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Kamehameha School Racially Exclusionary Admission Policy, and Tax-Exempt Status, in View of Rice v. Cayetano


(c) Copyright 2000 - 2012 Kenneth R. Conklin, Ph.D. All rights reserved

SUMMARY: Kamehameha School Racially Exclusionary Admission Policy, and Tax-Exempt Status, in View of Rice v. Cayetano. Kamehameha Schools, formerly known as Bishop Estate, has assets somewhere between $8-15 Billion, and is the largest private landowner in Hawai'i. Theoretically, its sole reason for existence is to operate forever a small network of private schools under the Will of Princess Bernice Pauahi Bishop, a 19th Century descendant of Kamehameha the Great. The trustees of this tax-exempt charitable trust have successfully maintained a race-based admissions policy that requires all students to have at least one drop of Hawaiian native blood. For four decades prior to 2002 this admissions policy was 100% successful in keeping out anyone lacking a native Hawaiian ancestor, and for seven decades before that there were only exceedingly rare exceptions. In 2002 school officials announced that one white boy with no native ancestry had been admitted to the Maui campus after there were not enough qualified ethnic Hawaiians to fill every opening. A major uproar among parents and thousands of alumni produced a pledge from the trustees to modify admissions procedures to zealously defend the race-based policy. In 2003 two lawsuits were filed seeking to force the admission of two well-qualified white applicants. One of those applicants had been accidentally admitted and then had his admission rescinded at the last minute when it was discovered that his mother had been adopted into an ethnic Hawaiian family but did not herself have native blood. The judge ordered that student to be admitted temporarily pending the outcome of the lawsuit; and then Kamehameha settled that lawsuit by agreeing to let the boy attend the school for all 6 years remaining through graduation. The other case, involving a child whose name is being kept secret, was not settled. U.S. District Court Judge Alan Kay ruled on November 17, 2003 in favor of Kamehameha and dismissed the lawsuit. An appeal was filed in the 9th Circuit Court in January 2004, with oral arguments on November 4, 2004. The appeals-court decision was handed down on August 2, 2005. By a 2-1 vote, the panel of judges ruled that the racially exclusionary policy is contrary to law, and sent the case back to the Honolulu District Court where Judge Kay must consult both sides to decide how to implement that ruling. Deeper analysis, and news coverage since 2000, is provided. In February 2006 the 9th Circuit Court voted to grant Kamehameha Schools' request to have an en banc review of the 3-judge decision (by a panel of 15 judges). On December 5, 2006 the 9th Circuit Court of Appeals handed down its en-banc decision. They voted 8-7 to reverse the 3-judge panel and to uphold Kamehameha's admissions policy. That decision was appealed to the U.S. Supreme Court in a petition for certiorari filed in March 2007. On Monday May 14, 2007 it was announced that Kamehameha had reached a settlement with the plaintiff whereby the petition for certiorari was withdrawn. Shortly thereafter, Honolulu attorney David Rosen began seeking a group of plaintiffs to try again, with an understanding that they would never settle the case. In 2008 it was revealed that Kamehameha had paid $7 to settle the Supreme Court case moments before certiorari would have been granted. And Attorneys Eric Grant and David Rosen did file their new lawsuit to desegregate Kamehameha Schools. During 2009 the Honolulu District Court ruled that the four plaintiff children cannot remain anonymous despite fear of violence; and that decision was appealed to the 9th Circuit Court. In 2010 and 2011 the U.S. Supreme Court refused to hear the case about anonymity; and the Doe family agreed to pay Kamehameha one million dollars plus $400,000 legal fees for breach of the confidentiality agreement during 2008.

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Why do civil rights activists oppose Kamehameha Schools' racially exclusionary admissions policy? Do they hate Hawaiians? Are they jealous of Hawaiians getting a good education at a low price? What is their motivation? A new book published March 2007 puts the Kamehameha Schools controversy into the "big picture" of racial separatism in Hawai'i and how our beautiful rainbow society is being ripped apart. The book also describes the role of Kamehameha's Policy Analysis and Systems Evaluation (PASE) division in doing junk science to develop victimhood statistics to feed the tycoons of the Hawaiian grievance industry.

