During 2006 there were major events in the courts regarding Kamehameha Schools racially exclusionary admissions policy. Those events will be covered below, in chronological order. But first, here are some of the most important court proceedings and decisions for download, most-recent at the top
On December 5, 2006 the 9th Circuit Court of Appeals handed down its en-banc decision by a panel of 15 judges. They voted 8-7 to uphold Kamehameha's admissions policy. That decision will be appealed to the U.S. Supreme Court. Here is the full text of the 110-page en-banc decision in pdf format directly from the 9th Circuit Court website. The first 53 pages are the majority ruling, and the last 57 pages are the minority dissents.
The Decision of December 5 overturned the 2-1 decision by a 3-judge panel of the 9th Circuit Court that was handed down on August 2, 2005. Here is the full text of that 45-page decision by the 3-judge panel, in pdf format:
Oral Arguments on November 5, 2004 before the 3-judge panel (8.5 Megabytes) can be downloaded from the 9th Circuit Court website. These are the oral arguments considered by 3-judge panel the 9th Circuit in reaching its decision of August 2, 2005:
Analysis of the 3-judge decision, in Q&A format, by Ken Conklin:
August 6, 2005 Red-Shirt rally with 20,000 (twenty thousand) activists at Iolani Palace protesting the 9th circuit decision -- news reports and photos
QUICK REVIEW OF 2005:
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 120 pages of analysis and news coverage, including the huge red-shirt protest of August 7, are available at:
You may also review approximately 150 pages of news coverage and events from August 8 to December 31, 2005, (after the 9th Circuit Court decision was handed down, and after the huge August 6 pro-segregation protest of that decision) at:
Background information about Kamehameha Schools, including analysis of the admissions policy and news coverage from years before 2005, can be found at:
Going forward, the case was appealed to the U.S. Supreme Court in March, 2007. The events of 2007 are covered at
NOW BEGINS NEWS AND ANALYSIS ABOUT KAMEHAMEHA SCHOOLS ADMISSIONS POLICY FROM YEAR 2006, IN CHRONOLOGICAL ORDER
Honolulu Advertiser, Thursday, February 23, 2006
Court gives hope to Kamehameha Schools
By Ken Kobayashi and Gordon Y. K Pang
Supporters of Kamehameha Schools are hoping for a new court ruling that will uphold its 120-year-old admissions policy that favors Hawaiians.
The 9th U.S. Circuit Court of Appeals announced yesterday that it would rehear its ruling that the admissions policy is a violation of federal civil rights law.
But legal observers and lawyers involved in the case believe it's risky to predict that the rarely granted rehearing of a case will result in a different decision from last year's. That decision by a three-judge panel of the appeals court said the admissions policy violates the law by absolutely barring non-Hawaiians from the school.
The rehearing will be before an "en banc" panel of 15 of the appeals court's judges.
Alexander Silvert, a public defender who has handled at least 30 cases before the appeals court, including one before an "en banc" panel, said he could not read into yesterday's decision whether it signals that the earlier ruling will be affirmed or set aside.
Yesterday's decision could mean the appeals court judges who voted for a rehearing had concerns about the earlier decision or it could simply mean the case is considered important enough that the judges want the larger panel to decide the issue, he said.
"It's not necessarily the case that simply because the court (ordered the rehearing by the larger panel), it's going to reverse the three-judge panel," Silvert said. "To venture a guess would be impossible."
Still, the development is considered significant for the school and a possible prelude to the appeals court declaring that the admissions policy is valid. And for the unnamed non-Hawaiian student who challenged the policy in an attempt to enter the school before he graduates from high school this year, the decision was a setback and disappointment.
"We are pleased to be able to present our arguments to a larger court panel," said Robert Kihune, chairman of the Kamehameha board of trustees. "It signals that the appeals court agrees that this lawsuit raises unique issues of exceptional importance to Native Hawaiians."
Eric Grant, the Sacramento attorney who represents the youth, expressed confidence he would still prevail, but acknowledged the rehearing helps the school.
"They had lost, and now they could win," Grant said.
He said he knew the chances for his client enrolling at Kamehameha dwindled with each passing week. Now it's clear the student won't be able to attend the school because a ruling by the larger panel isn't expected for months until after the teenager graduates from a public high school, Grant said.
Yesterday's ruling nullifies the 2-1 decision issued Aug. 2 that set off an uproar among Kamehameha Schools supporters, who held rallies and marches to protest what they believed was another attack on Hawaiians. The $6 billion charitable trust that operates the school was set up by the 1884 will of Princess Bernice Pauahi Bishop. It runs the flagship campus at Kapalama Heights and two other campuses on the Big Island and Maui.
The school's lawyers argued that the unique circumstances of the school justified its admissions policy to address the social, economic and educational disadvantages of Hawaiians as compared with other ethnic groups. But Grant argued that the refusal to admit non-Hawaiian students was discriminatory and a violation of federal law.
The majority in the 2-1 decision agreed with Grant.
The school asked for the rehearing, which essentially halted enforcement of the 2-1 decision that would have allowed Grant's client to enroll at Kamehameha.
A wide range of individuals and groups filed legal briefs endorsing the rehearing request. They included the four members of Hawai'i's congressional delegation, state Attorney General Mark Bennett, Mayor Mufi Hannemann, the Hawai'i Business Roundtable, the Hawai'i Civil Rights Commission, the Japanese American Citizens League and groups representing Kamehameha parents, teachers, faculty and alumni.
Kihune, chairman of the Kamehameha trustees, called yesterday a great day for Kamehameha, Hawaiians and the state. He wouldn't, however, say the ruling was a sign of the school's success before the larger panel.
"I'd like to be optimistic but we've got to be cautious about this because we just don't know how this thing is going," he said. "It's great that we've got some fresh eyes looking at the case now."
Pono Shim, president of the Association of Teachers and Parents at Kamehameha Schools, said he hopes that the judges will understand that the preference policy is about helping those who are disadvantaged.
"There is so much need that has to be addressed and (the aid) is not coming from anyplace else except Kamehameha," Shim said. "It is vital that we continue on the mission that Pauahi started."
But Ken Conklin, a former teacher and longtime critic of Hawaiians-only programs, said programs that are racially exclusionary should be eliminated. He pointed to federal court rulings in recent years against Hawaiians-only funding or programs. Also, efforts to pass the Akaka bill, the first step toward establishing a Native Hawaiian government, have stalled in Congress.
"It's a wall of apartheid and it needs to be dismantled," Conklin said. "Either we dismantle it with a bulldozer or we dismantle it one brick at a time. And (Kamehameha) is one of the largest bricks in the wall."
Jan Dill, a board member with the Kamehameha support group Na Pua a Ke Ali'i Pauahi, said Hawaiians and their supporters, who are discouraged by some rulings in the fight to keep Hawaiian entitlements alive, should be buoyed by yesterday's decision for a rehearing.
"I think anybody would recognize that there's been a less-than-positive support for indigenous rights," Dill said. "This is something we will have to struggle to achieve."
Jon Van Dyke, a University of Hawai'i law professor who worked on the school's rehearing request, called the decision a "wonderful and exciting development."
He said the ruling means a number of judges thought the case deserved more consideration. "It certainly opens up the possibility that they will reach a different result," he said. "But, of course, you can't guarantee that."
Van Dyke said that in its case the school will try to further develop the historical context that led to the formation of the school to emphasize why the 2-1 majority erred in relying on an 1866 law designed to prohibit contracts that discriminate against blacks.
'WE THINK WE'LL WIN'
Although the U.S. Supreme Court has ruled that the law applies to private schools, its decision dealt with an all-white school excluding black students, he said. Van Dyke said they will argue it shouldn't apply to Kamehameha, which is aimed at helping native people.
Grant also said one can't read anything in yesterday's development as favoring one side or the other.
The lawyers did not know about the 9th Circuit's en banc track record in whether it tends to overturn, modify or uphold earlier three-judge rulings.
Grant guessed that the larger panels probably slightly favor at least modifying the earlier ruling because the judges wouldn't have voted for a rehearing if they were satisfied with the prior decision.
But he said he's prepared to file more legal arguments and reargue the case. "We still have the facts on our side; we still have the law on our side," he said. "We still think we'll win."
Both sides have indicated that if they lose at the 9th Circuit, they would ask the U.S. Supreme Court to review the decision.
KAMEHAMEHA SCHOOLS ADMISSIONS CASE
The 9th U.S. Circuit Court of Appeals in San Francisco yesterday agreed to review an August 2005 ruling by a three-judge court panel in the ongoing dispute over Kamehameha Schools' Hawaiian-preference admissions policy.
Fifteen of the 24 judges on the court will rehear the case.
The appeals court issued a two-sentence order granting a rare rehearing. In 2004, the court granted 22 of 852 requests to rehear decisions by three-member panels of the court. Yesterday's order nullifies a 2-1 decision on Aug. 2 that declared the admissions policy a violation of federal civil rights law.
Here is the process for a rehearing by the larger panel, called an "en banc" court:
# Three-member panels of the 9th Circuit issue rulings resolving appeals from U.S. District Courts.
# Either side in a dispute can ask that a larger panel rehear the case. The larger panel had been composed of 11 appeals judges, but the appeals court changed the number to 15 judges effective Jan. 1.
# If any member of the appeals court asks for a vote, the appeals judges are polled. There are 28 seats on the 9th Circuit, but four vacancies, leaving the appeals court with 24 judges. Richard Clifton, the only 9th Circuit appeals judge from Hawai'i, stepped down from the case.
# Yesterday's order said a majority of the remaining 23 judges voted to rehear the case. The reasons are not disclosed.
# Chief Judge Mary Schroeder of the 9th Circuit automatically is on the en banc panel. The other 14 judges will be selected randomly from the other 22 judges. (Clifton will not be in the pool of 22 judges.)
# Among the 22 are two of the three judges who issued the 2-1 decision on Aug. 2 — Jay Bybee, who voted to declare the policy a violation of federal law, and Susan Graber, who dissented. Robert Beezer, who voted with Bybee, is not eligible because he is a senior appeals court judge.
# The appeals court will soon select the en banc panel. The judges on the panel would then decide whether they want more legal arguments from the parties. The panel almost always asks for a hearing, although it is not mandatory. The hearing probably would take place in Honolulu, where the parties are, or in San Francisco, headquarters for the 9th Circuit.
# It is not known when the en banc panel will rule, but legal observers say the decision won't be issued for months.
ADMISSIONS POLICY TIMELINE
A brief recap of some key dates in the Kamehameha Schools admissions policy case:
June 2003: On behalf of an unnamed non-Hawaiian student, identified only as John Doe, attorneys John Goemans and Eric Grant file a civil-rights lawsuit disputing Kamehameha's admissions policy.
August 2003: A federal court orders Kamehameha Schools to enroll a non-Hawaiian boy, 12-year-old Brayden Mohica-Cummings, until a final verdict on the admissions policy is made.
November 2003: U.S. District Judge Alan Kay decides against John Doe, ruling that Kamehameha Schools can continue its Hawaiians-preference admissions policy because of its unique and historical circumstances.
November 2003: Trustees for Kamehameha Schools approve a settlement allowing a seventh-grade non-Hawaiian student to continue attending the private school until he graduates. In exchange, Grant and Goemans, the lawyers for Mohica-Cummings, agree to drop one of their two federal court challenges to the school's admissions policy. The two lawyers appeal Kay's John Doe ruling.
Aug. 2, 2005: By a 2-1 vote, a panel of the 9th U.S. Circuit Court of Appeals decides in favor of John Doe, ruling that Kamehameha's admissions policy constitutes unlawful racial discrimination and throwing the 120-year-old policy into limbo. A week later, the same three judges deny a request by John Doe to be admitted in the fall, pending an appeal by the school.
Aug. 6, 2005: About 20,000 Kamehameha students, alumni and other supporters rally on all major Hawaiian islands and the Mainland to show their support for the embattled school. At a major rally in Honolulu, thousands hear a string of fiery speeches before marching two miles to Mauna 'Ala, the Royal Mausoleum in Nu'uanu, where founder Princess Bernice Pauahi Bishop is buried.
Feb. 22, 2006: The 9th Circuit grants Kamehameha's request for an en banc rehearing of its August 2-1 decision, essentially throwing out that decision pending a review by a larger panel of 15 judges.
Honolulu Advertiser, Thursday, February 23, 2006
Kamehameha merits another day in court
The verdict isn't in.
A decision announced yesterday by the 9th U.S. Circuit Court of Appeals to take another look at an admissions lawsuit against Kamehameha Schools is positive news, but it hardly means the schools will prevail this time around.
Still, it is a significant move that gives the school much-needed time to gather its thinking and take another shot at demonstrating its admissions procedures are legal.
It also buys a little more time for the other pressing obligation on Kamehameha: coming up with a wise "Plan B" admissions policy in case it loses the legal fight.
The 9th U.S. Circuit Court of Appeals made an unusual decision to rehear its initial Doe v. Kamehameha Schools 2-1 ruling "en banc" by a larger panel of judges. Although the unnamed plaintiff in the case, now a senior, clearly will never attend the Kapalama campus, the broader implications of the lawsuit remain in the balance.
Kamehameha attorneys are understandably buoyed by the news. It's welcome recognition that the case is complex and gives them another chance to argue that the schools' mission — to remedy social and economic conditions faced by Hawaiians — has relevance.
It's good strategy for the school to show it has increasingly focused on socio-economic need rather than merely on blood quantum, with expansions of programs for early education and other remedial efforts.
Should the courts ultimately decide that civil rights law defeats the admissions policy, what will Kamehameha do to fulfill the mandate of its founder, Bernice Pauahi Bishop?
Kamehameha already supports schools in areas where many Hawaiians live but are attended by non-Hawaiians as well. Another alternative approach would be admission based on socio-economics and evidence of "cultural affinity" — interest in Hawaiian language, for example. This would support the best interests of Hawaiians and others who meet these criteria.
It's impossible to know how the court will finally rule. The bottom line is that Kamehameha Schools is a critical resource for the betterment of many Hawai'i people. And that broader service to the well-being of the Islands is what must be sustained.
Honolulu Star-Bulletin, February 23, 2006
Court will rehear school case
The challenge to Kamehameha Schools' policy will go before 15 judges of the 9th Circuit Court
By Sally Apgar
A federal court that struck down Kamehameha School's "Hawaiians-only" admission policy in August issued a rare order yesterday granting the school's request to rehear the case.
The 9th Circuit Court of Appeals reviewed the August decision by a three-judge panel and said a majority of the court's judges had agreed to rehear the John Doe v. Kamehameha Schools case "en banc," which means by a larger panel of judges.
"We are totally ecstatic," said retired Adm. Robert Kihune, chairman of the schools' board of trustees.
Kamehameha's Chief Executive officer Dee Jay Mailer said, "The preference policy is critical to our ability to fulfill our educational mission, and we are fully committed to the legal fight ahead."
The 15 judges who will hear the case have not been chosen, and the case has not been scheduled. Although the vote was not made public, the decision required that at least 12 of 23 judges who voted want the case reheard.
Kihune stressed that, pending the new hearing, the schools' 118-year-old admission policy stands.
"Basically, it means that our preference policy is intact, and that's key," he said.
John Doe, the unidentified student who brought the case in June 2003, is in his senior year attending a different school and will likely graduate before the case is reheard. His graduation, however, would not render the case moot, according to his attorneys.
In court documents, Doe said he applied twice to Kamehameha and was found academically qualified. Doe argued that he was barred from admission when he acknowledged on the required Ethnic Ancestry Survey that he was non-Hawaiian. Doe said the denial violates his rights under civil rights laws.
Kamehameha was established under the 1884 will of Princess Bernice Pauahi Bishop, who left her wealth of royal Hawaiian lands to support the building and operation of a school. The first board of trustees, exercising authority assumed from her will, determined that the school should admit only students of native Hawaiian descent.
Eric Grant, an attorney representing Doe, said, "Obviously, we would have preferred that the rehearing be denied, but we're happy to make our arguments to the en banc court and expect to prevail there as we did before the three-judge panel."
He added, "I think Kamehameha's lawyers argued well, but they lost because the law is just not on their side here."
Gov. Linda Lingle was among the schools' supporters who applauded yesterday's decision.
"The courts ought to be instruments of justice, not of injustice. I remain hopeful that Kamehameha Schools will ultimately win this case, which is of such great importance to Hawaii and our citizens, Hawaiian and non-Hawaiian alike," Lingle said in a statement.
