Native Hawaiians are undisputed in the court record, and noted that “Congress has expressly recognized the educational disadvantages suffered by Native Hawaiians and their marginalized status.”

“In view of those facts and congressional findings, it is clear that a manifest imbalance exists in the K-12 educational arena in the state of Hawaii, with Native Hawaiians falling at the bottom of the spectrum in almost all areas of educational progress and success. Furthermore, it is precisely this manifest imbalance that the Kamehameha Schools’ admissions policy seeks to address. The goal is to bring Native Hawaiian students into educational parity with other ethnic groups in Hawaii.”

“[N]othing in the record suggests that educational opportunities in Hawaii are deficient for students, like Plaintiff, who lack any Native Hawaiian ancestry. To the contrary, the same statistical data that portray the difficulties of Native Hawaiian children generally portray much greater educational achievement, in both public and private primary and secondary schools, for children of all other racial and ethnic groups in Hawaii. Those students denied admission by Kamehameha Schools have ample and adequate alternative educational options.”


Our History

Beginning with the arrival of Captain James Cook in 1778, the Hawaiian population was decimated by diseases introduced by foreign contact. Trade and commerce changed the society and the communal land tenure system was replaced by private ownership. Throughout this series of events, Hawaiians became marginalized in their own homeland, and were losing their land, language and cultural identity.

Pauahi, the great-granddaughter and last surviving heir of King Kamehameha I, had no children of her own. So in 1883, Pauahi signed her Last Will and Testament, bequeathing her entire estate - more than 350,000 acres – for the construction and perpetual operation of the Kamehameha Schools to provide the educational opportunities she felt would save her people.

It was an act of kuleana, or responsibility, that was common among the Ali‘i (rulers) of Hawai‘i. Three other Hawaiian ali‘i made similar bequests, leaving their estates to provide healthcare, elder care and care for indigent and orphaned Hawaiian children.

Pauahi signed her Last Will and Testament in 1883, a decade before the Hawaiian monarchy was overthrown fueled by the illegal participation of the United States Military. One year later, she died of breast cancer. The Kamehameha School for Boys opened in 1887 and the Kamehameha School for Girls followed in 1894 - four years before the annexation of Hawaii to the United States.

From the Schools' inception, preference in admissions was offered to all Native Hawaiian applicants, regardless of their family circumstances or socioeconomic status. The policy of preference was enacted by the first Board of Trustees, led by Pauahi's widower, Charles Reed Bishop, who elaborated on her intent in a speech delivered during the Schools' first Founder's Day observance in 1889:

"Bernice Pauahi Bishop, by founding the Kamehameha Schools, intended to establish institutions which should be of lasting benefit to her country...The founder of these schools was a true Hawaiian. She knew the advantages of education and well directed industry. Industrious and skillful herself, she respected those qualities in others. Her heart was heavy when she saw the rapid diminution of the Hawaiian people going on decade after decade and felt it was largely the result of their ignorance...The hope that there would come a turning point, when, through enlightenment, the adoption of regular habits and Christian ways of living, the natives would not only hold their numbers, but would increase again, like the people of other races, at time grew faint, and almost died out... And so, in order that her own people might have the opportunity for fitting themselves for such competition, and be able to hold their own in a manly and friendly way, without asking any favors which they were not likely to receive, these schools were provided for, in which Hawaiians have the preference, and which she hoped they would value and take the advantages of as fully as possible." [Emphasis added].

Today, the Estate of Bernice P. Bishop is valued at approximately $7 billion. Revenue from its commercial land assets and investments fund three campuses, more than 30 pre-schools and an array of educational outreach services that reach 22,500 Hawaiian and non-Hawaiian children at an annual cost that exceeds $200 million. Graduates of Kamehameha Schools have gone on to leadership positions in the military, government, business, medicine, science, culture and the arts, and education.


The arguments

In seeking to overturn the preference policy, John Doe relies on a statute enacted after the Civil War to protect the rights of newly freed slaves in the enactment of contracts. Doe relies on three U.S. Supreme Court rulings to support his claim:

  1. Runyon v. McCrary (1976), the Court applied this law to strike down the admissions policy at 2 private all-white schools that prohibited African Americans from enrolling in the schools. The Court held that enrollment at a private school constitutes a contract for purposes of Section 1981.
  2. McDonald v. Santa Fe Trail Transportation (1976), the Court held that Section 1981 protects whites as well as minorities.
  3. Rice v. Cayetano (2000), the Court held that Native Hawaiians constitutes a race-based classification.

John Doe has also asked that a stricter form of scrutiny normally reserved for government agencies be applied to Kamehameha Schools, a request that both the U.S. District Court and the Ninth Circuit Court of Appeals panel rejected.