"Hawaiian Apartheid -- Racial Separatism and Ethnic Nationalism in the Aloha State" (a new book by Kenneth R. Conklin, Ph.D. 302 pages. See cover, detailed table of contents, and entire Chapter 1, plus information on how to order the book; at http://tinyurl.com/2a9fqa

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HISTORICAL OVERVIEW

Kamehameha Schools, formerly known as Bishop Estate, has assets somewhere between $8-15 Billion, and is the largest private landowner in Hawai'i. Theoretically, its sole reason for existence is to operate forever a small network of private schools under the Will of Princess Bernice Pauahi Bishop, a 19th Century descendant of Kamehameha the Great. But although the princess donated huge tracts of land, some of which were very valuable; her husband, the haole Charles Reed Bishop, donated far more money to Kamehameha School than the value of all his wife's land; and in addition he established Bishop Museum and donated large sums to Queen's Hospital. See:
http://www.angelfire.com/hi5/bigfiles3/BishopCharlesRavlonitis.html

The trustees of this tax-exempt charitable trust have successfully maintained a 100% racially exclusionary policy for four decades prior to 2002, and for seven decades before that there were only exceedingly rare exceptions. The exceptions were noted in a booklet published by the school's Office of Strategic Planning for the "Fourth Annual Cycle of Community Advisory Meetings, 2002-2003." At that time school officials were trying very hard to respond to a massive outpouring of complaints from alumni who objected to the admission of a single "non-Hawaiian" student for the Fall 2003 8th grade at the Maui campus.

The booklet notes the exceptions as follows:

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Correspondence from Mr. Bishop to Dr. C.M. Hyde on February 11, 1897: "Nothing in the Will excludes non-Hawaiian boys and girls from applying. Students of native blood will have preference as long as they avail themselves of the privileges open to them."

Further correspondence from Mr. Bishop to Trustee S.M. Damon on February 20, 1901: " ... the preference to Hawaiians of pure or part aboriginal blood applies only to education of orphans and other in indigent circumstances ... Hawaiians having aboriginal blood would have preference, provided that those of suitable age, health, character, and intellect would apply in numbers sufficient to make up a good school ..."

December 26, 1930: Trustees agreed that admitting "whites" would benefit the Hawaiian students.

1931 school year: Too few Hawaiians applied which resulted in the discontinuation of the Hahaione Farm program. Trustees authorized Mr. Midkiff to accept applications from Caucasian boys; Princess Kawananakoa and the alumni representatives were advised of this decision. In response, Princess Kawananakoa and the alumni representatives asked for time to recruit Hawaiian students and the Trustees agreed.

1946 - 1962: Non-Hawaiian children of KS faculty were allowed admission to KS. Practice discontinued in 1962 with the last non-Hawaiian graduating in 1965.

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The Honolulu Advertiser published an article Monday November 17 2003 discussing the issue of admissions standards at Kamehameha School. Much of the article focused on internal debates over whether children should be required to pass stringent academic tests to become part of an elite student body, vs. whether the school should seek a broad cross-section of the ethnic Hawaiian population including low academic abilities as well as children with special needs. This article was published on the day of a major court battle over whether the school should be forced to desegregate; and so the article included a brief outline of the history of the admission of non-ethnic-Hawaiians to the school.

http://the.honoluluadvertiser.com/article/2003/Nov/17/ln/ln15a.html

Excerpt

The federal lawsuits — filed on behalf of Brayden Mohica-Cummings, a non-Hawaiian Kamehameha seventh-grader; and another, unnamed student — contend that admission is a contract between parents and the school and base their claim that the policy violates a post-Civil-War law banning racial exclusion in contracts. But the school has admitted non-Hawaiians in the past, long before the controversial 2002 case involving a student at the new Maui campus. During the school's early years, non-Hawaiians were included to create an academically competitive environment; later, admission was extended to the non-Hawaiian children of faculty members, as an incentive for recruiting teachers. (See timeline.)

1887 — Kamehameha School for Boys opens as a legacy left by Princess Bernice Pauahi Bishop. The will itself does not specify Native Hawaiians as being the target student population, except for a single sentence providing a preference for orphans and indigents who are of "aboriginal blood."

1888 — In his Founders Day address the following year, Charles Reed Bishop, widower of the princess, said the school is intended for capable, industrious and well-behaved youths," adding that "if Hawaiian boys of such character fail to come in, other boys will certainly take their places."

1901 — Bishop responds to the trustees request for clarification on Pauahi's intent. "Hawaiians having aboriginal blood would have preference," Bishop replied, "provided that those of suitable age, health, character and intellect would apply in numbers sufficient to make up a good school."

1930 — Trustees agree that admitting "whites" would benefit the Hawaiian students. The following year, they admit two non-Hawaiians, sparking a protest by the alumni association the following year.

1931 — Insufficient applications lead the trustees to allow school administration to accept applications from Caucasians.