On Aug. 2 a panel of the 9th Circuit overturned the admission policy in a 2-1 decision, saying that it "operates in practice as an absolute bar to admission for those of the non-preferred race" and as such "constitutes unlawful race discrimination in violation of 1981 (a section of civil rights law)."
The majority found the policy "unnecessarily trammels" the rights of non-Hawaiians under laws that were written after the Civil War and the emancipation of the slaves and amended during the 1960s civil rights movement.
Since the rights of others were assessed as "trammeled," the majority found the admission policy was not a legitimate affirmative-action plan and violates anti-discrimination laws.
That panel's decision overturned the 2003 decision of U.S. District Judge Alan Kay, who upheld the admission policy, ruling that it did not violate civil rights laws because it serves a remedial function aimed at righting wrongs of the past.
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."
Soon after the panel's August ruling, Kamehameha sought a hearing en banc in the hope that the chances of winning might improve before 15 judges rather than three.
Kihune said, "With this 15-judge panel -- even if the three original judges are on it -- we still have 12 new judges looking at the case, so we are cautiously optimistic about the outcome."
En banc hearings are rarely granted. In 2005 the 9th Circuit received 853 requests for such hearings. The judges decided to vote on only 39 and, ultimately, granted 21 rehearings.
Kihune noted that in addition to 12 amicus, or friend of the court, briefs filed on behalf of 44 individuals and organizations, there were thousands of supporters in Hawaii and on the mainland who spoke out against the August ruling.
"We just want to thank the thousands of supporters who came out, because their voices were heard by the 9th Circuit and helped make this happen. Thank you for stepping up to the plate," Kihune said.
In the state's amicus brief supporting the school, Attorney General Mark Bennett called the three-judge panel's decision "fundamentally flawed."
Yesterday, Bennett interpreted the majority vote of 23 judges as evidence that the appeals court recognized that "there were serious questions about the correctness of the original decision, and our hope is that this is a sign that the en banc decision will be different."
"But, of course, you can't really predict," he said.
Bennett said he looked "forward to working with the Kamehameha Schools to prepare the best possible case to present to the en banc court."
Once the 15 judges are chosen, rules regarding the form the rehearing will take will be formed. It is unclear whether the schools can change legal tactics or use other legal arguments.
Bennett said the state will try to help Kamehameha using the same argument cited in its amicus brief, "which is that this is not a differentiation based on race and also that the civil rights laws enacted well more than 100 years ago were intended to be instruments of justice, not injustice."
He said it is inconsistent with the congressional intent behind civil rights laws "that these laws would be intended to bar the Kamehameha Schools from admitting only Hawaiian students."
JUST THE FACTS
The order: The 9th Circuit Court of Appeals agreed to rehear the John Doe v. Kamehameha Schools case by a larger panel of judges.
At stake: Kamehameha Schools' 118-year-old "Hawaiians-only" admission policy.
What's next: The case has yet to be scheduled.
Honolulu Star-Bulletin, February 25, 2006, EDITORIAL
Court decision gives Akaka Bill more time
A federal appeals panel has agreed to rehear a case against Kamehameha Schools' Hawaiians-only admission policy.
KAMEHAMEHA Schools has won at least a temporary reprieve from a three-judge appellate panel that found its admission policy to be illegally discriminatory against non-Hawaiians. School officials were overjoyed by the decision granting the school's request for a rehearing before a 15-judge panel. However, congressional action remains needed, although not so urgently, for federal recognition of Hawaiians and protection of the school's policy.
In a split vote, the smaller panel ruled last August that Kamehameha's exclusion of non-Hawaiians violates the Civil Rights Act of 1866, a law aimed at ensuring freedom to former slaves. In 1976, the U.S. Supreme Court ruled that the law is binding on private schools and protects whites as well as minorities.
The Supreme Court has made clear that American Indian tribes can discriminate against non-Indians in school admissions, noting that "the preference is political rather than racial in nature." In the landmark Rice v. Cayetano case in 2003, the high court ruled that Hawaiians lack such political standing and that "ancestry can be a proxy for race."
A bill sponsored by Senator Akaka would fill that need by placing Hawaiians on an equal legal standing with Native Americans and Alaskan natives. Enactment of the Akaka Bill would allow the school to argue definitively that the admissions policy is political, not racial.
In the absence of such legislation, adversaries of the admissions policy will be free to argue that the opposite also is true. The Supreme Court rulings in the Civil Rights Act cases and the Rice case support their view.
Either way, the failure to gain enactment of the Akaka Bill will virtually ensure that the Kamehameha Schools case will be appealed to the Supreme Court.
Honolulu Advertiser, Tuesday, April 4, 2006
Kamehameha revenue tops $800M again
By Rick Daysog
The Kamehameha Schools said revenues for its 2005 fiscal year topped $800 million for the second year in a row.
The state's largest charitable organization and Hawai'i's biggest private landowner said yesterday that it generated $837.2 million in total revenue for the year ending June 30, 2005, slightly less than the record $838.8 million in fiscal 2004.
The near-record revenue helped the trust's endowment fund grow by about $600 million to $6.8 billion.
"Kamehameha made extraordinary progress toward fulfilling our princess's wishes — to reach more Hawaiians through education," said Dee Jay Mailer, Kamehameha Schools' chief executive.
"Extending our educational reach is made possible by a strong and secure endowment."
Kamehameha Schools, which was established by the 1884 will of Princess Bernice Pauahi Bishop to educate children of Hawaiian ancestry, said it spent a total $175.6 million on its educational programs during its 2005 fiscal year, up from $175.1 million the year before.
The trust spent another $46.7 million on capital improvements, repairs and other building related expenses, raising its overall school-related costs to $222.5 million for the 2005 fiscal year. That compares with an overall school-related cost of $220.6 million for the 2004 fiscal year.
Kamehameha Schools said it earned a 13.2 percent rate of return during its 2005 fiscal year, outpacing the 10.8 percent median rate for the nation's 300 largest endowments and surpassing its internal goal of earning 5 percent more than the inflation rate.
The 2005 results included $130 million in lease-rent revenue from the trust's commercial lands and $87 million from the sale of the fee interest to more than 800 leasehold residential properties. The estate also earned $80.7 in income from its stock market investments.
During the past fiscal year, Kamehameha Schools said, it educated 5,100 students at its Kapalama Heights, Big Island and Maui campuses. The trust also served 1,800 preschool students and 2,000 children at its charter schools.
Honolulu Advertiser, Saturday, April 8, 2006
Kamehameha case on June 20 docket
A rehearing of the case involving Kamehameha Schools' 120-year-old admissions policy giving preference to native Hawaiians will be heard June 20 by the 9th U.S. Circuit Court of Appeals in San Francisco, the court announced yesterday.
The court decided last month to rehear the case at the request of Kamehameha attorneys, who want to overturn an earlier decision by a three-member panel of the court that ruled the schools' policy violates federal civil rights law.
This time, arguments will be made "en banc" — before a panel consisting of 15 members of the court.
At issue is a lawsuit filed by John Doe, a boy seeking admission to the school who believes he was denied admission based on his race. If Doe wins, it would throw out Kamehameha's longstanding policy of admitting primarily those with Hawaiian ancestry and force the school to admit people regardless of race. The school has been allowed to continue the preference policy through the appeals process.
The school has argued that the charitable trust now worth about $6 billion was established in 1884 by Princess Bernice Pauahi Bishop primarily to meet the social, economic and educational disadvantages of Hawaiians, and that those concerns still need to be addressed before the preference policy can end.
Attorneys for the boy, however, called the policy discriminatory and a violation of his civil rights.
The 2-1 decision issued in August against the school set off an uproar among Kamehameha supporters and led to a series of marches and rallies.
Honolulu Advertiser, Sunday, June 18, 2006
15 judges to decide school's appeal
By Ken Kobayashi
Advertiser Courts Writer
Arguments before a group of federal appeals court judges in San Francisco on Tuesday could decide the fate of what supporters say is the heart of the only institution that truly belongs to Native Hawaiians.
At stake is the legality of the Kamehameha Schools policy of giving preferential admission to applicants with Hawaiian blood. The school maintains its practice is justified to address the social, economic and educational disadvantages facing Native Hawaiians.
A lawyer challenging the policy on behalf of an unnamed non-Native Hawaiian teenager, however, believes the practice violates federal civil rights laws.
The rejection of the admissions policy by a three-judge panel of the 9th U.S. Circuit of Appeals last August sent shock waves that spurred an estimated 20,000 Kamehameha students and supporters to rally in support of the school's 119-year-old policy. The school successfully petitioned to have the case heard by a panel consisting of a greater number of judges.
The hearing isn't expected to result in an immediate decision. The appeals judges traditionally will take the case under advisement without indicating when they will render their decision. Legal observers say it could take months.
The 15-judge panel that will hear arguments Tuesday includes nine who were appointed by Democratic presidents and six by Republican presidents.
The court's chief judge, Mary Schroeder, automatically gets to sit on the panel. The other 14 are selected randomly from a pool of other active judges on the 28-seat appeals court. Richard Clifton, Hawai'i's only judge on the court, was not in the pool.
Nine, including Schroeder, were appointed to the lifetime terms by Presidents Carter and Clinton. The other six were appointed by Presidents Reagan, George H.W. Bush and George W. Bush.
HARD TO PREDICT
Experts say it is problematic to predict a court decision based on the political affiliation of the president who selected the judges. But the appeals court's initial decision in the case — by a three-member panel — showed the judges appointed by Republican presidents ruled that the policy violated federal laws. The dissent was by a Clinton appointee.
Judge Jay Bybee, who was appointed by President George W. Bush and who wrote the panel's majority opinion rejecting the policy, will be among those hearing oral arguments, as is Judge Susan Graber, the Clinton appointee.
Eric Grant, a Sacramento lawyer who represents the unnamed teenager and his mother, said the court panel reflects the diversity of the judges, but he was struck by the fact that Bybee and Graber will be sitting.
He suggested the two will probably advocate their previous positions. "I start with one vote and Kamehameha starts with one," Grant said.
But he said he believes his clients will prevail.
Kathleen Sullivan, former Stanford Law School dean hired to represent the schools, was not available for comment. Schools' spokeswoman Ann Botticelli declined to comment on what the panel's make up might suggest about the outcome.
"We'll just go in with our very strong arguments," she said.
The 9th U.S. Circuit Court of Appeals has a reputation as a liberal court with about two-thirds of the active judges appointed by Democratic presidents.
Kamehameha Schools' position generally would draw support from liberals who view affirmative action as a way to enable minorities to overcome adversities. Conservatives, meanwhile, tend to see such programs as unnecessary or unfairly advancing one group at the expense of others.
Alexander Silvert, first assistant federal pubic defender in Honolulu, pointed out that judges don't necessarily rule the way one might expect.
"When a judge takes a bench, there historically has been an evolution where some of these judges who were expected to be very conservative, or expected to be very liberal, have actually — some people would say — matured, and don't vote along those ideological lines at all," Silvert said.
Tuesday's proceedings will be yet another milestone in the three-year-old roller coaster case that began with the filing of the lawsuit by a teenager — identified only as John Doe — seeking to enroll at the school. Both sides have indicated if they lose, they will ask the U.S. Supreme Court to review the appellate court decision.
Kamehameha Schools, Hawai'i's largest private landowner and one of the wealthiest charitable trusts in the country with assets worth about $6 billion, was established in 1887 under the will of Princess Bernice Pauahi Bishop.
Botticelli said Bishop's vision was to provide education for Native Hawaiians so they could compete in society, but with Hawaiians still facing issues of poverty, drugs and crime, the school still needs to give preference to Native Hawaiian applicants.
There are only 5,400 seats on Kamehameha's three campuses, while there are 75,000 school-age children with Hawaiian blood.
"The (admissions) policy is critical to the mission," Botticelli said.
But to Grant the issue boils down to whether civil rights and anti-segregation laws apply to the institution.
Kamehameha Schools' legal position essentially is: "Hawai'i is different, Hawai'i is special, the regular rules don't apply," he said.
"If Hawaiians get a pass because of their history, I don't think it will be very long before some other group says, 'What about us? If you think it was bad for Hawaiians, let us tell you how bad it was for us,' " Grant said.
In 2003, Senior U.S. District Judge Alan Kay agreed with Kamehameha Schools' legal arguments and upheld the school's policy in view of the unique circumstances of the school and Native Hawaiians. He threw out the suit.
But in August of last year, the majority of a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the policy amounted to an "absolute bar" to non-Native Hawaiians in violation the federal civil rights law.
Senior appeals Judge Robert Beezer, who was appointed by Reagan, joined Bybee in the ruling.
In dissent, Graber said Congress did not intend that the civil rights law would bar programs to remedy "educational deficits" facing Native Hawaiians.
In February, the appeals court granted Kamehameha Schools' request for a rehearing before the larger panel and withdrew the earlier 2-1 decision.
Grant's client had been seeking a court order to force Kamehameha to enroll the boy who recently graduated from a public high school "with a very good record," the lawyer said.
Even though the initial panel voted 2-1 in his favor, the court did not issue the order because of Kamehameha Schools' request for the rehearing.
Grant said the case is not moot because still pending is the request for money damages from Kamehameha Schools, although the amount has yet to be calculated.
The thrust of his arguments before the court will be that Kamehameha Schools "operates a racially segregated school that violates the civil rights laws of the United States of America and there's no justification for applying any different rules for Kamehameha in particular or Hawai'i in general," he said.
He said even with the 9th U.S. Circuit's so-called "liberal" reputation, the panel will recognize that even if the judges sympathize with Kamehameha Schools' position, "the law requires them to rule in my favor."
Kamehameha Schools will argue that the challenge to the admissions policy should be rejected.
"We believe Judge Kay was correct in finding that our policy is legally justified as a means to remedy past wrongs and current injustices in the Hawaiian community resulting from Western contact," Botticelli said.
"We have a unique history as a private trust established to remedy special economic hardships that persist today."
JUDGES ON THE APPEALS COURT PANEL
Fifteen judges of the 9th U.S. Circuit Court of Appeals were selected at random from a pool of its members* to consider whether the Kamehameha Schools admissions policy violates federal civil rights law. The judges, where they are from, who appointed them and the year:
Mary Schroeder, chief judge, Phoenix, President Carter (1979)
Harry Pregerson, Los Angeles, Carter (1979)
Stephen Reinhardt, Los Angeles, Carter (1980)
Alex Kozinski, Pasadena, Calif., President Reagan (1985)
Diarmuid O'Scannlain, Portland, Ore., President Reagan (1986)
Pamela Ann Rymer, Pasadena, President George H.W. Bush (1989)
Andrew Kleinfeld, Fairbanks, Alaska, George H.W. Bush (1991)
Susan Graber,** Portland, President Clinton (1998)
William Fletcher, San Francisco, Clinton (1998)
Richard Paez, Pasadena, Clinton (2000)
Marsha Berzon, San Francisco, Clinton (2000)
Richard Tallman, Seattle, Clinton (2000)
Johnnie Rawlinson, Las Vegas, Clinton (2000)
Jay Bybee,***Las Vegas, President George W. Bush (2003)
Consuelo Callahan, Sacramento, George W. Bush (2003)
* Richard Clifton, the only 9th Circuit appeals judge from Hawai'i and whose former law firm represents Kamehameha Schools, was not in the pool of judges from which the 15 were selected.
** Graber wrote the dissent in a 2-1 ruling in August by a court panel declaring the Kamehameha Schools policy violated federal civil rights laws.
*** Bybee wrote the majority opinion in the 2-1 ruling.
Honolulu Advertiser, Tuesday, June 20, 2006
School's policy rehearing today
By Ken Kobayashi
Advertiser Courts Writer
SAN FRANCISCO — For at least an hour this morning, a federal appeals court panel of 15 judges is expected to grill lawyers on whether Kamehameha Schools' admission policy of giving preference to applicants with Hawaiian blood violates federal civil rights laws.
The "en banc" panel of the U.S. 9th Circuit Court of Appeals headquartered here is giving 30 minutes to each side to argue the case, although the court is known to extend the hearing if the judges' questions go past the allotted time.
At the end, the judges traditionally adjourn without indicating when they will render the decision. Legal observers say it could take months.
A three-member panel of the court ruled 2-1 in August that the school's policy amounts to an "absolute" ban to non-Native Hawaiian students, in violation of the civil rights law.
