Kamehameha Schools 2005, August 8 to December 31. News and analysis of events after the 9th Circuit Court decision was handed down, and after the huge August 6 pro-segregation protest of that decision

This webpage is a continuation of the history of the controversy over the Kamehameha Schools admissions policy. On August 2, 2005 the 9th Circuit Court of Appeals handed down a 45-page decision over-ruling Honolulu District Court Judge Kay's earlier decision, and declaring the Kamehameha admissions policy illegal. That 9th Circuit decision, plus about 100 pages of analysis and news coverage, including the huge red-shirt protest of August 7, are available at:

Those who wish to go forward to 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) may go to:

Now begins news and analysis of events after August 7, 2005, ARRANGED IN CHRONOLOGICAL ORDER


Monday, August 8, 2005

Kamehameha Schools weighs 'Plan B'

By Rob Perez

In the hubbub over last week's court decision striking down Kamehameha Schools' race-based admissions policy, one prospect has received scant attention.

What if the institution loses its fight to maintain a preference for admitting only students with Hawaiian blood?

While the legal battle over the 9th U.S. Circuit Court of Appeals ruling could take months and possibly even a year or two to resolve, the possibility that Kamehameha could lose the fight raises a fundamental question of how the school would change.

Many say the question is premature, given the long legal haul ahead and disagreement among legal observers on whether Kamehameha will be successful in getting the decision overturned.

But as with many other aspects of this case, the "what if" scenario generates mixed views — and plenty to ponder for an institution that is Hawai'i's largest private landowner and whose reach extends well beyond its three campuses.

Some say the 9th Circuit's decision, if not reversed, would fundamentally alter the heart and soul of the school.

"This is why it's such a huge issue for them," said Patrick F. Bassett, president of the Washington, D.C.-based National Association of Independent Schools.

Others say the ruling is narrow enough to enable Kamehameha to address the court's concerns while maintaining its core mission of providing educational opportunities to enhance the well-being of Native Hawaiians. "If you get creative, there are ways around" the court's concerns, said Honolulu lawyer James Bickerton, who considers the ruling flawed but is not involved with the case.

At Saturday's rally, Kamehameha trustee Douglas Ing sought to assure supporters that Native Hawaiians will continue to be helped regardless of the outcome of the appeal.

"We are going to fight, we are going to fight to the end, rest assured," said Ing, noting that a "Plan B" is being worked on.

"As trustees, we need to consider the unthinkable that somehow this further appeal may not be successful," Ing said. "If it is not, rest assured that we will have another policy, that we will continue efforts to reach (Pauahi's) intended beneficiaries, na pua o Hawai'i."

Ing did not elaborate on what "Plan B" might entail, but said, "Even if we're not successful at the next appellate level, there shall be no end. ... We can, and we shall, reach more and more children and provide them with educational benefits."

Kamehameha's admissions policy was struck down in a 2-1 court decision, with the two judges saying it amounted to an "absolute bar" on anyone not having Hawaiian blood and therefore violated federal civil rights laws.

Kamehameha has vowed to fight the decision to the U.S. Supreme Court if necessary, arguing that the policy is an affirmative action program that helps address socioeconomic and educational disadvantages among Native Hawaiians.

The ruling angered many of the school's supporters, who see it as yet another strike against Native Hawaiian interests.

Even if the institution were forced to change its admissions policy, some parents who have children at other schools say they would be reluctant to have their kids apply to Kamehameha, mostly out of respect for its mission.

"I think since it was established for the Hawaiian people, it should be kept for the Hawaiian people," said Big Island resident Jennifer Cook, whose son is a junior at a public high school. "I wouldn't want to breach that."

If the court decision is not reversed, the essence of the school ultimately would be changed, Bassett said. He likened a private school's mission to a three-legged stool, with one leg representing who you are, the other representing why you exist and the third representing who you serve. "If you change any one of those legs, it's not the same school anymore," Bassett said.

Bassett said the main question is whether Kamehameha would be able to serve the Native Hawaiian community as well as it does now should the ruling stand. Some changes could be made that likely would result in mostly Hawaiian students applying to the school, Bassett and others said. All students, for instance, could be required to take Hawaiian to fulfill a language course requirement. Currently, Kamehameha high school students can choose from several languages, including Hawaiian.

Eric Grant, the Sacramento, Calif., attorney representing the teenager who challenged the admissions policy, said talk of the court decision fundamentally changing the institution's mission amounts to hyperbole.

"It's the doomsday scenario," Grant said. "You try to tell people if you don't go my way, it's going to be doomsday."

He said the court case challenged a race-based admissions policy, not the school's mission.

Bickerton said because the ruling cited a civil rights statute that prohibits discrimination based on race, the school may be able to adopt an admissions policy based on "political classification." That might satisfy the court's concerns and still draw mainly Native Hawaiians.

One possibility: Restrict enrollment to descendants of citizens of the Kingdom of Hawai'i, he said. Up until the overthrow of the kingdom in 1893, most citizens here were Native Hawaiians, so such a policy would limit enrollment mostly to people of Hawaiian ancestry, Bickerton said.

"I don't believe the court's decision requires Kamehameha Schools to completely integrate (its enrollment) and give an equal opportunity to everybody," he said.

University of Hawai'i law professor Jon Van Dyke, who supports the school's admissions policy, said Kamehameha officials should be allowed to decide who to accept as students. "If they want to admit non-Hawaiians, that's fine," he said. "Over the years, they have. But that should be their option."

Advertiser staff writer Gordon Y.K. Pang contributed to this report.


Honolulu Advertiser, Tuesday, August 9, 2005

Non-Hawaiian won't attend Kamehameha

By Ken Kobayashi
Advertiser Courts Writer

A non-Native Hawaiian senior won't be able to enroll immediately at Kamehameha Schools and may never get a chance to attend the private school.

Sacramento, Calif., lawyer Eric Grant, who represents the unnamed youth, asked the 9th U.S. Circuit Court of Appeals to order the school to accept the teenager this fall.

The decision is clearly a setback for the student, who is about to enter his senior year in a public high school. Classes for seniors start on Kamehameha's Maui campus on Thursday and on the school's Kapalama and Big Island campuses Aug. 18. The next step of the legal process could last more than a year.

Grant said he and his client were still considering their next move, which may include asking the court to immediately send the case back to the federal District Court, which originally heard the case. Grant said he remains confident he can get a ruling this month. "One way or the other, we will have an answer," he said. "We think the answer will be in our favor."

Supporters of the admissions policy hailed yesterday's development. One said it relieves the youth from being placed in "a very uncomfortable position." Grant, however, said the boy still wants to attend Kamehameha Schools.

The request to enroll the student this fall was filed in the wake of the court's 2-1 decision last week declaring that the school's admissions policies amounted to a total ban on non-Native Hawaiian applicants and constituted unlawful racial discrimination.

That same three-judge panel who issued the ruling last week rejected the request to admit the student. The panel said Grant could refile the request, but only after the appeals court process is completed and the case is returned to senior U.S. District Judge Alan Kay in Honolulu. The appeals court is headquartered in San Francisco.

The appeals court's split decision last week created an uproar at Kamehameha Schools and among its supporters, who believe the admissions policy is at the heart of the $6 billion institution created by the 1884 will of Princess Bernice Pauahi Bishop.


The appeals panel majority rejected the school's argument that the policy was protected as an affirmative action program aimed at dealing with socio-economic and educational disadvantages among Native Hawaiians. On Saturday, an estimated 20,000 people rallied, attended prayer services and marched on several islands in support of the school.

Under federal court rules, the appeals court process could take several weeks, assuming Kamehameha Schools' request for a larger panel to review the case is denied outright. However, if the request for a rehearing "en banc" — by 11 9th Circuit appeals judges — is granted, it could take a year or longer before a final decision is rendered, which would be after the youth is scheduled to graduate.

Ann Botticelli, Kamehameha's vice president of community relations and communications, said it's "appropriate" the appeals court has left the matter with the district judge here.

Marion Joy, vice president of Na Pua a ke Ali'i Pauahi, an organization of stakeholders, alumni, parents and students of Kamehameha Schools, said she "breathed some relief" at the latest court ruling. "They have taken him (the unnamed student) out of a very uncomfortable position at this point which we don't wish any child to have to undergo," said Joy, a 1961 graduate of the school. "There are larger issues that need to be addressed in terms of ways to work on restoring justice. I don't think it's a good position to even place a minor in with this wave of emotions besetting the community. I cannot fathom any parent willing to place a child in the midst of such controversy and enraged emotions."

Steve Reelitz, president of the school's O'ahu Alumni Association, called yesterday's decision "great news." "I just think every win in our corner is positive," said Reelitz, who also works for Kamehameha Schools' Ke Ali'i Pauahi foundation. "Every little piece of affirmation is a good thing. It gives hope and helps us to continue on in this fight."

Peter Kama, who serves on several Native Hawaiian boards, said he was "very happy" about the decision. He said he knew the school was preparing to take care of the student if he were allowed to attend — "he'd be treated just like any other student" — but he said this decision is better for the boy. "It's not the child's problem," said Kama, a 1953 Kamehameha graduate and one of the founders of a group that advocates for Hawaiian Homelands applicants. "It's a problem between the legal beagles and the school administration. Children should never be dragged into this."

Despite the rallies and marches, Grant said, his client and the child's mother still want him to attend the school. The student is identified only as "John Doe" in court papers. He has been trying to get into Kamehameha Schools since he was a freshman, his lawyers have said. "We talked about this more than two years ago," Grant said. "We talked about (how) there would be opposition and there would be difficulty. And both the mother and, to his credit, the student himself realize this is an important issue. "It's important not just for him and his family, but other people in Hawai'i, other people in their situation, other people who want to be treated without regard to race and ancestry."

Yesterday's one-sentence decision by the panel did not elaborate on the reasons, but it affirmed the general rule that the enforcement of the appeals court decision is left to the trial or district judge after the appeals process is completed. "That makes perfect sense," Grant said. "District courts do these kinds of things regularly."


The ruling means Kamehameha Schools does not have to respond by this week to Grant's request for the court order, which he had argued was necessary because the challenge to the appeals court decision likely would be pending for a "significant period of time."

The school's lawyers must now prepare request for a hearing by 11 appeals court judges. Under federal court rules, they have until later this month to file the request, which will automatically postpone the enforcement of the panel's decision. If any one of the appeals court's 28 judges believes the matter should be put to a vote, the judges will be given the opportunity to decide whether to grant the rehearing.

If a majority votes for a rehearing, 11 judges from the 9th Circuit would be randomly selected to review the ruling and issue a decision, a process that could take longer than a year.

The earliest the case could be returned to Kay under federal rules is if none of the judges believe the matter should come up to a vote, a process that still could take several weeks.

Although en-banc hearings are rarely granted, some lawyers who support the admissions policy say the school has a good chance of getting a rehearing in view of the split 2-1 vote and the significance of the case as it affects private educational institutions. But lawyers also say there's no way to predict the outcome of the 11-member panel's vote, since no one knows at this point which judges will be selected to rehear the case.


Honolulu Star-Bulletin, Tuesday, August 9, 2005

Ruling gives Kamehameha time
The 9th U.S. Circuit refuses to force the school to admit a non-Hawaiian student right away

By Sally Apgar

A federal appeals court denied a request yesterday to compel Kamehameha Schools to admit a non-Hawaiian 12th-grader this year, pending his challenge to the school's Hawaiians-only admissions policy.

Eric Grant, a Sacramento, Calif., attorney representing the unidentified student known as "John Doe" in the case Doe v. Kamehameha, filed a motion last week asking the 9th U.S. Circuit Court of Appeals to admit John Doe to the school while the case is being appealed.

"We sincerely hoped the court would voluntarily agree to let him in while this is being appealed, which is a lengthy process. It's no skin off their teeth, but it's a very serious matter for him," said John Goemans, a Big Island attorney who is working with Grant.

While yesterday's decision has direct consequences for the education of John Doe, who would also like to be eligible for Kamehameha's scholarships for college and graduate school that cap at $10,000 a year, the decision could also affect the far larger issues of constitutionality of the admission policy.

In a one-sentence ruling, the 9th Circuit said, "The motion for injunction pending appeal is denied without prejudice to renewal following any proceeding that may be conducted by the district court subsequent to the issuance of the mandate."

Kamehameha spokesman Kekoa Paulsen said: "It's gratifying that the court recognizes that this question or case has not been resolved and that the court is not jumping to any conclusions. This case has never been about a single child, but has been about protecting a policy that has been in place for 117 years. And it's about protecting the rights of thousands of Hawaiian children to come."

Last Tuesday, the 9th Circuit, in a 2-1 vote, overturned the Hawaiians-only admission policy that had been upheld in a lower federal court in Hawaii, saying that it violated federal anti-discrimination laws. The school presented, on narrow affirmative action grounds, an argument that many legal scholars say does not apply to the bigger issues that could dismantle other programs specifically benefiting native Hawaiians.

Meanwhile, the school has vowed to appeal the ruling, either through a rehearing process at the 9th Circuit level called an "en banc" hearing or by going directly to the U.S. Supreme Court.

Since the appeal put the court's ruling on hold, John Doe's attorney, Grant, requested the injunction, asking the court to compel the school to admit Doe for his senior year. Last week, Grant also asked the trustees to accept a voluntary agreement to take the student. On Wednesday the trustees voted unanimously to deny Doe's admittance. And yesterday, the appeals court did the same.

"We would have preferred for the 9th to outright order he be admitted, but we understand that it is normal practice for these motions to be heard in district court (the lower federal court in Hawaii in this case presided over by Judge Alan Kay)."

Hawaii Attorney General Mark Bennett, who along with the Lingle administration has supported many Hawaiian programs, said he was not surprised by the decision. "It was expected procedurally," said Bennett, explaining that the appeals court is looking forward to the rulings of the en banc hearing and considers such motions made on the specific behalf of John Doe as the jurisdiction of Kay and the federal district court in Hawaii.

Kamehameha is expected to file a request, perhaps as early as this week, for an en banc hearing with the 9th Circuit. If a majority of the 28 judges sitting on that court votes in favor of Kamehameha's request, then a panel of 11 judges rather than the original three will review the case and hold hearings.

Such en banc hearings are rarely granted, say legal experts. The school could also appeal to the U.S. Supreme Court.

Bennett said yesterday that the Lingle administration, on behalf of the state, plans to swiftly file a "friend of the court" brief urging the court to hold an en banc hearing.

Roy Benham, an active Kamehameha alumnus who graduated in 1941, said, "The ruling is good for the child and good for the school. The child shouldn't change schools at senior year."

Several other native Hawaiians agreed with Benham that granting Doe entrance at senior year was a disservice to him.

Lilikala Kame'eleihiwa, a professor at the Center for Hawaiian Studies at the University of Hawaii-Manoa, said: "It's a wonderful decision. If Grant had prevailed and for John Doe to come in as a senior would have been unfair to him. What about prerequisites like two years of Hawaiian language? He would have to stay another year."

But apart from the decision's meaning for Doe, Kame'eleihiwa said "all Hawaiians will feel vindication with this decision. There are many schools for John Does to go to and so few that are welcoming to Hawaiians." Kame'eleihiwa said: "There are DOE schools (state Department of Education public schools) where they can't pronounce our names and make fun of the names. That's not welcoming and it's institutionalized racism. Kamehameha and the Hawaiian charter schools are the only places many Hawaiian children feel they belong." She added, "So many Hawaiians want that experience of Kamehameha and education that they feel outrage the court would force open the door for others when so many Hawaiians still need it." "Give us 20 years of taking care of our children, then we will take care of everybody else," she said.


Honolulu Advertiser, Wednesday, August 10, 2005

Last effort made for admission

By Ken Kobayashi
Advertiser Courts Writer

The lawyers for a non-Hawaiian student filed a new request with the 9th U.S. Circuit Court of Appeals yesterday to get the boy admitted to Kamehameha Schools. But they acknowledge the request is rarely filed, and it'll be up to the appeals court to decide whether "exceptional circumstances" warrant a departure from the way appellate cases are usually handled.

Kamehameha Schools officials said they will oppose the request, and some members of the legal community said it's not likely the court will grant the motion.

One of the lawyers, Eric Grant of Sacramento, Calif., said the case represents "extraordinary circumstances," and that "there's an emergency that requires immediate action."

On Monday, the court denied the lawyers' request for an injunction ordering the schools to immediately enroll the boy. The court said they could file it later before the U.S. District Court in Hawai'i, but after the appellate process is completed and the case returned to the Hawai'i court.

In the request filed yesterday, the lawyers asked the appeals court to transfer the case back to the District Court so they can ask a district judge for an order to enroll the boy for his senior year. Classes start this week at Kamehameha's Maui campus and next week at the Kapa-lama and Big Island campuses.

Last week, an appeals court panel ruled 2-1 that Kamehameha Schools' admissions policy constitutes unlawful race discrimination by barring students who don't have Hawaiian blood. The ruling came in a lawsuit filed on behalf of the student, identified as John Doe.

The decision led to marches, prayer services and rallies Saturday by the school's supporters who believe the admissions policy forms the core of the private institution seeking to address the socioeconomic and educational disadvantages among Native Hawaiians.

The boy's lawyers said their client would suffer "irreparable harm" because the school plans to challenge the 2-1 decision, which would "indefinitely" delay the return of the case to the district court.

Grant said this is the final chance for the youth to get into the school. The request said if the case isn't sent back to the trial court, then the appeals court should grant the injunction it denied on Monday.

Some members of the legal community who aren't involved in the case and are familiar with appellate procedure said the boy's lawyers face a steep uphill fight. Thomas Grande, a Honolulu attorney who has handled appellate cases, said it's "very unlikely" the court would grant the latest request. He said the court turned down a request for an injunction on Monday without even asking the school to respond to the motion. The philosophy behind not transferring cases back is to allow the "appellate process to run its course until the final decision is made," Grande said. Lisa Munger, another Honolulu attorney who has handled civil matters before the appeals court, agrees. She said both the request and the granting of such a motion are "extremely rare." "It seeks the same relief as the last motion" for an injunction, she said.

Colleen Wong, Kamehameha vice president for legal affairs, called the new request "highly unusual and unfair." "The court is being asked to set aside the normal rules of judicial process for a single client, and enforce the ruling overturning our policy without first allowing Kamehameha Schools our right to have the case reheard," she said. Ann Botticelli, Kamehameha's vice president for community relations and communications, said the school is preparing to file its request asking the appeals court to convene a panel of 11 judges to rehear the case.


Honolulu Advertiser, Wednesday, August 10, 2005

VOLCANIC ASH [Opinion column]

Hawaiians must now become creative

By David Shapiro

Members of the Hawaiian community rallied Saturday against the Kamehameha Schools ruling.

Of all the words spoken at emotional rallies over the weekend to support Hawaiians-only admissions at Kamehameha Schools, perhaps the most important were stated by schools trustee Douglas Ing: "Plan B."

Hawaiians were rightly aggrieved by the ruling of the 9th U.S. Circuit Court of Appeals that Kamehameha's century-old admissions policy constitutes racial discrimination. As Gov. Linda Lingle said, this decision lacked common-sense justice whatever the legalities, and Kamehameha trustees should pursue every possible legal appeal.

But prudence requires that they also take to heart Ing's warning to "consider the unthinkable that somehow this further appeal may not be successful." Because the fact is, the "unthinkable" already has occurred; rulings at this level seldom are overturned, and there's no guarantee that the 9th Circuit or the U.S. Supreme Court will even agree to hear an appeal.

Passage of the Akaka bill in Congress could possibly change the legal battlefield in Kamehameha's favor by clarifying indigenous Hawaiian rights, but the measure's chances in a hostile Republican Congress are uncertain. Thus the pressing need for a Plan B, which hopefully Kamehameha trustees have been thinking about all along.

Trustees clearly knew that Hawaiians-only admissions were on shaky legal ground in 2002 when they admitted a non-Hawaiian student to Kamehameha's Maui campus as an obvious trial balloon.

It set off furious protests among Hawaiians and demands for the ouster of the trustees.

Instead of acting as leaders and insisting that the painful issue needed to be addressed, trustees quickly backed down and reiterated the Hawaiians-only policy more strongly than ever. This was specifically cited in the adverse ruling of the appeals court.

It's easy to sympathize with Hawaiian resistance to any change in the longstanding admittance policy, since enrollment of even a single non-Hawaiian student means a deserving Hawaiian child is denied a Kamehameha education.

But as a practical matter, this position may no longer be legally defensible. It leaves Hawaiians to decide if they'll devise their own solution that protects Kamehameha's historic mission while passing legal muster — or have a solution imposed on them by unsympathetic outsiders.

They are up against adversaries who don't play nice in their mean-spirited drive to separate Hawaiians from their few remaining assets. These antagonists twist civil rights laws, skew history, distort polls, hire Mainland guns to speak for them on issues that are uniquely local, and drum up legal cases that can yield fees of up to six figures for lawyers leading the movement. Their dubious mantra of "aloha for all" tells all we need to know about how little they understand Hawai'i and the concept that aloha is something to be given, not taken.

Against such opposition, a Hawaiian strategy of marches, petitions and vague threats of "drastic action" is unlikely to prevail.

Hawaiians must become as creative as the other side in using the law to their advantage.

Importantly, the federal appeals court did not order that all races be admitted equally to Kamehameha Schools, just that race not be the overriding consideration in admissions.

This leaves the door wide open for a Plan B basing admissions on culture and other non-racial factors that satisfy the courts while still allowing for very few admissions of non-Hawaiian students.

In devising a fallback plan, Kamehameha trustees must abandon their compulsive secrecy and involve the Hawaiian community in the process.

Hopefully, Kamehameha Schools will win on appeal and there will be no need for a Plan B, but if there is, better it be settled in advance with some semblance of buy-in among Hawaiians rather than fought out at a crisis point with tears and rancor.


Honolulu Star-Bulletin, , Wednesday, August 10, 2005

Under the Sun [Opinion Column]

by Cynthia Oi

Legality, justice aren't necessarily the same

SOMEWHERE in the islands, a teenager awaits the start of the school year with far more on his mind than new clothes and gear, books, classroom assignments and how much homework teachers will unload.

He is "John Doe," the student around whom the legal storm of the challenge of Kamehameha Schools' admission policy swirls. John Doe has attended public schools and will be a senior. Other than that, little is known about him, his identity kept secret because he and his mother are afraid of retaliation and intimidation, his attorney says.

But his name is secondary to what he stands for, an instrument by which activist lawyers and others seek to right what they behold as a wrong -- the exclusion of non-Hawaiian children as beneficiaries of the will of Princess Bernice Pauahi Bishop.

The federal court ruling last week that Kamehameha's policy violated the Civil Rights Act of 1866 unleashed emotional responses from Hawaiians and their supporters that should not have been unexpected.

The institution represents opportunities for education, for a continuation of a culture that at one time had faltered and, above all, hope, a precious commodity for people who had seen themselves at the bottom of every aspect of modern society.

Legality often treads a path divergent from righteousness. Many people in Hawaii have acknowledged the difference, recognized that Hawaiians in days past had a sense of their worth and that their loss wasn't singular, but a deprivation for all who valued the influence of their traditions. They are given an advantage for an education because they face greater disadvantage and their advantage does not necessarily rob others.

Though Kamehameha has yet to spread its favor to all Hawaiians, and had strayed far from its mission until recent years when it expelled corrupt trustees, it has been striving to extend benefits beyond its campuses.

But this is America, where the notion of equality is solidified in law even as it is eroded by the fluidity of power, wealth and human imperfection, where the ideal of a level field slopes in reality toward the strongest.

Kamehameha's $6 billion in assets make the trust a target for legal exploitation. Its admission policy discriminates and its rationale for discrimination is unacceptable to those unsympathetic or uncaring of the cause. The policy may be unlawful, but it isn't wrong; it is not without moral foundation.

Where Kamehameha will now head is unclear. There are many uncertainties, their resolutions dependent on further court rulings and the political whims of Congress, whose members are disposed to trade off doing the right thing for personal interests or for ideological obedience.

Earlier this week, the court rejected John Doe's request to enroll in the school while his case winds its way through appeals and the pace of the legal system practically guarantees he won't set foot on Kamehameha's campuses in time for his senior year.

John Doe, like every young person, should be able to get the kind of high-quality education Kamehameha offers. Whether he is more or less deserving than a child who is Hawaiian isn't the issue. Righting a wrong is.