1946-1962 — Non-Hawaiian children of faculty are admitted to the school. The practice is discontinued in 1962; the last of these non-Hawaiian students graduates in 1965.

2002 — A non-Hawaiian boy is admitted to the Maui campus, sparking great protest from Kamehameha alumni and racial activists. The Ho'oulu Hawaiian Data Center is established to develop a registry of the Hawaiian population and to certify the Hawaiian ancestry of applicants.

2003 — Two separate lawsuits challenging the Kamehameha admission policy are filed. One of those lawsuits is settled but the other one goes forward and is the focus of events through 2007.

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Samuel P. King and Randall W, Roth, "Broken Trust -- Greed, Mismanagement & Political Manipulation at America's Largest Charitable Trust" (Honolulu: University of Hawai'i Press, 2006). On page 286 the following items are published:

"Even before the boys' school opened in 1887, however, the trustees approved a 'prospectus' that said the boys' and girls' schools 'will not be exclusively Hawaiian.' According to the trustees at that time, 'The noble minded chiefess who endowed the Kamehameha Schools put no limitations of race or condition upon her general bequest.' ...

In 1924 the Bishop Estate master, Charles S. Davis, wrote that Kamehameha Schools 'must be maintained not as Hawaiian schools, but as schools to which all children of all races in the territory may be admitted.' But the attorney general and probate judge at that time saw things differently. They concluded that Davis had 'underestimated the provision of the will which [authorized the trustees] ... to regulate the admission of pupils.'

On page 287 the following items are published:

"In a 1972 concurring opinion, Hawai'i Supreme Court Justice Kazuhisa Abe addressed the admissions question from a purely legal point of view:

'As a matter of the interpretation of the will, it seems unquestionably clear that Mrs. Bishop dod not intend to establish a school which would completely exclude all persons who lack Hawaiian ancestry. Indeed, the language seems so clear in its intention that it is rather startling that it was ever interpreted otherwise.'"

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On August 2, 2005 the three-judge panel of the 9th Circuit Court of Appeals handed down its 2-1 decision outlawing Kamehameha's admissions policy. In that ruling there were important comments about whether the Will of Bernice Pauahi Bishop actually requires a Hawaiians-only admissions policy. The dissenting judge never dissented from the accuracy of these comments. Later, in the 8-7 en banc decision, none of the judges ever dissented from these findings of fact. The complete August 2, 2005 ruling can be found at the following URL, and the page numbers below refer to this document

http://www.angelfire.com/hi5/bigfiles3/Kamehameha9thCircuit070205.pdf

Here's what the three judges unanimously wrote about the Will: "Pauahi's will contains several instructions pertaining to the administration of the Kamehameha Schools, none of which establish race as an admissions criteria." (pages 5-6) "... She further instructs that a portion of the trust’s annual income should be devoted 'to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood.' Pauahi Bishop Will at 18. While this racial preference is expressly listed as a criterion for the administration of estate resources charitably directed to orphans and indigents, the Will is notably devoid of any mention of race as a criterion for admission into the Kamehameha Schools. As the Schools’ 1885 Prospectus observed: 'The noble minded Hawaiian chiefess who endowed the Kamehameha Schools, put no limitations of race or condition on her general bequest. Instruction will be given only in English language, but The Schools will be opened to all nationalities.'" (page 6). Footnote #2 on page 6 adds: "Similarly, in a February 11, 1897 letter, Charles Bishop noted: 'There is nothing in the will of Mrs. Bishop excluding white boys or girls from the Schools . . . .' In a February 20, 1901 letter he further stated: 'According to the reading of Clause 13 on Page 8 of the Will as published, the preference to Hawaiians of pure or part aboriginal blood, applies only to education of orphans and others in indigent circumstances.'" And again, on page 40 in summarizing the decision, the judges wrote: "[14] We emphasize that our ruling today is a narrow one. We conclude only that the plaintiff-appellant has met his burden of establishing the invalidity of the racially exclusionary affirmative action plan in place at the Kamehameha Schools, as that plan currently operates as an absolute bar to admission for those of the non-preferred race. Nothing in our decision, however, implicates the validity of the Pauahi Bishop Will, as we do not read that document to require the use of race as an admissions prerequisite. Consequently, we affirm the entry of summary judgment for the Bernice Pauahi Bishop Estate and its individual trustees."