By agreeing to rehear the case with the larger panel, the appeals court withdrew that 2-1 ruling.
For Kamehameha Schools, the policy is essential to the mission of the school that was established in 1887 under the will of Princess Bernice Pauahi Bishop, the last direct descendant of King Kamehameha I.
But to Sacramento lawyer Eric Grant, whose clients are challenging the policy, the school's practice has resulted in a segregated school that shouldn't be exempt under the civil rights laws.
Grant will argue on behalf of an unnamed non-Native Hawaiian teenager and his mother who filed a federal lawsuit three years ago challenging the school's policy.
Grant will be accompanied by John Goemans, the Honolulu lawyer who also was an attorney for Big Island rancher Harold "Freddy" Rice, the plaintiff in the U. S. Supreme Court's 2000 decision that the Office of Hawaiian Affairs elections that bar non-Native Hawaiian voters violate the U.S. Constitution.
The teenager and his mother will not be at the hearing, Grant said, but the two are committed to seeing their case to the end, even if it means turning to the Supreme Court.
"We started this three years ago (when their lawsuit was filed)," Grant said. "We've gone through thick and thin, and we're going to finish it."
Kathleen Sullivan, former Stanford Law School dean, has been hired to argue the case for the school.
Kamehameha Schools Chief Executive Officer Dee Jay Mailer of and school trustees are expected to attend the hearing, along with spokeswoman Ann Botticelli and several members of the school's legal team.
Botticelli said the school isn't planning any major activities in connection with today's hearing, although people have asked how they can help. She said they tell supporters Princess Bishop Pauahi Bishop who established Kamehameha Schools under her will would have prayed. "A lot of people are doing that," Botticelli said.
Kamehameha Schools, one of the wealthiest charitable trusts in the country with assets worth $6 billion, is considered by supporters the last institution that belongs to Native Hawaiians.
The 2-1 appeals court decision in August led to an estimated 20,000 participating in rallies in support of the school in what some say was an unprecedented showing of unity among Native Hawaiians.
A wide range of individuals and groups have filed court papers declaring their support for the policy. They include Gov. Linda Lingle, Hawai'i's congressional delegation, Honolulu Mayor Mufi Hannemann, the Hawai'i Business Roundtable and various Native Hawaiian organizations.
"That's the last thing Hawaiians truly have," said Vicky Holt Takamine, a Hawaiian advocate and supporter of the school's admission policy. "If Kamehameha Schools falls, everything else falls like a domino effect."
Both Kamehameha Schools and Grant have said if they lose, they intend to ask the U.S. Supreme Court to review the decision.
Honolulu Advertiser, Breaking News, Updated at 10:54 a.m., Tuesday, June 20, 2006
Kamehameha Schools case heard in San Francisco
Listen to a recording of the arguments in the Kamehameha Schools' admissions-policy case before the 9th Circuit Court of Appeals
*** Note -- this is a VERY LARGE FILE OF 38 MEGABYTES. ***
By Ken Kobayashi
Advertiser Courts Writer
SAN FRANCISCO — Fifteen judges of the 9th U.S. Circuit Court of Appeals heard arguments today on an unnamed non-Native Hawaiian teenager's challenge to Kamehameha Schools' 119-year-old admissions policy giving preference to applicants with Hawaiian blood.
The judges adjourned the hearing without indicating when they will rule. Legal observers say it could take months before a ruling is issued.
The judges heard arguments from Sacramento attorney Eric Grant, who represents the teenager and his mother, who sued the charitable trust three years ago. They maintain that the admissions policy violates federal civil rights law.
Kathleen Sullivan, a former dean of Sanford Law School who was hired by the school, defended the admissions policy during the hearing at the 9th Circuit's headquarters here.
The hearing lasted a little more than an hour, with the judges peppering both Grant and Sullivan with questions, some sympathetic, others tougher. The two agreed to one question posed by an appeals judge, who wondered whether there was any way the court could issue a decision without dealing with the merits of whether the policy violated federal law.
Both lawyers said they could not think of any way. There didn't seem to be from the judges' questions a clear consensus favoring either side.
"I thought it went well," Grant said. "I think it's fair to say the court is divided. It probably will be a close case either way."
Sullivan said the appeals court always asks a lot of questions. "Questions are friends because the questions show the way to ruling in our favor, which we very much hope they'll do," Sullivan said.
Kamehameha Schools has maintained that the unique circumstances of the trust and hardships facing Native Hawaiians justify the policy of giving giving preference to students with Hawaiian blood.
In August, a panel of the appeals court ruled 2-1 that the policy violates federal civil rights law. But at the request of Kamehameha Schools, the 9th Circuit withdrew that decision and ordered today's hearing before the "en banc" panel of 15 judges.
*** Note: On Tuesday June 20, 2006 numerous newspapers throughout the United States carried a news story by Associated Press, which was published before the actual hearing was held on Tuesday. Here is that article as published in USA Today.
USA TODAY 6/20/2006
Preferential Hawaiian school admissions questioned in court
HONOLULU (AP) — A wealthy private school created exclusively for its indigenous people is asking a federal appeals court to allow it to continue its race-based admissions policy.
Fifteen judges on the 9th U.S. Circuit Court of Appeals were scheduled to hear arguments Tuesday in San Francisco about whether the Kamehameha Schools can continue to limit enrollment to Native Hawaiians.
While the courts have generally ruled against favoritism in education based on race, the Kamehameha case is different. The school receives no federal money. And its policy was based on the will of a Hawaiian princess 10 years before the monarchy was overthrown.
"Her whole intent was to provide a means for educating her people so they could compete in a society that was changing so quickly," said Kekoa Paulsen, a spokesman for Kamehameha Schools.
A three-judge panel of the 9th Circuit initially ruled 2-1 against Kamehameha's admissions policy last August. But the full court announced in February it would reconsider that decision. The admissions policy has remained in place while appeals are pending.
The lawsuit was filed on behalf of an unnamed white student who was denied admission in 2003.
"We've had a lot of conflict, including the Civil War, about treating people differently based on their race. I think we're mostly past that, but unfortunately Kamehameha wants to go back to an era of privilege for citizens depending on what race you are," said Eric Grant, a Sacramento, attorney representing the boy, who recently graduated from a public school.
Kamehameha Schools was established under the 1883 will of Princess Bernice Pauahi Bishop as part of a trust now worth $6.8 billion. Part of the school's mission is to counteract historical disadvantages Native Hawaiians face in employment, education and society.
Admission to the elite school is first granted to all qualified Native Hawaiian students. Only one in eight eligible applicants get in, and tuition is 60% subsidized by the private trust.
Of 5,400 students enrolled at the school's three K-12 campuses, only two do not have Hawaiian ancestry.
The case is an emotional one here, with Native Hawaiians claiming they are rightfully entitled to a quality education, and taking that away would further undermine their culture.
Following the initial ruling against Kamehameha last year, 15,000 people marched through downtown Honolulu in protest.
"We're not asking for a handout. We're asking to be able to take care of our own," said Miki Kim, a 1976 Kamehameha Schools graduate who organized a rally last fall supporting the school. "This country is not fair."
Honolulu Advertiser, Wednesday, June 21, 2006
Judges wrestling with case
Listen to a recording of the arguments in the Kamehameha Schools' admissions-policy case before the 9th Circuit Court of Appeals
By Ken Kobayashi
Advertiser Courts Writer
SAN FRANCISCO — A U.S. Supreme Court decision barring racial discrimination by private schools and the federal status of Hawaiians as a racial group, not a political entity, emerged yesterday as issues facing a federal appeals court deciding the fate of Kamehameha Schools' admissions policy.
Fifteen members of the 9th U.S. Circuit Court of Appeals yesterday heard arguments on whether the charitable trust's admissions policy that grants preference to Hawaiian applicants violates federal civil rights laws.
At least two of the appeals court judges appeared sympathetic to the school's mission.
Yesterday's hearing followed a 2-1 ruling in August by a panel of the court that threw out the school's practice.
During oral arguments, Appeals Judge Diarmuid O'Scannlian said, "I'm sympathetic to the goals of the trust, but I'm stuck on Runyon," referring to Runyon v. McCrary, a 1976 U.S. Supreme Court decision that said excluding blacks from private school violated civil rights law.
Another judge wondered whether Kamehameha Schools was trying to convince the court that its policy was justified even though Hawaiians had not yet been found by Congress to be a political entity.
"I think you are trying to get us to pass the Akaka bill after the Senate defeated it," appeals Judge Andrew Kleinfeld told the school's lawyer.
The panel grilled the lawyers for both sides for a little more than an hour, and then adjourned, as is customary. A ruling could take months.
The hearing drew an overflow crowd of more than 90 to the main courtroom. About the same number heard the arguments in another courtroom, among them more than 15 Kamehameha Schools supporters who live in the San Francisco area.
Also attending were the five Kamehameha Schools trustees, chief executive officer Dee Jay Mailer and President Mike Chun.
Robert Kihune, chairman of the trustees, thanked the supporters after the hearing, saying it was "a very historic day for us and a very, very significant milestone."
At stake is the school's admissions policy, which supporters say lies at the heart of the $6 billion charitable trust that gives preference to applicants with Hawaiian blood. But the lawyer challenging the policy calls it an "absolute bar" that excludes anyone who isn't Hawaiian.
While lawyers Kathleen Sullivan for Kamehameha Schools and Sacramento, Calif., attorney Eric Grant each expressed hope that their side would prevail, it was far from clear during the hearing which way the court will rule.
After the three-member panel of the court ruled the school's policy violated federal law, the court withdrew the decision and granted a re-hearing of the case before the 15 judges, 14 of whom were present at the hearing. The 15th participated through a telephone hookup.
Grant and Honolulu attorney John Goemans, who also was present, represent an unnamed non-Hawaiian teenager who sued the schools three years ago.
Grant told the judges they faced the "stark choice" of upholding a "racially segregated" school under the nation's oldest civil rights law first adopted in 1866.
Sullivan countered that the law, passed to protect newly freed slaves, does not apply to the school's unique circumstances. It was established in 1887 under the will of Princess Bernice Pauahi Bishop to help Hawaiians while Hawai'i was still a kingdom.
Several judges questioned whether the school falls under the 1866 civil rights law that bars discrimination in private contracts. They noted that the school's students might be considered beneficiaries of the princess's will, a point that could distinguish it from the private school in the Runyon case.
"This is not a for-profit enterprise," Chief Appeals Judge Mary Schroeder said.
Another judge, Alex Kolinsky, reinforced that point. "This is not a commercial enterprise," he said.
But another judge pointed to the difficulty in upholding the policy.
"Kamehameha is a wonderful school and Runyon is the law of the United States," Kleinfeld said.
He wondered whether there was any way the court could rule on preliminary issues rather than decide whether the school's policy violates federal law.
Sullivan and Grant agreed that the court must face the issue head-on.
Both sides were confident that they presented their arguments clearly enough to give each side hope.
And both sides said they would appeal to the U.S. Supreme Court if they don't win.
"I thought it went well," Grant said. "I think it's fair to say the court is divided. It will probably be a close case either way."
Grant said the issue of whether the admissions policy could be considered a contract under the civil rights law was a "relatively new" point raised during the hearing. But he said he believes the court will resolve the issue in his favor.
Grant's client and his mother did not show up at the hearing and remain anonymous. Although the teenager lost his bid for a court order to be enrolled at the school and graduated from a public high school in June, Grant said his clients are still seeking an undetermined amount of money damages, a request that he contended keeps the case alive.
Sullivan, a former dean of Stanford Law School, said she detected one theme from the judges:
"The one trend we could distill is that all the judges think Kamehameha Schools is a wonderful institution that does great work for the Hawaiian people," she said. "Their question will be how to rule on the legality."
Sullivan said the school provided many reasons to uphold the policy — the school is a gift under a will, it is a private charitable institution that doesn't get any government money and the school's policy is remedial for Hawaiians.
Douglas Ing, a Kamehameha Schools trustee, said the past week and listening to the arguments has been very emotional as well as "very difficult" because the court is looking at the case "through a lens that was not intended at the time."
"For us, it's such a huge issue," he said. "The preference policy is needed by the schools in order to pursue our vision."
Bill Fernandez, a 1949 Kamehameha graduate and a retired Santa Clara Superior Court judge, also saw sympathy from the judges for Kamehameha Schools.
"Their problem is trying to find the correct legal path," he said.
The two stumbling blocks, he said, are the U.S. Supreme Court's Runyon case and the lack of recognition (of Hawaiians) by the U.S. Supreme Court. The relevant ruling is the Rice v. Cayetano case, which led to the push for the Native Hawaiian recognition bill.
Maureen Kim, a San Francisco resident and Kamehameha graduate, is president of the Kamehameha Schools Alumni Association for Northern California, which has about 75 members.
"The Native Hawaiians are at the bottom of the socio-economic indicators in Hawai'i," she said. "The school is really important to help them become successful."
Kihune also applauded Sullivan for her arguments yesterday.
"Now, we just have to wait and pray that we have the right decision," he told supporters.
Honolulu Star-Bulletin, June 21, 2006
Judges troubled by Hawaiian school case
An appellate court hears arguments on Kamehameha's policy
By David Kravets
SAN FRANCISCO » Call it illegal racism or call it a helping hand for a downtrodden indigenous population.
That was the issue confronting a 15-judge panel of the 9th U.S. Circuit Court of Appeals as it weighed yesterday whether private Kamehameha Schools could lawfully give admissions preference to native Hawaiians.
9TH CIRCUIT COURT OF APPEALS
>> Web Site Link
>> WMA Audio Download
Listen to the audio transcript of the June 20 hearing by downloading the 10mb file.
The Kamehameha Schools was established under the 1883 will of Princess Bernice Pauahi Bishop as part of a trust now worth $6.8 billion. Part of the school's mission is to counteract historic disadvantages native Hawaiians face in employment, education and society. The trust subsidizes tuition.
The case, testing racial preference programs in schools, was brought by a Caucasian boy who was denied admission because he was not Hawaiian. A three-judge panel of the 9th Circuit ruled in favor of the boy last year, calling it unlawful race-based discrimination.
But the court agreed to hear the case again with a larger panel of 15 judges.
The judges were all over the map yesterday on whether they would uphold the three-judge decision. After an hour of oral arguments, the court did not indicate when it would rule.
Judge Alex Kozinski wasn't so sure whether the school's admission policy was good public policy, despite its goal of reversing the economic and educational plight of Hawaiians and helping to remedy some of the wrongs done during the U.S.-backed overthrow of the Hawaiian kingdom in 1893.
"What's so great about having a school where everybody you meet is just like you?" he asked.
Judge Pamela Rymer added that the policy "assumes that it is a legitimate purpose to remedy society's wrongs."
Judge Harry Pregerson said the policy sounded OK because it was aimed at righting a social wrong.
"That's what it's all about, isn't it?" Pregerson asked. The school's attorney, Kathleen Sullivan, replied: "That's true."
The last time the U.S. Supreme Court ruled on a similar issue was in 2003, when the justices banned the use of rigid formulas that award points based on race for admission to the University of Michigan's undergraduate program and law school. But the court that same year also permitted colleges to consider race as part of a "holistic review" of every application.
But the case before the 9th Circuit considers a unique set of circumstances: a private school, which does not receive any federal funding, allowing only indigenous Hawaiians.
Those facts prompted at least two judges to wonder aloud whether they could simply dismiss the case, because the plaintiff, now 18, already has graduated from another high school.
A ruling in the boy's favor would force the school to change its practices.
Sullivan suggested that the Kamehameha Schools was being unfairly singled out, and noted that Alaskan natives and American Indians enjoy benefits based on their indigenous status, and Hawaiians should be on equal footing.
Several judges, however, noted that Congress tabled legislation toward that end earlier this month.
Admission to the elite school is first granted to all qualified Hawaiian students, and non-Hawaiians may be admitted if there are openings left. Only one in eight eligible applicants gets in.
There are roughly 5,400 students enrolled at the school's three K-12 campuses.
Sullivan argued that the admissions policy should be permitted to comply with the wishes of the princess' will.
Eric Grant, the attorney for the boy who could not enroll, maintained that the policy is illegal.
Following the appeals court's ruling against the school last fall, an estimated 15,000 people marched through downtown Honolulu in protest.
The state Attorney General's Office is supporting the school's admissions practices, which will remain in place pending a resolution of the case.
The case is John Doe v. Kamehameha Schools, 04-15044.