Princess Pauahi foresaw that the changes that would be brought to Hawaii would put her people and their culture at risk, so she gave them what she thought would best help them, a chance to step up through learning, to gain the knowledge, skills and abilities to survive. It is her will. It discriminates and is deemed illegal, unjust. However, diminishing her endowment to Hawaiians, small as their numbers may be, would be a greater injustice.


Honolulu Advertiser, Thursday, August 11, 2005

Alumni planning march in Bay Area

By Gordon Y.K. Pang

Kamehameha Schools alumni and other supporters will hold a rally and march in downtown San Francisco next week in support of the school's Hawaiians-first admissions policy, according to one of the organizers.

At least several hundred are expected to attend. They will be joined by Kamehameha chief executive Dee Jay Mailer and at least one school trustee; members of the 'Ilio'ulaokalani Coalition, a Native Hawaiian rights group; and others.

The march, set for noon Aug. 20, will go by Seventh and Mission streets, where the 9th U.S. Circuit Court of Appeals sits. The court, in a reversal of a lower-court ruling, decided 2-1 that Kamehameha's preferential admissions policy constitutes unlawful race discrimination.

The case was brought by a boy known only as John Doe who is starting his senior year of high school this fall. Kamehameha is appealing to have more judges of the 28-member court review the decision made by the three judges.

Noelani Jai, a 1983 Kamehameha graduate and an attorney who lives in Southern California, said she was bothered by the court ruling when she read it. After exchanging e-mails with other Kamehameha alumni in California, she quickly realized she isn't the only out-of-state Hawaiian who is unhappy and, on Friday, she decided to talk with others about the march. "All of the sudden it occurred to me one night that we live in California, we live near the 9th Circuit Court, and so I thought it would a perfect opportunity for kanaka maoli on the Mainland to represent those who are in Hawai'i by marching on the court," Jai said.

The word has been going out primarily via e-mails and online bulletin boards and chat rooms. Jai said she expects at least 30 to 40 people, including herself and her 11-year-old daughter, Kehaulani, to fly to San Francisco for the march.

Since the expected turnout has been growing steadily, the Northern California alumni chapter and school public relations staff in Honolulu are helping put the event together, Jai said.

Last Saturday, an estimated 20,000 people attended rallies and marches statewide in Hawai'i. That included 15,000 who gathered at 'Iolani Palace, most of whom formed a sea of red T-shirts that marched up to Mauna 'Ala, the Royal Mausoleum.

Sacramento-based attorney Eric Grant, who is representing John Doe in the case, said on Saturday that he did not think it was likely that the judges would be swayed by shows of disapproval.

But Jai said that influencing the judges was not the main point. "More than that, we just want to educate folks across the continent, and not just San Francisco," she said. Jai said she hopes to get 300 to 400 at the march although some have suggested as many as 1,000 could show up, given the number of Kamehameha alumni in California.

Vicky Holt Takamine, president of 'Ilio'ulaokalani, said about six members of her group intend to join the San Francisco effort. The group, which was instrumental in setting up last week's Honolulu march, intends to take along about 2,000 T-shirts to sell for $10 apiece. 'Ilio'ulaokalani sold out its stock of 3,000 to 4,000 shirts at last Saturday's rally, Takamine said.

Jai said that besides the march, alumni chapters are talking about holding candlelight vigils Aug. 19 that would be conducted simultaneously across the country. There are more than a dozen chapters on the Mainland, including those in Washington, D.C., and Chicago.


Hawaii Nation message # 775

Aloha, please forward this flyer far and wide. Apologies for duplicate postings. Mahalo





WHEN: SATURDAY AUGUST 20, 2005 at 12:00 NOON


Speakers: Dee Jay Mailer, CEO Kamehameha Schools, Nainoa Thompson, Trustee Kamehameha Schools, and many others who are outraged by the taking of Pauahi???s legacy given to the Hawaiian people for their education, and the threats made by adversaries of the Hawaiian people to take away the few remaining assets of the Hawaiians.

The U.N.Plaza is on Market St. in San Francisco between 7th and 8th Streets. Take the Civic Center exit for BART or Muni. Parking at Civic Center garage at 355 McAllister between Polk and Larkin, Performing Arts garage at 360 Grove St. at Gough, or the Fifth & Mission garage at 833 Mission between 4th and 5th Streets.

Contact Noelani Jai @(714)847-2977 or alohajai@socal.rr.com for more info.


Honolulu Advertiser, Thursday, August 11, 2005

School's lawyers seek more time

By Ken Kobayashi
Advertiser Courts Writer

Kamehameha Schools is asking the 9th U.S. Circuit Court of Appeals for an extra week — until Aug. 23 — to request a rehearing of the court's 2-1 decision that the private institution's admissions policy constitutes unlawful race discrimination.

The rehearing request, which would essentially delay any enforcement of the 2-1 ruling, is due Tuesday. In asking for the one-week extension, the school said the 2-1 ruling raises "novel questions of great importance," and that the ruling is the first in the country to rely on the federal civil rights laws to "invalidate a remedial race-conscious program of a private institution."

However, lawyers for the unnamed youth who is challenging the policy are raising objections to the extension request, saying the youth wants to enroll this month for his senior year.

They also have a pending request before the appeals court, asking that the case be sent back to the U.S. District Court in Hawai'i so they can ask the judge to order the school to enroll the boy immediately.

The youth's lawyers said if the school gets the extension, they should be ordered to reply to their pending motion immediately, an apparent attempt to speed up resolution on their request.

In its request, filed by lawyer Kathleen Sullivan of Stanford, Calif., the school said the ruling raises "difficult questions" in reconciling the civil rights laws with congressional actions giving "exclusive preferences" to Native Hawaiians, the school said.

The school's request for an extension reflects the highly contested legal battle over the court's split decision that the school's policy constitutes a total ban on students who don't have Hawaiian blood.

The panel issued the decision last week, but the ruling does not become final under federal court rules until Kamehameha Schools has a chance to ask for a rehearing by a larger panel of 11 judges.

Classes at the school's three campuses start this week and next.

The boys' lawyers, including Eric Grant of Sacramento, Calif., and John Goemans of the Big Island, yesterday replied in court papers that they usually would agree to an extension, but said timing is "critical" because of the impending start of classes.


Honolulu Star-Bulletin, Thursday, August 11, 2005
Gathering Place [commentary from the public]

Editor's note: Robbie Alm delivered the remarks below during a rally Saturday in support of Kamehameha Schools' legal fight to retain its Hawaiians-only admission policy. Alm is Hawaiian Electric Co. senior vice president of public affairs.

Robbie Alm

'A gift'

A great harm has befallen our Hawaii. As you have heard, and as you know, a great harm has befallen Hawaiians.

And know this, a great harm has also befallen those of us who are not Hawaiian, and that harm comes not from the Kamehameha Schools admissions policy.

It comes from ill-conceived acts such as the recent 9th Circuit Court of Appeals decision. That court somehow believes that it has vindicated my rights as a non-Hawaiian.

I say to the court, I need no vindication as I have no "right" involved here that needs to be addressed by you.

Stay away! I do not need you to force others to give me a gift I was not intended to receive.

I do not need you to force others to extend to me a very special aloha that was meant for others. This I do not need, nor do I want it.

And I do not feel "trammeled" by the Kamehameha Schools' admissions policy; but I do feel trammeled when such legalisms take precedence over the health of our islands' social fabric.

I do feel trammeled when such legalisms take precedence over the unique legacy of this Ali'i's gift to her people and ...

I do feel trammeled when such legalisms take precedence over the aloha which this gift embodies.

It should disturb us greatly, all of us, Hawaiian and non-Hawaiian, when laws designed to lift the yoke of slavery from black Americans are used as weapons to harm native people.

It should disturb us greatly, all of us, Hawaiian and non-Hawaiian, when law loses its sense of purpose, of higher values, and instead of nurturing and celebrating our special heritage, condemns it with the harsh and ugly words of civil rights violation.

And, it must disturb us greatly, all of us, Hawaiian and non-Hawaiian, when instead of assisting us to engage in the critical struggle of reconciling two great heritages, the law instead feels compelled to diminish one as if that will somehow build a healthy and pono society.

They are wrong -- wrong on all counts.

I was born and raised on this island. As I grew up, classmates would leave our schools to attend the Kamehameha Schools.

I did not say "why can't I go?"

I did not. I did not say it because even as a child, I knew that there were plenty of other options available to me.

I did not say it because even as a child, I was taught by my parents and I knew that in life, we all receive gifts but not necessarily the same gifts, and that we should celebrate the gifts we receive, not covet the gifts of others.

I did not say it because even as a child, I knew that a princess of our land had made a choice on whom to bestow her gifts, and that was her choice to make.

And I did not say it because even as a child, I knew that Kamehameha Schools had a destiny to fulfill that involved my friends and their heritage in a way that did not involve me.

Even as a child, that was OK with me; and it remains OK with me today.

I have never felt a deprivation of any kind because I could not attend the Kamehameha Schools. Certainly I thought my friends blessed. But their blessing involved no loss on my part.

We all know that there is a serious tension that continues to exist between the laws of the United States and the legacy of the Hawaiian Kingdom.

That conflict is for some irreconcilable.

For others of us, however, reconciliation is a complex, difficult and yet essential task that requires large measures of mutual respect and understanding of our heritages.

This decision reflects no such understanding; it reflects in fact absence of respect. And for all its professions of doing right, it lacks greatness of spirit; it lacks aloha.

A gift is a gift is a gift.

We all need to honor the princess' gift just as she meant it to be honored.

The laws of the United States are great enough to recognize the importance of the unique Kamehameha Schools legacy. The Federal District Court in Hawaii and the dissenting opinion proves that to be true.

So let us join together, Hawaiian and non-Hawaiian. To call upon our court system to live up to its highest purposes and values, and ...

To call upon our community to stand up for this special legacy and for the proposition that our very future, that of both Hawaiian and non-Hawaiian, depends upon honoring our unique history and the very special institutions that that heritage has given us.

Imua Kamehameha!


Hawaii Reporter, August 10, 2005

Aloha, Apartheid
A Court Strikes Down a Race-based Policy in Hawaii, While Congress Considers Enshrining One

By John Fund

For the seven million people who vacation in Hawaii every year, it is a magical island destination. For its 1.2 million residents, the 50th state is, in the words of its senior senator, Daniel Inouye, "one of the greatest examples of a multiethnic society living in relative peace."

But that peace is fraying as tensions rise over a bill the U.S. Senate will vote on next month that would create an independent, race-based government for Native Hawaiians. What some see as redress for past injustices, others see as the creation of a racial spoils system that could treat neighbors differently depending on whether or not they have a drop of native blood.

A Saturday rally of several thousand people here brought the state's divisions to the surface in raw terms. The protestors were angry at a decision last week by the Ninth U.S. Circuit Court of Appeals striking down the Hawaiians-only admissions policy of the exclusive private Kamehameha Schools. The court ruled that the policy violated federal civil rights laws by imposing "an absolute bar to admission of those of the non-preferred race." Supporters of the racial preference policy say any change will reduce the chances of Native Hawaiians, many of whom are from poor backgrounds, getting a good education.

Amid a sea of upside-down state flags and signs challenging the legitimacy of the U.S. government in Hawaii, school trustee Nainoa Thompson told the crowd that the Kamehameha schools are "the last hope of the Hawaiian people." Donna Downey, one of those attending the rally, told me that the court decision was only the latest example of "greedy" people trying to "take all the privileges" now accorded to Native Hawaiians.

No one denies that Native Hawaiians have grievances from the prestatehood era, when the islands were controlled by big sugar and pineapple plantation owners who gave the rights of natives short shrift. But nearly a half century after statehood it is naive to think that federal civil rights laws don't apply to the islands simply because of the 2,500 miles of water separating them from the mainland.

Cooler heads have advised Kamehameha trustees that they should return to the original wording of the 1884 will of Hawaii's Princess Bernice Pauahi Bishop, which established the school. The Ninth Circuit ruling noted that the princess's will did not "require the use of race as an admission prerequisite" and indeed stipulated that instruction should be in English.

"The school is now backed by a $6.2 billion trust that is more than enough money to fund scholarships for anyone they wanted to admit while at the same time charging full tuition to non-Native Hawaiians," says Bobbie Slater, a former teacher at Kamehameha. But instead the school plans to appeal the Ninth Circuit ruling. Eric Grant, a California lawyer who is representing a student challenging the Kamehameha admissions policy, says the school has rejected suggestions that it admit the boy, now entering his senior year, pending outcome of the appeal. Last Friday he said he got a call from the school and "the trustees didn't give me a reason; they just said no--or rather, they said, 'Hell no.' " Mr. Grant says the school's behavior reminds him of the late George Wallace standing in the schoolhouse door.

Far from recognizing the school's weak legal position, almost every politician in the state has scrambled to stand in solidarity with it. Gov. Linda Lingle, a Republican, introduced herself at the rally on Saturday as a "haole"--a foreigner--angry at the court ruling. But she carefully skirted the issue of whether or not the school's admissions policy violated civil rights law. "Regardless of the legal basis for this position, this is not a just position," she told the crowd. She later told the Honolulu Advertiser that she believed the school's admissions policy is "not about race, it's about a political relationship between the Hawaiian people and the American government."

Noting that many students at the Kamehameha school are 95% white or Chinese and only 5% Hawaiian, the governor claims "the school is a perfect example of the great diversity" of the state. She says the Ninth Circuit ruling makes it all the more imperative for Congress to pass a bill by Sen. Daniel Akaka that would create a separate "government entity" for Native Hawaiians. Then entities such as Kamehameha would have more protection from civil rights lawsuits.

But the very fact that so few students at the Kamehameha school are recognizably Native Hawaiian raises the issue of how much a separate government as envisioned by the Akaka bill is possible or desirable. While everyone in the state professes to admire Polynesian culture and many ethnicities study it, only about 240,000 of Hawaii's people classify themselves as Native Hawaiians. Just 5,000 or so--less than 0.5% of the state's population--are of pure native blood. Over 90% of self-described natives are more than half some other ethnicity.

But that hasn't stopped an explosion in funding for those who have Native Hawaiian blood. Anyone with even one drop of blood qualifies for Office of Hawaiian Affairs programs and have access to exclusive schools such as Kamehameha. Haunani Apoliona, chairman of the board of trustees of the state's Office of Hawaiian Affairs, told me that passage of the Akaka bill is essential to expand to help the 18% of Native Hawaiian families with children who are living in poverty.

But she has also told National Public Radio that if the bill passes, the new "native Hawaiian governing entity" will enter into discussions with the state and federal governments "as to any transfer of land and/or natural resources and/or any other assets." Such talk prompted the Grassroot Institute, a local free-market think tank, to take out a newspaper ad last Saturday showing all the lands it said "are on the table for transfer to the new government."

All of the talk about privileges and land transfers saddens Rubellite Johnson, a scholar who has been named a "Living Treasure of Hawaii" for her work in translating early Hawaiian-language documents. Born in 1932 to a Native Hawaiian family on Kauai, Ms. Johnson helped establish the Hawaiian studies program at the University of Hawaii and taught there for many years. "It doesn't promote harmony to expect others today to pay you constantly for what was wrong back then," she told me. "When does it stop?"

Ms. Johnson laments that more people in Hawaii are giving up on integration and listening to those with "hate in their hearts." She says much of the history taught at her old university and now used to justify the Akaka bill is "a distortion of the truth." For example, her studies convince her that the U.S. was "not directly involved" in the forced abdication of Queen Liliuokalani in 1893 and that indeed much of the Hawaiian monarchy supported the annexation of the islands. She believes that "rather than talk about how haoles stole the land, people should take responsibility for their own actions and work with others of good will to better themselves."

While her advice might be the best way to preserve the famous "aloha" spirit and racial harmony for which Hawaii is justly famous, current trends are moving towards further politicization and polarization. If the Akaka bill creating a separate race-based government in Hawaii becomes law, look for other racial and ethnic groups on the mainland to view it as a model for their own bids for political spoils.

This column originally was published on on Monday, Aug. 8, 2005, in OpinionJournal.com, a publication of the Wall Street Journal and is reprinted with permission


Honolulu Star-Bulletin, Friday, August 12, 2005

Ruling favors Kamehameha

By Ken Kobayashi
Advertiser Courts Writer

A non-Hawaiian high school senior lost any chance of getting admitted to Kamehameha Schools before classes start this year when the U.S. 9th Circuit Court of Appeals yesterday rejected his lawyers' second bid to get him enrolled immediately.

"We're disappointed," said Sacramento lawyer Eric Grant, one of the attorneys for the unnamed youth. "We don't know what we're going to do next."

Classes opened yesterday at Kamehameha's Maui campus and are scheduled to begin Aug. 18 for seniors at the school's flagship Kapalama campus and its Big Island campus.

The legal battle now shifts to Kamehameha's attempt to get a larger or "en banc" panel of 9th Circuit judges to overturn last week's 2-1 decision that said the school's policy of admitting only students of Hawaiian blood violates federal civil rights law.

The school had opposed any move to enroll the teenager until a review of the decision.

"The court has clearly spoken: that we have the right to continue to apply our admissions policy while we pursue our request to have our case reheard," said Colleen Wong, Kamehameha vice president for legal affairs.

The split decision by the three-member appeals court panel rocked the $6 billion private institution established by the 1884 will of Princess Bernice Pauahi Bishop. The school believes its nearly 120-year-old admissions policy addresses the socioeconomic and educational disadvantages among Native Hawaiian and falls under affirmative action protections.

But the 2-1 majority ruled that the admissions practice constitutes racial discrimination.

Based on that ruling, Grant first asked the appeals court for an injunction to order Kamehameha to admit the boy. After that was rejected, he asked the court to send the case back to the U.S. District Court so he could ask the trial judge to issue a similar order. That second request was rejected by the appeals court yesterday.

Kamehameha plans to file its request for the rehearing later this month. If the court agrees with the school and convenes an 11-member "en banc" panel, the youth may never get into Kamehameha before he graduates because it might take longer than a year for the panel to render a decision.

Grant, however, predicted that the court will deny the request for the rehearing. He said his client, a public school student, would then be able to get into Kamehameha next month and still graduate on time. "This is a very good student with a good academic record," he said. The appeals court rarely grants "en banc" hearings, denying nearly all requests.

The last time lawyers can recall that the 9th Circuit Court granted a such a rehearing in a Hawai'i case was seven years ago. A 9th Circuit Court panel voted 2-1 in 1998 to overturn a life sentence for convicted bank robber Bryan Kaluna, ruling that the federal three-strikes law violated his rights to due process. About 14 months later, the larger panel disagreed with the 1998 decision and affirmed the life sentence by a 7-4 vote.

Alexander Silvert, first assistant federal public defender who represented Kaluna and opposed the en banc rehearing, said the appeals court grants reviews if the case is significant. In addition, a 2-1 split decision, which occurred in both the Kamehameha and Kaluna cases, is also favorable for granting the rehearing, he said. He said he believes the school has an "excellent chance" of getting the review.

In papers filed with the appeals court, Kamehameha has pointed out that the decision in its case acknowledged the issue about admissions is a "significant" one regarding civil rights law. The school said the decision is "the first decision nationwide to invalidate a remedial race-conscious admissions program of a purely private educational institution" under the federal civil rights law.

The deadline for the school to file the request is Tuesday, but Kamehameha is asking for a one-week extension.


The Maui News, Friday, August 12, 2005

Majority: Let Kamehameha decision stand

A majority of participants in a Maui News online poll said they think Kamehameha Schools should accept a federal appeals court ruling that its Native Hawaiian preference policy for admissions is illegal and eliminate it.

Overall, 1,540 votes were cast in a survey conducted Aug. 5 through Wednesday. It followed a ruling by a three-member panel of the U.S. 9th Circuit Court that found by a 2-1 decision that Kamehameha's admissions policy of giving preference to Native Hawaiians constitutes "unlawful race discrimination" and is illegal.

The ruling touched off angry protests from school supporters who say it undermines the will of Princess Bernice Pauahi Bishop, who they say wanted the school established for the benefit of Native Hawaiian children. The school is seeking another review by the full 11 members of the 9th Circuit on the lawsuit brought by a non-Hawaiian student identified only as "John Doe." The student is seeking to be admitted as a senior to one of Kamehameha's three campuses, which are on Oahu, Maui and the Big Island.

Most poll participants, 861, or 55.9 percent, said they thought Kamehameha Schools should accept the ruling and eliminate the preference policy. Another 380 voters, or 24.7 percent, said Kamehameha should fight the ruling all the way to the U.S. Supreme Court if necessary to preserve its admissions policy. Two hundred ninety voters, or 18.8 percent, said Kamehameha should explore ways to modify the policy to meet legal standards while still providing for Native Hawaiian children, and nine voters, or 0.6 percent, said they didn't know.

Click thumbnails for full-size image [bar graph of poll results]: http://www.mauinews.com/ScaledImage.aspx?params_guid=e72fefc6dcae4a668e5fa4e0ed0bb645

Poll comments included:

"While I think that any kind of racism is bad, and this admission policy is racist, I think that the Kamehameha Schools are failing their mission in a major way. While they cater to the best and brightest of Hawaiian children, I think they need to be taking care of providing an education for the less fortunate and maybe not the smartest Hawaiian children. . . . The best and brightest will always succeed."

"I was taught in school that any form of discrimination is bad. But Hawaiians should be allowed to go first at this school."

"There are so many private country clubs, etc., still in the U.S. Why don't they also say that they can't have them? We have been taken advantage of for so long by haoles that they think that we don't count, but maybe this will be an eye-opener for maybe getting to be our own nation like the Indians have since we had our lands stolen from us in the beginning."

"This is another example of how non-Hawaiians try to beat down on Hawaiians, trying to stymie one of the good things that Hawaiian people have."

"Kamehameha Schools should open admission to all children of Hawaii, especially the ones that cannot pass the admissions test. Those are the children that need the most help."

"Kamehameha Schools has sufficient wealth to provide top-notch education to all the children of Hawaii. That they have fallen short of doing so is a silent testimony to greed, power, corruption and political will to disempower the Native Hawaiian population."

"I am from the Mainland, however I respect the islands, history and people as if it were my own home. As an advocate for preservation of Hawaiian culture, ease of life for Hawaiians, I am unhappy by the results of the ruling of admissions policy. I support any outcome that is fair for Native Hawaiians."

"Kamehameha Schools should fight this no matter what it costs. Am pretty sure attorneys (Eric) Grant and (John) Goemans would not accept the courts telling them how to interpret their ancestors' wills."

"This is not a race issue. It is an issue about an individual's will. It was her wish to educate Hawaiian children. Just because 100 years have passed, and we are in such a politically correct society does not change her will!"

"It is written in solid letters. It's against the law, and it promotes discrimination. Accept reality."

"Racism is racism. How would Native Hawaiians feel about a white-only school on the island?"


Maui News, Friday August 12, 2005

Sympathy for Hawaiians dampened by long-held principles

While reading the extended coverage of the U.S. appeals court ruling regarding the Kamehameha Schools, I sat confounded as to what side I actually take on this issue.

I cherish the principles of equal protection and universal human and civil rights, yet I am perplexed as to how those bedrocks of contemporary civil liberties fit in with a school, whose primary acceptance policy is race based.

It seems that most of the writers of letters that criticized the ruling are ignorant of the law and history that have made enforcement of civil rights legislation so important to so many people. I have sympathy for the Hawaiian culture. While Americans in the 19th century took so much from them, it seems that most of the wrath and anger that is being displayed is against the haole and the tourists of today.

Even though these people profess to be Hawaiian, they are displaying a very time-honored American tradition of blaming the wrong people. Two corporations who are descendant from the great 19th-century land heist hold title to most of the land on Maui, not later arrivals and tourists.

To witness how easily the "better angels of our nature" are discarded by the emotion of the moment proves that we need a strong, independent judiciary to arbitrate our disagreements.

Americans are lucky to have Hawaii as a state and Hawaiians are lucky to have the protections afforded by the U.S. Constitution. A fact that would be useful for both to remember.

Jon Henderson


Maui News, August 12, 2005

Hawaiians never voted to join the United States

An Aug. 5 letter claimed that "the Hawaiian people voted to become part of the United States" and that annexation was achieved through a treaty. Wrong!