Kamehameha Schools argues that as a private school, which accepts no federal or state money, it should be allowed greater leeway in designing remedies to address severe and ongoing educational and socioeconomic imbalances faced by an Indigenous people. (See attached Indicia.) The schools were founded and funded by a ruler within the Kingdom of Hawai’i in an attempt to reverse the near-decimation of her people. The harm to the Hawaiian people continued after the overthrow of the Hawaiian Kingdom and the subsequent annexation of Hawaii to the United States (after two failed attempts and under protest by the Hawaiian people) making the remedy of education provided by Kamehameha Schools even more important.

In interpreting a federal statute, the Court must consider the background and context in which the statue was enacted. Congress has admitted its wrongful participation in the overthrow of the Hawaiian Kingdom, has apologized for its acts and has thus acknowledged a special trust relationship with Native Hawaiians as the Indigenous people of Hawaii. That acknowledgment is implicit in more than 85 federal statutes that established programs and benefits that give preference exclusively to Native Hawaiians; it is explicit in Public Law 103-150, passed in 1993, apologizing for the overthrow of the Hawaiian monarchy and the “suppression of the inherent sovereignty of the Native Hawaiian people.” It is clear that Congress never intended for section 1981 to bar admissions policies such as Kamehameha’s which remedies a history of socioeconomic and educational imbalances for Native Hawaiians.

Kamehameha's preference policy is not an affirmative action program, designed to mirror societal diversity within an institution. Rather, Kamehameha Schools provides a specific remedy for a specific people, preparing Native Hawaiians to take part in providing the diversified leadership necessary for a great society. A decision by the 9th Circuit Court of Appeals against Kamehameha Schools’ preference policy would force Kamehameha to provide services to students who do not need the remedy at the sacrifice of children who do, and for whom the Trust was founded to serve.

The decline of the Hawaiian people was swift and severe. A population estimated to be 800,000 prior to Western Contact in 1778 had dwindled to just 46,000 when Princess Pauahi wrote her will a century later. Kamehameha Schools has been working to fulfill Pauahi's vision to correct the manifest imbalances for 118 years.

Kamehameha's policy of giving preference to applicants of Native Hawaiian ancestry is intended to focus the educational remedy that this unique institution provides on the specific indigenous group that suffered generations of harm in their own homeland. While progress has been made, the job is not finished. The leadership of Kamehameha Schools is determined to protect its right as a private institution to fulfill its mission - to improve the capability and well being of Native Hawaiians through education.


WELL-BEING OF NATIVE HAWAIIANS TODAY

  • Ka Huaka'i
    2005 Native Hawaiian
    Educational Assessment
    Native Hawaiian families suffer from high rates of abuse and violence. (pp. 63) 1
  • Native Hawaiians have higher rates of incarceration than non-Native Hawaiians. (pp. 80-81)
  • Native Hawaiians have among the lowest incomes and highest rates of poverty in Hawaii. (pp. 85-86)
  • Native Hawaiian students are less likely to go on to college than non-Native Hawaiians. In the most recent survey, 12.6% of Native Hawaiians 25 or older had obtained a bachelor's degree or higher compared to a statewide rate of 26.2%. (pp. 125)
  • Native Hawaiian children are more frequently and earlier involved with gangs, drugs, and criminal activity. (pp. 193-206)
  • Native Hawaiian girls have higher rates of teenage pregnancies. (pp. 204)
  • Native Hawaiian students score the lowest among all major ethnic groups on statewide-standardized texts, and the gap between Native Hawaiian students and their peers' increases at higher grade levels. (pp. 261-270)
  • Native Hawaiians are over-represented in special education programs - 18.5% of Native Hawaiian students are in such programs compared to 10.9% of non-Native Hawaiian students. (pp. 278-279)
  • Native Hawaiian children are over-represented among students who are excessively absent from school. (pp. 281-283)
  • Native Hawaiian students are less likely to graduate from high school on time and are more likely to drop out of school than non-Native Hawaiian students. (pp. 361)

1. The findings cited above are extracted from Ka Huaka'i: 2005 Native Hawaiian Educational Assessment. Kana'iaupuni, S.K., N. Malone and K. Ishiboshi. Kamehameha Schools, Pauahi Publications. Honolulu, HI. For background on this report, and to see the report in its entirety, please read Ka Huaka'i.



LINKS TO LEGAL DOCUMENTS AND VIDEOS

June 2003: The Claim

Sept. 2003: The Response

Nov. 2003: The Ruling

June 2004: The Appeal

Nov. 2004: The Appeals Panel Hearing

Aug. 2005: The Appeals Panel Ruling

Aug. 2005: The Appeal

Feb. 2006: En Banc Review Granted

June 2006: En Banc Panel Hearing

December 2006: En Banc Panel Ruling

March 2007: Writ of Certiorari

August 2008: Jacob Doe

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