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:
- 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.
- McDonald v. Santa Fe Trail Transportation
(1976), the Court held that Section 1981 protects
whites as well as minorities.
- 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. |