A vote was never taken on the issue because pro-annexation lobbyists and politicians knew that Hawaiians strongly opposed becoming a colony of the United States. In 1897, a petition with the signatures of 21,000 Native Hawaiians (out of the 40,000 living at the time) was sent to Congress clearly stating the desire of the Hawaiian people to remain independent from the United States. A U.S. senator visited Hawaii and reported that he failed to find a single Native Hawaiian who supported annexation.

Unfortunately, the democratic will of the people was less important to the U.S. than the strategic location of the islands and the prospect of a naval base at Pearl Harbor. In 1898 Congress passed the Newlands Joint Resolution, unilaterally annexing Hawaii and stripping Hawaiians of their nationality. The islands have been a colony ever since, and the Hawaiian people have suffered greatly at the hands of their colonizers.

The United States needs to take responsibility for the injustices of the past and find a way to make things pono once again. The occupation of Hawaii, past and present, was never driven by anything but American greed. Stop pretending otherwise.

Kenyon Kale Smith


Maui News, August 12, 2005

Kamehameha discriminates against Hawaiians

Everybody is in an uproar over the ruling on Kamehameha Schools. For years they had discriminated against their own people. They only want the best of the best to attend Kamehameha. So they test the children and if the child fails, the family is given a very degrading report of their child as not Kamehameha material.

Kamehameha has their nose stuck too high in the clouds. They think that they are the true representatives of the Hawaiian people. They are not. They had the opportunity to help the Hawaiian immersion program to build a school – a program that welcomes all races who wish to have their children learn the language and culture. Instead of doing this, they decide to buy the land that the school was to be built on, and the Department of Education decided not to build for 250 children.

Kamehameha compromised their integrity by giving into a liar and her child instead of fighting it tooth and nail. Imagine if you and I lied on their application. Laptops and billion-dollar campuses do not teach aloha and honor.

Gaby Gouveia


Honolulu Advertiser, Sunday, August 14, 2005


Admissions ruling means Hawaiians must look at all options

By Anne Keala Kelly

When the red river of 15,000 Hawaiians poured out of the 'Iolani Palace grounds and surged up through Nu'uanu Aug. 6, it was like watching an age-old ritual, even though it's only happened a handful of times over the past century.

It struck me that this mass of Kanaka Maoli flesh was following the queen's funeral path, a connecting walkway between where Hawaiian leaders lived and conducted the business of government, and where they, along with Hawaiian freedom, were laid to rest.

Hawaiians have not accepted or recovered from 1893. That's why when a displaced haole, armed with an attitude and a lawyer, takes a jab at us in the courts, we respond with anger and outrage — we experience it as yet another in a 112-year long series of invasions and thefts of what is ours.

The Kamehameha Schools is part of the living legacy of Hawaiian nationhood. It is proof of Hawaiian status not just as a people who share ancestry and culture, but also as a people with a national history.

It is that history and our potential future history that lingers uneasy on the minds and in the hearts of Hawaiians as we read and analyze the 9th U.S. Circuit Court of Appeals ruling. Why, some of us are wondering, did Kamehameha Schools defend their admissions policy based on race when the indisputable truth is that Princess Bernice Pauahi Bishop was only concerned with her people, the subjects of her kingdom and the descendants of her ancestors?

Why is the truth of Hawaiian genealogy and "sovereignty" scarce when Hawaiians enter the American courts? It's one thing to lose a fight for the truth, but if you lose a phony fight it's like the fight was fixed.

Race is America's blood sport, and its courts will adjudicate with their blood rules, rules constructed as a way to dispossess Hawaiians and other peoples of their land, resources and if need be, their sanity.

"They" have made us believe 400,000 Hawaiians can't do what our kupuna did when they were a dying population of only 40,000.

One thing was clear on Aug. 6: When Hawaiians come together, the truth is a living, breathing thing that Hawaiian people aloha with pride and dignity. That is what binds Hawaiians beyond the insults and outrage.

But when we walk away from a gathering, what do we take, and what do we leave behind? Can we truly connect as one in the American system? And that system is clever enough to deploy Hawaiian-isms that fool us into thinking we have power with institutions and agencies like the Office of Hawaiian Affairs, or Department of Hawaiian Home Lands, or our beloved Kamehameha Schools.

Sen. Dan Inouye's out-of-synch press release glossed over the 9th Circuit's ruling, saying when the Akaka bill passes, " ... Native Hawaiians will be postured to reclaim their ancient dignity and forge a destiny for themselves in partnership with the state and our nation."

The immediate reaction Hawaiians had when they learned about the ruling was to voice loudly their distrust in the American system, and to suggest that the American military get out of Hawai'i. And those words came from Hawaiians who have supported the Akaka bill.

As I watched so many Hawaiians move as one unified entity, I was reminded of something kupuna Peggy Ha'o Ross said recently at a gathering of the Hui Pu, a Hawaiian coalition opposing the Akaka bill. I had asked her to comment on the bill, and she talked about how in the past 30 years she's come to understand "we are not Americans."

Then she said something that went beyond the outrage Hawaiians feel over the theft of the kingdom. She said "We are not Americans, we know this now, so what do we want to do about it?"

If there were any substance to Hawaiians having "agency" in the American system and power over our own destiny as a people, so many Hawaiians would not be fleeing to a better life in America (our diaspora is over 40 percent). The reality that 60 percent of the homeless on O'ahu are Kanaka Maoli would jolt us into action.

And the fact of America's militarization of Hawai'i, that is now expanding to swallow up even more of our land, would surely inspire us to march en masse.

Things that make Americans feel safe surround us: military, media, their politics, their justice and their culture. But we are also inundated with Hawaiian ideas and kuleana that somehow end up getting stalled in the roar of our own political and cultural rhetoric. Is it possible to get beyond this latest outrage to the opportunities it presents?

For Kamehameha Schools, this is an opportunity to get back in touch with the Hawaiian people, to overhaul their admissions policy and do more outreach to the indigent children that line the highways, sleeping in cars and under tarps with their parents.

It's an opportunity to offer 100 percent free education to the most needy who are Kanaka. This may seem naive, but imagine if the millions spent on the "race" defense had gone to those children.

For all of us, it's an opportunity to do more than perform a march. No matter where we stand politically as individuals, for or against the Akaka bill, it's time for us to talk to each other seriously about all our legal options, including independence and free association, not just federal recognition.

It's time for us to consider our actual physical, psychological and spiritual condition as a people, and to take a fresh look at the kuleana that comes with the legacy our ali'i left us.

Anne Keala Kelly is a Native Hawaiian journalist and filmmaker. She wrote this commentary for The Advertiser.


Honolulu Star-Bulletin, Monday, August 15, 2005


Kamehameha ruling misused to support the Akaka Bill

Many news outlets, Office of Hawaiian Affairs trustees and paid proponents of the bill falsely describe the court's opinion as a decision that Kamehameha Schools' admission policy was "race-based and therefore unconstitutional." These interpretations and misrepresentations continue to obscure the land and sovereignty rights issues at the heart of Hawaiian resistance and at the heart of this era of racist lawsuits and reactionary legislation. We must be clear: The judges did not rule that race-based admissions are unconstitutional.

Instead, the court specifically ruled that the racial preferences for Hawaiians that serve as an "absolute bar" against non-Hawaiians violates the Civil Rights Act of 1991. In other words, if Kamehameha Schools had shown that they give preference to Hawaiians but still allowed some non-Hawaiians admission, then Doe would have lost the case.

The fact is that since its inception in 1887, Kamehameha Schools has always allowed non-Hawaiians to attend. The "absolute bar" to non-Hawaiian admissions is not only non-absolute, the trend to make it more exclusively Hawaiian is a relatively recent phenomenon. What does this mean? It means that although Kamehameha Schools lost the lawsuit, very little needs to change. The administrators need to retool their admission policy to allow non-Hawaiian students, but they can and should still give preference to Hawaiian children, especially those who are indigent and orphaned.

We must remember that when Bernice Pauahi Bishop gave her last will and testament, she was living in the kingdom of Hawaii and certainly did not intend to provide for children of another nation. Therefore, the only non-Hawaiian orphans and indigent children that should be admitted should be descendants of citizens of the kingdom of Hawaii.

The lands that Kamehameha Schools are based on are the national lands of those who descend from citizens of the kingdom. Following the Great Mahele, the alii nui did not bequeath lands downward to their children or other heirs. They bequeathed upward to higher-ranking alii in a semblance of the traditional practice that the highest-ranking alii would redistribute the land. This left vast amounts of land in the control of Princess Ruth Ke'elikolani, who bequeathed them to Bernice Pauahi Bishop. When Pauahi died, the Bishop Estate and Kamehameha Schools were created and received the lands.

Originally the alii had kuleana to take care not only of themselves through private property, but kuleana and obligation to care for the maka'ainana (commoners, citizens). Thus, most Hawaiians are protesting this ruling because these resources are part of our collective inheritance. Let us not co-opt their righteous rage for the wrongful legislation.

Proponents of the Akaka Bill are attempting to use their interpretation of the ruling as a way to redirect the activist opposition to the bill to focus on Kamehameha Schools. The sovereignty struggle is a larger and more critical movement than the effort to preserve the admission policies. Besides, the school has a number of other strategies it can employ to maintain the preference, while the Akaka Bill threatens to strangle the independence drive of the Hawaiian movement.

Passage of the bill would not protect Kamehameha Schools from the racist attacks on Hawaiians, which are firmly grounded in U.S. law and principles of "racial equality" without justice. The U.S. federal courts do not understand Hawaiian traditional culture, nor do they understand or adequately use as precedent Hawaiian kingdom law outside of Hawaii.

Furthermore, the bill threatens our crown and government lands by setting up a process for settlement to extinguish our claims once it attempts to legalize the history of the overthrow by reorganizing the Hawaiian people into a dependent entity under U.S. plenary power.

If the Akaka Bill were passed, it would set a precedent that would erode the concept of sovereignty precisely because the bill fundamentally alters and subverts the principles of self-governance, particularly when the federal government and the state of Hawaii are empowered to make decisions without Hawaiian consent on matters concerning economic development, land claims and citizenship requirements.

While the bill's supporters argue that something needs to be done to protect Hawaiians from racist litigation, the fact is that the bill serves as a wedge through which U.S. federal law would be able to curtail and commit further juricide against Hawaiian and American Indian nations.

Finally, proponents of the bill rely on the commerce clause of the U.S. Constitution to argue that the bill does not violate the 14th Amendment's equal protection clause. The clause merely states that Congress has the power "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes." But the U.S. Supreme Court has interpreted that clause time and time again to grant the U.S. Congress plenary power (complete power) to pass any law it may so desire. Plenary power is what gives the U.S. Congress the ability to federally recognize tribes without violating the U.S. Constitution. But what supporters of the bill neglect to mention, as they argue that the bill will "save us," is that it is the same plenary power that empowers the U.S. Congress and the executive branch (through the Department of the Interior) to limit the federally recognized indigenous nations' full self-determination under international law.

Lest we forget, the commerce clause also mentions foreign nations, which includes the kingdom of Hawaii. Hence, if the Akaka Bill doesn't violate the 14th Amendment, it certainly violates the treaties between the kingdom and the United States, which must be honored!

As Joseph Kahooluhi Nawahiokalaniopuu said on his deathbed, "E ho'omau i ke aloha i ka 'aina!" Persevere in love for the land and country!



J. Kehaulani Kauanui is assistant professor of American studies and assistant professor of anthropology at Wesleyan University, Middletown, Conn.

Noenoe K. Silva is a professor of political science at the University of Hawaii-Manoa.

Jodi Byrd is a citizen of the Chickasaw Nation of Oklahoma and is professor of political science at the University of Hawaii-Manoa.

Jon Kamakawiwo'ole Osorio is director of the Kamakuokalani Center for Hawaiian Studies at the University of Hawaii-Manoa. We are alarmed that both the media and others are misreporting the recent 9th Circuit Court of Appeals ruling in Doe vs. Kamehameha to scare people into supporting the Native Hawaiian Government Reorganization Act of 2005, commonly called the Akaka Bill.


Honolulu Star-Bulletin, Monday, August 15, 2005


Pauahi's trust is for Hawaiians

The recent ruling of the 9th U.S. Circuit Court of Appeals against the 117-year-old admission policy of Kamehameha Schools has been misrepresented on television by plantiff's attorney Eric Grant and by letter-writers who are uneducated about the facts of her will and the school.

The 13th article of the will of Ke Alii Pauahi clearly states that assets be used to educate orphans and indigent children with "preference to Hawaiians of pure or part aboriginal blood." She referenced aboriginal to be clear to everyone that her Hawaiian people, the native people of Hawaii, are the beneficiaries of the schools.

Ke Alii Pauahi saw the need for Hawaiians to be educated in Western culture and curriculum in order to survive the rapidly changing demographics and modernization of Hawaii. She had the foresight and vision to establish Kamehameha Schools to address socio-economic inequities her people were already experiencing in the 1800s and continue to do so today.

With the help and guidance of non-Hawaiians, mostly American advisers and friends, Pauahi planned the future of her schools. These advisers knew her concerns for her people and helped her to create a legal charitable trust that would sustain many generations of Hawaiians. And so it has.

Many comparisons have been made recently and in the past of the segregated schools of the 1950s to Kamehameha Schools. This illogical argument fails to recognize that the segregated school systems of America's past were based on laws intended to suppress equality and keep nonwhites separated from whites, while the creation of Kamehameha Schools was Ke Alii Pauahi's effort to provide opportunities of equality through education of her people. This is the fundamental difference between Kamehameha Schools and other race-based schools of America's past that have been rightfully abolished.

Kamehameha Schools was recognized in a national magazine in 2001 as the most multiracial campus in the entire United States. No other campus can claim the mixture of nationalities and ethnicities that comprise the student body of Kamehameha Schools. This recent ruling contradicts that finding.

By virtue of her position, Ke Alii Pauahi provided for the Hawaiians. It was a lawful act to create this trust, and it remains lawful today that a nonprofit has the right to address societal ills and to identify at-risk groups (preference), implement programs to facilitate change (the school and its programs) and to measure its effect (alumni accomplishments and community contributions). The need to help the Hawaiians is necessary because our people have the highest incarceration rate, single-parent households, homelessness, mortality rates, etc.

The schools continue to meet legal criteria because the preference policy remains necessary and there are statistics that prove this. The trust is meant to correct past deprivations and to bring social justice to the Hawaiian people and not to keep others oppressed and deprived.

So, now is the time for non-Hawaiian supporters to stand beside us and support the schools mission and help us remain strong and steadfast in protecting this non-profit private trust and other native Hawaiian programs and alii trusts intended to serve the Hawaiian people.


Pohai Ryan is ex-oficio president of the Kamehameha Schools Alumni Association Oahu Region. She graduated from Kamehameha Schools in 1980.


Honolulu Star-Bulletin, Monday, August 15, 2005


Schools should serve the neediest first

In Doe vs. Kamehameha Schools, the Kamehameha Schools legal defense dream team failed to raise the most important argument before the 9th U.S. Circuit Court of Appeals that resulted in a nightmare decision. Attorneys for what is now a consolidated school did not argue that native Hawaiians are members of a domestic dependent community, like the Pueblos, who have been treated by Congress pursuant to the 1920 Hawaiian Homes Commission Act.

It would have been difficult for the attorneys to make this argument, however, because the school services a mere fraction of the native Hawaiian population. The truth is Kamehameha serves the elite chosen few who can prove they are fully assimilated, acculturated, educated and sophisticated by scoring well on the school's standardized admission test.

In her will, Pauahi stated her desire to treat orphaned and indigent children who are of "full or part aboriginal blood." If Kamehameha adhered to Pauahi's will and truly sought the economically disadvantaged or indigent and orphaned children, it would be stacked to the ceiling with bona-fide native Hawaiian students.

At one end of the spectrum, a full-blooded aboriginal Hawaiian or any student closest to that by degree is much more likely to meet her criteria. However, today's school trustees are at the other end of the spectrum, misinterpreting Pauahi's will to say that a 1/64th part-Hawaiian would do. Fact is, the school is run, with a few exceptions, by people who possess very little Hawaiian blood as reflected in their admission policies and hiring practices.

For example, in defending Kamehameha, Gov. Linda Lingle herself stated that she could find students at the school who are 95 percent Caucasian and only 5 percent Hawaiian. By this example, Lingle refers to a student, better able to draw from the life experiences and wealth of their non-native Hawaiian parents, benefactors and resources, who excels at the school's standardized admission test.

In contrast, the bona-fide native Hawaiian students who are economically disadvantaged to begin with lack the initial educational edge to compete against these assimilated students with a mere trace of Hawaiian blood that, upon close inspection, really cannot be said to be native Hawaiian at all. The result is what you see on the celebrated annual Kamehameha televised song-contest -- very few bona-fide native Hawaiians.

Put another way, the effect of Kamehameha's admission test is to bar truly needy native Hawaiian students seeking admission. Now, with the Doe decision, this must change. The school should pay attention to plaintiff's attorney Eric Grant, who concedes that the school can set economic criteria for admission and still reach native Hawaiian students in need.

Instead of a biased test for an academic who is the smartest among the assimilated students with a trace of Hawaiian blood, Kamehameha should adopt a strictly economic-need test. Many native Hawaiians throughout the state are homeless, living under tents if they are lucky enough to have a tent. Kamehameha can start to change its ways by reaching these truly needy native Hawaiian families.

The number of indigent and needy native Hawaiians is relatively small and could easily be raised out of their low life condition with the help of a Kamehameha Schools education. On the other hand, the number of phony native Hawaiians now stands in excess of 400,000 and is predicted to reach 800,000 by the next census.

What can be more admirable and consistent with Pauahi's will than her school reaching the poorest of the poor native Hawaiians? I say scrap the academic test that bars the poor and needy native Hawaiian students.

Perhaps the silver lining to the Doe decision is that Kamehameha Schools will be forced to return to a strict reading of Pauahi's will and seek the truly needy, indigent and orphaned, bona-fide native Hawaiian students, especially from the economically disadvantaged Hawaiian homesteads throughout Hawaii, who are now underrepresented in the student body.


Walter R. Schoettle is a Honolulu attorney.


Honolulu Advertiser, Wednesday, August 17, 2005

Letters to the Editor



I hope Rebecca Breyer's front-page photograph of the protest marchers is nominated for a Pulitzer Prize (Aug. 7). It conveys the agony and pride of the crowd reminiscent of the Pulitzer winners of the World War II and Vietnam eras.

Make no mistake, this, too, is a war: Since the 19th century, the rights of the Hawaiian nation have been trampled, in some cases by armed troops as when the queen was deposed, and in some cases by unarmed troops (i.e. carpetbaggers) overwhelming the Islands and voting in statehood and myriad other destructive policies that have left Hawaiians disenfranchised.

My middle name means "stone eater," the label given to Hawaiians whose faces were literally ground into the dirt and forced to eat stones by their haole oppressors. Hawaiians are still being trampled, and this is the time to take a stand and say "No more!" As Corey Hart's song (which could be a new anthem) says: "Never Surrender!"

Paki 'Ai Pohaku Myers
Ocean View, Hawai'i



History quiz: What state governor denounced a federal court decision requiring elimination of racial preference in school admissions, vowed to appeal the decision or to find a way to subvert the law, and declared that the legal action leading to the decision was the work of outsiders who failed to appreciate the impact of equal-rights admissions on the local culture by diluting the racial purity of the student body, thereby destroying time-honored customs, and indeed an entire way of life, forever?

# George Wallace of Alabama.
# Ross Barnett of Mississippi.
# Linda Lingle of Hawai'i.
# All of the above.

Where were Hawaiians during the civil rights struggles of the late 1950s and '60s? Were they too busy celebrating long-awaited statehood that they failed to notice the sacrifices other Americans were making to ensure that discrimination based on genetic happenstance was eliminated? Did they think the resulting civil rights legislation did not apply if it contradicted local custom?

What would be the present-day response if any privately endowed school in the United States were to maintain a racial preference admissions policy on grounds that its founders had not contemplated the ethnic diversity that might emerge after a century or more of social change? Would any public official be applauded for promising to formulate a "Plan B" to conform to the letter of the law, while blatantly subverting its spirit?

There would certainly be protest marchers in the streets, but one could scarcely imagine that the protesters in any state but Hawai'i would be demonstrating in favor of maintaining racial preferences. Is it time for latter-day Freedom Riders to come into our state from Mississippi and Alabama to show us how to integrate schools?

The admissions policies of the Kamehameha Schools have metastasized in such a way as to be scarcely recognizable as the intentions of a great and generous princess. The focus of the schools is no longer "the support and education of orphans, and others in indigent circumstances," as provided for by Princess Pauahi's will. It is instead directed principally at those who can afford to avoid substandard public schools by attending the private primary schools that are more likely to qualify them for competitive admission into Kamehameha.

Why can't the vast resources of the Kamehameha Schools Trust (reportedly $6 billion) be redirected toward a 21st-century goal of providing cultural enrichment programs for the public schools? Wouldn't more Hawaiian children benefit from classes in language, history and Hawaiian culture if it were offered as part of their regular curriculum?

Dare we even ask what benefits might accrue if non-Hawaiian students gained new knowledge and consequent respect for traditional customs and practices?

What might happen if haole parents (read "voters") were to gain perspective on Hawaiian issues as they helped their children with their social studies and language homework?

The decision of the 9th Circuit Court offers the trustees and Gov. Lingle an opportunity to get back to the original intent of Princess Pauahi's endowment. It's time to bring the trust into the 21st century and start serving the greatest possible number of Hawaiians. Unfortunately, the emotionalism stirred up by OHA, monarchist and separatist movements of various stripes and a few radical UH professors promises that this issue will be bathed in more heat than light. If our leaders miss this opportunity, the residents of this state will be the worse off for it as history records the answer to the original quiz question as (d) All of the above."

James D. Brown


San Francisco Chronicle, Wednesday, August 17, 2005

Recognition for native Hawaiians

- Rosie Alegado, Raymond Kong

Earlier this month, 15,000 native Hawaiians from across the Hawaiian Islands gathered in unity and support for the right of a historic Native Hawaiian institution, the Kamehameha Schools. The Kamehameha Schools/Bishop Estate were created through the will of the Hawaiian Princess Bernice Pauahi Bishop in 1887, when Hawaii was an independent nation. The princess placed her assets into a trust under the laws of the Hawaiian Kingdom to erect and maintain a school dedicated to the education of native Hawaiians.

As native Hawaiians living in the Bay Area, we want to assure residents that the Kamehameha Schools' admission policy is not a case of racial discrimination, but rather the right of an indigenous people to educate themselves.

In Doe vs. Kamehameha, a panel of the U.S. Court of Appeals in San Francisco declared earlier this month that the Kamehameha Schools admission policy (which gives preference to Native Hawaiians) oversteps the princess' will. In 1883, Princess Pauahi wrote her will, she was well aware of the rapid decline of native Hawaiians. She accurately foresaw that Hawaiians would become disenfranchised, without legal means to protect their rights. So that her people might have the opportunity to better themselves and succeed in the changing political climate of Hawaii, she provided the gift of education. There should be no question of her intent.

The Appeals Court panel also struck down the Kamehameha Schools' admissions policy, stating that preference toward Native Hawaiians constituted racial discrimination. This is simply not true. The Kamehameha Schools were forced to concede that "ancestry can be a proxy for race."

Nevertheless, native Hawaiians are the indigenous people of Hawaii, with our own language, culture and ancestral lands. By failing to recognize that native Hawaiians are a people, rather than a race, the majority opinion fails to recognize the onetime existence of the Kingdom of Hawaii, and that it was once a thriving nation. Moreover, the U.S. Congress acknowledged native Hawaiians as a native people with the same rights of Native Americans -- through more than 180 laws and acts, including the Native Hawaiian Higher Education Act, Hawaiians Homes Commission Act and the Joint Apology Law, in which Congress specifically apologized to the native Hawaiian people for the 1893 overthrow of its monarchy.

It is important to note that the Hawaii District Court and U.S. Appeals Court Judge Susan P. Graber's minority opinion recognized that Native Hawaiians have a special political status.

The issue being weighed in Doe vs. Kamehameha is a significant one: May a private institution, which receives no federal funds, give preference to an individual based on their ancestry? This matter deserves careful consideration, because the issue has never been dealt with before in federal appeals courts. If the full court does not review the case, the impact of this ruling will not be limited to a boy attending a school. The decision will severely affect an entire indigenous people. More important, the ruling will have far-reaching repercussions that will affect all ethnic groups.