Honolulu Star-Bulletin, June 22, 2006, EDITORIAL
Kamehameha Schools should consider future options
A 15-judge federal appeals panel heard arguments in a lawsuit challenging Kamehameha Schools' admission policy.
SET BACK by the Akaka Bill's rejection by the Senate, Kamehameha Schools' admission policy is at risk in a case heading for the U.S. Supreme Court. Along the way, it is hearing ways to remain in operation in compliance with federal law. The institution should seriously consider those suggestions.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled in August that the Hawaiians-only admission policy violated the Civil Rights Act of 1866. The Supreme Court ruled in 1976 that the law prohibits private schools from discriminating on the basis of race, and that the law protects all races, not just minorities.
The high court noted those rulings three years ago when it struck down the University of Michigan undergraduate school's affirmative action policy. The court ruled that race may not be a determining factor in whether an applicant is admitted to any school, public or private.
All of those rulings were based on the 1866 law's prohibition of racial discrimination in contracts. "The contract is the exchange of tuition for educational services" in the Kamehameha Schools case, said Eric Grant, a Sacramento, Calif., attorney for a Caucasian student denied admission to Kamehameha.
In this week's hearing in review of the August decision by 15 members of the 9th Circuit Court, Judge Alex Kozinski, a Reagan appointee to the bench, suggested that Kamehameha Schools would not be bound by that law if it waived the $1,700 tuition.
That amounts to a fraction of the $20,000 annual cost of educating a child at Punahou School. Kozinski pointed out that 65 percent of the students at Kamehameha pay "hardly anything" in tuition because of scholarship aid, so tuition income amounts to "a drop in the bucket" for one of the world's largest charitable institutions.
"I don't know," Grant said when Kozinski asked if waiving tuition would relieve Kamehameha from compliance with the 1866 law. He agreed with Kozinski that a person of Chinese ancestry, for example, would be allowed to distribute his estate as gifts to people of similar ancestry without violating the 1866 law. Obviously, elimination of tuition would similarly free Kamehameha from the law's contract restrictions.
William A. Fletcher, a Clinton appointee, asked Grant if Kamehameha would be free of the constraints if Congress were to enact a law exempting Hawaiian children from the statute created by the 1866 law as "being a political category" rather than a racial group.
"I do not know," Grant replied. "That would raise some troubling issues." Those are the same issues cited by opponents of the Akaka Bill, and they surely would be raised again if such an exemption were sought.
Honolulu Advertiser, Friday, June 23, 2006, EDITORIAL
Complexities arise in Kamehameha hearing
Watchers of the "en banc" rehearing of the Kamehameha Schools admissions case came away no better equipped to predict the outcome than any person on the street flipping a coin.
The 15 members of the 9th Circuit Court of Appeals seemed sharply divided in their interpretations of what protection, if any, federal law provides for the schools' Hawaiian-preference admissions policy.
Judges' remarks on the one hand indicated a belief that the 1976 Supreme Court ruling against private-school exclusions based on race should prevail here. Alternately, others cited a point that until now has been little discussed:
The case challenges the rejected application by a non-Hawaiian student by citing a much older statute that bars racial discrimination in contractual agreements. However, two of the appellate judges expressed doubts that admissions to a private school could be construed as a contract.
Whether or not this uncertainty could weight the ruling in the schools' favor is anyone's guess.
But it's obvious that there will be ample areas in dispute by either side, grounds for an appeal to the nation's highest court. Given the changing dynamics of the Supreme Court, it's likely its members will want to weigh in.
The bottom line: The Kamehameha dispute will fester unresolved for a long time to come. That's unfortunate, because a school richly endowed by Princess Pauahi's legacy, with the potential to do a great deal of good for the community, will continue to operate under a legal cloud.
In the meantime, the school must be working on a "Plan B" that would allow its good work and mission to continue should the legal tide turn against it.
Honolulu Star-Bulletin, July 6, 2006
Former Bishop Estate trustee firm on innocence
Henry Peters says he was the victim of an "old-time lynching"
By Richard Borreca
HENRY PETERS, former Bishop Estate trustee and House speaker, continues to defend himself in debates about the long-running political and legal scandal surrounding operation of the estate that funds Kamehameha Schools.
Peters spoke yesterday at a panel sponsored by Small Business Hawaii called "Broken Trust," after the Honolulu Star-Bulletin's 1997 publication of an essay charging the trustees of the $10 billion estate with "gross incompetence and massive trust mismanagement."
Earlier this year, two of the Broken Trust authors -- Randy Roth, a University of Hawaii law professor, and Sam King, senior U.S. district judge for Hawaii -- wrote a book reviewing the scandal called "Broken Trust -- Lessons Learned."
The two were on yesterday's panel at the Hale Koa Hotel.
Peters, who was in the audience yesterday, discounted the investigation, the scandal and the book.
"Obviously, the book was not written to be complimentary," Peters said.
Peters resigned from the estate in 1999 as his trial to force him off the estate was to begin, saying he was the victim of "an old-time lynching."
"I wouldn't wish this on my worst enemy," Peters said yesterday.
According to Roth and King, however, Peters' income did not stop when he left the estate and he had become "entitled to approximately $600,000 a year under a deferred compensation contractual arrangement that he had arranged while a trustee."
Peters said yesterday that he had first been approached to join the estate shortly after he was named House speaker in 1980.
"About a week after I was speaker, I got approached by (former Chief Justice William) Richardson, who, as the chief justice said, 'Speaker, will you consider becoming a trustee?'" Peters said yesterday.
"I said, 'How can I take on something as new as that? I just became speaker. ... CJ, you are a prominent Hawaiian, how about you? You know the system.'"
Richardson was named by his fellow court members to the post of trustee, and four years later Peters received an appointment as well.
Peters yesterday said he was told after he joined the estate that his political help was needed.
The estate held thousands of acres in residential land that through government-approved condemnations was being forced to sell its property.
Peters said three trustees "came to see me and said we need you to help us at the Legislature. Why? 'Because we are getting our butts kicked.'
"What do you mean by that -- leasehold conversion?" Peters said.
Peters said he told the trustees -- Richard Lyman, Richardson and Myron Thompson -- that "whatever it takes for me to assist the institution, I am going to do it."
Peters said he did not think he was put on the estate because of his political influence or connections. And he said he saw nothing wrong with representing both the estate and his constituents during the 20 years he represented Waianae in the state House.
"I never hide anything. I went back to my constituency and said this is what is being requested of me," Peters said. "I served them well as both a trustee and a member of the Legislature."
Honolulu Star-Bulletin, July 8, 2006, Letter to Editor
News article omitted real story about panel
If I had not been in the audience, I never would have known that former Bishop Estate trustee Henry Peters was not part of the panel discussion of "Broken Trust" last Wednesday.
The news story in the Thursday edition of the Star-Bulletin featured only Peters' five-minute speech during the question period while mentioning nothing about the 90 minutes of other commentary given by an impressive collection of panel personalities.
Peters can get away with his claim of innocence since all the papers concerning the Bishop Estate broken trust are sealed and therefore no trustee can ever be held accountable for the breaches in trust responsibility. This is called healing.
The real story is the failure of the state courts and legal officers to enforce trust law and hold violators accountable.
Paul E. Smith
** Note from Ken Conklin: It is a great honor for a high school student, and for the school he attends, to win recognition as a National Merit Scholarship semifinalist. Selection is based on a combination of scores on standardized tests, course grades, and teacher recommendations. Semi-finalist standing is based entirely on merit; selection as a final recipient of a scholarship is based on financial need. In September 2006 it was announced that KALANI ROSELL, A STUDENT AT KAMEHAMEHA SCHOOL MAUI CAMPUS, WAS AWARDED NATIONAL MERIT SEMIFINALIST STATUS -- the only student at his school to win that distinction. Those familiar with Kamehameha School history will recall that in 2002 Kalani Rosell was the first child with no Hawaiian native ancestry to be admitted to Kamehameha Schools since 40 years previously. His admission might have been a mistake, based on his Hawaiian-sounding first name; or it might have been a ploy by Kamehameha officials to deflect legal challenges to the racially exclusionary admissions policy by admitting a "token haole." In any case, it caused howls of protest from Kamehameha alumni, resulting in a pledge from the trustees to expand outreach and recruitment to ensure that there would be enough ethnic Hawaiian applicants qualified to meet the admission standards. So congratulations to Kalani Rosell, civil rights freedom-fighter, whose intelligence and hard work have enabled him to persist and to excel at the school where racists staged protests against his admission and made every effort to keep him out. To review the controversy over his admission to the 8th grade in 2002, see:
Here is the news report listing all 73 students in Hawai'i who won National Merit semifinalist status: Note that almost all are attending private schools, and 2/3 are attending the prestigious 'Iolani and Punahou schools.
Honolulu Advertiser, Thursday, September 14, 2006
73 from Islands are semifinalists for National Merit Scholarships
Seventy-three students from Hawai'i have been named semifinalists in the 2007 National Merit Scholarship program.
The students are among about 16,000 nationwide who will compete for 8,200 Merit Scholarship awards worth $33 million. The students were selected based on their scores on the 2005 Preliminary SAT/National Merit Scholarship Qualifying Test.
To be considered for a Merit Scholarship, semifinalists must meet certain criteria, including producing an outstanding high school academic record, a recommendation from the principal, qualifying SAT scores, and a detailed application from the semifinalist and a school official.
The nationwide semifinalists represent less than 1 percent of U.S. high school seniors.
The Merit Scholarship winners of 2007 will be announced from April through July.
The semifinalists, as reported by the National Merit Scholarship program:
Hilo High: James M. Bishop
Waiakea High: Sara K. Dale
Hawai'i Preparatory Academy: Graham E. Johnson.
Kamehameha Schools (Kea'au): Lauren A. Carvalho
Konawaena High: Kim M. Nichols.
King Kekaulike High: Ian Y. Dela Cruz.
Seabury Hall: Marlise A. Armstrong, Mirabel A. Bradley, Anna A. Clark.
Kamehameha Schools: Kalani K. Rosell.
Home school: Sara A. Reiley.
Hawaii Baptist Academy: Jesslyn O. Cheong, Daniel W. Cosson, Bethany A. Rawlings
Iolani School: Lori C. Arakaki, Joshua D. Busse, Ruth Chen, Alexander K. Chun, Dianna Dai, Noah K. Goshi, Kelsi K. Hirai, Xiaolong Hou, Chau B. Huynh, Marisa L. Ideta, Lucy X. Liu, Daniel J. Lum, Sarah K. Matsui, Sean T. Matsuwaka, Taryn R. Nakamura, Jennifer N. Nishioka, Roydan N. Ongie, Kevin R. Otsuka, Yoichi Sagawa, David H. Saito, Shawn E. Tokairin, Sara S. Tsukamoto, Michael Uyemura, Kon L. Weber, Andrea S. Wong, David R. Yamashiro, Nathan C. Yang, Tianzan Zhou.
Kalani High: Tony Fujii, Taoran Li.
Kamehameha Schools (Kapalama): Lara A. Evensen, Matthew Mariconda.
McKinley High: Yeeting Lee, Elyse W. Takashige.
Punahou School: Traci Aoki, Patricia Boxold, Monica Burns, Alexandra Galati, Peter K. Gottlieb, Lisa A. Gulmon, Kimberly E. Hall, Max A. Halvorson, Chloe S. Hartwell, Scott L. Hong, Brett K. Kan, Liana T. Kobayashi, Jennifer I. Lai, Ingrid S. Lao, Erica M. Mau, Zoe S. Morrison, Martine J. Seiden, Henry A. Thornhill, Sara H. Timtim, Mari N. Turk, Christina M. Wong.
Sacred Hearts Academy: Virginia J. Lenander, Cara M. Smith.
St. Andrew's Priory: Sarah A. Swanson.
Saint Louis School: Matthew D. Choy.
Honolulu Star-Bulletin, November 29, 2006
Kamehameha trustee hopefuls vow fight on native-only issue
The finalists attended a forum last night sponsored by Na Pua A Ke Ali'i Pauahi
By Craig Gima
The three finalists to become a trustee of the Kamehameha Schools would continue to appeal if a federal court strikes down the school's native Hawaiian admissions policy.
However, each said they would also pursue alternatives to the policy to continue serving native Hawaiian children.
The finalists -- Honolulu lawyer Allen K. Hoe, First Hawaiian Bank Senior Vice President Corbett A.K. Kalama and former city Budget Director Ivan M. Lui-Kwan -- attended a forum last night sponsored by Na Pua A Ke Ali'i Pauahi Inc., a nonprofit group whose members include alumni, parents, students and faculty of Kamehameha Schools.
Kalama said the school could still continue and expand already-successful partnerships with the Department of Education and other entities to provide early childhood education and better prepare native Hawaiian children for school.
Lui-Kwan said there are other criteria to target native Hawaiians that could be used for admissions besides race. But giving up Kamehameha Schools' tax-exempt status to preserve the admissions policy would be "too expensive" because it would cost the trust hundreds of millions of dollars.
Hoe said the trustees should take a fresh look at the policy and "go outside the box to see what can be done to expand educational opportunities for Hawaiian children."
Each nominee gave opening remarks and then spoke separately in a question-and-answer session with about 40 people gathered at the Center for Hawaiian Studies at the University of Hawaii at Manoa.
The three nominees were chosen by a selection committee that reviewed applications for the position on the five-member board, which oversees a $6.8 billion endowment.
A Probate Court judge will make the final selection.
The trust was formed by the will of Princess Bernice Pauahi Bishop, the last direct descendent of Kamehameha I, to educate native Hawaiian children.
The new trustee will fill the remaining term of Constance Lau, who announced she would resign after she was promoted to president and chief executive officer of Hawaiian Electric Industries.
Jan Dill, a board member of Na Pua A Ke Ali'i Pauahi, said the group will not make a formal recommendation to the Probate Court on who it thinks should be the next trustee.
But he said he expected some in the audience would submit comments.
The court is taking comments from the community until Friday.
"Certainly the beneficiaries should have an opportunity to provide input significantly in the process," Dill said.
Adrian Kamalii, the organization's president, said the group made a point of asking each nominee whether they would be open to continue talking with beneficiaries and each nominee indicated they thought it would be a good idea.
Lau's term expires June 30, 2008.
The other current trustees of Kamehameha Schools are Chairman Robert Kihune, Douglas Ing, Nainoa Thompson and Diane Plotts.
THE 3 FINALISTS FOR KAMEHAMEHA SCHOOLS TRUSTEE
ALLEN K. HOE
Job: Attorney in private practice.
Experience: Deputy corporation counsel for the City and County of Honolulu; per diem judge in Honolulu District Court; Probate Court special master for the Kamehameha Schools Trustee Compensation Committee; hearings officer for the Hawaiian Homes Commission; Vietnam War veteran.
CORBETT A.K. KALAMA
Job: First Hawaiian Bank Senior Vice President
Experience: Bank employee since 1982, promoted to senior vice president in 2003. Kalama also headed a community working group that advised U.S. Sen. Daniel Akaka on the unsuccessful bill for his federal recognition bill for Hawaiians.
IVAN M. LUI-KWAN
Job: Attorney at Starn O'Toole Marcus & Fisher.
Experience: Law clerk for former Chief Justice William S. Richardson; attorney with Carlsmith Ball; executive vice president/chief operating officer for Queen's Health Systems; board chairman and chief executive officer of the Queen's Development Corp.; director of the city Department of Budget and Fiscal Services; manager for Daniel Akaka's campaigns for U.S. House and U.S. Senate, political director for Akaka's last re-election campaign.
Honolulu Advertiser, Wednesday, December 6, 2006
KAMEHAMEHA SCHOOLS ADMISSIONS POLICY
Kamehameha allowed to stay 'Hawaiians first'
By Ken Kobayashi
Advertiser Courts Writer
Kamehameha Schools officials and supporters hailed a 9th U.S. Circuit Court of Appeals 8-7 ruling yesterday upholding the school's longstanding policy aimed at only admitting students with Hawaiian blood.
But the legal battle may not be over as lawyers for an unnamed non-Native-Hawaiian teenager who challenged the policy vowed to ask the U.S. Supreme Court to review the sharply-divided decision.
"We're absolutely elated," Kamehameha Schools chairman Robert Kihune, a retired admiral, said about the decision, which upholds what supporters say is at the heart of the school's mission to educate Native Hawaiian children.
Eric Grant, the Sacramento attorney representing the unnamed student who sought admission to the school, said they were disappointed, but "gratified" to see seven judges voting in their favor.