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In 2002 one non-Hawaiian, Kalani Rosell, was admitted to the 8th grade on Maui, perhaps by accident (his name sounded Hawaiian) or perhaps as a deliberate strategy to avoid IRS and USDOE scrutiny of its racially exclusionary policy that might cause a loss of its tax-exempt status (and eventually a court order to desegregate). The admission of a single non-Hawaiian student caused an uproar among alumni of the school, and Hawaiian racial activists, who demanded the school retain its exclusionary policy. In 2003, once again, no non-Hawaiians were admitted. A lawsuit was filed in June 2003 against the admissions policy on behalf of a well-qualified and economically needy student denied admission solely because of race.

This webpage reviews the history of Kamehameha Schools, its racially exclusionary admissions policy, and the question whether the Will of Princess Pauahi requires that policy. Some analysis is provided, showing that the racially exclusionary policy is vulnerable to attack following the Supreme Court decision in Rice v. Cayetano, which clearly identified "Hawaiian" and "Native Hawaiian" as racial designations and not political entities. Interestingly, the trustees have repeatedly made explicit decisions to keep the exclusionary policy even if it results in the loss of the tax exempt status at a cost of hundreds of milliions of dollars. During the decade prior to the 2002 controversy, school officials and Hawaiian activists repeatedly asserted that the Will of the Princess required the exclusionary admissions policy. But the plain language of the Will says otherwise, and the historical information provided in the booklet for community meetings in 2002 shows that the school did in fact occasionally admit children with no native blood prior to 1962. Zealous defenders of the school's exclusionary policy also point out that the school is private and not tax-supported (although it receives an exemption from hundreds of millions of dollars of taxes annually because of its status as a tax-exempt charitable foundation). And they add that virtually all racial groups are represented in the ancestry of Kamehameha students, due to intermarriage of their native Hawaiian ancestors. Thus, some questions that will need to be litigated include these: whether a private school can engage in a race-based admissions policy when a public school clearly could not; and whether the tax exemption exposes the school to a requirement for desegregation; and whether the school could operate with its exclusionary admissions policy if it were to give up the tax exemption; and whether the requirement FOR a specific ancestry (Hawaiian) is racially discriminatory to the same extent that an exclusion of a specified racial group (as an all-white school excluding all African-Americans) would clearly be discriminatory.

Recent developments regarding Kamehameha School's admissions policy are described and analyzed first. However, these recent developments might not make sense to newcomers or to people outside Hawai'i. If you are unfamiliar with this school's history and its long-standing racially exclusionary admissions policy, you might want to begin with "Introduction" and the pages following that, and then read the "recent developments" afterward.


RECENT DEVELOPMENTS:

Was Kamehameha School taking its first baby step toward desegregation in July 2002? One token non-Hawaiian was admitted, sparking a huge protest from school alumni and Hawaiian sovereignty activists.

In 2003 Kamehameha Schools publicly reaffirmed its racially exclusionary admissioins policy, and in fact admitted only ethnic Hawaiians. A lawsuit was then filed in federal court on behalf of a well-qualified student rejected solely because of race.

In 2004 the continuing soap opera of Kamehameha Schools continues. The school vigorously maintains its racially exclusionary admissions policy, while one of two lawsuits filed in 2003 moves to the 9th Circuit Court of Appeals.

From January through July of 2005 there was no significant news on this topic. Kamehameha zealously maintained its admissions policy, "adjusting" its admissions standards and doing outreach to the ethnic Hawaiian community to make sure there would be enough eligible ethnic Hawaiian applicants to fill all available slots and to make sure the applications were carefully scrutinized for proof of native ancestry. Everyone was nervously awaiting the decision of the appeals court, not knowing how long that would take.

On August 2, 2005 the decision finally came down. By a 2-1 vote, the panel of judges ruled that the racially exclusionary policy is contrary to law, and sent the case back to the Honolulu District Court where Judge Kay must consult both sides to decide how to implement that ruling.

The 45-page decision in pdf format can be downloaded from:

http://www.angelfire.com/hi5/bigfiles3/Kamehameha9thCircuit070205.pdf

Complete coverage of the appeals court ruling, and the reaction from Kamehameha Schools and the community, can be found at:
http://www.angelfire.com/hi2/hawaiiansovereignty/kamschool2005.html

Kamehameha 9th Circuit Decision: the "Big Picture" and Some Brush-Strokes (demolishing Hawai'i's wall of apartheid one brick at a time)

In February 2006 the 9th Circuit Court of Appeals voted to hold an en banc review of the 3-judge decision of August 2, 2005. See news and analysis for Kamehameha Schools 2006 (especially focusing on the U.S. 9th Circuit Court of Appeals en banc review of the 9th Circuit 3-judge ruling ordering Kamehameha to desegregate)