The Kamehameha Schools is unique in that no other institution takes native Hawaiians from all socio-economic backgrounds, puts us together and gives us the tools to "make it" in Western society, while instilling pride in being Hawaiian. Perpetuation of Hawaiian culture and values by native Hawaiians must be protected.

Without the opportunities provided by the Kamehameha Schools, our families would not have been able to afford the educations we have been blessed with receiving. We are honored to be part of Princess Pauahi's legacy and we stand unified with other native Hawaiians and those who are Hawaiian at heart to ensure that the Kamehameha Schools continues to fulfill its intended purpose, to educate the children of Hawaii. We are hopeful that the full appeals court will review Doe vs. Kamehameha. Learn more

What: March and rally to support Kamehameha Schools in its appeal of Doe vs. Kamehameha

When: Saturday. March begins at noon at U.N. Plaza, Seventh and Market streets, San Francisco; March to U.S. Court of Appeals for San Francisco, 95 Seventh St., San Francisco; Return to U.N. Plaza for 12:30 p.m. rally.

For more information: www.justiceforhawaiians.net/release.html

Rosie Alegado and Raymond Kong are graduates of Kamehameha Schools who live in Palo Alto.

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URL: http://sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/08/17/EDGKLE8S3N1.DTL


The Garden Island News (Kaua'i), August 18, 2005

Council backs Kamehameha Schools

By Lester Chang - The Garden Island

Kamehameha School's long-standing admission policy giving preference to Native Hawaiians should remain intact, and federal judges should reverse a decision finding the policy discriminatory.

Kaua'i County Council took that united stand in approving on Wednesday a resolution asking state Attorney General Mark Bennett to call for the reversal of a 9th Circuit Court of Appeals decision this month that Kamehameha Schools policy is discriminatory.

Council members, who met during a meeting at the historic County Building, said the action they took was the right thing to do because Hawaiians have become dispossessed and lost since the 1893 overthrow of the monarchy.

They also said they felt keeping the policy intact would enable Native Hawaiian children to become better educated so they can lead more full lives.

"In my mind, I just saw this as history, heritage, culture, roots and lifestyle," said council chairman Kaipo Asing, who is part-Hawaiian.

He and council vice-chairman James Kunane Tokioka, who also is part-Hawaiian, introduced the resolution, which councilwoman JoAnn Yukimura, who is of Japanese ancestry, said was timely and needed.

The resolution is nonbonding, and only expresses the wish of the council on a matter. The measure was sent to Bennett, Gov. Linda Lingle and Mayor Bryan Baptiste.

Kamehameha Schools intends to file a petition to have the federal court rehear the case, Donna Aana-Nakahara, coordinator of Kamehameha Schools Kaua'i Regional Resource Center, told the council. If that effort fails, they will ask the United States Supreme Court to review the case and "reverse the decision of the 9th Circuit," Aana-Nakahara said.

The resolution noted Princess Bernice Pauahi Bishop, "with great wisdom, bequeath the lands she inherited as the great-granddaughter and last royal descendent of Kamehameha the Great as a perpetual endowment for the establishment and support of Kamehameha Schools."

Asing and Tokioka said the federal government's 1993 Apology Bill acknowledged U.S. troops invaded a sovereign Hawaiian nation a hundred years earlier, and noted social and economic changes since then have devastated the Hawaiian people. Against this "backdrop of loss and dispossession, the mission of Kamehameha Schools becomes vital," the council members wrote.

The United States has set indigenous people apart from the populace, alluding to Native Americans, and have accorded them a "different status because of the dispossessions and losses they suffered, as America became the country that it is," Asing and Tokioka wrote. As the United States has treated such recognition as lawful and political, and not unlawful discrimination, government leaders should view Kamehameha Schools' admission policy in the same light, the council members said.

Yukimura said the news of the court decision stunned people. "I think all of us were dismayed by the news:" she said, and people across the state want that decision reversed. The decision doesn't just affect Hawaiians, but every resident, as the Hawaiian culture is celebrated by all, she said.

In explaining his support for the resolution, councilman Jay Furfaro said chieftains recognize the need to "coexist" with the spread of western influence in Hawai'i. In recognition of that fact, the Hawaiian flag, its colors and configuration, was made to reflect the power of the ancient monarchy and the influences of the British and French empires, Furfaro said. The flag bears the symbol of the Union Jack of the British Empire, eight bars representing the eight main Hawaiian Islands and the sequential colors of blue, red and white, the color sequence found in the national flag of France, Furfaro said.

The drafters of the 1993 Apology Bill recognized the need for U.S. reconciliation with the Hawaiian people, and understood the special relationship between Hawai'i and the federal government as it relates to the statehood act of 1959, Furfaro said. That act recognizes the special responsibility the United States has to its indigenous people, including Hawaiians, and reinforces the need for Kamehameha Schools student admission preference for Native Hawaiians, Furfaro said.

Councilwoman Shaylene Carvalho, a career lawyer and a retired deputy prosecuting attorney for Kaua'i County, said "Kamehameha Schools has provided many, many opportunities for Native Hawaiian people." Keeping the admission policy intact will work for the betterment of future Native Hawaiian children and help perpetuate the culture, she said. Carvalho said she herself attended Kamehameha Schools for a time, and her daughter graduated from a Kamehameha preschool programs. That exposure has enriched both their lives, Carvalho indicated. She said the federal judges are wrong if they think the school excludes non-Hawaiians. Students have Hawaiian blood, but they are part-haole and are of Japanese, Chinese and Filipino ethnicity, she said. The court decision suggests the federal judges didn't understand that Congress has funded programs principally for the Hawaiians for many years, she said.

Councilman Daryl Kaneshiro said that if he could, he would encourage the judges to come to Hawai'i and "see the culture." Once they understand how it worked, the judges would surely change their decision, knowing that the school policy would immensely help Nave Hawaiian children, including many who need financial help, Kaneshiro said.

Tokioka said many people have talked with him about the court's decision and that they are in "total support of the structure of the school and its admission policy." The court ruling affects not only the school, but could, some day, threaten funding to the state Office of Hawaiian Affairs, the state Department of Hawaiian Home Lands, two agencies serving Hawaiians across the state. Tokioka said his participation in a program at Kamehameha Schools in 1972 profoundly affected his life, gave him a deeper appreciation of his Hawaiian roots. While there, he leaned how to make a nose flute, an instrument of the ancient Hawaiians.

Asing said keeping the admission's policy intact means educational opportunities for Hawaiians so they can "lead lives as full as possible."

Aana-Nakahara said Native Hawaiian children need every break that comes their way, and keeping the admission policy intact will help. "Many Native Hawaiians look to Kamehameha Schools as a way by which to obtain an education and to break the cycle of poverty and disadvantage," she said. She noted Native Hawaiian families have some of the highest poverty rates in the state and are twice as likely to be headed by a single parent, Native Hawaiian children in public schools have the lowest test scores, and Native Hawaiian youngsters have the highest rates of drug and alcohol abuse in the state.


West Hawaii Today (Kona), Thursday, August 18, 2005

Council supports Kamehameha policy

Resolution calls for court to reconsider decision that admission practices are discriminatory

by Tiffany Edwards

HILO -- The Hawaii County Council passed with a 7-1 vote Wednesday a resolution calling for the full Ninth Circuit Court of Appeals to reconsider its recent decision that the admission policy of the Kamehameha Schools is discriminatory.

The vote -- with Bob Jacobson, representing Puna, Kau and South Kona, as the sole dissenter and Fred Holschuh of Hamakua absent -- came after four council members and five representatives from Kamehameha Schools offered impassioned personal accounts either involving the private school or Native Hawaiians in general.

Resolution 135-05, calling for a Ninth Circuit Court of Appeals reconsideration, comes after Gov. Linda Lingle, through Attorney General Mark Bennett, requested that all four County Councils support the state's efforts to reverse the Aug. 2 decision of a three-judge panel.

The City and County of Honolulu County Council last week passed a resolution similar to Hawaii County's with a unanimous 9-0 vote, and Kauai council members held a special meeting Wednesday to take action on the matter. Maui council members are expected to vote on a resolution next week.

Hannah Hana Pau -- a "kumu olelo Hawaii," or Hawaiian language teacher, at the Kamehameha High School-Hawaii campus -- urged council members' support for Resolution 135-05 Wednesday, noting how the recent court decision made her recall her now-deceased mother and an expression she used: "Eha ka na'au," or "There is pain deep down inside me."

"It stirred memories of my own struggles as a Hawaiian to hold on to my roots, to honor the teachings of my kupuna, and to challenge all obstacles to get where I am today," Pau said. "But more so, it stirred up memories of my mother, a beautiful, humble Hawaiian woman who grew up during the time of social change and during the time when speaking the Hawaiian language was banned. The suppression of the Hawaiian language left a pain deep within her na'au that was not realized until her last days."

Along with Pau, Stan Fortuna, Jr., the headmaster of the Kamehameha Schools-Hawaii campus, Ninia Aldrich, the principal of the high school there, Moses Kaho'okele Crabbe, a teacher at the elementary school on the Hawaii campus, and Hartwell Kaeo, president of the Kamehameha Schools Alumni Association in East Hawaii, all said they believe the school's admission policy is in line with the will of Princess Bernice Pauahi Bishop.

Council Chair Stacy Higa, the only seated council member to have attended Kamehameha Schools, offered similar sentiments, noting that the princess specified that "boys and girls of pure or part aboriginal blood should have the first right to attend (Kamehameha) Schools."

Higa and Virginia Isbell of South Kona, who conveyed the "deep feeling" she has for Hawaiians, were overcome with emotions in offering testimonials.

Angel Pilago of North Kona recalled how his family has "always been aggressive in issues of rights," either through activism or court battles, and how he considers them "very, very fortunate to be given these challenges and these tasks."

He quoted Kamehameha Schools trustee and Hawaiian navigator Nainoa Thompson: "It's the same stars, the same seas, and the same wind that our ancestors sailed, it's nothing new. We do the same things over and over again. We just get better at it."

Gary Safarik of Puna, in offering support for Resolution 135-05, revealed that his grandchildren -- who are half-Hawaiian -- were denied admission. "I support the idea that (Kamehameha) Schools should be forever a school for Hawaiians, but I also believe they should be a school for all Hawaiians, not just the cream of the crop, not just the kids that can go through the interviews, but all of the Hawaiian kids," Safarik said.

Jacobson, meanwhile, said he couldn't support the resolution because he sees it as "a separation of powers." "I read the 46-page opinion over the weekend and reviewed the will of Bernice Pauahi. Frankly, I'm moved by the needs of the people. I'm distressed by the opinion. But I have made very much a steady policy to not try to interfere with the courts," Jacobson said.

Holschuh, while absent Wednesday, wrote an Aug. 10 letter saying, "I feel Kamehameha Schools is a private educational institution and has every right to admit only students of Hawaiian ancestry."


Honolulu Star-Bulletin, Friday, August 19, 2005

Mainland alumni to protest ruling
Organizers say expats want to stand behind Kamehameha Schools

By Ron Staton
Associated Press

Alumni of the Kamehameha Schools and other native Hawaiians and their supporters plan to rally in San Francisco tomorrow to support their alma mater and protest an appeals court ruling that struck down its admission policy as unlawful racial discrimination.

Organizer Noelani Jai said Hawaiians from throughout California and elsewhere on the mainland will gather at the city's United Nations Plaza at noon and march to the 9th U.S. Circuit Court of Appeals.

A three-judge panel from that court, in a 2-1 ruling issued Aug. 2, found that the school's Hawaiians-only admission policy violates federal anti-discrimination laws. The court has given the schools until Tuesday to file a request for a rehearing by the full court. The ruling came in a lawsuit filed on behalf of boy identified only as John Doe.

"This is not racial discrimination, but restoring an indigenous people back to health," said Dee Jay Mailer, chief executive officer of the school and the $6.2 billion trust that funds it.

Mailer and trustee Nainoa Thompson are scheduled to speak at a rally at the plaza following the march. Jai, an inactive attorney who is now training to be a pastor, said she will offer a pule, or prayer, before and after the rally.

"When I first started planning this in my living room, I was hoping maybe 30 or 40 people would join me," said Jai, of Huntington Beach. "But it quickly grew, and now we are expecting well over 1,000 people."

A candlelight vigil is scheduled tonight in San Francisco, with similar vigils planned in other mainland cities, Mailer said. The ruling has brought a national spotlight to native Hawaiian issues, Jai said. "This rally will allow us to demonstrate our unity and concern that the kanaka maoli (native people) survive as a people."

Jai said her efforts are on behalf of her daughter and son, and she hopes that her children will go to Kamehameha, where she graduated in 1983. The march and rally are not aimed at the court, she said, but the court is a rallying point because "it represents another geographical place, like Iolani Palace, where native Hawaiians had something illegally taken." The home of Queen Liliuokalani is where she was held under house arrest after the monarchy was overthrown in 1893.

Vicky Holt Takamine, a Hawaiian sovereignty activist, said she believes the demonstrations can influence the court. "With African Americans and women, nothing happened until they took to the streets," she said. "You don't effect social change until people get behind the movement. This (court) decision doesn't just affect John Doe, but native Hawaiians wherever they live." Takamine, a 1965 Kamehameha graduate, heads the Ilio'ulaokalani Coalition, which she said has been building campaigns in the islands to address issues related to native Hawaiians. She organized a similar protest rally on Aug. 6 that drew more than 10,000 people in Honolulu, and she is going to San Francisco to support the mainland Hawaiians. "This issue has struck with Hawaiians living away from home," said Takamine, noting that many can no longer afford to live in their ancestral homeland. "This will be a strengthening event," Takamine said. "Sometimes Hawaiians feel defeated but this adds fire. We will fight this to the end."

Mailer said there has been overwhelming response from all over the world, including alumni now serving in Iraq who have written to her. "What they are saying is that they are there to defend their country but also need to defend their school," Mailer said.

The Kamehameha Schools were established under the 1883 will of Princess Bernice Pauahi Bishop. The main campus in Honolulu and newer campuses on Maui and the Big Island are partly funded by the trust, now worth $6.2 billion.


Plaintiff to start year in public high school

An attorney for a non-Hawaiian teenager seeking to enroll at Kamehameha Schools for his senior year said yesterday that the boy would begin the school year at a public high school.

Attorney Eric Grant said the boy would enroll at a public school in Hawaii while the 9th U.S. Circuit Court of Appeals decides whether to finalize its ruling against Kamehameha's Hawaiians-only admission policy or issue a review of the case.

"I wish I was there to escort my client to the school," said Grant, who is based in Sacramento, Calif. "That's unfortunate." Grant did not say which school the unnamed teenager would be attending. Classes start at many public schools next week.

Classes started yesterday at Kamehameha's Kapalama campus on Oahu.

Kamehameha Schools has until Tuesday to file a request for a review of the case. The court ruled earlier this month that the school's practice of giving preference to native Hawaiians was race-based and unlawful.

Grant said he hopes the court will decline the school's request so the teenager may transfer to Kamehameha.


Honolulu Star-Bulletin, Friday, August 19, 2005
Letters to the Editor

Oppressed Hawaiians should go on offensive

The Kamehameha Schools issue is not about race, it's about opportunity. I don't think there's much doubt that Princess Bernice Pauahi Bishop would have wanted all of Hawaii's children to be educated.

Whatever her dreams may have been, the overthrow of the nation of Hawaii dispelled any hope that they would be realized. The theft of their nation has turned Hawaii's people, the victims, inward and defensive and their stance has been to tighten their grip on whatever can be held on to. This has been difficult in that the very foundation of the Hawaiian culture is to share and to accept. While it is never easy for the oppressed to control surrounding circumstances, a stand now needs to be taken to avoid further magnification of the role of the victim.

As evidenced by the general acceptance of the Akaka Bill, which serves to further diminish Hawaii's nationality by trading it for reservation status and dubious handouts, the Hawaiian community is being coerced with false hopes. We cannot now accept the fallout of an injustice of this magnitude to be considered simply a race issue.

The Hawaiian community needs to stand up in unison and declare the future. The obvious course would be for Kamehameha Schools to educate everybody; they should absorb the state school system and use their assets to provide the kind of education that will enable the people of this place to cast off their role as victim and go on to restore Hawaiian nationality. That's the opportunity. It's time to play a little offense.

Kelly Greenwell
Kailua-Kona, Hawaii


Honolulu Star-Bulletin, Wednesday, August 24, 2005

Kamehameha Schools petitions appeals court
Attorney General Mark Bennett also files a brief in support

By Sally Apgar

Kamehameha Schools defended its "Hawaiians-only" admissions policy yesterday, saying it has "a legitimate remedial reason for a preference" under historic civil rights legislation.

In a petition asking the 9th Circuit of Appeals to reconsider its decision striking down the policy, Kamehameha attorneys argue that the ruling "is unprecedented: It is the first in our nation's history to invalidate a remedial education policy by a private school for the benefit of any minority group, much less an indigenous people."

"There is no dispute that the admissions policy remedies severe ongoing harms to native Hawaiians, and no dispute that Congress has itself enacted a host of explicit preferences for native Hawaiians to remedy those same harms," Kamehameha's petition states.

On Aug. 2, the 9th Circuit in San Francisco overturned the admissions policy in a 2-to-1 decision, saying that it creates an "absolute bar to the admission for non-Hawaiians" and therefore -- under the majority judges' interpretation of civil rights law from the Civil War and the emancipation of the slaves -- "unnecessarily trammels" their rights.

As such, the majority argued, it was not a legitimate affirmative action plan and violates anti-discrimination laws.

Kamehameha is seeking a rehearing "en banc" hoping a larger panel of judges will overturn the decision. If a majority of 24 appeals court judges (there are four vacancies on that court) approve the request, a panel of 11 judges would review the case and hold a hearing.

En banc hearings are rarely granted. In 2004, for example, the 9th Circuit received 842 requests for such hearings. The judges decided to vote on only 47 and, ultimately, granted 22 rehearings.

Kamehameha said yesterday that the court has until Sept. 13 "to call for a vote or to request an opinion from the original three-judge panel on whether to rehear the case."

Meanwhile, Kamehameha is enforcing its admissions policy, which means that John Doe, the unidentified student who brought the case in June 2003 and is in his senior year, is attending school elsewhere.

Despite the legalistic odds, some local legal experts were optimistic yesterday. "I think the chances of being reheard are good," said Jon Van Dyke, a constitutional law expert and Kamehameha supporter. "It's a huge decision," he said. "And it's a decision the court should get right and it should be decided by the whole court."

Also yesterday, state Attorney General Mark Bennett filed a friend of the court brief calling the 9th Circuit's ruling, "fundamentally flawed." Like Kamehameha, Bennett also urged the 9th Circuit to reconsider the case because it presents "a question of exceptional importance" that could be precedent-setting nationally. "I continue to believe that the 9th Circuit decision was wrong and I hope that an en banc hearing (by the full court) will be granted," Bennett said yesterday.

According to the friend of the court brief, the state urges the rehearing "because the panel effects a radical disruption of the educational landscape of Hawaii that is fundamentally at odds with long-standing state policy, the public interest and the survival of Hawaii's native people." "The panel decision strikes at the heart of Hawaii society and threatens an institution that has done more to remedy the wrongs committed against native Hawaiians than perhaps any other private entity," the brief continues. Kamehameha was established under the 1884 will of Princess Bernice Pauahi Bishop, who left her wealth of royal Hawaiian lands to support the school because, according to historic documents, she believed that education was the only way for native Hawaiians to deal with the modern world. The state's friend of the court brief sets out arguments supporting the legal concept that the "panel decision strikes at the heart of Hawaii society and threatens an institution that has done more to remedy the wrongs committed against native Hawaiians than perhaps any other private entity."

In line with that argument, Federal Court Judge Alan C. Kay upheld the school's admissions policy in 2003, ruling it did not violate civil rights law because of its remedial function. Kay wrote that the policy "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."

It was his decision that was overturned this month.

The state's brief further argues that the preference policy is not "racial" under the laws chosen to argue the case. Arguing that the policy has a necessary remedial effect in line with what Congress intended when it allowed affirmative action policies, the state's brief said "Kamehameha's educational preference for native Hawaiians substantially rehabilitates and helps to ensure the survival of, the native people of these islands, a vital goal shared by many critical state programs" such as the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands.

Under case law, the state's brief argues, the preference policy is "not racial" and that the panel "erred in concluding that Kamehameha's policy creates an absolute bar."

"It is a perversion of Civil Rights Acts to use them as an instrument of further injustice, which would be the clear result were the panel decision to stand," the state's brief states.


Honolulu Advertiser, Wednesday, August 24, 2005

Kamehameha asks 9th Circuit for rehearing on admissions

By Ken Kobayashi
Advertiser Courts Writer

Kamehameha Schools asked the 9th U.S. Circuit Court of Appeals yesterday to rehear the court's 2-1 decision declaring the school's policy of admitting only students with Hawaiian blood violates federal civil rights laws.

The request for a rehearing by an "en banc" or larger panel of 11 appeals court judges delays any enforcement of the decision for weeks or months — or forever, if the 2-1 ruling is overturned.

The school's lawyers, who called the decision "unprecedented," argued in their papers that the ruling is "the first in our nation's history to invalidate a remedial educational policy by a private school for the benefit of any minority group, much less an indigenous people."

They said the correct conclusion was delivered in the dissent by 9th Circuit Appeals Judge Susan Graber, not by the majority opinion from appeals judges Jay Bybee and Robert Beezer.

John Goemans, one of the lawyers representing the unnamed non-Native Hawaiian public high school senior who challenged the policy, said statistically, the chances the request will be granted are "very slim."

While Kamehameha Schools lawyers agree, they say the novelty of the issue, the impact of the ruling and the split vote gives them a better than average chance the court will approve the request. "We think we presented a strong case and we'll see if the court agrees," said former Stanford Law School dean Kathleen Sullivan, who was hired by the school to defend the policy.

The state is not a party to the case, but the state attorney general's office yesterday filed a friend-of-the-court brief supporting the rehearing. The office said the case raises an issue of "exceptional importance," a basis for the rehearing.

Goemans said he doesn't know if they will file papers opposing the rehearing, but said the majority was correct and the request only delays their client from attending classes that have already started at the school.

In the Aug. 2 decision, the majority ruled that the school's policy amounts to an "absolute bar" on non-Native Hawaiian students from attending the school and violates federal civil rights laws covering private institutions.

In their request, Kamehameha lawyers argued the private institution receives no federal money and gives "preference" to students of Hawaiian blood. But the school's three campuses only have 5,400 openings, a fraction of the 70,000 school-aged Native Hawaiian students, they said.

The unnamed student who complained he was denied admission based on his race "sought to jump a long queue of qualified Native Hawaiian applicants waiting to gain admission to the schools," the lawyers said.

The school lawyers said each space taken by a non-Native Hawaiian "deprives a Native Hawaiian student of a space in an educational program of unique cultural, historical and communal significance to the Native Hawaiian people."

The school also disputes that its policy is an "absolute bar."

"While campus programs are currently so scarce that they are open virtually exclusively to Native Hawaiians, it is undisputed that Kamehameha also runs other educational programs to which non-Native Hawaiians are regularly admitted," the school's lawyers said.

Attorney General Mark Bennett's legal papers supported the reasoning. "I continue to believe the 9th Circuit panel decision was wrong, and I hope the rehearing en banc will be granted," he said in a statement.

Under appeals court rules, the request will be circulated among the 24 9th Circuit judges. (Four seats are vacant). If any believe the rehearing should be put up for a vote, the judges are polled. If a majority agrees, the 2-1 decision is withdrawn and a panel of 11 judges is randomly selected to rehear the case, according to the rules.

A ruling by the larger panel could take a year or longer, legal observers have said.

School officials have vowed to take the case to the U.S. Supreme Court if necessary.


Honolulu Advertiser, Thursday, August 25, 2005


Kamehameha should change its approach

By Russell D. Motter

If Kamehameha Schools has been reluctant to wade into the sovereignty debate, the decision of the 9th U.S. Circuit Court of Appeals now immerses the school in it.