He said they will ask the U.S. Supreme Court to review the ruling, and a decision by the high court on whether to take the case will be issued next year.
It's unclear whether the high court, which grants only a small fraction of requests to review lower court rulings, will take the case. Four of the nine high court justices must agree for the full court to consider the appeal.
Grant is optimistic and predicts he will prevail if the Supreme Court justices review the school's admissions policy.
But Colleen Wong, the school's vice president of legal affairs, said it's "very unlikely" the high court will accept the case.
The decision by the appeals court headquartered in San Francisco produced five separate opinions displaying a lively debate among the judges on the contentious issue of whether the institution long cherished by Native Hawaiians violates federal civil rights law with its admissions policy. The opinions spanned more than 100 pages.
The ruling was praised by campus leaders yesterday.
After a news conference, Kamehameha Schools CEO Dee Jay Mailer, president Michael Chun and the school's trustees stepped onto the courtyard of their Kawaiha'o Plaza offices on South Street and were met by applause from dozens of school employees who had gathered.
The moment was an emotional one. The group spontaneously joined hands and sang "Sons of Hawai'i," the school's alma mater, and "I Mua Kamehameha," the school's fight song.
Kihune, a 1955 graduate, was the first to speak. "I want to keep it short before I lose it," Kihune said. "This is a wonderful day for Kamehameha Schools. This is a wonderful day for Hawaiians. This is a wonderful day for all the people of Hawai'i."
Said Mailer, a 1970 graduate: "No matter what court stands before us, we have work to do. And what the judges are telling us today is to continue our work and so let us do that. We do our work with humility, we do our work with pride, and we do our work with constant purpose, one reason: to improve the well-being of our people."
Students and faculty gathered at the Kapalama campus' Kekuhaupi'o gym, where they held a private prayer service.
The school, a $6 billion private charitable trust set up in 1888 by the will of Princess Bernice Pauahi Bishop, operates three campuses — the flagship at Kapalama Heights and others on Maui and the Big Island. Although there are about 70,000 school-aged children with Hawaiian blood, the school's enrollment is about 4,856 students.
The appeals court reversed a 2-1 decision by a 9th Circuit panel in August of last year that declared the schools' policy violated a federal civil rights law first passed in 1866 prohibiting private institutions from discriminating against newly-freed slaves on the basis of race.
The panel's original decision set off a firestorm among students, parents, alumni and others who decried the possibility of changes to the admissions policy. Rallies across the state and on the Mainland followed as supporters of the policy sought to raise public awareness of the case.
But before that court decision could be enforced, the appeals court granted a request by Kamehameha Schools that a larger, or "en banc," panel of 15 judges rehear the case because of its significance.
The 15 judges listened to legal arguments at a hearing at their San Francisco courthouse on June 20.
Although the 9th Circuit has been tagged with the label of issuing "liberal" decisions, it was far from clear from the hearing which way the court would rule, although the appeals court judges expressed admiration for what the schools were trying to do.
Appeals Court Judge Susan Graber of Portland, who wrote the dissenting opinion last year, authored the majority decision yesterday, while Jay Bybee of Las Vegas, who wrote last year's majority decision, filed the leading dissenting opinion.
An Advertiser review of the way the judges voted shows that the eight in the majority were appointed by Democratic presidents Jimmy Carter and Bill Clinton.
The eight are Graber, chief appeals judge Mary Schroeder of Phoenix, Harry Pregerson of Los Angeles, Stephen Reinhardt of Los Angeles, William Fletcher of San Francisco, Richard Paez of Pasadena, Marsha Berzon of San Francisco and Johnnie Rawlinson of Las Vegas.
Six of the seven dissenters were appointed by Republican presidents Ronald Reagan, George H.W. Bush and George W. Bush.
Those six are Bybee, Alex Kozinski of Pasadena, Diarmuid O'Scannlain of Portland, Pamela Ann Rymer of Pasadena, Andrew Kleinfeld of Fairbanks and Consuelo Callahan of Sacramento.
Richard Tallman of Seattle was the only appeals judge appointed by a Democratic president (Clinton) to dissent.
Among the opinions, Kozinski made one suggestion on how Kamehameha Schools could avoid falling under the federal civil rights law. At the hearing in June, Kozinski was one of the more vocal judges.
"What's so great about having a school where everybody you meet is just like you?" he asked at one point.
Yesterday, he suggested that the school would not fall under the civil rights law prohibiting discrimination in contracts if it didn't charge tuition.
Tuition is $1,748 a year, with the school already subsidizing much of the $20,000 annually for each student, according to Graber's decision, in which she outlines the historical background of Kamehameha Schools and the current plight of Native Hawaiians. In addition, 65 percent of the students receive financial aid to help with the tuition, she wrote.
FIGHT NOT OVER
In a telephone interview yesterday, Grant said the only issue left for his client — if the high court takes the case — would be the amount of damages for the school's refusal to admit him based on his race, since he has already graduated from a public high school here this year.
The lawyer said his client is now attending his first semester in college, but that he and his mother want to continue pursuing the litigation based on principle.
"Both the student and his mother don't want other families to go through what they went through," Grant said.
He agreed that the high court only takes a small percentage of cases, but said he thinks it likely will take the appeal because of the close decision by the en banc panel as well as two other cases now before it involving allegations of discrimination in Seattle and Kentucky schools.
Under the timetable set by the high court, a decision on whether it will hear the appeal could be announced sometime in May or June, when the issue of school discrimination will be "on their minds," he said.
Grant also predicts he will prevail before the high court in view of its previous rulings, including the landmark 2000 Rice v. Cayetano decision in which the court ruled 7-2 in striking down a requirement that voters for trustees of the Office of Hawaiian Affairs have Hawaiian blood.
"There's nothing certain in life except death and taxes, but I like my chances better in the Supreme Court than in the 9th Circuit," he said.
Wong said Kamehameha Schools will be given a chance to file briefs explaining why the high court should refuse to hear the case.
She said the justices won't be looking at the closeness of the vote, but rather the substance of the decision, which deals with the circumstances of Kamehameha Schools, a private trust providing remedial educational opportunities for Native Hawaiians.
"This decision is extremely narrow and it has unique circumstances," she said. "It really doesn't have national importance and that's the type of things they're looking at."
She said the Seattle and Kentucky cases are distinguishable because those two cases deal with public schools, while the Kamehameha Schools campuses are private.
"We stand ready and are fully prepared to defend against" a request for the high court to hear an appeal of yesterday's ruling, she said.
But Grant said the Kamehameha case is of "exceptional importance," a point he said Kamehameha Schools lawyers made in urging that a larger appeals court panel review the 2-1 decision last year.
Wong said the high court takes 80 cases, or about 1 percent, of the 8,000 requests to review court decisions. Grant said that if cases involving appeals from indigents, such as prisoners, are excluded, the high court grants about 2 1/2 percent to 3 percent of the requests.
Neither lawyer had figures on what percentage of requests from en banc rulings are approved by the high court.
Students, faculty, administrators and staff at Kamehameha's Kapalama campus made their way from the high school campus to Kekuhaupio Gym for an assembly to celebrate the appeals court decision. Media were not invited to the event. Middle-school students walked up to the gym and elementary students were bused there.
A special church service to mark a court ruling upholding the Kamehameha Schools admissions policy will be at 5 p.m. today at Kawaiaha'o Church.
It is open to the public.
"We welcome all who would like to join us as we ask Ke Akua for guidance through the next part of our journey," said Kamehameha Schools CEO Dee Jay Mailer. "Those across our state and on the continent who cannot join us in person can certainly join us in spirit wherever they are at 5 p.m. Hawai'i time."
WHAT THEY THINK OF RULING
Some reactions to yesterday's court ruling on the Kamehameha Schools admissions policy:
"The court recognized the circumstances that set us so firmly apart from a law that was enacted 150 years ago to protect newly freed slaves. That we are a private institution founded during a time of Hawaiian sovereignty to remedy, through education, the imbalances endured by an indigenous people. "
Dee Jay Mailer | Kamehameha Schools chief executive officer, on the www.ksbe.edu Web site.
"I'm disappointed but not surprised. The decision is based on racism and the supposition that Native Hawaiians are somehow not equal to other citizens. It's a group-based sort of thing instead of something based on the merits of individual people, which is what our country was based on. I refuse to accept the notion that Native Hawaiians are somehow incapable of participating in society on the same basis as everyone else."
Richard Rowland | president, Grassroot Institute of Hawaii
"This is from our princess' will. We're not even federally funded, so what is the problem? This decision is pono, this is the right thing."
Tonie Birano | Kamehameha Schools account assistant, class of 1965
"While it was my alma mater's admission policy that was in question, there is no doubt that today's ruling recognizes the special circumstances of Native Hawaiians."
U.S. Sen. Daniel Akaka | in a news release
"I'm elated. It's about time that one of the last things left by our ali'i should be honored. I think Kamehameha Schools does a tremendous amount of partnering with the community. They provide educational opportunities for students that otherwise would not have those opportunities. I've seen the results of the Kamehameha Early Childhood Education program."
Ted Blake | Koloa, Kaua'i, class of 1967
"The ruling is the right thing to do. It's justice for Kamehameha Schools, for the Hawaiian children and for the state of Hawai'i for that matter. This is an extremely important part of our heritage and I'm very happy with the ruling. ... I don't believe there's any institution in this state that has done or will do more to perpetuate the Native Hawaiian culture than Kamehameha Schools has and that will be true for generations to come."
Gov. Linda Lingle
"We believe that Kamehameha Schools is an integral force in helping meet the educational needs and aspirations of the Hawaiian community. With 120 years of experience in doing just that, Kamehameha Schools ... is an invaluable asset to the entire state of Hawai'i."
Office of Hawaiian Affairs | in a news release
Honolulu Advertiser, Wednesday, December 6, 2006
A brief history of the case
On behalf of an unnamed non-Hawaiian student, identified only as John Doe, attorneys John Goemans and Eric Grant file a civil-rights lawsuit disputing Kamehameha's admissions policy.
A federal court orders Kamehameha Schools to enroll a non-Hawaiian boy, 12-year-old Brayden Mohica-Cummings, until a final verdict on the admissions policy is made.
U.S. District Judge Alan Kay decides against John Doe, ruling that Kamehameha Schools can continue its Hawaiians-preference admissions policy because of its unique and historical circumstances.
Trustees for Kamehameha Schools approve a settlement allowing a seventh-grade non-Hawaiian student to continue attending the private school until he graduates. In exchange, Grant and Goemans, the lawyers for Mohica-Cummings, agree to drop one of their two federal court challenges to the school's admissions policy. The two lawyers appeal Kay's John Doe ruling.
AUG. 2, 2005
By a 2-1 vote, a panel of the 9th U.S. Circuit Court of Appeals decides in favor of John Doe, ruling that Kamehameha's admissions policy constitutes unlawful racial discrimination and throwing the 120-year-old policy into limbo. A week later, the same three judges deny a request by John Doe to be admitted in the fall, pending an appeal by the school.
AUG. 6, 2005
About 20,000 Kamehameha students, alumni and other supporters rally on all major Hawaiian islands and the Mainland to show their support for the embattled school. At a major rally in Honolulu, thousands hear a string of fiery speeches before marching two miles to Mauna 'Ala, the Royal Mausoleum in Nu'uanu, where founder Princess Bernice Pauahi Bishop is buried.
FEB. 22, 2006
The 9th Circuit grants Kamehameha's request for an en banc rehearing of its August 2-1 decision, essentially throwing out that decision pending a review by a larger panel of 15 judges.
In an 8-7 decision, the full 9th Circuit rules that the admissions policy does not violate a federal civil rights law first enacted in 1866 to prohibit discrimination in contracts against newly freed slaves.
Honolulu Advertiser, Wednesday, December 6, 2006
Decision a turning point in legal woes
By Rick Daysog
The fate now of Native Hawaiian programs and entitlements, which have come under intense legal scrutiny during the past six years, may be more optimistic in light of yesterday's appellate court ruling upholding the Kamehameha Schools' century-old admissions policy.
While the 9th U.S. Circuit Court of Appeals' majority opinion is narrowly written to apply only to the school's educational programs, the decision marks a turning point in a series of legal woes set off by the U.S. Supreme Court's ruling in the Rice v. Cayetano case in 2000 that abolished Hawaiians-only voting in Office of Hawaiian Affairs elections, legal experts and Hawaiian rights activists said.
"I think this shifts the momentum in the other direction," said Jon Van Dyke, a University of Hawai'i law professor, who assisted Kamehameha's legal team.
In yesterday's ruling, the 9th Circuit ruled that the school's Hawaiian-preference admission policy is permissible to remedy social and economic imbalances suffered by Native Hawaiians and that Congress has passed legislation explicitly recognizing the school's mission.
The ruling reverses last year's decision by a three-judge 9th Circuit panel to strike down Kamehameha Schools' admission policy in a suit filed by an unnamed non-Hawaiian student who didn't get into the school.
It made no specific reference to Hawaiian programs and agencies such as the Office of Hawaiian Affairs and the state Department of Hawaiian Homelands.
But the 41-page majority opinion, which was written by 9th Circuit Judge Susan Graber, includes language recognizing the special relationship between the federal government and Native Hawaiians.
A concurring opinion written by 9th Circuit Judge William Fletcher went further by saying that Kamehameha's admissions policy doesn't violate federal civil rights laws since Native Hawaiians aren't "merely a racial classification" but also "are a political classification."
That language is similar to that found in the Akaka bill, which aims to establish a process that could lead to establishment of a Native Hawaiian entity recognized by the federal government. Supporters of the Akaka bill say that such federal recognition would help stave off legal challenges against millions of dollars that go to Hawaiian-preference programs such as OHA and the DHHL.
NEW PUSH FOR BILL
The Akaka bill is currently stalled in Congress, but Hawai'i's congressional leaders have vowed to push the bill in next year's session.
While Fletcher's concurring opinion isn't binding, it shows that the 9th Circuit would vote to uphold the Akaka bill if it's ever passed by Congress, Van Dyke said.
"That's huge," added Moses Haia, staff attorney for the Native Hawaiian Legal Corp.
"This basically puts Hawaiians on a different footing. This assumes that there's a political relation with the federal government."
Since the Rice decision, Native Hawaiian programs have been the target of a number of lawsuits that alleged that the programs are race-based and discriminate against non-Hawaiians.
Those cases include the 2002 Arakaki v. Lingle lawsuit in which 18 local residents are seeking to dismantle the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands and the 2003 lawsuit by Brayden Mohica-Cummings, the non-Hawaiian Kaua'i boy who sued to get into Kamehameha Schools.
The 9th Circuit dismissed most of the claims in the Arakaki case in August 2005 but allowed the local residents to challenge the expenditure of about $2.8 million a year in state tax money by OHA. The Supreme Court reversed that decision in June, ruling that payment of taxes alone isn't enough to provide legal standing to sue OHA.
Kamehameha Schools settled the Mohica-Cummings suit in 2003, allowing Mohica-Cummings to attend the school's Kapalama Heights campus until he graduates from high school.
Opponents of affirmative action and other racial-preference systems agree that the decision could have broad implications beyond the admissions policy at Kamehameha Schools.
Attorney Eric Grant, who represents the unnamed student who sued to overturn the school's admissions policy, said yesterday's ruling could be applied to the context of the workplace where an employer would be able to justify discriminatory practices against non-Hawaiians.
Grant, who plans to appeal yesterday's decision to the Supreme Court, said employers would be able to violate federal civil rights laws by arguing that their hiring policies aim to remedy socio-economic problems suffered by Hawaiians.
"Anytime a court allows racial discrimination, there's the potential that it will be used as a precedent to justify other discrimination," added Roger Clegg, president and general counsel for the Center for Equal Opportunity, a Sterling, Va., think tank that opposes affirmative action and other race-based programs.
"This is something that ought to concern everyone. Today's politically correct discrimination can come back to haunt all of us."
OPINION HIGHLIGHTS BY APPEALS COURT
Highlights of five opinions from the 9th U.S. Circuit Court of Appeals in its 8-7 ruling upholding Kamehameha Schools' policy aimed at giving preference to students with Hawaiian blood.
Appeals Court Judge Susan Graber wrote the 36-page majority opinion. She was joined by Appeals Court judges Mary Schroeder and Marsha Berzon.