On December 5, 2006 the 9th Circuit Court of Appeals handed down its en-banc decision by a panel of 15 judges. They voted 8-7 to overturn the 3-judge panel and to uphold Kamehameha's admissions policy. Here is the full text of the 110-page en-banc decision in pdf format directly from the 9th Circuit Court website. The first 53 pages are the majority ruling, and the last 57 pages are the minority dissents.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/53333A1C2A376D138825723B005F9EE5/$file/0415044.pdf?openelement

Complete coverage of the events of 2006, including news reports and commentary, are at:
http://www.angelfire.com/hi2/hawaiiansovereignty/kamschool2006.html

The 9th Circuit en-banc decision was appealed to the U.S. Supreme Court. Attorney Eric Grant, for plaintiff Doe, filed a petition for certiorari in March 2007, followed by Kamehameha arguments against granting certiorari. Grant's petition and supplementary materials are available. The Supreme Court had the petition for certiorari on its docket for its weekly conference for three weeks; and then it was announced that the parties had reached a settlement and the petition was therefore dismissed by agreement. During summer of 2007 Honolulu attorney David Rosen announced that he was seeking plaintiffs who would agree never to settle the lawsuit so that the Supreme Court would actually hear the case; but by the end of 2007 there had been no news about the progress of Mr. Rosen's efforts. Complete coverage of the events of 2007, including news reports and commentary, are at:
http://www.angelfire.com/planet/bigfiles40/kamschool2007.html

For news reports and commentary about events during 2008, see:
http://www.angelfire.com/planet/big60/kamschool2008.html

For news reports and commentary about events during 2009, see:
http://www.angelfire.com/big09a/kamschool2009.html

For news reports and commentary about events during 2010, see:
http://www.angelfire.com/big09a/kamschool2010.html

For news reports and commentary about events during 2011, see:
http://www.angelfire.com/big09/kamschool2011.html

For news reports and commentary about events during 2012, see:
http://www.angelfire.com/big09/kamschool2012.html


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INTRODUCTION: What are Kamehameha School and Bishop Estate? A brief history and description of the school, how it was founded, what its purpose is, and recent problems


THE ADMISSIONS POLICY RACIAL ISSUE: Is the Kamehameha School's admissions policy racially exclusionary? Why does the school have this policy? Is the policy racist? Is it required by the Will of Princess Pauahi?


THE IMPACT OF RICE V. CAYETANO ON THE ADMISSIONS POLICY, THE WILL OF THE PRINCESS, AND THE IRS TAX-EXEMPT STATUS: What does the Rice v. Cayetano decision say about whether the admissions policy is racist? Will the school be able to keep its admissions policy and still keep its tax-exempt status? Will the school be able to keep its admissions policy at all, even without the tax exemption? Will the answers to these questions change if the U.S. government recognizes kanaka maoli as being an Indian tribe?


KAMEHAMEHA SCHOOL PLANS TO USE HAWAIIAN CULTURE AS A VEHICLE FOR ETHNIC NATION-BUILDING, WHILE ALSO PARTNERING WITH SELECTED PUBLIC SCHOOLS


THE GREED SHOW or WHO WANTS TO BE A MILLIONAIRE? KS/BE STYLE (Thoughts of a Kanaka Maoli Kupuna)


A lengthy exposee of the history of KS/BE, focusing on a history of greed, can be found at
http://www.the-catbird-seat.net/Bishop.htm

and in general readers might enjoy cruising the mother website at
http://www.the-catbird-seat.net/
for more information about Bishop Estate and Kamehameha Schools, and how they fit into the big picture of greed and corruption both nationwide and in Hawai'i.

A 13-minute segment about Bishop Estate was a featured story on the nationally-broadcast TV program "60 Minutes." The TV exposee featured State of Hawai'i Attorney General Margery Bronster, Randy Roth (one of four authors of a newspaper series that exposed Bishop Estate corruption), and Henry Peters (Bishop Estate trustee and former Speaker of the House in the Hawai'i Legislature). A "real-player" file includes complete video and audio of the 13 minutes of actual broadcast content. Note that from about 11:00 to 11:30, Bronster says Bishop Estate looked into moving itself out of Hawai'i in order to incorporate under a mainland Indian tribe to avoid federal and state taxes on its business activities. It's no secret that Bishop Estate today (i.e., Kamehameha Schools) is strongly supporting the Akaka bill, perhaps because they hope to re-incorporate under the Akaka tribe to protect both the racially exclusionary admissions policy and to get total tax exemption for all business activity. The 13-minute TV exposee can be downloaded at:
http://hpam.hi.net/60minBishop/bishop.rm


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