With the court's rejection of the school's argument that its admissions policy constitutes a race-based affirmative action program, the only way to preserve Kamehameha's autonomy is to abandon the canard of race and frame its case in terms of sovereignty, where it has belonged all along.

Race, historian Barbara Fields argues, is an ideology, not a fact. The ideology of race assumes that innate differences exist among groups of human beings and that society should be organized hierarchically, with "superior" groups of people ruling over "inferior" ones.

Beginning with the American Revolution, the ideology of race allowed its adherents to claim liberty for themselves while enslaving others. African-Americans, of course, had no say in their designation as a race, nor did Hawaiians, after the arrival of James Cook, ever name themselves a race. "Race" was a label assigned to both by those who coveted their labor and land. Yet long after the Civil War ended slavery, we remain attached to an ideology that defies biology and logic.

Next time you give blood, insist that your blood type is "Hawaiian" or "white" or "Chinese" and see the reaction you get. Or consider the absurdity of the "one-drop rule" that holds that a white woman can give birth to a black child, but a black woman cannot give birth to a white child.

By claiming that its admissions policy is a race-based affirmative action program for Hawaiians, Kamehameha Schools places itself in the ironic position of defending the very ideology that branded them as inferior people in their own land. Once Kamehameha's lawyers agreed with their accusers that Hawaiians are indeed a race, the court then placed the burden of proof on the school to prove that the policy was not racist.

Claiming race thus carried the unintended consequence of inviting measurement of Kamehameha's policy against the segregation laws that the Civil Rights Act of 1964 struck down. Its stance had the effect of conjuring the ghosts of Govs. Ross Barnett of Mississippi, Orville Faubus of Arkansas and George Wallace of Alabama, all of whom defied federal law requiring them to admit black students to their public schools and universities, standing shoulder to shoulder with the trustees at the doors of Kamehameha Schools.

The point of such ridiculous imagery is not to link Kamehameha with the arch villains of the civil rights movement, but to illustrate the limits of racial ideology in defining and defending Kamehameha's policy. Indeed, affirmative action programs generally, underwritten as they are by the ideology of race, have become increasingly difficult to defend, as recent Supreme Court decisions indicate.

In fact, Kamehameha's admissions policy has nothing at all to do with affirmative action. At its core, Kamehameha's claim is political, not racial, and it is best to eliminate the word race from the discussion altogether. Hawaiians are not a race but a nation, and this case is about defending the right of a sovereign nation to define itself, govern its institutions and to educate its children as it sees fit. Without an act of Congress that recognizes Hawaiians as a nation, as Judge Jay S. Bybee pointed out in his majority opinion, there is little hope that Kamehameha can prevail.

The court left the door open, however, if Congress recognizes Hawaiian sovereignty and Kamehameha abandons its affirmative action defense. In Morton v. Mancari, the court ruled in favor of hiring preferences for Native Americans because the preference was for Indians "not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities."

Unlike Kamehameha Schools, Native Americans refused the designation of race and claimed that of nation, which the court recognized. The "classification issue" in Mancari, Bybee concluded, "was not racial, but, rather, political in nature."

The court recognized the difficulties and "far-reaching consequences" of the unresolved question of a defined relationship between Hawaiians and the federal government. It also maintained that Kamehameha could not claim Hawaiians as a race and simultaneously claim a special exemption from civil rights laws forbidding discrimination on the basis of race.

What really matters is not whether one has Hawaiian "blood," but that Hawaiians constituted themselves as a nation before American businessmen and their supporters overthrew the Hawaiian government.

Kamehameha's admissions policy can and should only be defended as an expression of sovereignty. As long as Kamehameha Schools defends its policy using the ideology of race, justice will remain out of reach.

Russell D. Motter is a Honolulu history teacher. He wrote this commentary for The Advertiser.


The Maui News, Thursday, August 25, 2005

Council passes resolution in support of Kamehameha

WAILUKU – The Maui County Council has given its unanimous backing to a resolution that requests the state attorney general to provide support to efforts to seek a reversal of the recent federal appeals court ruling against the Kamehameha Schools.

The resolution, adopted Tuesday, was introduced by Chairman Riki Hokama, who said the other three county councils – on Oahu, Kauai and the Big Island – also have passed similar language. Hokama thanked Attorney General Mark Bennett for suggesting that the Maui council participate.

Earlier this month, a three-judge panel of the 9th Circuit Court of Appeals in San Francisco issued a 2-1 decision that Kamehameha's entrance policy that gives Hawaiians preference was racially discriminatory, setting off waves of protests by Hawaiians and nonHawaiians alike.

Council members enthusiastically backed Hokama's resolution.

"If we lose the Hawaiian culture in Hawaii, it will be gone forever," said Bob Carroll.

Mike Molina called the recent ruling "another slap in the face" and questioned how the court "could have saw fit to interfere with someone's personal will," referring to the will of Princess Bernice Pauahi Bishop that established the schools.


Asian Week, Aug 26, 2005

Kamehameha Schools Seek Justice

By Lisa Wong Macabasco

More than 400 supporters of Hawai'i's Kamehameha Schools rallied in UN Plaza on Saturday to protest the recent 9th Circuit U.S. Court of Appeals ruling against the schools' Native Hawaiian-preferred admissions policy.

The crowd, a diverse mix of ages and races and including many alumni, marched past the federal courthouse, waving Hawaiian flags and wearing red shirts reading "Ku I Ka Pono," or Justice for Hawaiians.

On Aug. 2, the federal court ruled that the schools' admissions policy of giving preference to historically underserved Native Hawaiian children was unlawful race discrimination.

The admissions policy requires students to prove that at least one ancestor lived on the islands in 1778, when Captain James Cook became the first Westerner to land on Hawai'i's shores. Non-Native Hawaiians are admitted as space comes available, but that is rare.

The schools were established in 1887 by the will of Princess Bernice Pauahi Bishop, the last direct descendant of Kamehameha I, the 18th-century monarch who unified the Hawaiian Islands. While the princess's will does not mention race as an admissions criterion, supporters say the princess envisioned a group of schools to educate children of Native Hawaiian heritage as a way to rectify the increasing marginalization of the native population, which had been decimated by diseases brought by white settlers. At the time of the princess's death in 1884, the Native Hawaiian population had plummeted from 300,000 at the time of Captain Cook's arrival to a scant 46,000.

"If Kamehameha Schools don't [educate Native Hawaiian children], who will do it?" said School Trustee Nainoa Thompson.

Native Hawaiians also face the possibility of extinction as a race –– according to the 2000 Census, only 14 percent (169,000 residents) of Hawai'i's population self-identified as full- or part-Native Hawaiian, and their numbers continue to decline. There were 475,579 full- or part-Native Hawaiians throughout the United States in 2000.

As a group, Native Hawaiians today are socioeconomically underprivileged, with among the lowest incomes and highest poverty rates in Hawai'i. They also have higher teen pregnancy and incarceration rates.

Due to a poor state public schools system, Hawai'i educates more students in independent secondary education institutions like Kamehameha Schools than any other state. Tuition at Kamehameha Schools is around $1,700, and the schools reflect the racial diversity of the state. In 2002, The New York Times reported that in a recent school year, 78 percent of students were part white, 74 percent were part Chinese, 28 percent part Japanese and 24 percent were of other ancestries. In the past, the schools have dropped federally funded programs to avoid challenges to its admissions policy.

The ruling has implications for all people of color, according to former Sunnyvale mayor and Kamehameha alumnus William Fernandez. "It affects any private person, trust, or organization that gives educational scholarships or financial aid to a disadvantaged ethnic group," Fernandez said. "People of color stand to lose the generous educational support of private individuals that seek to rectify past social injustices."


Honolulu Advertiser, Saturday, August 27, 2005

Lawyers to challenge Kamehameha appeal

The lawyers for the unnamed non-Native Hawaiian student seeking admission to Kamehameha Schools will be explaining to the U.S. 9th Circuit Court of Appeals why it should turn down the school's request for a rehearing on a 2-1 decision earlier this month.

The majority of a three-member 9th Circuit Court panel held that the school's admission policy amounted to an "absolute bar" to non-Native Hawaiian students in violation of the federal laws.

The appeals court this week directed the student's lawyers to respond to the school's request to convene a larger panel of 11 judges to rehear that case that led to 2-1 decision.

The court issued the order Thursday and told the lawyers they have 21 days from the filing of the order to respond.

Eric Grant, the Sacramento, Calif., lawyer representing the youth, earlier said he is opposed to the rehearing and indicated he would oppose the school's request if the court asked him to submit opposition papers.

The enforcement of the 2-1 decision is postponed pending the outcome of the school's request for a rehearing.


Hawaii Reporter, August 27, 2005 (Special from Hawaii Free Press)

Reservation for a Broken Trust?

By Andrew Walden

The Aug. 25, 2005, announcement of an agreement between Gov. Linda Lingle and the Bush administration's Department of Justice on four amendments to the Akaka Bill (S147) increases the chances of the Bill's passage in the U.S. Senate and the House. Since no court in the history of the United States has ever overturned Congressional approval of a tribal group, there is cause to look ahead at the possible forms a Hawaiian "tribal" government could take.

U.S. history has precedent for two types of native organizations: Indian reservations and Alaskan native corporations. Alaskan native corporations are for-profit corporations owned and operated by the members of native Alaskan tribes as stockholders. Each member is an equal shareholder. They are subject to most of U.S. corporate law, but are able to protect the tribal benefits from race-discrimination lawsuit claims by providing benefits on the basis of tribal membership rather than race -- even when the two are indistinguishable. Alaskan natives have been able to enjoy the profits coming from their corporate assets, thus increasing their economic status. Indian Reservations, on the other hand, operate often as a power unto themselves without state oversight and with very limited federal oversight. For that reason, poverty and corruption are the norm on many U.S. Indian reservations.

Contrary to popular opinion, Indian reservations have a history in Hawaii. An Oct. 12, 1999, article in the Honolulu Star-Bulletin describes the efforts of Kamehameha Schools/Bishop Estate (KSBE) trustees in 1995 to evade oversight of their corrupt doings. The Trustees' self-serving investments caused losses of $264,090,257 in 1994 alone. To avoid scrutiny, they considered moving KSBE corporate headquarters out of Hawaii to the windswept plains of the Cheyenne River Sioux Indian reservation in South Dakota.

In an apparent attempt to circumvent state and federal oversight, the Bishop Estate paid Washington D.C.-based (law firm) Verner Liipfert Bernhard McPherson and Hand more than $200,000 to look into moving the estate's legal domicile, or corporate address, to the mainland, sources said.

Verner Liipfert, whose local office is headed by former Gov. John Waihee, identified the Cheyenne River Sioux Reservation as the top relocation prospect after reviewing the legislative, tax and judicial environments of 48 mainland states and Alaska.

The study was part of a broader effort by the former board members to lobby against federal legislation limiting trustee compensation and to convert the tax-exempt Bishop Estate to a for-profit corporation.

The KSBE trustees' efforts are also described in "The Cheating of America" by Charles Lewis and Bill Allison of The Center for Public Integrity. They quote former Hawaii Attorney General Margery Bronster explaining KSBE's actions: "Their main motivation was to avoid oversight from the State Attorney General and the IRS."

The Honolulu Star-Bulletin further points out:

Gregg Bourland, chairman of the Cheyenne River Sioux tribal council … said there is good reason for an entity like the Bishop Estate to make inquiries about changing its domicile to the South Dakota reservation ...

Since the 1800s, the Cheyenne River Sioux have had a government-to-government relationship with the United States which allows them to operate their own police force, court system and legislative functions.

Such a system may shield the trust from Hawaii Probate Court jurisdiction, although Bourland was unsure if the IRS would continue to oversee the trust.

Such a move would have also shielded Bishop Estate from the investigations that state Attorney General Margery Bronster was forced to launch as "Broken Trust" revelations emerged in the press. According to Lewis and Allison the activities Bishop Estate trustees were attempting to shield included:

* Giving themselves significant pay raises, even while programs at the school were being cut;
* Moving profits from the estate's taxable subsidiaries back into the (non-profit) estate to lessen the subsidiaries' tax burdens;
* Investing in questionable ventures recommended by a trustee's personal acquaintances, including an Internet directory of would-be-adult-film actors and casting agents;
* Frequenting adult entertainment clubs and casinos using money from the charitable trust's coffers, reportedly inviting state legislators on such trips; and
* Lobbying Congress to defeat or alter legislation designed to give the IRS more authority to penalize their multi-million dollar compensation packages.

As U.S. District Judge Samuel King told the Honolulu Star-Bulletin:

"It's another indication of how arrogant, greedy and insensitive this whole bunch is ... Their claim that they are supporting Princess Pauahi's will is laughable."

While looking into a move to the Cheyenne River Reservation, KSBE trustees paid $900,000 for Verner, Liipfert to lobby Washington against the 1996 "Intermediate Sanctions Act" which, as Lewis and Allison explain: ...(would impose) an excise tax on "insiders" at non-profit organizations who partake in "excessive benefit transactions" --exactly the sort of transactions that the Bishop Estate trustees were involved in for years.

Among those enlisted by the Bishop Estate was former Hawaii governor John Waihee, who after leaving the gubernatorial mansion joined Verner, Liipfert. Waihee met with Clinton's then deputy chief of staff, Erskine Bowles, in late 1995 to discuss the bill; he and his wife have also spent the night at the White House as a guest of the President (Clinton). Waihee's partner at Verner Liipfert, former Senate majority leader George Mitchell, also contacted Clinton's then chief of staff, Leon Panetta, about the bill.

The Akaka Bill is justified by its supporters as necessary for the defense of public and private native Hawaiian entitlement programs set up beginning with the 1884 founding of the Bishop Estate, continuing with the 1920 Hawaiian Homelands Act and the 1978 creation of the Office of Hawaiian Affairs.

These programs are thrown into question by what Hawaiian leaders refer to as "the lawsuits" -- starting with Rice v. Cayetano. The Feb. 23, 2000, U.S. Supreme Court decision in the Rice v Cayetano case ended Hawaiian-only elections for the Office of Hawaiian Affairs (OHA). Rice's attorney at the time of filing in 1996 was John Goemans, a former Hawaii Democratic state legislator who describes himself as a "left wing liberal" in an Oct. 27, 2003, interview with The Honolulu Advertiser. Representing the state of Hawaii before the U.S. Supreme Court was John Roberts. Roberts is now President Bush's nominee for the U.S. Supreme Court.

But these were not the only attacks on Hawaiian entitlements in the 1990s. In fact what Hawaiian leaders refer to as "the lawsuits" began almost exactly at the same time as the Broken Trust scandal revelations emerged. Lokelani Lindsey, the last of the five "Broken Trust" Bishop Estate trustees, was forced to resign Dec. 16, 1999. A few months later, in 2000, the first version of the bill that bears his name was introduced by Sen. Daniel Akaka.

Passage of the Akaka Bill would open up debate and negotiations on the form and scope of a new Hawaiian government. This could bring lobbying for an Indian Reservation by those political forces wishing to restart their looting of Princess Bernice Pauahi's legacy.

The corrupt forces who believe in moderation to avoid detection may favor the Alaskan Native Corporation model. To understand the danger posed by adoption of the Indian Reservation model, consider this: over 100 Hawaii Democrat politicians (and one Republican) have been charged, convicted and sentenced for campaign spending violations and other illegal political schemes since 1997.

Current OHA trustees include OHA Vice President, John Waihee IV, son of former governor John Waihee III.

Another current OHA trustee is Oswald Stender who resigned as a Bishop Estate trustee in 1999. Singled out for praise by the five authors of the key "Broken Trust" Honolulu Star-Bulletin article, Stender nonetheless was one of the five trustees whose high pay forced the IRS to threaten to revoke non-profit status for KSBE.

OHA Chief Counsel, Robert Klein was an associate justice of the Hawaii Supreme Court until he resigned on Feb. 1, 2000. He authored the PASH decision in 1995 which includes the statement, "western understandings of property law … are not universally applicable in Hawaii." An editorial in the Jan. 19, 2000, Honolulu Star-Bulletin explains:

Klein's most notable act as a Supreme Court justice may have been his authorship of a decision allowing native Hawaiians to go onto private property to engage in traditional religious, cultural and gathering practices ...

Klein disagreed with the decision by the other four justices in December 1997 to withdraw from the role of appointing trustees for the Bishop Estate, calling it an "uncharted leap of blind faith."

Klein admits giving "recommendations" for Kamehameha School admission while serving on the Supreme Court bench. As an April 3, 2001, Honolulu Star-Bulletin article explains:

'''In sworn testimony, the (Bishop) estate's admissions director, Wayne Chang, said that former (Bishop Estate) trustee Lokelani Lindsey ordered him to admit the child only after she received a request from then-state Supreme Court Associate Justice Robert Klein ..."

Chang -- in a Aug. 11, 1998, deposition taken in preparation for the trial to oust Lindsey -- said ex-board members Lindsey, Gerard Jervis and Henry Peters and senior school officials pulled strings for friends and relatives of several politically connected isle families, including:
* A distant relative of ex-Gov. John Waihee.
* A relative of Big Island rancher Larry Mehau.
* Former state Sen. Milton Holt's sons.

The former trustees denied that they influenced the admission process. However, investigations by the Internal Revenue Service, the Attorney General's Office and the estate's internal auditors concluded that trust officials improperly influenced the Kamehameha Schools' admissions and financial aid awards.

Lindsey declined comment, but Klein confirmed that he spoke with the former trustee after the child's mother, a longtime friend, asked him to put in a good word. Klein said he saw no conflict in the request and added that school administrators were welcome to ignore his recommendation.

'''"The fact of the matter is, judges recommend children and people for jobs (and schools) all the time, whether it's Punahou Schools or Kamehameha Schools," said Klein, who is now in private practice. "That's what judges do. That's what people do in this community ..."

Those kind of "doings" would be facilitated by lack of state and federal legal oversight -- such as on an Indian reservation. Recent debate over the support for ANWR drilling by Hawaii Senators Daniel Akaka and Daniel Inouye is a further reflection of opposition to the Alaskan Native Corporations (ANCs). In an April 20, 2005, article published in Honolulu Weekly and later in the Hawaii Island Journal, Lance Holter, the Maui Group Chairman and Conservation Chair for the Hawaii Sierra Club, condemns as "corporate" those ANCs which dare to support oil drilling on their own lands: [Inouye] speaks about these 229 tribes, which are really corporate entities. They are not tribal governments; they are not representative of the tribe.

Robin and Jade Danner are leaders of the Council for Native Hawaiian Advancement (CANH). Native Hawaiians who lived for many years in Barrow, Alaska before their return to Kauai, the Danner sisters have extensive experience with ANCs. They might reasonably be expected to champion the formation of one or more Hawaiian Native Corporations modeled on the Alaskan natives' experience. Opposing the Danners publicly, are the secessionists calling for reestablishment of an independent Hawaii. A key series of 2003 articles attacking the Danners are authored by Anne Keala Kelly and reproduced on several secessionist Web sites. They are attacked for working with "corporate" ANCs and oil lobbyists in support of ANWR drilling. Kelly, a supporter of independence, spoke in Honolulu at an Aug. 23, 2005, Akaka Bill forum held in the Japanese Cultural Center.

Some Indian reservations (including Cheyenne River) have their own judiciary, legislature, and executive branches of government. The secessionists' rhetoric could lead them to prefer these "sovereign" trappings. They claim the Akaka process represents a surrender of sovereignty on the part of the Hawaiian people. This sly choice of argument against Akaka will create a justification for participation in the Akaka process once that sovereignty has been "surrendered."

The "Nation of Hawaii" group led by convicted felon Dennis "Bumpy" Kanahele (who was pardoned by former Gov. Benjamin Cayetano) seems to be preparing for integration into the "official" Hawaiian institutions. One sign of this are the December 2004 speeches given by Kanahele's attorney Francis Boyle in a series of "Nation of Hawaii" meetings across the state. The events were funded by the Office of Hawaiian Affairs. Boyle is a University of Illinois law professor who also works for the Palestine Liberation Organization, the Bosnian Government, and Chechen forces led by the recently departed Aslan Maskhadov. Notably, Boyle has also represented the Lakota Nation of the Cheyenne River Sioux Indian Reservation. At a 1998 UH Hilo meeting, Boyle spoke alongside a Lakota representative to Hawaiian sovereignty activists discussing "human rights, land titles and the Hawaiian Kingdom."

In his December 2004 speeches, Boyle advised the assembled crowds: "what we really need now is a government of national unity for the Kingdom of Hawaii. We need all the disparate groups and factions to come together and settle ... this was the situation that confronted the Palestinians 35 years ago. There were many different groups, and organizations, and factions. And yet eventually the late president Arafat and his organization Fatah were able to pull them all together, and by the process of consensus and debate and argument and set up a government."

The demented idea that the West Bank and Gaza show a way forward for the Hawaiian people is so distracting that it may prevent readers from noting what underlies: an implied appeal for independence activists to involve themselves in OHA and other official Hawaiian bodies. The array of social programs administered by OHA, Department of Hawaiian Home Lands and the private trusts such a KSBE are certainly the closest thing to an Hawaiian "government of national unity" existing today.

With its own judiciary, legislature and executive branch and government-to-government relations with the U.S. government, the Indian reservation model provided by the Cheyenne River Sioux creates enough of an illusion of independence that they could justify it to their supporters. If the Akaka Bill passes, Hawaii can look forward to an effort on the part of the "sovereignity" activists and the corrupt to push this model.

Anyone following the stories of Enron, WorldCom, Martha Stewart, and other corporate disasters in the recent news knows that organizing as a corporation does not guarantee clean operations. But the corporate model does allow oversight by the state Attorney General, the IRS and other public agencies. This type of oversight brought these scandals to light and brought some malefactors to justice. This same oversight brought the Broken Trust trustees of KSBE and some of their cronies to heel, if only for them to then scatter and form new schemes. The Alaskan Native Corporation model maximizes the protection given Hawaiian beneficiaries and the body politic of Hawaii by increasing the enforcement power necessary to expose and prosecute corrupt activities.

Hnolulu Star-Bulletin on Akaka Amendments:

Recognition of Tribes:

PASH Decision: PASH decision KSBE activities:

Honolulu Star-Bulletin "Broken Trust" archive:

Articles attacking the Danners:

Boyle's PLO Speech:

Andrew Walden is the publisher and editor of Hawaii Free Press, a Big Island-based newspaper. He can be reached via email at andrewwalden@email.com


Honolulu Advertiser, Tuesday, August 30, 2005

Admissions policy isn’t ‘exclusively racial’

By Walter Heen

In his opinion piece in the Aug. 25 Advertiser, "Kamehameha should change its approach," Russell Motter correctly pointed out how ridiculous and alarming it is that a civil rights statute, enacted to help oppressed minorities and former slaves, is being used to strike down Kamehameha Schools' admissions policy, which helps to strengthen the Native Hawaiian population.

Motter's message regarding the position of Kamehameha Schools, however, needs clarification: Kamehameha has never argued or conceded that its admissions policy is "exclusively racial."

Kamehameha Schools argued in the district court, and the court agreed, that the policy "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."

The 9th Circuit panel accepted these premises, but reversed on the narrow ground that Kamehameha's policy posed an "absolute bar" to the admission of non-Native Hawaiians. The panel majority assumed, incorrectly, that the policy was "exclusively racial" in nature. In doing so, the panel majority chose to ignore numerous congressional enactments reflecting the United States' "special trust relationship" with the Native Hawaiian people, which were enumerated repeatedly by Kamehameha Schools counsel.

Although the panel majority claimed that Kamehameha Schools conceded that the preference at issue constitutes "discrimination on the basis of race," these assertions, made without any basis in fact, wholly misrepresent the position of the school.

Kamehameha Schools never "conceded" that a Native Hawaiian preference is "exclusively racial." To the contrary, the school has vigorously asserted throughout the litigation that Native Hawaiians have a special trust relationship with the United States and a political status akin (though not identical) to that of Native Americans and Alaska natives that must be taken into account in construing the application of the statute upon which the lawsuit is based.

Motter's statement that Kamehameha Schools "agreed with their accusers that Hawaiians are indeed a race" is simply incorrect.