The policy does not violate federal civil rights law because the policy tries to correct educational disadvantages of Native Hawaiians and is intended to last only as long as they suffer that disadvantage.
A U.S. Supreme Court 1976 decision, Runyon v. McCrary, that invoked the law to strike down a private school barring blacks does not apply to Kamehameha. The Runyon case involves "a straightforward case of discrimination." The Kamehameha Schools case involves a "remedial policy."
"The Civil Rights Act was passed specifically with the plight of African-Americans in mind. It is therefore unsurprising that the court labeled a whites-only admissions policy a 'classic violation of (the civil rights law).' "
Kamehameha Schools' policy is not an "absolute bar" to non-Native Hawaiians who generally are not admitted because qualified Native Hawaiian candidates outnumber the openings at the schools. Also, non-Native Hawaiians have "ample and adequate alternative educational options."
Congress did not intend the civil rights law to cover Kamehameha Schools, which has a long history of providing for Native Hawaiians.
"King Kamehameha I, on his death bed, is reported to have said, 'Tell my people I have planted in the soil of our land the roots of a plan for their happiness.' His great granddaughter, Princess Bernice Pauahi Bishop, echoed that sentiment when she established, though her will, the Kamehameha Schools.
"Because the schools are a wholly private K-12 educational establishment, whose preferential admissions policy is designed to counteract the significant, current educational deficits of Native Hawaiian children in Hawai'i ... we must conclude that the admissions policy is valid under 42 U.S.C. section 1981 (the federal civil rights law)."
Appeals Court Judge William Fletcher wrote a 12-page opinion agreeing with Graber's conclusion, but said he would uphold the ruling on an "easier and narrower ground." Appeals Court judges Harry Pregerson, Stephen Reinhardt, Richard Paez and Johnnie Rawlinson joined in the opinion.
Graber's majority opinion assumes Native Hawaiians are a "racial classification." But the admissions policy applies only to persons "descended from the aboriginal people who exercised sovereignty in the Hawaiian Islands prior to 1778." Native Hawaiians are also a "political classification."
The U.S. Supreme Court struck down state law restricting voting for Office of Hawaiian Affairs trustee to only Native Hawaiians in the landmark 2000 Rice v. Cayetano case. The high court ruled Native Hawaiians were a racial classification. But that decision dealt with constitutional voting rights, not whether Congress can provide benefit programs for Native Hawaiians.
"Congress has invariably treated 'Native Hawaiian' as a political classification for purposes of providing exclusive educational and other benefits. Under the special relationship doctrine, Congress has the power to do so. I see nothing in (the federal civil rights law) to indicate that Congress intended to impose upon private institutions a more restrictive standard for the provision of benefits to Native Hawaiians than it has imposed upon itself."
Appeals Court Judge Jay Bybee wrote a 49-page dissent. He was joined by Appeals Court judges Alex Kozinski, Diarmuid O'Scannlain, Richard Tallman and Consuelo Callahan. Appeals Court judges Pamela Ann Rymer and Andrew Kleinfeld joined in parts of the dissent.
"This case involves the application of one of the Republic's oldest and most enduring civil rights statutes, 42 U.S.C. section 1981. That statute — originally enacted as section sixteen of the Civil Rights Act of 1870 — provides, in pertinent part, that, 'all persons within the jurisdiction of the United States shall have the same right in every state and territory to make and enforce contracts ... as is enjoyed by white citizens.' "
The majority "stands Runyon on its head" in holding that a private school can deny a student admission based on race.
"Though I agree with the majority that Native Hawaiians suffer from severe socio-economic disadvantages and believe that Kamehameha Schools should be commended for attempting to remedy those hardships, I cannot concur with the majority's dramatic departure from Runyon."
Kamehameha's policy actually operates as an "absolute bar" to non-Native Hawaiians. From 1962 to 2002, only one non-Native Hawaiian student was admitted, but it created a "firestorm of protest" with the school trustees apologizing to the Native Hawaiian community and trustees pledging to review the admissions process "presumably to prevent such a 'situation' from happening again."
"The majority exempts an organization with noble goals that seeks to remedy a significant problem in a community that is in great need, but it can do so only because the majority departs from clear principles and established precedent."
Appeals Court Judge Rymer wrote a separate four-page dissent. She was joined by Kozinski, O'Scannlain, Tallman and Callahan.
She's sympathetic to the schools mission, but the federal civil rights law applies to all races, and that includes Native Hawaiians who were classified as a race by the Rice v. Cayetano decision. She would have preferred that the court avoid deciding the case if the judges could find a way.
"Employment law, Indian law, our admiration for Kamehameha Schools and our sentiments about public policy are irrelevant."
Appeals Court judge Kozinski wrote a separate three-page dissent.
The federal civil rights law dealing with contractual relationships wouldn't apply to Kamehameha Schools if it didn't charge tuition.
The school tuition only reflects a small fraction of the operating costs and the schools' substantial endowment may enable it to continue operating without tuition for "a very long time — perhaps indefinitely."
"Given the passions this case has aroused, it's worth noting that what's really at stake may not be the operation of the Kamehameha Schools along their traditional (preferential) model, but merely a few million dollars a year the schools now get from their own students."
Honolulu Star-Bulletin, December 7, 2006
by Charles Memminger
Court's ruling on schools is no surprise
ALL RISE. The Honolulu Lite Subcommittee on Court Activity is now in session. You may be seated. Watch out for the whoopee cushions.
We start this session with a loud and hardy "I told you so!" When we last held court, some residents were in a lather over a three-judge panel of the 9th U.S. Circuit Court of Appeals ruling that Kamehameha Schools' policy of admitting only Hawaiian children was unconstitutional.
With wisdom gained from the diligent study of several hundred hours of "Judge Judy" reruns, I calmly counseled those upset with the ruling to hold their horses and other large farm animals because the ruling would be overturned.
The record will note that I wrote these very words on Aug. 7, 2005: "The seeming hysteria over the 9th U.S. Circuit Court of Appeals ruling against Kamehameha Schools' Hawaiian-preference admission policy is really uncalled for. The 9th Circuit is the largest and most liberal federal appeals court in the country ... The Kamehameha ruling came from a three-judge panel, and only two of those judges ruled against Kamehameha. The schools ... can appeal to the 9th Circuit 'en banc,' a fancy French phrase that means to the 'entire court' ... and if history is any indication likely will come out with a more liberal view."
An "en banc" panel of 15 9th Circuit judges this week overturned the three-judge panel, saying restricting admissions to children of Hawaiian blood was not discriminatory because it addresses needs of a specific downtrodden indigenous population and furthers the urgent need for better education of native Hawaiians.
This ruling should silence some of the more excitable Hawaiian activists, some of whom referred to the first court ruling as "white racism." I wonder how Lilikala Kame'eleihiwa, of the Center for Hawaiian Studies, who made the racism charge, will describe this ruling by the larger mostly white panel. As I pointed out in the original column, most of Kamehameha Schools' problems can be traced not to white racism, but to the greedy actions of corrupt millionaire Hawaiian trustees who cared more about getting rich than educating Hawaiians. It was those trustees, now gone, who turned away six out of seven Hawaiian children applying for admission.
And while they were doing it, the Hawaiian community, beneficiaries of Princess Bernice Bishop's extraordinary legacy, sat back in silence. I bring this up only because the original charge of "white racism" not only was offensive, but showed an embarrassing lack of understanding of the federal court system, which has been the most aggressive in the world in correcting racial inequities. How about giving a bit of credit when it's due?
That said, this case inevitably will end up at the U.S. Supreme Court, which has had no problem smacking around the 9th Circuit's sillier rulings. (Recall, it was the 9th Circuit that ruled the Pledge of Allegiance was unconstitutional because it referred to God.)
The 9th Circuit's Kamehameha ruling is not silly and I predict the Supreme Court will find some way to grant native Hawaiians certain privileges as an indigenous group, in the same way it does for American Indian tribes. As I said before, the Akaka Bill may yet find life -- especially now that the Democrats have retaken Congress -- and the United States may grant some sort of sovereignty to native Hawaiians. It may take years for the Akaka Bill to become law and for the Kamehameha Schools 9th Circuit decision to reach the U.S. Supreme Court, but that doesn't mean the system is corrupt or racist, it just means that when 8,000 lawyers and politicians are involved in anything, time slows down to the speed of smell.
And for proof that our country's federal court system, though not perfect, does often "get it right," we now move to this week's U.S. Supreme Court decision that allows Hawaii to ban aerial banners over Waikiki showing images of aborted fetuses. A mainland anti-abortion group wants to decorate Hawaii's skies with the revolting images pulled behind airplanes but the high court, by refusing the case, allowed that Hawaii has the right to protect its iconic postcard views from such blight. Free speech does not extend to yelling "fire" in a movie theater or dragging photos of dead babies behind a plane to the horror of sunbathers, especially sunbathers who paid a lot of money to get here. Hawaii skies are not billboards on which special interest groups of any stripe get to graffiti their message at will.
All rise. This session is concluded. File dissenting opinions with the clerk and take your whoopee cushions as you leave.
Charles Memminger, the National Society of Newspaper Columnists' 2004 First Place Award winner for humor writing, appears Sundays, Tuesdays, Thursdays and Fridays. E-mail email@example.com
Black Group Decries Discriminatory Hawaiian Admissions Policy
Court Ruling Allowing Preferential Treatment of Native Hawaiians Greases the Skids for Race-Based Island Government
Press release from Project 21 -- The National leadership Network of Conservative African-Americans
For Release: December 7, 2006
Contact: David Almasi at 202/543-4110 x11
Members of the black leadership network Project 21 decry a Ninth Circuit federal court ruling that allows a Hawaiian school to discriminate against non-native Hawaiians, and note that the ruling could jump-start legislation stalled in Congress to create a race-based island government that directly contradicts our nation's "melting pot" tradition of inclusion.
"Responsible lawmakers, jurists and the residents of Hawaii oppose race-based preferences," noted Project 21 chairman Mychal Massie. "This ruling once again shows how a handful of unelected judges can override the will of the people, and how important it is to have judges who strictly interpret our Constitution."
Established in 1887 by the will of the last royal descendent of King Kamehameha, the nonprofit Kamehameha Schools currently give "first right" of admission to those with native Hawaiian ancestry. In a razor-thin 8-7 decision, the federal 9th Circuit Court of Appeals ruled that this preferential policy could continue. In her majority opinion, Judge Susan Graber said the policy helps "counteract the significant, current educational deficits of native Hawaiian children in Hawaii."
In his dissent, Judge Jay Bybee noted: "I believe the majority's novel approach to statutory interpretation is readily manipulable and would enable courts to rewrite statutes whenever they want to save a particular program, contract or enactment."
The Doe v. Kamehameha Schools ruling is also being seen as a boost for "The Native Hawaiian Government Restoration Act," a bill proposed by Senator Daniel Akaka (D-HI) to create a native Hawaiian government with sovereign immunity akin to that enjoyed by Indian tribes. Critics of the legislation say it could create a race-based government that would institute a virtual caste system and overturn federal laws and safety regulations as well as endanger the operations of military bases such as Pearl Harbor.
A May 2006 poll commissioned by the Grassroots Institute of Hawaii found that 67 percent of Hawaiian residents oppose the proposed Akaka bill and 80 percent generally oppose race-based preferences. Despite this overwhelming public rejection, Professor Jon Van Dyke of the University of Hawaii's Richardson School of Law told the Honolulu Star-Bulletin of the ruling, "This gives the green light, I would think, for Congress to pass the Akaka bill."
"All of this is a transparent attempt to create race-based preferences for a select group of people," said Project 21's Massie. "This ruling must be viewed as an incremental attempt to establish a type of sovereignty which would ultimately relieve native Hawaiians of all federal responsibility. Nothing in said formula, however, convinces reasonably-minded persons that the so-called plight of these people would improve."
In 2000, a decisive 7-2 ruling by the U.S. Supreme Court overturned a "Hawaiians only" voting provision for the state's Office of Hawaiian Affairs. Regarding the record of the 9th Circuit Court of Appeals, the Center for Individual Freedom noted in 2004 that it is "the most reversed court in the country" with 250 percent more unanimous reversals of its decisions appealed to the U.S. Supreme Court than any other circuit at that time.
"The 9th Circuit continues to show its proclivity for ruling from the bench in favor of that which is antithetical to a civil and unified American fabric. This is exactly why it is not only the most reversed court in the history of judicial circuits, but also the most frequently chastised court by the U.S. Supreme Court," said Massie.
Project 21, a nonprofit and nonpartisan organization, has been a leading voice of the African-American community since 1992. For more information, contact David Almasi at (202) 543-4110 x11 or Project21@nationalcenter.org, or visit Project 21's website at
Honolulu Advertiser, December 8, 2006
KAMEHAMEHA SCHOOLS POLICY IS CONFUSING
I am confused about the Kamehameha Schools segregation policy. In Hawaiian, the word "aloha" means, "I see the spirit soul within you."
Being spirit in essence, the soul, being eternal, is neither black nor white, Caucasian or Hawaiian. If the Hawaiians truly believe this, how can they on one hand relate spiritually to some and materially to others? How can they profess to see all equally and eternally, yet pick and choose those they wish to relate to according to the temporary nature of their material bodies? Is this the Hawaiian hypocrisy policy?
Honolulu Advertiser, Saturday, December 9, 2006
Letters to the Editor
HAWAIIANS 'TRIBALISM' EFFORTS ARE UNCONSTITUTIONAL
The online encyclopedia Wiki-pedia says this about tribalism:
"The term 'tribalism' taken in the sense of societal structure usually carries a connotation that society is not only divided into smaller groups, but that these groups are actively hostile towards one another. Thus, 'tribalism' as a social structure connotes a society divided in civil conflict between myriad small groups. Tribalism, as a mentality, can and has taken many forms. Since tribalism involves categorizing oneself into a group, it also entails the categorization of others into other groups, often leading to prejudice and, in extreme cases, even genocide."
I see the efforts of those supporting the Akaka bill and all other efforts to divide the state's citizens by race or "tribe" as misguided, unconstitutional and harmful to our society as a whole. I view the recent 9th Circuit Court of Appeals ruling in the Kamehameha Schools admissions policy case in the same light.
Hopefully, the U.S. Supreme Court will hear the appeal and reverse the decision.
The Maui News, Saturday, December 09, 2006
Letter to editor
Court decision's biggest losers are Kamehameha students
I was appalled with the decision of the 9th U.S. Circuit Court decision, which is blatantly racist. I am even more saddened by some of the Hawaiian people who are so openly happy with such a separatist and racist decision. And to add to this, one of our senators and the governor also lauded the decision, and this only for political reasons.
The big losers here are the students of the Kamehameha Schools, because of their isolation from invaluable experiences the multicultural exposure brings.
Honolulu Advertiser, Sunday, December 10, 2006
A community's vision
By Dee Jay Mailer
Tuesday was an exciting day for our state as we all learned of the 9th U.S. Circuit Court of Appeals' decision in its en banc review of the John Doe v. Kamehameha Schools appeal. The elation we felt at Kamehameha stemmed from a collective sense of profound gratitude. First to Ke Akua for His spirit and guidance; to Princess Bernice Pauahi Bishop and our kupuna for their wisdom and example; to all with us today for the strength and energy shared to holo mua (move forward) despite setbacks and obstacles, and to the generations to follow, for they are our inspiration.
It is impossible to express how it has felt over the past 3 1/2 years to know that virtually our entire community — the community of Hawai'i — has been pulling for Kamehameha Schools. Through the peaks and valleys along the way, the support of the people of Hawai'i has never wavered. The people of this land "get it." They understand what Kamehameha is about and why this precious gift from our princess and the Kamehameha family line needs to serve Hawai'i's native people first as long as they have such dire and pressing needs.
Throughout this case, the challenge has been to help those on the Mainland appreciate the history and context behind our school. The ruling helps those who are not kama'aina see our school from the proper perspective: as a privately funded school founded during a time of Hawaiian sovereignty to remedy a specific harm to the indigenous people of Hawai'i, and whose laudable mission has been recognized repeatedly by the Congress of the United States. All 15 judges on the en banc panel recognized our unique history and circumstances; all 15 affirmed the validity of our mission; all 15 acknowledged the severe socioeconomic disadvantages our people continue to suffer and the good work that Kamehameha is doing in this area. And the majority agreed that our policy is a permissible way to remedy those disadvantages.