Rather it is Judge Susan Graber's dissent to the 9th Circuit panel majority opinion that captures both the school's position and the current state of the law: "I do not perceive such a dichotomy between the racial and the political aspects of the school's preference for Native Hawaiian applicants. That is, if 'Native Hawaiian' is indeed a racial category, then Congress has shown by its actions that an exclusive, remedial, racial preference can be permissible" when used to remedy ongoing harms to a once-sovereign indigenous people with whom the U.S. "enjoys a special trust relationship."

Again, Mr. Motter mistakenly stated that the court "reject(ed) the school's argument that its admissions policy constitutes a race-based affirmative action program." It was the panel majority, in fact, not Kamehameha Schools, who wholeheartedly embraced the erroneous and simplistic idea that the admissions policy was an impermissible race-based affirmative action program that "categorically trammeled" the rights of non-Hawaiians.

From the beginning, Kamehameha Schools' position has been that its admissions policy must be viewed in the unique context of remedying extreme educational and socioeconomic deficiencies faced by a population that (a) descended from people whose sovereignty and culture were upended and nearly destroyed, in part by the actions of the United States, and (b) consequently enjoys a special trust relationship with the United States government that parallels that between the federal government and Native Americans.

This case presents issues of first impression to the 9th Circuit, and indeed, to the United States, and so it was with grave concern that we saw the panel majority overlook the unique history and culture of Hawai'i and its native people in favor of applying a mechanical legal analysis meant to protect oppressed minorities from discrimination.

On Aug. 23, Kamehameha Schools filed a "petition for rehearing en banc" in the 9th Circuit, arguing the majority panel gravely erred in holding that the admissions policy constitutes impermissible race discrimination. Kamehameha Schools has made it overwhelmingly clear that this case is not just about "a race-based affirmative action program," as Motter insists. I only hope that the 9th Circuit judges agree.

Walter Heen is president of Na 'A 'ahuhiwa, a group of retired Native Hawaiian judges. He wrote this commentary for The Advertiser.


Honolulu Star-Bulletin, Wednesday, August 31, 2005

Kamehameha gains allies
Isle congressmen and civil rights groups file as friends of the court in the school's appeal

By Sally Apgar

Hawaii's congressional delegation and several civil rights groups filed friend-of-the-court briefs yesterday supporting Kamehameha Schools' request that a federal appeals court reconsider its ruling that struck down the school's "Hawaiians-only" admission policy.

Sens. Daniel Inouye and Daniel Akaka, along with Reps. Neil Abercrombie and Ed Case, filed a brief yesterday requesting that the 9th U.S. Circuit Court of Appeals in San Francisco grant an "en banc" review of the case, in which a non-Hawaiian student sued to be admitted to the school.

In a statement, the delegation defended the school's admission policy as a form of remedial civil rights aimed at righting the wrongs of the past through a policy giving native Hawaiians access to better education. "Congress has systematically expressed its intent and recognition that private organizations, such as Kamehameha Schools, fulfill an important role in remedying the continuing imbalances faced by native Hawaiian children, and that such actions do not violate any congressional enactments ... which prohibit discrimination based on race," the statement said.

Also yesterday, several civil rights groups in San Francisco filed a friend-of-the-court brief to "inform the court that civil rights groups with roots in communities of color see Kamehameha Schools admission policy as restorative of justice for an indigenous people whose culture, property and self-governance were nearly destroyed by 19th and 20th century colonialism."

On Aug. 2, the 9th Circuit overturned the admissions policy in a 2-to-1 decision, saying that it creates an "absolute bar to the admission for non-Hawaiians" and "unnecessarily trammels" their rights. The majority argued it was not a legitimate affirmative action plan and therefore violates anti-discrimination laws.

Kamehameha is seeking a rehearing "en banc," hoping a larger panel of judges will overturn the previous decision. If a majority of 24 appeals court judges vote in favor of the request, then a panel of 11 judges would review the case and hold a hearing. En banc hearings are rarely granted.

Under judicial rules, the court has until Sept. 13 "to call for a vote or to request an opinion from the original three-judge panel on whether to rehear the case."

In addition to the Hawaii congressional delegation and the State of Hawaii, Eric Yamamoto, a professor with the William S. Richardson School of Law at the University of Hawaii, and David Forman, a Hawaii civil rights lawyer, announced the filing of a brief from the Japanese American Citizens League-Hawaii Chapter and San Francisco-based groups Equal Justice Society and Centro Legal de la Raza.

"The Kamehameha Schools' admissions policy does not imperil the civil rights of racial minorities," said Yamamoto. Their brief contends that the 9th Circuit was incorrect in comparing Kamehameha's admission policy "to an affirmative action diversity program in private businesses. Unlike programs by other ethnic groups, a private program for indigenous peoples that uses race as a determining factor is legitimate as long as it is crafted as a 'restorative response' to the devastation of colonialism."

In citing cases that support that argument, the brief quotes a 1974 U.S. Supreme Court decision that held favoring American Indians did not conflict with the U.S. Constitution. The court said: "The Indian preference does not constitute 'racial discrimination' or even 'racial preference.'"

Last week when Kamehameha filed its petition, state Attorney General Mark Bennett filed a friend-of-the-court brief calling the 9th Circuit's earlier ruling "fundamentally flawed."


Honolulu Advertiser, Wednesday, August 31, 2005

Appeals court rehearing urged

By Ken Kobayashi
Advertiser Courts Writer

Hawai'i's congressional delegation and three civil rights groups are urging the 9th U.S. Circuit Court of Appeals to rehear the court's 2-1 decision declaring that the Kamehameha Schools admissions policy bars non-Native Hawaiian students in violation of federal civil rights laws.

U.S. Sens. Dan Inouye and Daniel Akaka and U.S. Reps. Neil Abercrombie and Ed Case filed a friend-of-the-court brief yesterday in support of the school's request that a larger panel of 11 appeals court judges rehear the case.

The delegation issued a statement saying it is arguing that Congress recognizes that Kamehameha fulfills a role in remedying "educational imbalances faced by Native Hawaiian children."

A separate friend-of-the-court brief was filed by the Japanese American Citizens League-Hawai'i chapter and two San Francisco-based groups, Equal Justice Society and Centro Legal de la Raza.

Eric Yamamoto, a University of Hawai'i law professor and a lawyer for the three groups on the brief, said they argue that the admissions policy does not threaten the civil rights of racial minorities. "The Native Hawaiian experience is unique, and these civil rights groups support restorative justice for Native Hawaiians," he said.

The enforcement of the 2-1 decision issued Aug. 2 is postponed pending the outcome of the school's rehearing request. Earlier, the state attorney general's office also filed a brief urging the court to grant the rehearing.

The decision is from a lawsuit by an unnamed non-Native Hawaiian student who was denied admission into Kamehameha. Eric Grant, a Sacramento, Calif., lawyer representing the teenager, has said he will oppose the school's request, arguing that the majority in the 2-1 ruling was correct and that there is no need for a rehearing.


Hawaii Reporter, August 30, 2005

Legacy of One of Hawaii's Richest Men: Charles Reed Bishop

By George Avlonitis

Five years ago, the name of the Bernice Pauahi Bishop Estate (commonly known as, "Kamehameha Schools/Bishop Estate"), was changed just to "Kamehameha Schools."

To remove the name of a philanthropist from her endowment is the ultimate act of ingratitude.

It is, too, the ultimate act of hypocrisy to keep calling Pauahi Bishop, "our beloved and generous Princess" -- but ... "we do not want her haole name on our endowment."

It is, too, the ultimate irony because, without the name "Bishop," there would not have been Kamehameha Schools.

You see, the B. Pauahi Bishop Estate is really ... the Charles Reed Bishop Estate. He was the richest man in Hawaii.

Of the $6 billion to $10 billion assets of the estate today, 84 percent or $5.0 billion to $8.5 billion is the money and lands of her husband’s, contributed after her death in 1884. That was $2.5 million or 40 percent of his fortune of over $6.0 million in 1884.

Most of the rest he spent for the Hawaiians too. (See book by former president of Kamehameha Schools for 17 years, Harold W. Kent, Charles Reed Bishop – Man of Hawaii and the state Bureau of Conveyances.)

After his death, in 1915, he was buried in the Royal Mausoleum by the former Queen Liliuokalani and Prince Kuhio.

Just the cash contributions of Charles R. Bishop to build and equip the schools, in the 1880s, equaled the $474,000 value of the 375,000 acres of Pauahi’s lands as appraised for probate. (353,000 acres of Pauahi’s lands were willed to her by Princess Keelikolani a year before Pauahi Bishop's death in 1884).

Even so, for operation and capital outlay he would have to sell most of the valuable acres of Pauahi’s lands. That's when he started pouring assets into the Estate. His total contribution was $2.5. million.

The rest of this commentary makes it clear too why Pauahi Bishop would not exclude non-Hawaiians from the Kamehameha Schools.

You see, the reason haole names crop up when philanthropy is mentioned, is due to the fact that the 250 chiefs, the ones who got up to 400,000 acres each, (more than the land of the island of Oahu), or a total of 1.5 million acres, in the Mahele, never gave to the common people any land, built a hospital a school or a library …

The exception was B. Pauahi Bishop but, without Charles R. Bishop, the schools would have lasted just a few years.

For $250,000, an estimated $38.0 million to $75.0 million today, Charles R. Bishop, built the world renowned Bernice Pauahi Bishop Museum with 2 million items.

Traveling the world over, he spent over $100,000 ($15.0 million to $30.0 million today), buying scientific collections for the museum and buying back Hawaiian antiquities given as gifts or sold by Hawaiians in the eighteenth and nineteenth centuries.

For $1.3 million, ($200 million to $400 million today), he established the Charles R. Bishop Trust for the support of the museum and for philanthropy, mostly for Hawaiians, after his death.

He gave $1.3 million, ($200 million to $400 million today), for philanthropy: $853,000, ($130.0 million to $260.0 million today), for schools with emphasis for schools for Hawaiians, virtually all established by missionaries.

He gave $67,000,($10 million to $20 million today), for room and board to Hilo Boys’ Boarding School for Hawaiians, established by missionary David Lyman.

He gave $100.000, ($15 million to $30 million today). to Queen’s Hospital, established in 1859 for poor Hawaiians mostly with contributions from haole businesses. The government gave the land and $5,000 for the first building.

Only after her death, in 1885, 26 years after the hospital was established, Queen Emma willed 13,000 acres to the hospital worth $16.000 to $25,000. (Valued today at $600.0 million to $800.0 million, with the income benefiting poor Hawaiians at Queen’s Hospital.)

He gave: $236,000, ($35 million to $70 million today), for indigent Hawaiians, for the "Kaiulani Home" for Hawaiian girls, for the Kalaupapa Hawaiian lepers and build a five building compound, the "Bishop Home," in Kalaupapa, to protect Hawaiian leper girls from sexual assaults. (The "cherished dream" of future saint, Father Damien.) Mother superior Marianne at the compound, also a future saint, wrote about Bishop: "… I am sure, if he knew how many girls he has saved from immorality he would feel more than happy for having founded this Home. God Bless him."

Bishop initiated the "lease-do not sell" Estate lands, now widely used in Hawaii.

Four months before his death on June 16, 1915, he asked for assistance from the Charles R. Bishop Trust and promised to pay it back from his few remaining securities.

He had run out of money.

George Avlonitis, a resident of Honolulu, can be reached via email at: LAKA34@aol.com


Kamehameha Schools Website, August 31, 2005

Wide Ranging Support for Kamehameha Schools Appeal Grows

Kamehameha Schools today received wide ranging support for its petition for en banc review of a U.S. 9th Circuit Court of Appeals panel decision overturning the schools’ policy of offering admissions preference to applicants of Hawaiian ancestry

In addition to filing of Amicus Curiae briefs from Hawai‘i’s congressional delegation, state attorney general and Honolulu’s city corporation counsel, Kamehameha Schools received support form local and national organizations all supporting the school’s 117-year-old admission’s policy.

The largest support group came from the National Association of Independent Schools (NAIS), a voluntary membership organization that represents more than 1,200 private, independent elementary and secondary schools throughout the United States.

In their brief, NAIS notes, “the panel majority decision represents an unprecedented judicial intrusion into the very core of the remedial mission of a completely privately funded independent school.” The brief also points out the that no court at any level had ever invalidated a remedial policy of any independent primary or secondary school.

The National Indian Education Association (NIEA), the largest and oldest Indian education organization in the United States and the Alaskan Federal of Natives (AFN), consisting of 13 regional native corporations forming the largest statewide native organization in Alaska, also filed Amici Curiae motions.

Locally, three major coalitions filed motions with the Ninth Circuit. They include:
• Native Hawaiian Legal Corporation, Native Hawaiian Bar Association, and Na ‘A ‘ahuhiwa
• ‘Ilio‘ulaokalani Coalition
• Hawaiian Service Organizations representing 16 organizations and represents and improves every major component of systematic deprivation historically imposed on Native Hawaiians.
• Ohana Council

With Kamehameha Schools’ petition filed on August 23, the 24 judges from the 9th Circuit Court of Appeals have until Sept. 13 to call for a vote or to request an opinion from the original three-judge panel on whether to rehear the case. In the meantime, Kamehameha Schools’ preference policy, which has been in place since The Schools’ founding in 1887, remains in effect.

Links to Amicus Curiae brief:

National Association of Idependant Schools (Adobe PDF, 676 KB)

National Indian Education Association and the Alaskan Federal of Natives (Adobe PDF, 1.1 MB)

Native Hawaiian Legal Corporation, Native Hawaiian Bar Association, and Na'a'ahuhiwa (Adobe PDF, 892 KB)

State of Hawai'i Attorney General (Adobe PDF, 3 MB)

Honolulu City Corporation Counsel (Adobe PDF, 2 MB)

Hawaiian Service Organization (Adobe PDF, 1 MB)

‘Ilio‘ulaokalani Coalition (Adobe PDF, 1 MB)

U.S. Congressional and Senate Delegation (Adobe PDF, 3 MB)

Ohana Council (Adobe PDF, 1 MB)


Honolulu Advertiser, Thursday, September 1, 2005

City joins Kamehameha Schools rehearing bid

By Curtis Lum

Honolulu and a national private-schools organization yesterday joined a growing list of government and private entities that support a request by Kamehameha Schools for judges to rehear the 9th U.S. Circuit Court of Appeals decision that struck down the school's policy that bars non-Native Hawaiian students.

Kamehameha Schools is requesting that a larger panel of the appeals court's judges rehear the case. In a 2-1 ruling Aug. 2, the appeals panel said the school's policy of admitting only students with Hawaiian blood violates civil rights laws.

The court has until Sept. 13 to vote on the motion or to request an opinion from the original three judges on whether to rehear the case, according to a Kamehameha Schools spokesman.

On Tuesday, Hawai'i's congressional delegation filed a friend-of-the-court brief in support of the school's request. Sens. Dan Inouye and Daniel Akaka, along with Reps. Neil Abercrombie and Ed Case, all Democrats, wrote that Congress recognizes Kamehameha's policy because it remedies "educational imbalances faced by Native Hawaiian children."

Earlier, similar briefs were filed by the state attorney general, the Japanese American Citizens League-Hawai'i Chapter, Native Hawaiian Legal Corp., Native Hawaiian Bar Association, Na 'A'ahuhiwa, 'Ilio'ulaokalani Coalition and three Mainland civil-rights groups.

Yesterday, Mayor Mufi Hannemann said Honolulu also filed a friend-of-the-court brief because "I wanted to demonstrate my deep belief that the court ignored the expressed will of Princess Pauahi, and ... overlooked the reality of today's Hawai'i."

The school also announced yesterday that a brief was filed by the National Association of Independent Schools, which represents more than 1,200 private schools.


Honolulu Advertiser, Friday, September 2, 2005

9th Circuit Court withdraws order

The 9th Circuit Court of Appeals has withdrawn its order directing lawyers for an unnamed non-Native Hawaiian student to file papers opposing Kamehameha Schools' request for a rehearing on its admissions policy.

On Aug. 2, the court issued a 2-1 decision that the policy bars non-Native Hawaiian students and constitutes a violation of federal civil rights laws. The school had asked for a larger "en banc" panel of 11 appeals judges to rehear the case. The state attorney general's office and others have filed friend-of-the-court briefs in support of the school's request.

Yesterday, the court said its order, which was issued last week, was erroneous.


Miami Herald, Fri, Sep. 02, 2005

School's Hawaiian-only policy stirs passions

A non-Hawaiian student has sued the prestigious Hawaiians-only Kamehameha Schools, alleging discrimination. The school was created with the aim of helping the Hawaiian people.

Associated Press

HONOLULU - Sitting atop a lush green hillside with a panoramic view of Honolulu and the Pacific beyond, the prestigious Hawaiians-only Kamehameha Schools is beloved by its students and alumni. But the private school envisioned by a Hawaiian princess may soon be changing.

A non-Hawaiian teenager is suing the school over its exclusive admissions policy requiring that applicants prove Hawaiian bloodlines.

The boy was rejected for admission in 2003, and his lawsuit led to a ruling earlier this month from a panel of the Ninth U.S. Circuit Court of Appeals, which said the race-based policy violates federal anti-discrimination laws. The school is asking the full court to reconsider.

Michael Chun, headmaster of the school, said the Hawaiians-only policy follows the 1883 will of a princess who was concerned Hawaiians would suffer disadvantages. Ten years after her death, the Hawaiian monarchy was overthrown by a group of U.S. businessmen and sugar planters.

''Their culture was shredded, their spirit was broken, and their sense of sovereignty and independence was taken away,'' said Michael Chun said. ``She saw as one of the ways to help her people survive was through education.''

Since the appeals court's ruling, alumni and other Native Hawaiians have risen to the school's defense. On Aug. 20, about 400 marched in San Francisco to petition the full appeals court to review the admissions case. On Aug. 6, more than 15,000 demonstrated across the islands to protest what they see as an assault on their culture.

Since its humble start with a couple of dozen boys, Kamehameha has expanded to campuses on other islands, becoming the largest and richest independent private elementary and secondary school in the nation.

About 5,100 Hawaiian and part-Hawaiian students from kindergarten through 12th grade attend classes on the schools' three campuses.

Funded by a $6.2 billion trust, it is also Hawaii's largest private landowner, with 365,000 acres, including resort, commercial and residential holdings.

Jim Slagel, who has taught advanced placement English at Kamehameha for 16 years, said his students are no different from those he taught at public schools in the mainland. ''It's not a typical private school,'' Slagel said. ``We are still dealing with the lower social and economic students.''

The school's powerful economic assets allow it to subsidize tuition costs for 60 percent of its students, making admissions highly prized and extremely competitive. Only one in eight applicants is admitted.

Kamehameha's $2,686 annual tuition falls well below other Hawaii private schools, including highly rated Punahou School's $12,885 and Iolani School's $12,200, neither of which is race restrictive.

In addition to providing a birth certificate to prove Hawaiian ancestry, applicants for grade seven and higher at Kamehameha must pass an admissions test, undergo interviews with professors and write an essay.

The school's stated policy is that non-Hawaiians may be admitted if there are openings after Hawaiians who meet the criteria have been offered admission.

But the school in recent years has enrolled only two non-Hawaiians.


Honolulu Advertiser, Saturday, September 3, 2005

Kamehameha request to be challenged

The lawyers for an unnamed non-Hawaiian student will file with the 9th U.S. Circuit Court of Appeals their opposition to a request by Kamehameha Schools for a rehearing on a 2-1 decision declaring that the school's admissions policy violates federal civil rights laws.

The lawyers misinterpreted an order from the appeals court issued on Thursday and thought they did not have to file a response, but Eric Grant, a Sacramento attorney representing the teenager, said they will be filing their opposing court papers next week.

Kamehameha Schools is asking for a larger panel of 11 judges to rehear the case.

The state attorney general's office and other groups have filed friends-of-the-court briefs supporting the request.

In the 2-1 decision issued Aug. 2, the majority said the school's policy bars non-Native Hawaiians from the school in violation of the federal laws.


Honolulu Advertiser, Friday, September 9, 2005

Alumni offer sounding board

By Gordon Y.K. Pang

A new group is seeking to establish itself as a clearinghouse for ideas on how the Kamehameha Schools can move forward in the wake of a federal court decision against its Hawaiians-first admissions policy.

Kekoa McClellan, chairman of the board for 'Olelo A'o Kamehameha, said the group was formed because "we believe there is a gap between the school, the administration, its officers and trustees, and the general needs of the local Hawaiians and non-Hawaiians in the community."

While its organizers are Kamehameha alumni, the group wants input from graduates and non-graduates, as well as both Hawaiians and non-Hawaiians, said McClellan, a 2002 Kamehameha alumnus and a Hawai'i Pacific University graduate.

McClellan said the group is particularly interested in hearing the views of those who oppose the existing admissions policy. "We want to know why they think that way," he said. "We're not trying to advocate for one side or another; we're trying to get the community's thoughts."

The ideas will be gathered and delivered to the schools' trustees.

"We want to do what's good for Hawaiians and Hawai'i," he said. "There can be a connection between what's good for Hawaiians and what's good for Hawai'i."

Ann Botticelli, Kamehameha spokeswoman, said school trustees are aware that the decision in the John Doe v. Kamehameha case has generated immense discussion in the general community.

The school supports 'Olelo A'o's efforts to gather those ideas in an organized fashion. "That kind of input is always welcome," she said. The group has even been allowed to hold several of its meetings on Kamehameha property.

The school is contesting the decision in the John Doe v. Kamehameha case. John Doe is the fictitious name of a child who said he was denied admission to the school because he is non-Hawaiian. By a 2-1 decision, the 9th U.S. Circuit Court of Appeals ruled that the admissions policy violates civil rights.


'Olelo A'o Kamehameha wants to gather community input on how the Kamehameha Schools should proceed since a federal appeals court struck down its admissions policy. Call organization chairman Kekoa McClellan at 393-7937 or go to http://oleloaokamehameha.blogspot.com.


Honolulu Advertiser, Tuesday, September 13, 2005

Data show Native Hawaiians lag

By Gordon Y.K. Pang

Native Hawaiians, as a whole, continue to lag behind the rest of the state in the areas of social, economic, physical, emotional and cognitive well-being despite some recent gains, according to a new, 450-page study being released this month by Kamehameha Schools.

The findings in "Ka Huaka'i: 2005 Native Hawaiian Educational Assessment," gives Kamehameha and other agencies that serve Native Hawaiians a new weapon as they seek to stave off lawsuits that challenge their Hawaiians-first preference policies.

The study derives nearly all of its data from other sources. But while much of the information is not new, it binds it into one source book that gives weight to the argument that Native Hawaiians, as a category, have greater needs than other ethnic groups in the state.

Such programs — including the Office of Hawaiian Affairs and Kamehameha Schools itself — are in the midst of fighting challenges in federal court.

The executive summary of the report was distributed at the Council for Native Hawaiian Advancement's recent Native Hawaiian Conference. The full report is expected to be released to the public in the next few weeks.

"It's basically the same story that we've been telling for the last 20 years," said Shawn Malia Kana'iaupuni, director of Kamehameha's Policy Analysis and System Evaluation team. "When you look at the data, you can see that whether you're looking at economic needs, physical health, material resources or other types of social indicators, the averages for Native Hawaiians are lower than other groups."

The study cites 2000 U.S. Census numbers showing 9.8 percent of Native Hawaiians unemployed, highest among the race categories, compared to 6.3 percent statewide.

Among parents of school-aged Native Hawaiian children, the situation is not as bad. About 68.8 percent of such families have both parents working, compared to a statewide rate of 68.2 percent.

Kana'iaupuni said what bothers her is that those Native Hawaiian families make a mean income of $55,865, substantially less than the $66,413 statewide average for two-parent families with school-aged children.

A separate table in the 2000 Census shows Hawaiians are under-represented in managerial and professional occupations. Only 22.8 percent of Native Hawaiians reported being in management and professional ranks, second only to the 18.3 percent of Filipinos who put themselves in that category. The statewide average was 32.2 percent.

The same table showed Native Hawaiians more likely than other ethnic groups, and the statewide average, to be employed in blue-collar positions including farming, construction, maintenance and transportation jobs.

Other highlights:

# In the area of social and cultural well-being, Native Hawaiian households were more likely than non-Hawaiian households to be family-based and include minor children. But the prevalence of single-parent families with minor children appeared to be greater among Native Hawaiians than non-Hawaiians.

The rate of child abuse and neglect cases among Native Hawaiians was more than twice the rates of other major ethnic groups and has been steadily increasing. Native Hawaiians, on the whole, have disproportionately higher rates of substance abuse, arrest and incarceration than other groups.

# Mortality rates for cancer, diabetes and heart disease for Native Hawaiians are higher than other major ethnic groups in the state. About 71.8 percent of Native Hawaiians adults are overweight and obese, compared to 51.8 percent of the statewide percentage.

# Native Hawaiian adolescents suffer higher rates of depression and are more likely to attempt suicide than their statewide non-Hawaiian peers.

# The test scores of Native Hawaiian children lag behind statewide averages by approximately 10 percentage points in reading and math. Meanwhile, the percentage of Native Hawaiian adults who have obtained a bachelor's degree is 12.6 percent, less than half the statewide rate of 26.2 percent.

Kekoa Paulsen, a Kamehameha spokesman, said the study underscores the need for the school and others to continue focusing their efforts on improving the well-being of Native Hawaiians. For instance, he said, the school's recent emphasis on early-childhood education can be justified by some of the findings in the study.

Ken Conklin, a researcher for the group Aloha for All, questioned the value of a study that focuses on comparing a single ethnic group with others. "We should look at individuals as individuals and not as members of some group," he said. "Whatever difficulties they may have, if those difficulties are severe enough and can be overcome, then perhaps society should help those individuals. But we should not be giving special benefits to an entire ethnic group."

Conklin and Aloha for All object to the Akaka bill, which would create a process that leads to federal recognition of a Native Hawaiian political entity, arguing that it is race-based. They also challenge the legality of programs that give preference to Native Hawaiians.

Aloha for All last month won a partial victory when the 9th U.S. Circuit Court of Appeals ruled 2-1 vote that the taxpayer group can challenge the expenditure of state tax money for the Office of Hawaiian Affairs.

Kamehameha, meanwhile, is appealing a ruling by the same court that determined its Hawaiians-first admissions policy violates federal civil-rights laws.

Conklin also said he is also troubled by studies that appear to promote the needs of one racial group over another. "What we're doing is encouraging identity politics," he said.

But Jade Danner, vice president of the nonprofit Council for Native Hawaiian Advancement, said studies such as the Kamehameha product are valuable. They not only show where Native Hawaiians, as a category, continue to need more assistance, but also reveal what programs have worked to help them.

Danner said she agrees with Conklin that "race-based programs are not what's needed."

However, she said, support should be given to programs that perpetuate a culture that would cease to exist without some help.

Danner, who is Hawaiian-German, said an entire nation exists that will ensure the German culture is perpetuated. That's not the case for the Hawaiian culture, she said. "Those things will perish if there isn't room made for them to exist in America," she said.


Kamehameha Schools' "Ka Huaka'i: 2005 Native Hawaiian Educational Assessment" is a 450-page compilation of data showing how Native Hawaiians are faring in various areas when compared to other ethnic groups.

An executive summary was released earlier this month, while the full study is expected to be released in the coming weeks. To see the summary or for more information, go to

** Note from Ken Conklin: The ultra-slick 20-page "executive summary" is a huge pdf file of 11,426 Kilobytes. The small content it has appears as text written across the petals of a flower, and in other imaginative ways. The 450-page book is promised for "later," but in any case there has never been a peer review of any of these "studies" such as would be done before publication in an academic journal. So far as is known, no neutral outsider has ever reviewed the validity or statistical reliability of these "studies." The executive summary can be downloaded by clicking here:


Hawaii Reporter, September 15, 2005

'Native Hawaiian' Victimhood Claims - Bad Statistics for Bad Purposes

By Ken Conklin

How many times have we heard it said?

Native Hawaiians are at the bottom among all Hawaii's ethnic groups. Low income, poor education, high rates of cancer, diabetes, drug abuse, incarceration, etc. There are hundreds of Hawaiian racial victimhood claims; often vague, but occasionally accompanied by percentage figures that make them look scientific.

In most cases the methods of gathering data and analyzing them are not disclosed. The "studies" are usually not subjected to peer review (outside experts judging the work) of the sort that would be done for similar studies prior to publication in a scientific journal. It is often impossible to evaluate these "studies" for validity (relevance of the data to the claim) or reliability (mathematical correctness of statistical analyses and sufficient specificity to make it possible to do a parallel study to replicate the results). The sheer number of claims, and the amount of data necessary to prove or disprove them, make it impossible for any individual or small group to deal with them effectively.

Just this week the Honolulu Advertiser reported that Kamehameha Schools will eventually publish a monster Hawaiian grievance book containing 450 pages of old victimhood claims. But the "executive summary" just happens to be available already, at exactly the right moment to lay it on the desk of every Senator just before they vote on the Akaka bill. We get the slick propaganda booklet now (all form and no substance), never mind the facts (which are old, dubious, and incredibly complex). Download at
A new webpage provides details of some very simple explanations why many such claims are bogus.

(1) "Native Hawaiians" on average are 13 years younger than the rest of the population. Their average age is only 25. Of course young people have lower income (actually only about 10% lower), lower ranks in the companies where they work; and higher levels of unemployment, drug abuse, family instability, criminal activity, and incarceration. Perfectly normal.

In Census 2000, the median household income for "Native Hawaiians" was $45,381, and their median age was 25.3. In Census 2000, the median household income for the population of Hawai'i as a whole was $49,820, and the median age was 36.2. That age gap of 11 years gets 2 years added to it if we exclude from the total population the 20% who are "Native Hawaiian." Also, 12% of all "Native Hawaiians" had household income ABOVE $100,000. Surely those wealthy people should not be eligible for government handouts based on the racial profiling of "Native Hawaiians" as poor and downtrodden. The sources of these data are provided on the webpage at

(2) Most "Native Hawaiians" are mostly not of Hawaiian native ancestry. Perhaps 75% of all "Native Hawaiians" have more than 75% of their ancestry from Asia, Europe, and America. But when someone with 1/16 Hawaiian native blood quantum is diagnosed with breast cancer, the Hawaiian grievance industry chalks up one full tally mark. That's clearly wrong.

First of all, individuals with problems who cannot solve the problems without government help should get that help regardless of race. But if we're going to play the game of putting people into racial groups and tallying victimhood counts, then there needs to be a more honest way to determine which group wins the tally mark.

One way is to count each person as belonging to the one racial group which is his highest percentage of blood quantum. A better way is to allocate a fraction of a tally mark to each race, equal to each victim's percentage of blood quantum of that race.

The lady who gets breast cancer with 1/16 Hawaiian native blood quantum racks up 1/16 of a tally mark for the Hawaiian category, while the Irish victimhood account wins 1/2 tally mark for her 50% Irish blood.

This method would also let us find out whether women with higher Hawaiian native quantum get breast cancer at a higher rate than low quantum Hawaiians -- clearly an important way to prove whether "being Hawaiian" is correlated with or perhaps causative of breast cancer.

Some activists say being Hawaiian is not about race, it's about culture. Fine. Then to do the data analysis properly, you must create a taxonomy of cultural behaviors and ascribe each one to some particular culture. Then for each individual determine the fractional portion of his cultural identity to be ascribed to each racial group. One thing is very clear -- it's absurd to award a full tally mark to "Native Hawaiians" for a victim who has only 1/16 native quantum of blood or culture.

(3) Everyone eventually dies. Shocking, but true! And nobody dies more than once. So when the Hawaiian grievance industry says that "Native Hawaiians" have the highest mortality rate for breast cancer, isn't it obvious that they must also have the lowest mortality rate for some other disease? There are only so many Hawaiians, and each one can only die once. Furthermore, for whatever diseases "Native Hawaiians" have comparatively low mortality rates, it must be true that some other ethnic group has comparatively high mortality rates for those diseases. So, in order to protect the interests of white people, there should be a Papa Ola Lokahi Haole funded by millions of federal dollars to gather and analyze the data for all those diseases for which white people have comparatively high mortality rates. Likewise Papa Ola Lokahi Kepani to do the job for people of Japanese ancestry. How silly. But fair is fair. Live by playing the race card, die by playing the race card.

(4) Darwinian "natural selection", or evolution, might explain why "Native Hawaiians" have bad statistics (both physically and culturally). This is not as silly as it might sound. "Native Hawaiians" have had perhaps 100 generations of inbreeding, with perhaps no outside additions to the gene pool between the Marquesan invasion of 1200 AD and the European arrival in 1778. The arrival of Europeans, Americans, and Asians produced tremendous changes in the physical environment of these islands, and also the social/cultural environment. It takes many generations before an organism can adapt to a changing physical environment. Thus "Native Hawaiians" may simply be physiologically (genetically) unable to cope with the radically changed physical and cultural environment of modern Hawai'i. The solution envisioned by the Akaka bill and other models of "indigenous self-determination" is to give "Native Hawaiians" the power to exercise racial supremacy in re-shaping the physical and cultural environment of Hawai'i to make it more hospitable to their inborn needs, even if that means making Hawai'i far less hospitable to everyone else. Awarding political power based on race is very dangerous. A different solution would be to re-engineer the obsolete Hawaiian gene to make it compatible with today's environment. Both solutions are horrendous.

Hawaiian victimhood claims are part of the Hawaiian grievance industry, which has four main purposes: (a) to support requests for huge grants of government and philanthropic money to study and treat these problems on a racially exclusionary basis; and (b) to allegedly justify the existence of powerful racially exclusionary government and private institutions (such as Kamehameha Schools, OHA, DHHL, Papa Ola Lokahi, Alu Like, Native Hawaiian Leadership Program, etc.); and (c) to allegedly justify demands for race-based political power (such as would be authorized by the Akaka bill); and (d) to arouse in the public mind feelings of sympathy and compassion for these allegedly poor and downtrodden victims of history, so there will be political support for purposes (a), (b) and (c). A webpage describes "Native Hawaiians as the State Pet or Mascot: A Psychological Analysis of Why Hawai'i's People Tolerate and Irrationally Support Racial Separatism and Ethnic Nationalism" See:

Hawaiian victimhood claims are not put forward merely to solicit sympathy and hand-holding. Rather, these are the kinds of statements made by a beggar who not only holds out a tin cup but who chases you down the street, grabs you by the collar, and shakes you while yelling in your face the reasons why he is begging and why you owe him money. No matter how much you give, it's never enough.

David Ingham gave us a perfect example in the laundry list he published in Hawaii Reporter on September 14 -- dozens of claims, some of which included impressive-looking percentages. [An excellent short example of numerous general and specific victimhood claims was published September 14 by someone unrelated to Kamehameha Schools. The author is an independence activist who opposes the Akaka bill but wants to defend the multitude of race-based programs already in place. See: David Ingham, "Akaka Bill May Not Be the Answer, But Native Hawaiians Do Need Help. The Educational, Social, and Health Conditions of Native Hawaiians are a Dismal Disgrace to All but the Willfully Blind and Ignorant" Hawaii Reporter, September 14, 2005.
http://www.hawaiireporter.com/story.aspx?29407e3f-8e13-4a97-8b51-213b57f33091 ]

Where's the evidence? Ingham merely says at the end: "The statistics in this article are collected from information compiled by the Office of Hawaiian Affairs, Department of Health, CDC, the U.S. Census, NIH, Ahahui o na Kauka and private data banks."

So, David, where exactly do we look to verify the five claims that "Native Hawaiian males have the highest cancer mortality rates in the State for cancers of the lung, colon, rectum, and colorectum, and for all cancers combined"?

Ingham did not gather the data himself. He did not do the statistical analyses. He did not comb through hundreds of individual reports and "studies" to create this compilation by himself; because if he had done so, he would have provided a citation for each item telling where it came from so that a scholar could find the actual study and independently analyze the data. If I were his professor and this was his term paper, I would strongly suspect plagiarism.

Even if true, most of Ingham's claims are easily dismissed because of the explanations above. (1) The 13 year age gap accounts for relatively youthful "Native Hawaiians" having the worst statistics for income, drug abuse, instability, and incarceration. (2) Start over and analyze the data by allocating a fractional tally mark to each race, equal to each victim's fraction of blood quantum of that race. Chances are, "Native Hawaiians" would no longer be at the bottom on more than 20% of the items if we correctly identify who is really "Native Hawaiian" (and how much). (3) Remember that everyone dies, but only one time. Therefore, for every disease where "Native Hawaiians" have the worst mortality rate, there must be other diseases for which they have the best mortality rate. Celebrate the good; and give a fair share of resources to other racial groups for the diseases where they have the worst mortality rates. Better yet, help the needy regardless of race. (4) In the end, if you insist that "Native Hawaiians" are always the worst on every measure, then there are two choices, both bad: either start a crash project of genetic engineering to cure the bad Hawaiian race gene; or else tear down Hawai'i's modern physical and social environment, and go back to the old environment to which "Native Hawaiians" were well-adapted before the white man came and made it inhospitable to them. After all, that's what race-based "self-determination" and "sovereignty" are all about, right?


Honolulu Advertiser, Thursday, September 15, 2005

Student's lawyers urge court to deny Kamehameha request

By Ken Kobayashi
Advertiser Courts Writer

Lawyers for a non-Native Hawaiian student are urging the U.S. 9th Circuit Court of Appeals to deny Kamehameha Schools' request for a rehearing on the court's 2-1 decision declaring the school admission policy a violation of federal civil rights law.

They contend the decision issued Aug. 2 applied established principals of law and a rehearing is not necessary.

The 10-page brief was sent to the 9th Circuit's headquarters in San Francisco to be filed today. The filing will trigger a two-week deadline for the appeals court to indicate whether a vote will be taken on the rehearing.

A majority of the appeals judges voting would be necessary for a rehearing by a larger panel of 11 appeals court judges. That rehearing process traditionally takes months or longer than a year.

Sacramento lawyer Eric Grant, one of the unnamed student's lawyers, yesterday said he expects a vote will be taken since it only requires one judge to call for one and typically, the dissenting judge in a 2-1 decision will call for the poll.

The more interesting issue is the outcome of the vote, which he hopes will be sometime next month, Grant said.

The court's decision held that the private school's admission policy is an "absolute bar" to non-Native Hawaiian applicants. The ruling caused an uproar among school supporters who believe the nearly 120-year-old practice is necessary to address social, economic and educational disadvantages among Native Hawaiians.

The school asked for the "en banc" rehearing, calling the decision "unprecedented."

About a dozen organizations, including the state attorney general's office and Hawai'i's congressional delegation, filed friends-of-the-court briefs supporting the school's request.

In their brief, the student's lawyers argue that despite the school's "rhetoric," the case involves "no dramatic or unusual conclusion of law." The school's policy, they contend, "is one of categorical racial segregation."

The lawyers said the Supreme Court's Rice v. Cayetano decision in 2000 that struck the Hawaiians-only voting restriction for Office of Hawaiian Affairs trustees rejects the school's contention that its policy is justified.

They also cited the 9th Circuit's ruling Aug. 31 that reinstated part of a lawsuit by taxpayers challenging state tax money to OHA as unconstitutional because the agency provides benefits only to residents of Hawaiian blood.

Appeals court judges Jay Bybee and Robert Beezer represented the majority in the 2-1 decision. Appeals Judge Susan Graber dissented.


Honolulu Star-Bulletin, Thursday, September 15, 2005

Court is urged not to reconsider Kamehameha case

By Mary Vorsino

Attorneys for a teenage boy challenging Kamehameha Schools' "Hawaiians-only" admission policy urged the 9th U.S. Circuit Court of Appeals yesterday to deny a rehearing of the case "en banc," or before a larger panel of judges.

"The distinctive facts are that KSBE (Kamehameha Schools/Bishop Estate) ... concedes that it discriminates in admissions on the basis of race -- categorically denying children who lack native Hawaiian ancestry -- and has done so for almost 120 years," wrote plaintiff attorneys Eric Grant, John W. Goemans and Michael Stokes Paulsen. "It is perfectly plain that an absolute racial bar is sufficient to establish a violation under settle decisions of the U.S. Supreme Court and this Circuit."

On Aug. 2 the 9th Circuit in San Francisco overturned Kamehameha's admission policy in a 2-1 decision, saying it creates an "absolute bar to the admission for non-Hawaiians" and therefore "unnecessarily trammels" their rights.

But in a petition for an en banc rehearing filed Aug. 24, Kamehameha Schools argued its admission policy has "a legitimate remedial reason for a preference" under historic civil rights legislation. "There is no dispute that the admissions policy remedies severe ongoing harms to native Hawaiians," lawyers for the institution wrote, "and no dispute that Congress has itself enacted a host of explicit preferences for native Hawaiians."

In yesterday's response to the school's petition, lawyers for the plaintiff said the en banc hearing was unnecessary. "KSBE asserts ... that this appeal involves a 'question of exceptional importance to this Circuit.' While the plaintiff agrees that the case is important, the legal principles involved are not exceptional. The panel simply applied established principles of law to a new and distinctive set of facts."

A majority of 24 appeals court judges must approve the request, and a panel of 11 judges would review the case and hold a hearing. In 2004 the 9th Circuit received 842 requests for such hearings but decided to vote on only 47, and ultimately granted 22 rehearings.

In the meantime, Kamehameha is enforcing its admission policy, which means that John Doe, the unidentified student who brought the case in June 2003 and is in his senior year, is attending school elsewhere.


Honolulu Star-Bulletin, Friday, September 16, 2005

Admission delay could prompt boy to seek money
The non-Hawaiian teenager's lawyer files papers to force a vote

By Alexandre Da Silva
Associated Press

An attorney fighting to have a non-Hawaiian teenager attend his senior year at Kamehameha Schools said yesterday he would seek monetary damages if the case drags on past the end of the academic year.

"That's not what the client is in for; he wants to go to school," said Eric Grant, a Sacramento, Calif., attorney representing the unidentified boy rejected by the school because he lacks Hawaiian ancestry.

If the boy is not admitted before graduation next summer, Grant said, "we will seek monetary damages." The lawyer said he has not decided how much money to seek from the private school system, which is funded by a $6.2 billion trust.

The teenager's chances of getting into the prestigious private Hawaiian school dim by the day as the school prepares to enter its second month of classes.

The lawsuit was filed in June 2003 after Kamehameha turned down the teenager, saying he lacked Hawaiian bloodlines and thus did not meet the schools' 117-year-old admission policy of giving preference to applicants who have Hawaiian ancestral ties.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled last month that the schools' policy is illegal because it operates "as an absolute bar to admission of those of the non-preferred race." The school has more than 5,000 students in elementary to high school classes on Oahu, Maui and the Big Island. But a pending appeal by the school requesting that a larger panel of appeals court judges review the decision has stalled the case.

The boy, who is named only as John Doe in the lawsuit, has since enrolled at a public school in Hawaii.

Grant said his filing of court papers yesterday gives the 9th Circuit two weeks to decide whether to vote on the schools' appeal. However, the legal process, including a possible appeal to the U.S. Supreme Court, could delay a final decision on the case until 2007, he said.

Kamehameha argues the historic admission practice follows the 1883 will of a princess who set up the school system for Hawaiians who have suffered disadvantages following the 1893 U.S.-backed overthrow of their kingdom. "The court has the arguments before it as far as whether to grant the rehearing, and we hope that they will find in our favor," said school spokesman Kekoa Paulsen.

Grant said he would never give up on his case because it deals with serious racial issues. "The principle is important, and there's no reason to have come all this way to give up," he said.

Only two non-Hawaiians have been accepted to the school in recent years.

Kalani Rosell of Wailuku, a junior at the school's Maui campus, enrolled in 2002 after the list of qualified Hawaiian students was exhausted. His admission brought protests from Hawaiian groups.

The other student, Brayden Kekoa Mohica-Cummings, was ordered to be accepted at the school's main Kapalama campus on Oahu in 2003 after U.S. District Judge David Ezra approved an injunction filled by Big Island attorney John Goemans, who is also representing the teenager in the current lawsuit.

In Mohica-Cummings' case, the boy and his mother filed suit after the school admitted him but later tried to turn him away, saying the boy's Hawaiian ancestry could not be established. The lawsuit was later dropped in a deal with the school.


Honolulu Advertiser, Tuesday, September 20, 2005

Putting our worst foot forward

By Lee Cataluna
Advertiser Columnist

You know they have us in the corner when our best option is to argue how bad off we are to keep what is ours.

Kamehameha Schools last week released a report that culled data from a multitude of sources and studies. The bottom-line conclusion of the 450 pages, as reported widely, is that Native Hawaiians are, on the whole, worse off than any other group in Hawai'i in terms of economic indicators, education, and physical and mental health. Native Hawaiians have disproportionately higher rates of substance abuse, child abuse and incarceration.

This was not new information. What was new was the way in which the information was played — as an important argument in the battle to keep Kamehameha Schools' admission preference intact and in support of the Akaka bill.

In this high-stakes fight, this report was held up as a point on the scoreboard for Hawaiians. How twisted is that?

Not that the data are wrong or misleading, just that it further erodes the spirit of a people to have to use such painful truths as defensive weaponry.

Here we go again, having to play the game by somebody else's rules. In the language of Western paternalism, our heritage is termed "entitlements" so we have to prove how bad off we are to show we deserve what is rightfully ours, weak or strong, lagging or thriving. It is a strange game of being unworthy enough to be worthy and winning by losing, and make no mistake, we didn't make up these rules.

Where is our "Once Were Warriors" speech?

You know, the part in that movie where the character Beth Heke stands up to her oppressor and calls on her Maori ancestors:

" ... They were people with mana, pride, people with spirit. If my spirit can survive living with you for 18 years, then I can survive anything."

Where is that place in our story where we stand up and proclaim our strength, not our weaknesses, and take back our birthright?

Our people also were warriors. They were scientists and voyagers, strategists and storytellers, healers and artists. We still are.

We can't let "how things are" dictate who we are. God forbid any Hawaiian starts to see the statistics as destiny.

Native Hawaiians go to college. We graduate. We have careers and run successful businesses. We live healthy and we live well. We buy houses, we raise smart, sturdy children, we work hard to be good citizens. It is all possible. It doesn't happen often enough yet, but it happens.

Like warriors, a distinction has to be made between battleground strategy and what is said around the fire in base camp. There is a kind of resilience to be nurtured, and that doesn't come from already claiming defeat.

** Note by Ken Conklin: Lee Cataluna is referring to a slick 20-page "executive summary" and a future 450-page monster Hawaiian victimhood book by Kamehameha Schools. The propaganda booklet and future book were celebrated in an article by Gordon Pang in the Honolulu Advertiser of September 13. A webpage analyzing and debunking the statistics, "Native Hawaiian Victimhood Claims -- What Are They? Why Are They Being Asserted? How Can the Bad Statistics Be Explained?" can be found at



THE MINNESOTA DAILY (Minneapolis & St. Paul)
October 10, 2005
Education section, commentary

Hawaiian native-only schools are justifiable

The justness of discriminatory admission policies should be assessed on their consequences for society, not the current standard.

By Jason Ketola

Unless you're from Hawaii, you probably haven't heard of the native-only Kamehameha Schools or the controversy surrounding them today. A non-native teenager recently sued the schools for denying him admission for not being able to prove native bloodlines. He won the case in a 2-1 ruling stating that the schools' admission policy violates civil rights law. Should the current appeal by Kamehameha go through, the appeals court should consider the consequences the Kamehameha Schools have on society rather than support a double standard on discriminatory admission.

Kamehameha is well-known for its quality of education and it serves the important purpose of protecting Hawaiian culture and helping to remedy the inequalities that have befallen native Hawaiians since their monarchy fell in 1893 to U.S. businesses and sugar planters. The schools argue that they are remedying the tremendous inequality which befell the natives. If so, they are justifiable on that basis. I'll explain this below from a position that doesn't usually come up in affirmative action-type debates.

You can almost always guarantee that two specific positions will be raised whenever selective hiring or admission based on race or sex is discussed. One side will argue that it's a racist and sexist practice that merely reverses the tide of discrimination it's supposed to stop. The other side will point to the sexual and racial inequalities that they argue exist because of discrimination.

In a way, both sides are right. Sexual and racial inequalities exist that are most plausibly explained by discrimination. This is obvious in Hawaii where natives have experienced a history of discrimination much like minorities in the continental United States. Yet, the very practice of giving preference to native Hawaiians for admission meets the definition of discrimination itself.

Assuming one thinks that current inequality, as a result of discrimination, is wrong, should we be appalled that discriminatory practices are used to rectify the situation? We can resolutely answer -- no.