The ruling is important because our ability to offer preference is critical to the fulfillment of Kamehameha's mission. But even more important is what we are doing to bring to fruition the full value and promise of Pauahi's vision, not just for the Native Hawaiian people we serve directly, but for the overall strength of the broader community in which we exist.
In June 2005, our trustees approved an Educational Strategic Plan that has already helped us increase the number of Hawaiians we serve by 26 percent. By 2015, we intend to have increased our "reach" by 150 percent.
We understand that to have a lasting impact on the tens of thousands of school-aged Hawaiian keiki in Hawai'i, we must begin at birth and our services must involve the entire family.
Our kamali'i (babies), our keiki (children) our kupuna (elders) — all of our families — learn best together. The earlier we start to teach children in ways that link them to our culture, the stronger they become in all parts of their lives, including achievement in school.
When we include parents and caregivers in this process, we make sure that learning is nurtured. When families come together around their children, they become stronger and so do their communities. And when children are raised to value education and learning, they, in turn, teach their children the same values. Over time, Hawaiians will rise to the top of the positive social indicators and slide to the bottom of the negative ones.
And when thousands of young Hawaiian families are thriving, so does Hawai'i nei.
It is impossible to completely insulate ourselves against assaults from those who refuse to understand our history and our purpose. The plaintiff's attorney has vowed to appeal our court victory. We believe we can and will present a strong case against an appeal, and we will devote whatever resources it takes to protect our policy.
The appeals opinion in our favor renews our faith and confidence that America's legal system respects and validates something so unique and special to Hawai'i and inspires us to stay the course — for Hawaiians and for Hawai'i.
Highlights of progress under Kamehameha's Educational Strategic Plan include:
# Served 3,000 more children and caregivers for a total of 10,000 through KS center-based preschools, preschool scholarships, literacy instruction, and various education collaborations.
# Increased by 80 percent the number of preschool scholarship awards (622 keiki) and doubled the financial award from $1.5 million the previous year to $3 million in 2005-06.
# Enrolled 7,300 students reached through in-school, inter-session and summer programs.
# Awarded $12.6 million to 2,200 students for post-high school education, with new emphasis on selected fields of study and nontraditional students.
# Achieved first three-island graduation of 722 seniors (May 2006).
# Completed Neighbor Island campus expansions.
# Increased by 17 percent campus enrollments of students from families in indigent circumstances.
# Strengthened Hawaiian language and culture and service learning curriculum.
Dee Jay Mailer is chief executive officer for Kamehameha Schools. She wrote this commentary for The Advertiser.
Honolulu Advertiser, Sunday, December 10, 2006
Impressive ruling by panel of 15
By Jerry Burris
Public Affairs Editor
Don't kid yourself.
The intersection between the world of law, the courts, and the world of politics, the legislature, is far closer than most would acknowledge.
Courts keep a keen eye on the political winds blowing around them. And lawmakers understand their limits and when it makes little sense to step in where the courts have already made their mark.
This is by way of explaining why the blockbuster 9th U.S. Circuit Court of Appeals decision on the admission policy of Kamehameha Schools reaches far beyond the narrow limits of the legal issues the two sides debated.
It is, in fact, a keynote moment in the larger political battle over Hawaiian entitlements, rights and opportunities as Hawai'i moves forward in the coming decades.
By far the most striking thing about the decision of the 15-member appeals panel (Kamehameha won by the narrowest of 8-7 margins) was that both supporters and opponents of the school's racially preferential admissions policy appeared to understand the underlying issues involved.
Maybe most of the work was done by serious law clerks burning the midnight oil, but whatever the providence, there was a significant element of historical, cultural and sociological understanding in the decision. From both sides.
The decision took note of the historical circumstances that brought us to this point and made numerous references to both scholarly and journalistic work that set Hawaiians in contemporary context. In short, there appeared to be a serious attempt to understand the unique circumstances that surround Hawaiians today.
That's impressive. Particularly, when one looks at the U.S. Supreme Court decision in the Office of Hawaiian Affairs voting case (Rice v. Cayetano) which rather fatuously declared that all citizens of this state are "Hawaiians." They meant, of course, that we are all Hawaiians as all residents of California are Californians, but the statement betrayed a profound unawareness of what makes this place different from other states.
Not so in this opinion. Whether a judge was writing to uphold Kamehameha's admission policy or to reject it, there was a strong sense that they understood the historical context they were dealing with. That may be in the end more important than the legalisms that tilted the majority narrowly to Kamehameha's side. Essentially, the majority said that a racially exclusive policy can stand up to legal challenge if it doesn't materially harm those excluded, achieves a remedial purpose that is worthwhile and is limited in scope or duration.
That's the legals of it. But the subtext, the place where law and politics intersect, comes in the understanding that circumstances in Hawai'i are materially different than in other places in the country and that rules of law designed to fit — for want of a better word — continental conditions may not necessarily apply in the Islands. It's a tricky concept and one open to all kinds of challenge: After all, aren't we one nation with one set of laws?
But the truth is, we are a multitude. We are not as one. That's the genius of the American experiment and it may turn out in time that the courts have begun to recognize this particularly as it applies to the Hawaiian experience.
If that is accepted, politics and law may intersect in a positive way, indeed.
Honolulu Star-Bulletin, December 10, 2006
Legal threat to schools remains despite favorable ruling
Kamehameha Schools won a narrow ruling by a 15-judge federal appeals panel supporting its admissions policy.
HAWAIIANS and many other island residents cheered a federal appeals court decision upholding the Hawaiians-only admissions policy of Kamehameha Schools, but the ruling is anything but final. The 8-7 ruling was decided -- with the exception of one judge -- along party lines, boding a possible reversal by the U.S. Supreme Court. The ruling is fragile in both numbers and substance.
Eight judges nominated to the bench by Democratic presidents comprised the majority, which reversed a three-judge panel's ruling last year that Kamehameha's admissions policy violated the Civil Rights Act of 1866. All six Republican-appointed judges on the 15-judge panel, along with one Democrat nominee, dissented.
Republican-nominated justices control the Supreme Court, which struck down the University of Michigan's undergraduate affirmative action program three years ago. The high court ruled in that case that race may not be the determinative factor in whether an applicant is admitted to any school, public or private.
The majority in last week's 9th Circuit ruling concluded that Kamehameha's admissions policy is not an "absolute bar" to non-Hawaiians, as the three-judge panel had found. A non-Hawaiian can gain admittance if all the slots have not been filled by Hawaiians, the larger panel pointed out.
That has occurred only once -- four years ago -- since 1962, when Kamehameha stopped allowing non-Hawaiian offspring of faculty to enroll in the school. The panel's dissenters pointed out that the single admission was followed by "a firestorm of protests" and repeated apologies to the native Hawaiian community by the Kamehameha trustees.
The majority made a strong case in citing congressional appreciation of the "special relationship" between the federal government and Hawaiians in several areas, including education. While that can be used to bolster the Hawaiian recognition bill in Congress, Circuit Judge Jay S. Bybee, who wrote the main dissent, contended that enactment of the Akaka Bill will not shield Kamehameha Schools.
Even if Hawaiians were afforded sovereignty similar to American Indian tribes, "the special relationship doctrine applies only to preferences by the federal government or by the tribes themselves," Bybee wrote. "It does not apply to private parties discriminating on the basis of tribal status; indeed, we have been quite clear that such private racial discrimination remains illegal."
While a promised appeal is pending before the Supreme Court, Kamehameha Schools should seriously consider an option suggested by Circuit Judge Alex Kozinski during oral arguments in June and in a separate written dissent. He pointed out that the lawsuit alleges racial discrimination in a contract, the contract being the exchange of tuition for education.
"The schools' substantial endowment may enable them to continue operating without charging any tuition for a very long time -- perhaps indefinitely," Kozinski wrote. No tuition, no contract, no violation of the 1866 law.
Honolulu Advertiser, Wednesday, December 13, 2006
Letters to the Editor
KAMEHAMEHA DECISION SENDS WRONG MESSAGE
With the recent ruling regarding Kamehameha Schools, I have to wonder: What's next? With Kamehameha's "preference" for Hawaiian children, I wonder how popular a Samoan-only school would be? How about a Tongan-only school? Maybe we could have an Anglo-only school. Oh, wait, that's right. Those are considered racist and illegal. So I guess the message is that unless your skin is white, you have the right to be prejudiced and have schools that accept only "your kind."
Honolulu Advertiser, Thursday, December 14, 2006
Letters to the Editor (2 selected from this date)
SEGREGATION NOT THE ANSWER TO INJUSTICE
The recent ruling by the 9th Circuit Court of Appeals in favor of keeping Kamehameha School students segregated amounts to the issuance of appeasement, not worthy of either the plaintiff or the defendant.
While I commend the court for its adherence and application of the law, let's not forget that it was once against the law for certain persons to sit in the front of the bus. Law and justice are not the same thing.
I doubt that anyone really knows what Bernice Pauahi Bishop was considering when she envisioned the Kamehameha Schools, though I'd submit segregation was not an issue.
Whatever the rationale, segregation is still the most unfortunate condition that can be imposed upon any group of people and invariably results in grief, if not horror. for everyone.
If in this case the court was truly concerned with a fair verdict, the only acceptable ruling would have been to order the restoration of the Nation of Hawai'i. Perhaps we could then realize the real injustice in taking over other peoples' countries.
Kailua, Kona, Hawai'i
STUDENT BODY MADE UP OF DIVERSE ETHNIC MIX
I take offense to Shawn Lathrop's letter wherein she writes that the message sent is that "unless your skin is white, you have the right to be prejudiced and have schools that accept only your kind."
If she took any time at all to visit the school, I believe she would be surprised by the races represented there. A student only needs to have the tiniest drop of Hawaiian blood. The rest is made up of Caucasian, Japanese, Chinese, Filipino, Samoan, Hispanic — the list goes on. Kamehameha Schools truly represents an entire spectrum of races. I wonder why some people are so offended by a school that supports students who are part Hawaiian — and part of nearly every other race one can think of.
By the way, if there were Samoan-only or Tongan-only schools (as she writes), I would support that wholeheartedly.
Honolulu Advertiser, Friday, December 15, 2006
Letters to the Editor (2 selected from this date)
KAMEHAMEHA RULING -- UNJUST TREATMENT REQUIRES REMEDY
In response to the letter by Shawn Lathrop, "Kamehameha sends wrong message," did you just get off the boat? You obviously don't know the history of the Native Hawaiians' oppression and unjust treatment.
Indeed, it happened some 100 years ago. What you don't realize or feel is that it was a bad legacy that transferred from generation to generation. We are still suffering and dealing with the injustice that our kupuna had gone through.
Some of us, even to this day are being discriminated against and mistreated. Our culture, our language, our dance, our beliefs, our history, our ecology, our land and so on would have been almost wiped out had we not fought back. We had to fight and we will continue, regardless of what people like you say.
You mentioned about "Anglo-only school." We don't want it that way. We want to undo the devastation of Hawaiians caused by your people.
Keoni Kealoha Devereaux, Jr.
SCHOOL'S DIVERSITY REFLECTED IN STUDENTS
Brother, you are all wet when you think that Kamehameha schools allows only Hawaiian kids. You say, "How would people feel if we had Samoan only or Tongan or any type of only one-race school in Hawai'i?" You are all wet again.
Here at Kamehameha Schools, we are not prejudiced. Why? Because we have all the races that God has created on this Earth attending. They are, to name a few, Japanese, Caucasian, Chinese, Vietnamese, African-American, Indonesian, Korean, Fijian, Maori, Alaskan and many more.
But here is the catch to all this — your child must have a minute amount of Hawaiian blood to qualify for entrance. But even having pure Hawaiian blood does not guarantee admittance.
There are all kinds of colors at Kamehameha, not like some states on the Mainland.
Lloyd Y. Yamasaki
Honolulu Star-Bulletin, December 15, 2006, LETTER TO EDITOR
Kamehameha Schools will persevere
Last week, the 9th U.S. Circuit Court of Appeals ruled that our 120-year old admissions preference policy is a permissible remedy for the "severe socio-economic disadvantages" to the indigenous people of Hawaii that began with Western contact more than 200 years ago. The ruling is an important affirmation of our mission and recognition of our schools' unique history and purpose.
We are grateful to our legal team for their superb representation. We extend our gratitude as well to the groups and individuals who stepped forward to support our legal arguments. More than 40 organizations participated in filing 12 amicus briefs on our behalf, including our Kamehameha alumni, parents and staff -- through the 'Ohana Council -- numerous Hawaiian organizations, our Hawaii congressional delegation, state Attorney General Mark Bennett, Honolulu Mayor Mufi Hannemann and the City Council, the Hawaii Business Roundtable and the National and Hawaii Associations of Independent Schools. Governor Linda Lingle and former Gov. George Ariyoshi were among the community and business leaders who submitted declarations of support.
Many more individuals provided their expertise and guidance as we pulled our case together. Thousands spoke publicly on our behalf, wrote letters to the editor, helped organize and attended rallies of support here and on the continent. Our faculty and staff kept focused on their work and our students continued to make us proud. The unity displayed -- from Hawaiians and non-Hawaiians alike -- sent a message that resonated powerfully: Our policy helps thousands and harms none.
We know our fight is not over, but together we will persevere. Mahalo to all for your steadfast kokua.
I mua Kamehameha!
Robert K.U. Kihune
J. Douglas Ing
Constance H. Lau
Diane J. Plotts
Kamehameha Schools Board of Trustees
Dee Jay Mailer
Chief Executive Officer
Honolulu Advertiser, Saturday, December 16, 2006
Letters to the Editor
KAMEHAMEHA -- HAWAIIANS ENTITLED TO SCHOOL AND BENEFITS
Mr. Lathrop's letter to the editor (Dec. 13) concerning the Kamehameha ruling misses the point. He wonders what would be next, a school for Samoans only? Tongans only? If we were in Samoa, yes. I believe there should be a school for Samoans only if they want one, same for Tonga.
No matter how you look at it, we live in Hawai'i. No matter what you believe, the fact is the United States was involved in the illegal overthrow of the Hawaiian kingdom. Hawaiians are entitled to reparations in all forms so, please, allow us to relish this positive decision for the Hawaiian people as a whole.
I have never attended Kamehameha Schools, nor have had any of my family attend. I do not live on a Hawaiian homestead. But because I do have a chance to benefit from these organizations just by being 50 percent Hawaiian, I feel privileged.
I know a lot of Americans want the Hawaiians to disappear and become just ordinary Americans like them. I am happy to say, that's never going to happen. When you are Hawaiian, you are Hawaiian for life.
Honolulu Advertiser, Tuesday, December 19, 2006
Letters to the Editor
HAWAIIANS -- AMERICA EMBRACES DIVERSITY OF CULTURES
John Kama'i's letter (Dec. 16) misses the point. His contention that the United States was involved in the overthrow of the Hawaiian kingdom is simplistic and arguable.
His claim that a lot of Americans would like to see Hawaiians disappear is also false. This country embraces the diversity of cultures that are part of our social fabric. What it should not embrace is the political and or legal separation of different groups of people due to their race, skin color or heritage.
Honolulu Advertiser, Tuesday, December 19, 2006
Kamehameha's investments soar
By Rick Daysog
Sharp gains in Kamehameha Schools' investment portfolio boosted its endowment to about $7.7 billion during the 2005-2006 fiscal year, but schools officials cautioned they must be prepared for lean years when investment income falls short.
The state's largest private landowner and one of the nation's biggest private charities yesterday reported its revenues for the fiscal year ending June 30 rose to $897 million, topping the year before's $837.2 million.
The trust spent nearly $221 million to educate children of Native Hawaiian ancestry during its latest fiscal year, officials said, placing it on par with the trust's educational spending during the past five years.
"Kamehameha Schools was blessed in (fiscal) 2006 with a very strong financial performance. It serves us well as we continue to move forward in our schools and with communities to educate our people," said Dee Jay Mailer, the trust's chief executive.
Kamehameha Schools, which was established by the 1884 will of Princess Bernice Pauahi Bishop and educates children of Hawaiian ancestry, said a total of 6,715 students were enrolled at its preschools and Kapalama Heights and Neighbor Island campuses last year.
Kamehameha served another 22,000 children and adults through its various community outreach programs and support of 14 charter schools.
The school is bound by a Probate Court-approved policy that limits its spending to 2.5 percent to 6 percent of its average endowment value during the previous five years.
The $221 million spent last year is about 3.8 percent of the endowment's average value, which could renew calls for more of Kamehameha Schools' money to be spent on educational programs.