To see why I say that, let's first ask why we would want to rectify the racial inequalities that exist. Potential answers include that access to better education reduces economic disparity, thus decreasing crime, or that better education gives natives a greater political voice, which they could use right now given that the Akaka bill before Congress relates to their potential sovereignty. The consequences of rectifying the inequalities between natives and non-natives would benefit both groups. While reducing inequality here has good consequences, can we discriminate in order to achieve these good consequences?

Consider a different example. Admission to medical school relies on a certain set of criteria, including an MCAT score. Admitting people with high MCAT scores to medical school ensures that our society will have the best doctors and other medical professionals possible. In fact, the Association of American Medical Colleges requires medical schools to set thresholds for admittance in order for the schools to be accredited. The consequences again drive the selection procedure, because we think a society with the best possible doctors is a desirable one.

Think for a minute about these two scenarios. In both cases, the consequences of having a better society affect how we discriminate among the candidates for the Kamehameha Schools and for medical school. In what way is discriminating based on race versus MCAT scores different -- such that many of us see the former as bad and yet have no problem with the latter?

To answer that question, we should further ask whether race or medical aptitude entitles one to be treated a certain way. We can all agree that one's race does not mean one is better than another person of a different race or that one inherently deserves more consideration because of his/her race. Similarly, there is nothing that says those who can score well on the MCAT ought to get into medical school.

The admission policy for Kamehameha operates based on its consequences, just as medical school admissions policies were developed based on their consequences. Only native Hawaiians are accepted to the Kamehameha Schools, which may be better for society.

So, those opposing discriminatory admission policy on the grounds that it's racist better own up to the fact that discrimination on ability, a characteristic on which people innately differ, occurs all over the place. In other words, to say that selection based on race is wrong is also to say that merit-based selection is wrong.

On the other side, those supporting Kamehameha might as well admit that the practice is discriminatory and get to the crux of the argument for it -- it can make for a better society.

Granted it's possible that the Kamehameha Schools are not having a good effect in Hawaii. It would take research to assess their consequences. That's exactly how the court should decide this case, not on the spurious position that discrimination based on race is always wrong while other types of discrimination are OK.

If the Kamehameha Schools continue to have good consequences by reducing the inequality between native and non-native Hawaiians, their discriminatory admissions policy is justifiable. The U.S. 9th Circuit Court of Appeals should recognize this if it accepts Kamehameha's appeal.


The Minnesota Daily (Minneapolis & St. Paul)
October 14, 2005

Hawaiian apartheid

Jason Ketola’s Oct. 10 column, “Hawaiian native-only schools are justifiable,” defended racial segregation at Kamehameha Schools. Ketola’s theories might explain why Sen. Norm Coleman, R-Minn., is cosponsoring a bill to create Hawaiian apartheid. Kamehameha is not some small school helping poor kids — it’s worth $6 billion to $15 billion. It’s Hawaii’s largest private landowner, with huge investments in mainland real estate and the stock markets.

Kamehameha screens out all but the academically talented. It requires native Hawaiian ancestry, but most students probably have less than 25 percent native blood. The “natives only” rule racially excludes 80 percent of Hawaii’s children and 99.9 percent of America’s.

Race is what brings Kamehameha kids together. The school’s focus is racial pride and ethnic nationalism. Kids learn they’re genetically entitled to special rights, including political control of Hawaii. The curriculum blames white people and the United States for historical grievances, continuing oppression of their culture and colonial occupation of their indigenous homeland. Ketola says discrimination by race is OK because society benefits from helping downtrodden minorities rise to economic and social equality. If helping society is the standard, is separate but equal good for society?

Ketola says ethnic Hawaiians have been discriminated against. False. Ethnic Hawaiians are 20 percent of the state population. Every politician eagerly caters to this powerful swing vote. Twelve percent have incomes greater than $100,000. More than 160 government programs and exclusionary institutions cater exclusively to this racial group. All illegal. The “Akaka bill” in Congress (S.147) would help ethnic Hawaiians create a racially exclusionary government — Hawaiian apartheid. Coleman seems to agree with Ketola that racial discrimination and separatism are good for society. Minnesota voters should tell him otherwise. For a five-paragraph summary of what’s wrong with the Akaka bill, with extensive additional documentation, see: http://tinyurl.com/5jp5r.

Kenneth R. Conklin
Kane’ohe, Hawaii


It required a couple of weeks for the massive, highly-paid bureaucracy at Kamehameha Schools to produce a response to Ken Conklin's letter of October 14. Here is that response, published October 28, written by the official spokesman for Kamehameha. This response is placed on this webpage at this spot, out of chronological order, to provide continuity of the three articles by Ketola, Conklin, and Paulsen.

The Minnesota Daily, October 28, 2005

Native school a bright light for Hawaii
Bigotry and prejudice are wrong no matter the context in American society.

By Kekoa Paulsen

Hawaii professor Ken Conklin’s rip on the Daily’s Jason Ketola is another sad illustration of his personal crusade against federal recognition for Native Hawaiians. Conklin chooses to ignore what has happened to the natives of Hawaii in the past two centuries. This is an important discussion, but what’s more important is to make sure we’re grounded in facts, not prejudice.

For comprehensive, factual information regarding S. 147 — the “Akaka Bill” — go to www.oha.org or www.cnha.org. While Conklin pursues canceling public support for Hawaii’s most at-risk ethnic group, Conklin crosses a line when he allows his anti-Hawaiian zeal to spill over into an attack on a private Native Hawaiian trust, the Kamehameha Schools. This is a 120-year-old private educational institution, established and funded entirely through private resources, that is dedicated to improving the capability and well-being of the Hawaiian people through education.

Ironically, Kamehameha was founded specifically to help slow and reverse the decline of a people who, for 1,000 years prior to contact, had thrived. Kamehameha is a wonderful gift left to Native Hawaiians by one of their ali’i — rulers — Princess Bernice Pauahi Bishop. Princess Pauahi left her ancestral land for the foundation and perpetual operation of the Kamehameha Schools with the belief that education would help Native Hawaiians overcome marginalization. Generations of Hawaii residents, native and nonnative, recognize and respect Kamehameha as vital to the restoration of the Hawaiian people and their culture. Kamehameha graduates strengthen Native Hawaiian well-being and the larger community.

While Kamehameha enrolls more than 5,400 students at its three K-12 campuses, its classrooms still fit only a finite number. With 75,000 Native Hawaiian school-age children in the state, Native Hawaiian need always outstrips the services available. Still, Kamehameha strives to fulfill the vision of its founder. Conklin wants to end this, too, apparently because services for Native Hawaiians represent services he cannot have. Bigotry and prejudice are wrong no matter what the context, and American society roundly rejects both. Conklin’s racist attitudes, though couched within jargon-laden academese and junk science, are no less reprehensible.

Kekoa Paulsen is the spokesman for Kamehemeha Schools.


Honolulu Advertiser, Saturday, October 15, 2005

Kamehameha grads plan prayer events

By Gordon Y.K. Pang

Kamehameha Schools alumni here, on the Mainland and even in Iraq will gather tomorrow for a "pule," or prayer, to help their alma mater's defense against a legal challenge to its Hawaiians-first admissions policy.

"We're gathering to ask for help," said William Fernandez, president of the Native Hawaiian Legal Defense and Education Fund, in a release. "For us to defend Princess Pauahi's legacy and save the mission of Kamehameha Schools, we need to come together with God's blessing and the help of our non-Hawaiian allies."

The Native Hawaiian Legal Defense & Education Fund chose tomorrow because it marks the 121st anniversary of the death of Princess Bernice Pauahi Bishop.

The 9th U.S. Circuit Court of Appeals issued a ruling calling Kamehameha's admissions policy a form of discrimination against non-Hawaiians and a violation of civil rights.

The school's board of trustees is appealing the ruling. The school and its supporters say Kamehameha is a private entity and has a right to follow the wishes of its founder to help Hawaiians.

Locally, alumni and supporters will gather at 6 p.m. at Mauna 'Ala, the Royal Mausoleum, in Nu'uanu.

Gatherings are also being held in Hilo; San Francisco; Long Beach, Calif.; Centerville, S.D.; Chicago; Minneapolis; and Charlevois, Mich. Armed forces personnel stationed in Balad, Iraq, also will participate.

For more information on the Hawai'i gatherings, call Nalani Kahoano Gersaba at 429-3816. Or for information on the other gatherings, call Noelani Jai at (714) 847-2977.


Honolulu Advertiser, Monday, October 17, 2005

Prayers unite past, future

By Rod Ohira

Candlelight brightened the darkness of the Royal Mausoleum grounds at Mauna'ala in Nu'uanu last night, symbolizing the hope Native Hawaiians hold for their future.

"All things we do traditionally is important for the future," Wayne Dickson said, noting that many in his over-60 age group are members of a lost generation of Hawaiians. "It's called the dark ages and now, we're trying to bring the light back as to who we are for our children and their children.

"I never knew my father could speak pure Hawaiian until I was 22 years old. In the 1950s, we were led to believe to get ahead, you had to speak English and that learning Hawaiian wouldn't get you anywhere."

A gathering of about 75 people, including members of Hawaiian civic clubs, attended a pule, or prayer service, last night at Mauna'ala in memory of the 121st anniversary of Princess Bernice Pauahi Bishop's death and to pray for the defense of Kamehameha Schools' Hawaiians-first admissions policy and passage of the Akaka bill.

Anita "Kaanapu" Naone, president of the Hawaiian Civic Club of Honolulu, observed, "Many people don't realize that princess (Pauahi) was a woman who stepped up to the plate to take on challenges. She had the fortitude to think ahead for her people, and obviously education was first."

After the overthrow of the Hawaiian monarchy, Naone said her grandparents were prohibited from speaking Hawaiian in public. Because of that, her parents did not speak Hawaiian to their children.

** Note from Ken Conklin: It is absolutely false that Hawaiian language was banned. This scurrilous victimhood claim is often put forward as a way to incite racial animosity. The claim has been publicly proclaimed so often that many people unquestioningly believe it and tenaciously defend it. Kamehameha School has been brainwashing its students to believe this historical falsehood. Thus, the proclaiming of this falsehood by these graduates and supporters of the school is more evidence why the school needs to be desegregated and its curriculum revised to accord more closely with the truth. For thorough research disproving this claim, see:
https://www.angelfire.com/hi2/hawaiiansovereignty/hawlangillegal.html **

But events, such as last night's pule, represent a renaissance of awareness that shows "we want to save the entitlement and benefits for our future generation," Naone said.

Aloha Kekipi, who brought a kauna'oa lei to the Mauna'ala pule for Princess Pauahi, also remembered Princess Kaiulani yesterday.

"It's a sad and happy day," Kekipi said. "Princess Kaiulani was born on October 16 and Princess Pauahi died on October 16. I share with students to remember our kupuna kahiko or ancient ones because we benefit from them having lived."

Similar Christian prayer services were held in Hilo, Hawai'i; San Francisco and Long Beach, Calif.; Chicago; Minneapolis; Charlevois, Mich.; Centerville, S.D.; and even by service personnel in Balad, Iraq.

Kimo Bacon, 52, a retired Army colonel and 1972 Kamehameha graduate working for the Aviation and Missile Command, organized the pule in Balad. In support of the Kamehameha Schools admissions policy, Bacon sent an e-mail to The Advertiser, noting:

"I believe that I can sum up our feelings by saying that a great value of a Kamehameha education is that it develops a strong identity (for) Hawaiians. As such, one of our core values is aloha. We accept others and bring them into our 'ohana and teach and mentor them."

In Centerville, S.D., 31 people gathered Saturday at the home of Ron Carlson and his wife, the former Ann Patcho of Wai'anae, for a pule and pa'ina, said organizer Luana Ahina-Johnson, a 1970 Kamehameha Schools graduate.

"We're so far away from Hawai'i that the only thing we can do is pray," Ahina-Johnson said. "Despite the distance, we try to keep the Hawaiian spirit alive by gathering together, perpetuating the language and history. We try to explain to our kids where the songs and stories come from."

It's one reason the Centerville folks call it a pa'ina, not potluck.

While the menu at Saturday's gathering in Centerville, was definitely mixed plate — kalua pig, chicken long rice, manapua, pork adobo, pansit and, of course, mac salad — the spirit was Hawaiian at heart, said Ahina-Johnson.


** Note: This is a public relations news release, not a news report. Some of the historical information, and the claim that John Doe is a teenager from California, are not credible. The "Hawaii Society of Law & Politics" is a group of Hawaiian independence activists who have formed a student club at the University of Hawai'i (they are not lawyers and most are not law-school students, but think they are knowledgeable about "international law"). **

X-Men Star Kelly Hu, Downtown JACL, to Throw Their Support at Rally in Pasadena, California Supporting Kamehameha Schools Admission Policy

Thu Oct 20

(PRWEB) - Los Angeles, CA (PRWEB) October 20, 2005 -- Actress Kelly Hu, and the Downtown Los Angeles Chapter of the Japanese American Citizens League will join supporters of the Kamehameha Schools on Saturday October 22, 2005 at noon, in the City of Pasadena, California to protest a recent federal court decision.

The march and rally will begin at Defenders' Parkway between Orange Grove and Grand Avenue. A similar recent rally in San Francisco drew more than 2,000 participants.

The admissions policy at Kamehameha Schools provides a preference to students of Native Hawaiian ancestry. Students must show they have part Hawaiian blood.

The current admissions policy has been in effect for the past 118 years. It was established by trustees in accordance with the charitable rust of Princess Bernice Pauahi Bishop. Princess Bishop is a descedent of Hawaii's King Kamehameha I.

In Doe v. Kamehameha, the court recently held that the private school based in Hawaii, must admit any child who wishes to attend. The Kamehameha school was sued by a non Hawaiian teenager from California.

The Downtown Los Angeles JACL recently passed two motions by its Board of Directors. The first indicates the full support for a hearing by the full 9th Circuit Court of Appeals to hear the matter. The second was in support of Kamehameha's admission policy giving preference to native Hawaiians.

"Kamehameha Schools is a vital institution for children of Native Hawaiians," stated Marilynn Nakata, Vice-President of the Downtown Los Angeles JACL. Nakata was born and raised in Hawaii and graduated from the University of Hawaii. "The school is private and receives no government funding. The admissions policy giving preference to Native Hawaiians is needed because of the severe socioeconomic and educational disadvantages experienced by native Hawaiians, Nakata noted.

Speakers at the rally include actress Kelly Hu, a graduate of Kamehameha Schools. Ms. Hu co-starred in the X2: X-Men United and starred as Yuriko Ayama aka Lady Death Strike. Her other film credits include Cradle 2 the Grave with Jet Li and DMX and The Scorpion King where she co-stars with Dwayne "The Rock" Johnson. In that film her role is Sorceress Casandra. Her TV credits include Martial Law, Sunset Beach, Nash Bridges, Star Command, The Bold and the Beautiful and Growing pains. Hu studied drama while attending Kamehameha Schools in Hawaii.

Other speakers include Marilynn Nakata, member of the Downtown JACL, Sharon Paulo, member of the Cultural Affairs of the City of Los Angeles, Kalawaia Moore, member of the Hawaii Society of Law & Politics, Le'a Kanehe who is a native rights attorney from Nevada. A representative from Kamehameha Schools Alumni will also speak.

The Downtown Los Angeles JACL is one of the oldest non profit civil rights group based in Los Angeles County.

The event is sponsored by 'Ilio' ulaokalani, a Hawaiian rights organtization based in Honolulu. For more information please contact event coordinator Miki Kim at (323) 839-7880.

George Kita


Honolulu Advertiser, Friday, October 21, 2005

Input sought on Hawaiian cases

The Hawaiian Affairs committees of the House and Senate will hold a series of public hearings across the state beginning tomorrow to get people's opinions on two court cases involving Native Hawaiian programs.

One of the cases is John Doe v. Kamehameha Schools, which challenges Kamehameha's Hawaiians-first admissions policy. The other case is Arakaki v. Lingle, which challenges the authority of the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands to provide programs that are designed primarily to help Native Hawaiians.

Petitions for appeals in both cases are before the 9th U.S. Circuit Court of Appeals.

The hearings will be held:

# Tomorrow, 10 a.m. to noon, Kulana Oiwi, on Moloka'i.

# Monday, 7 to 9 p.m., Nanakuli High School cafeteria.

# Tuesday, 5:30 to 7:30 p.m., Kaua'i Community College Performing Arts Center.

# Wednesday, 6 to 8 p.m., Hawai'i State Capitol auditorium.

# Thursday, 5:30 to 7:30 p.m., Baldwin High School cafeteria, on Maui.

# Oct. 28, 7 to 9 p.m., Key Project, on O'ahu.

# Oct. 29, 10 a.m. to noon, Konawaena High School cafeteria.

# Oct. 30, 3 to 5 p.m., Hilo High School cafeteria.

"We especially encourage the Native Hawaiian community to attend the hearings and provide input to help us develop legislation, if appropriate," said Sen. Colleen Hanabusa, D-21st (Nanakuli, Makaha), chairwoman of the Senate Judiciary and Hawaiian Affairs Committee.

"As a result of the 9th Circuit decisions, Hawaiians face some of the most significant challenges in recent history," said Rep. Scott Saiki, D-22nd (McCully, Pawa'a).


Honolulu Star-Bulletin, October 23, 2005

Kamehameha Schools decision protested in Calif.
Marcher walk to 9th Circuit office in Pasadena

Associated Press

PASADENA, Calif. - Supporters of Kamehameha Schools protested today outside an office of a federal appeals court that struck down the exclusive school's Hawaiians-only admissions policy.

About 50 to 100 demonstrators waived Hawaiian flags and chanted "I Ku Mau Mau," or "Stand Together," as they walked by the Pasadena office of the 9th U.S Circuit Court of Appeals, event coordinator Miki Kim said.

In August, a three-judge panel in San Francisco ruled the private school's 117-year-old admissions policy "was unlawful race discrimination." The policy requires applicants to prove Hawaiian bloodlines.

"We are being raked over the coals in the courts under the idea that we're an equal nation, and we aren't an equal nation," said Kim, a 1976 Kamehameha Schools graduate who now lives in Los Angeles.

Among those who attended the rally were members of the Downtown Los Angeles Chapter of the Japanese American Citizens League.

The school, which was not involved with the march, is petitioning the 9th Circuit for a rehearing by the full court. The case was brought by a non-Hawaiian student who was turned down for admission in 2003.

Kamehameha Schools was created under the 1883 will of Princess Bernice Pauahi Bishop, whose $6.2 billion trust funds the school's main Kapalama campus in Honolulu and other campuses on Maui and the Big Island.

** Photo captions **

ASSOCIATED PRESS People rallied yesterday in Pasadena, Calif., against a recent decision by the 9th U.S. Circuit Court of Appeals that ruled that Kamehameha Schools' admission policy is racially discriminatory.

ASSOCIATED PRESS Pua'nanimelia Kama'i, from San Diego, took part in the protest yesterday in Pasadena, Calif. The event featured speakers from Hawaii.

Miki Kim: Author is inspired by a San Francisco march


Honolulu Advertiser, Tuesday, October 25, 2005

Wai'anae says kids' needs not being met

By Gordon Y.K. Pang

NANAKULI — What was supposed to have been a public hearing on how best to fend off legal challenges to programs aimed at helping Native Hawaiians instead turned into a session where two of the largest of those institutions — the Kamehameha Schools and the state Office of Hawaiian Affairs — were bashed for failing to address the needs of the Wai'anae Coast communities.

Kimo Kelii, a seventh-grade math teacher at Nanakuli High and Middle School, said he thought long and hard about whether he should join other Native Hawaiians in supporting Kamehameha when the 9th U.S. Circuit Court of Appeals issued a ruling during the summer that said the school's Hawaiians-first admissions policy violates civil rights laws.

But then Kelii decided: "They go fight their own battle."

About 50 people attended the joint hearing of the state House and Senate Hawaiian affairs committees last night at the Nanakuli High School cafeteria. Six of the first nine public speakers were critical of Kamehameha.

Kelii said the school, founded by Princess Bernice Pauahi Bishop in the late 1800s, has "done a pathetic job in the education of all Native Hawaiian kids."

Kamehameha's trustees, he said, should consider shutting down the flagship Kapalama campus and instead funnel its vast resources into public schools where there are large numbers of Native Hawaiians such as Wai'anae, he said. Kelii also criticized OHA for not doing enough to help Native Hawaiian children get a better education.

Kapiolani "Dolly" Naiwi, a Wai'anae resident who is an educational assistant at Nanakuli High, said Kamehameha used to provide some resources for Wai'anae public schools but has not done so lately. "Have another extension campus out here," she said. "We've got seven homesteads. I truly believe they're not trying hard enough."

The Kamehameha critics got empathy from state Rep. Michael Kahikina, D-44th (Honokai Hale, Nanakuli) who asked, "When is Kamehameha going to take over Nanakuli (High School)?"

Not everyone criticized Kamehameha. Alice U. Greenwood of Wai'anae urged lawmakers and state leaders to continue fighting the legal challenges against Hawaiian preference programs. She called Kamehameha "an invaluable part of the Hawaiian culture."

Ann Botticelli, a spokeswoman for Kamehameha, said before the public testimony that "it is difficult to serve all the Hawaiians that need to be served" but that trustees recognize the situation and have shifted its priority to reaching those communities that are least served as part of its 2000 strategic plan.

Kamehameha has set up a community learning center in Nanakuli which serves Hawaiians of all ages living in the area, Botticelli said. The plan is "to reach out into the communities and provide educational opportunities outside of the campus programs," Botticelli said, noting that more concrete plans were approved by the trustees in June. "It is philosophically a plan that seeks to strengthen children from the very young stages, pre-natal to eighth (grade) and carry it all the way through to college through scholarships and so forth."

Sen. Colleen Hanabusa, D-21st (Nanakuli, Makaha), chairwoman of the Senate Judiciary and Hawaiian Affairs Committee, said that after a recent conversation with Kamehameha chief executive officer Dee Jay Mailer that the school intends to boost its presence in public schools with large numbers of Native Hawaiians such as Nanakuli.

October 30, 2005: Hawaii State Legislature Hearings on How to Circumvent Court Decisions Unfavorable to OHA and Kamehameha Schools, October 2005 -- webpage published October 30, 2005 includes news reports, analysis, and some of the testimony presented during 8 hearings on 5 islands during a period of 9 days as Hawai'i Senate and House committees on Hawaiian affairs held community meetings to discuss what laws the Legislature might pass to negate or circumvent decisions by the U.S. 9th Circuit Court in the Arakaki and Kamehameha lawsuits; hoping to prevent damage until the Akaka bill passes (they hope!). See:


Honolulu Advertiser, November 2, 2005


This is in answer to the Kamehameha Schools graduate (Letters, Oct. 25) who wanted the judges in the recent Doe v. Kamehameha Schools to explain their decision to deny programs and opportunities that rely on race as the deciding factor for qualification.

Obviously, the writer is too young to remember what this country went through; the sacrifices made and lives lost when we as a people decided we no longer thought it was right to determine one's opportunity, social status or economic capacity based on the color of one's skin, ethnicity or any other quality that made them "different."

We as a country decided we wanted everyone to have equal opportunities based solely on their own abilities. At the same time, we felt it was only fair to distribute the limited resources any country has to better its people based only on need, both financial and special, as well as ability. There would no longer be closed doors, separate bathrooms or privileged classes.

I lived through these times and worked for these changes because I believed people were all created equal and should be treated that way. I was there for the assassinations of our political leaders of all ethnic groups as well as the suffering and even death of people just like me who did nothing other than fight for the rights of all people of the United States to equality.

It was a long, hard and very necessary fight and it is still going on.

I find it very sad that Kamehameha Schools is not teaching this part of our history in their classrooms because if it were, the writer would not have to ask for an explanation of the judges' ruling. I also find it disheartening to find so many people left who believe they are entitled to special privileges based only on the fact that they are of a "special" race.

Whether you are black, white, Native Hawaiian, Hispanic, Japanese, Filipino, or any other race, ethnic group or belief, discrimination is wrong!

B.K. Anderson


You may now

Continue forward to 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)


Review the events of August 2-7, 2005: the 45-page decision of the 9th Circuit Court plus about 100 pages of analysis and news coverage, including the huge red-shirt protest of August 7





Email: ken_conklin@yahoo.com