Robert Moore, a 1953 graduate of Kamehameha Schools, said he's encouraged by Kamehameha's attempts to broaden the schools' reach into the Hawaiian community.
But Moore said he believes the school would be able to serve more Hawaiian students if it were to charge higher tuition to students whose families could afford it. Under this plan, needy students would receive more financial aid, Moore said.
Kamehameha Schools heavily subsidizes the cost of educating its students. The school pays $12,763 to $13,434 of the annual tuition and other expenses for most of its kindergarten through 12th-grade students.
Families of most students pay $2,566 to $3,237 a year for tuition.
In its release, the trust said it generated a 17 percent total investment return for the year, which surpassed its goal of earning 5 percent more than the national inflation rate, which was 3.4 percent in 2005.
The trust's investments in energy companies jumped 32.3 percent, while its real-estate holdings rose 29.5 percent. Investments in non-U.S. companies increased 26.7 percent.
"While it's encouraging to have strong years like this, we know that factors beyond our control can push things in the other direction, too," said Kirk Belsby, the trust's vice president for endowment. "Peaks like this year help us smooth our valleys like we experienced in the periods between 2000 and 2002."
The trust's revenue fell to $174 million in the 2001-2002 fiscal year.
The latest investment results come less than a month after a 15-judge panel of the 9th U.S. Circuit Court of Appeals narrowly upheld the trust's century-old Hawaiian-preference admission policy.
In a dissenting opinion, Judge Alex Kozinski suggested that the school could avoid legal challenges if it would offer free education to students.
That, he said, would eliminate the contractual relationship the schools have with their students, a key issue in the civil rights case on behalf of a non-Hawaiian who sued to overturn the school's admission policy.
But trust officials said they believe such a move would not eliminate legal challenges. Students' grades, their adherence to a code of conduct, attendance and other factors could be considered part of a contractual relationship.
Still, some among Kamehameha's alumni say the schools can do more.
"There sure are a lot more Hawaiian kids they can be serving," said Hawaiian rights activist Walter Ritte, a 1963 Kamehameha Schools graduate.
** Note from Ken Conklin: The $7.7 Billion valuation includes increases only in the stock and bond portfolio, but does not include (spectacular!) increases in land valuations. Land makes up an enormous part of Kamehameha's holdings. Many Kamehameha lands are probably have values based on prices many years ago, before the huge increases of recent years.
The Maui News, Tuesday, December 19, 2006 , letter to editor
Supreme Court will overturn Kamehameha Schools decision
Three points about Kamehameha Schools:
1. Some letter writers say all races can be found at Kamehameha, as long as they have a drop of Hawaiian blood. But wait. In the 1950s, Mississippi's segregated schools excluded only 50 percent of children. In 2006 Kamehameha excludes 80 percent of all Hawaii kids (99.9 of all America's kids) for no reason other than race.
2. By admitting only ethnic Hawaiians, Kamehameha works to develop racial pride. But see similarities between "Pride and Prejudice" at
3. The Supreme Court recently heard cases from Seattle and Louisville. It will probably rule that using racial discrimination to assign kids to schools for the purpose of remedying social and educational deficits is unconstitutional. Then the Supremes will overturn the 9th Circuit decision that was based on the same "affirmative action" rationale.
Honolulu Advertiser, December 20, 2006, Letter to Editor
STOP LABELING PEOPLE BASED ON SKIN COLOR
John Kama'i's letter (Dec. 16) was rather disheartening. Mr. Kama'i believes that "a lot of Americans want the Hawaiians to disappear and become just ordinary Americans like them."
This is not true. Where is Mr. Kama'i's evidence?
No matter what color, shape or form a person is, we are all one thing: people. Regardless of race, age or other factors, we should stop labeling ourselves and others based upon skin color or other means.
If Mr. Kama'i doesn't think that other people have concerns very much like his own, then he is very wrong.
When you are a person, regardless of skin color or racial heritage, you are a person for life.
Maui News, Friday, December 22, 2006, letter to editor
Kamehameha Schools not alone in restricting attendance
Responding to Kenneth Conklin's Dec. 19 letter regarding Kamehameha Schools admissions policy, I would like to say that when testifying before a Senate Committee on Maui – chaired by Sen. Colleen Hanabusa and having Attorney General Mark Bennet present – I posed this question:
"If Bill Gates created a school only for Jews and Donald Trump did the same only for Irish and Oprah Winfrey did the same for African-Americans and they took no federal dollars, would these schools be allowed to exist?"
The answer was: "Yes, they would be allowed."
So, Mr. Conklin, get the information straight. In America, a citizen can spend and invest his or her money the way they see fit. And as for Kamehameha Schools, its administrators have $300-plus million in assets. Make the prudent choice and remove us from the kill zone of these occupiers.
Maui News, Tuesday, December 26, 2006, letter to editor
Hawaiian cultural awareness is not a threat to others
In his Dec. 19 letter, Ken Conklin states that "By admitting only ethnic Hawaiians, Kamehameha works to develop racial pride" then insinuates that this kind of pride is irrational and leads to prejudice and racial superiority. Not so.
Racism, prejudice and feelings of superiority are personal choices motivated by the spread of fear. They are not the inevitable consequences of forming culturally beneficial groups with positive pride in membership.
Instilling cultural awareness in young Native Hawaiians is not a threat to others. Hawaiian culture actually promotes tolerance, and it benefits the wider society when these young people are schooled in the elements of their ethnic heritage.
It should be disturbing to anyone with a desire to preserve familial or ethnic traditions, in the way of their choosing, to think that one day these observances will be considered racist. In fact, that day is already here; it is happening to the Kamehameha Schools in the challenging of their admission policies.
Maui News, Tuesday, December 26, 2006, letter to editor
Track record argues against Supreme Court deciding to decide
In his Dec. 19 letter, Kenneth Conklin expressed confidence that the Supreme Court will overturn the Dec. 15 decision by the 9th Circuit court of Appeals in Doe v. Kamehameha.
The Supreme Court typically receives over 8,000 requests a year to hear cases and the justices select about 100 for their docket. They tend to choose cases with national importance and cases that appear to contradict previous Supreme Court rulings.
The Supreme Court is not likely to grant John Doe's request for a hearing because the Kamehameha Schools case involves a one-of-a-kind private gift from a Native Hawaiian princess to her people while Hawaii was yet a sovereign kingdom. There is no other state in the United States where one would find the same or even vaguely similar circumstances.
The only prior Supreme Court case that even concerned Native Hawaiians – not Kamehameha Schools – was Rice v. Cayetano (2000) but that case involved voting rights under the 15th Amendment, and the Supreme Court was very explicit in stating that "the validity of the voting restriction is the only question before us." The 9th Circuit's ruling in Doe v. Kamehameha concerned the problematic use of a post-Civil War-era statute designed to help newly freed slaves obtain employment.
Trying to compare Rice or the recently heard cases out of Seattle and Louisville with Doe v. Kamehameha is like comparing lychee to ulu. Thankfully, Supreme Court justices are very discerning when they pick fruit.
Huntington Beach, Calif.
Maui News, Tuesday, December 26, 2006
Kamehameha Schools situation not depriving civil rights
In the 1950s, the laws that ended racial segregation were developed for the benefit of a class of people, African-Americans, who were then second-class citizens. They were kept out of the mainstream of society by laws enacted by the white majority. They had separate drinking fountains, bathrooms; they rode in the back of the bus and they had poorly funded schools that were were substandard compared to the schools that the white children went to. The new laws were designed to bring African-Americans out of their second-class status and into the mainstream of life with equal rights.
The present situation of the Kamehameha Schools is a totally different situation.
It isn't just about racial pride (Letters, Dec. 19). It's about rebuilding a culture that has been partially destroyed by the introduction of a foreign society. It's about teaching the Hawaiian children how to exist in a bicultural society; of being Hawaiian while being able to participate in a white society. And, yes, it is also about being OK with being Hawaiian.
No one is "assigning" children to the Kamehameha Schools. There are other schools in Hawaii that are equal to or better that the Kamehameha Schools. With the exception of the Hawaiian people, who are trying to regain a culture that was taken away from them, there are no other ethnic/racial groups that are being deprived of their rights for equal education.
La Mesa, Calif.
THE WASHINGTON TIMES
Published December 26, 2006
Race separation ratified
By Bruce Fein
The U.S. 9th Circuit Court of Appeals has ratified racism that celebrates Native Hawaiian ancestry with tortured reasoning reminiscent of Jim Crow. The 9th Circuit's 8-7 en banc ruling in Doe v. Kamehameha Schools (Dec. 5) upholding a racially exclusionary admissions policy for Kamehameha Schools marks manipulative judging at its worst.
King Kamehameha I's signature contribution to Hawaii's legal and political culture was the general erasure of distinctions between Native and non-Native Hawaiians. The king anticipated United States Chief Justice Harlan Fiske Stone's admonition that racial distinctions are odious to a free people.
The Kamehameha Schools were created under a charitable testamentary trust established by the last direct descendant of King Kamehameha I, Princess Bernice Pauahi Bishop. The trustees chose to confine admissions to students with at least one Native Hawaiian ancestor because the exclusion of non-Native Hawaiians was thought to represent the wishes of Mrs. Bishop. Native Hawaiians were not preferred to overcome past legal, social, economic or other discrimination. Indeed, Native Hawaiians have been special favorites of the law for more than a century since annexation.
Nor were Native Hawaiians favored to promote educational diversity. The exclusion of non-Natives impaired that objective. In sum, the admissions policy amounted to racial exclusion or the sake of exclusion.
A non-Native applicant challenged the Kamehemeha Schools' "Native Hawaiians Only" admissions policy under a federal civil rights statute prohibiting racial discrimination in making or enforcing contracts, Title 42 of the U.S. Code, Section 1981. (The social ostracism unleashed against persons in Hawaii who challenge the political correctness of Native Hawaiian preferences obligated the plaintiff to sue under the pseudonym "John Doe.") The Supreme Court held in Runyon v. McCrary (1976), that Section 1981 prohibits private schools from racially discriminatory admissions policies. Indeed, the high court later held in Bob Jones v. United States (1983) that an unexpressed public policy of the United States prohibited tax exemptions for discriminating private schools.
The 9th Circuit, speaking through Judge Susan P. Graber, insisted, nevertheless, that the racial exclusivity of the Kamehemeha Schools was a proper remedial measure. But a remedy implies a wrong. And Native Hawaiians have never received less than equal treatment under federal or state law. Further, Native Hawaiian enrollees are not vetted for past discrimination. Their families may be highly privileged.
Judge Graber absurdly maintained that, "Native Hawaiian students are systematically disadvantaged in the classroom." She was unable to point to any class activity or instruction indicating Native Hawaiians were treated differently from non-Native Hawaiians. The judge simply recited that as a group Native Hawaiians displayed less academic success than their non-Native Hawaiian counterparts. But lesser performance does not establish discrimination. If it did, every subperforming minority group would hold a federal civil rights claim against every public or private school in the country.
Judge Graber argued Kamehameha Schools' racial exclusiveness was justified to help perpetuate Native Hawaiian culture. But that reasoning endorses racial balkanization, and turns E Pluribus Unum on its head. Whites, blacks, Hispanics, Chinese Americans, Japanese Americans, etc. would be permitted monochromatic schools to promote their respective cultures.
Judge Graber scolded plaintiff Doe for complaining about his race-based exclusion. She lectured that "students denied admission by Kamehameha Schools have ample and adequate alternative educational options," a variation of the "separate-but-equal" doctrine that the Supreme Court repudiated 52 years ago in Brown v. Board of Education (1954).
In a feat of Orwellian logic, the judge scorned Doe's legal expectation of nondiscriminatory treatment because Kamehameha Schools' racial discrimination had been notorious for 118 years: "When the schools began, a non-Native Hawaiian had no expectation of admission to the schools. ... In the intervening 118 years, the schools' admissions policy, and therefore the expectations of non-Native Hawaiians, has remained constant. Thus, denial of plaintiff's application for admission [based on race] 'unsettled no legitimate, firmly rooted expectation.' " With that reasoning, Jim Crow would still be thriving in the South because blacks knew at the inception of the Civil Rights Movement they confronted a racism that had been continual since the end of Reconstruction and thus had no reasonable expectation of equal treatment.
Judge Graber fancifully argued that the schools' 118 years of racial exclusiveness was temporary, not perpetual, and thus satisfied relevant precedents regarding preferential admissions. The exclusiveness is scheduled to continue until the achievement gap between Native Hawaiians and non-Native Hawaiians has been eliminated. But exclusiveness for more than a century has done nothing to narrow the gap. Adding more zeroes to zero still equals zero.
The 9th Circuit surrendered reasoning, law and moral justice to placate a moblike atmosphere in Doe. It embarrassed many of the profiles in judicial courage that accelerated that end of Jim Crow.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
** Letter as submitted to The Maui News on December 26. The letter as published on December 29 suffered a few significant cuts and can be seen at
Defending Unity and Equality; Opposing Apartheid
Wow! I feel humbled that so many responded to my letter of December 19. Let me make clear what I'm trying to do (and presumably other civil rights activists).
Kamehameha is a great school but has a race-based admissions policy that excludes 80% of Hawaii's children. OHA benefits go to ethnic Hawaiians only. DHHL is for Hawaiians only. Akaka bill -- Hawaiians only. OHA says in legal briefs there are over 160 racially exclusionary federal programs for Hawaiians only (not counting the numerous private or state government programs). Papa Ola Lokahi, Queen Lili'uokalani Childrens Centers, Native Hawaiian Leadership Project, Na Pua No'eau, Native Hawaiian Legal Corporation, etc. All doing wonderful things to help people; but all racially exclusionary. Then there are the Hawaiian language immersion schools, and Hawaiian culture-focus charter schools, which tolerate a few token non-Hawaiians but are specifically intended for cultural transmission accompanied by racial pride and political activism brainwashing children to struggle against "colonial foreign occupation", all at my expense.
I see that Hawaii is going to pieces, and I'm calling upon everyone to prevent that. I see a huge number of race-based programs, and now comes the Akaka bill to authorize a race-based government creating Hawaiian apartheid. I see independence activists trying to rip the 50th star off the flag.
I'm not jealous that Hawaiians have things I do not. I'm not trying to take away things from ethnic Hawaiians out of mean-heartedness. I applaud the cultural renaissance and am proud to participate in it in several ways (for example I speak Hawaiian with moderate fluency). No other ethnic group in Hawaii has leaders trying to create racial separatism gone wild; that's why it looks like I'm "picking on" Hawaiians.
I want to defend the unity of Hawaii under a single sovereignty; and our union with America. I believe we are all equal in the eyes of God -- contrary to those who interpret a Hawaiian creation legend to assert that ethnic Hawaiians are descended from the gods and are brothers to the land in a way nobody else can be. I want to defend equality under law for all people in our beautiful multiracial rainbow -- each color bright, unique, and vibrant, unified by the Aloha Spirit. These are my reasons for opposing Hawaii's plethora of race-based programs and institutions that divide us. I hope many others will join me.
The Maui News, Friday, December 29, 2006, letter to editor
Kamehameha Schools works to reverse prejudice
In his Dec. 19 letter on pride and prejudice, the writer states, "Racial pride is usually irrational, but usually harmless."
Why is it irrational for the Kamehameha Schools to instill in its students a greater understanding and appreciation of their Hawaiian heritage? That is not prejudice.
I am proud to be Hawaiian and a graduate of the Kamehameha Schools. I may not have made major contributions to the Hawaiian race, but I have impacted those I have touched in my life. Hopefully, they now think twice when they hear such stereotypical comments like "lazy Hawaiian."
So contrary to the Dec. 19 assertion, Kamehameha Schools is actually working to reverse racial prejudice.
You may now
Review the events of August 2-7, 2005: the 45-page decision of the 9th Circuit Court plus about 120 pages of analysis and news coverage, including the huge red-shirt protest of August 7
Review about 150 pages of news coverage and events from August 8 to December 31, 2006, (after the 9th Circuit Court decision was handed down, and after the huge August 6 pro-segregation protest of that decision)
Going forward, the case was appealed to the U.S. Supreme Court in March, 2007. The events of 2007 are covered at
SEE MORE INFORMATION ABOUT KAMEHAMEHA SCHOOL; INCLUDING BACKGROUND, ANALYSIS, AND NEWS COVERAGE FROM PREVIOUS YEARS
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