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Sunday, August 24, 2003



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DEAN SENSUI / DSENSUI@STARBULLETIN.COM
A court order forcing Kamehameha Schools to admit a non-Hawaiian student drew about 50 protesters Thursday, some of whom gathered for a pule (prayer).No others need apply


Why Kamehameha Schools
will prevail in its effort
to limit enrollment
to Hawaiians only


The admissions policies of the Kamehameha Schools have come under attack in two recent lawsuits. The Star-Bulletin's July 21 editorial characterized the Kamehameha Schools' battle to retain its policy of admitting only students of Hawaiian ancestry as "formidable" and urged the schools to develop "a contingency plan to salvage the institution in the event of a defeat in court."

The editorial suggested admitting students descended from persons in the Hawaiian kingdom as of 1883 (when Princess Bernice Pauahi Bishop executed her will leaving her lands to support the schools) or 1893 (when the kingdom was overthrown), which would maintain an enrollment that is "predominantly Hawaiian in ethnicity" but would not expose the schools' admissions policy to a challenge based on racial discrimination.

This editorial was a well-intentioned effort to salvage the schools' goal of promoting and maintaining the Hawaiian culture in the face of a serious legal challenge. But it is premature to suggest that the schools will lose the legal battle. Judge David Ezra's ruling on Wednesday ordering the schools to admit a non-Hawaiian student was narrowly tied to the unique facts in the case (related to a hanai adoption), and his ruling provides a useful roadmap for the lawyers to follow in addressing the broader issues presented. Although the legal status of the Kamehameha Schools is complicated, its policy of admitting only Hawaiians should withstand the legal challenges being mounted against it for the following reasons:

>> Native Hawaiians have a unique status as beneficiaries of the lands that support the Kamehameha Schools.

The vast lands that provide the financial support for the Kamehameha Schools were the lands allocated by Kamehameha III to the high alii most closely linked to the Kamehameha line. Because these alii did not produce offspring, the lands were transferred laterally upon the death of each alii, and 353,000 acres accumulated in the name of Princess Ruth Keelikolani. Princess Ruth died without issue in 1883, passing these lands on to her cousin Princess Pauahi, who then died (also without any children) one year later in 1884. The alii understood that they held their lands not as fee-simple private property in the Western sense, but rather in trust for all the Hawaiian people, because that was the central understanding of their culture and heritage. While alii had rights and privileges, they also had significant duties and responsibilities.

It also was recognized that the makaainana (the common Hawaiian people) did not receive their fair share of the lands at the time of the Mahele (in 1848) and had a continuing claim to the lands allocated to the alii. Therefore, the Hawaiian people must be seen as the beneficiaries of the schools' lands, with a particular property-right claim to these lands that the rest of us do not share.

>> Private institutions have autonomy under U.S. law.

The Kamehameha Schools is a private institution, and hence is not subject to the constitutional requirements that govern state institutions. The U.S. Supreme Court has confirmed the autonomy given to private institutions in several recent opinions and has recognized the right of these institutions to engage in discriminatory practices.

We value private autonomy and permit private associations to make choices regarding their membership in order to protect diversity and individual freedom. We allow the Boy Scouts to discriminate against homosexuals and the Roman Catholic Church to discriminate against women, not because we approve of such discrimination, but because we want to protect the ability of private associations to make their own decisions in such matters.

>> Native peoples are viewed as a "political" rather than a "racial" category.

Recent Supreme Court cases support the view that restricting admission to persons of Hawaiian ancestry should not be classified as "racial" discrimination, because it is based on the special "political" status of native people and because of the particular link of the Hawaiian people to the lands that provide the funding for the Kamehameha Schools. Although racially based programs are presumptively unconstitutional unless they are found to be necessary to achieve a compelling governmental interest, courts tend to uphold programs established for native people if they are rationally related to the goals of promoting self-determination and self-sufficiency for the native group.

Whether this more deferential standard of judicial review should apply to programs established for Hawaiians has been called into question by the decision in Rice vs. Cayetano (2000), but that case was limited on its facts to the question of voting for Office of Hawaiian Affairs trustees, and the court's opinion explicitly refrained from making any broader pronouncement on other Hawaiian programs.

>> Native peoples have a special status.

Native communities are given a unique status under U.S. law because, unlike other immigrant groups who came to the United States understanding that they would be part of a pluralistic multicultural country, native people never made that commitment -- they were here when the rest of us came. In addition, unlike other ethnic groups, native people have no "mother culture" that continues elsewhere -- if they are not allowed to protect and develop their culture here, it will disappear altogether.

Hawaiians still have strong unresolved claims for the land and sovereignty they lost as a result of the overthrow of the kingdom and annexation of Hawaii, which both the U.S. Congress and the Hawaii state Legislature have recognized as "illegal" and in violation of international law, and these claims also justify allowing them to maintain separate and distinct programs to preserve and protect their cultural integrity.

Hawaiians are just as native as other Native Americans in the continental United States and Alaska, and Congress has said repeatedly that they must be governed by the same constitutional principles. In Judge Ezra's opinion issued Wednesday, he noted the significance of the "congressionally sanctioned mandate to provide special measures to Native Hawaiians." International law also recognizes the rights of all indigenous peoples to autonomy and separate programs.

>> The admission program of the Kamehameha Schools is unique and raises issues that have not been resolved by any other decision.

Our country has reached a strong consensus against racial discrimination, but even this type of discrimination is tolerated if practiced by a truly private organization. The 1964 Civil Rights Act prohibits discrimination in places of public accommodation, but not in private country clubs or private schools. Title VI of that statute prohibits racial discrimination by schools receiving federal funds, but the Kamehameha Schools no longer accepts any federal money.

Those challenging the Kamehameha Schools' admissions policies rely upon the 1866 Civil Rights Act, which prohibits racial discrimination in the making of contracts. That statute was interpreted by the U.S. Supreme Court in Runyon vs. McCrary (1976) to prohibit a private school that purported to be open to all from excluding African-American applicants, but this decision may not be applicable to the Kamehameha Schools because it does not purport to be open to all applicants. The case of McDonald vs. Santa Fe Trail Transportation Co. (1976) allowed a white person to file a claim under the 1866 Act, but that case involved employment discrimination.

No court has yet examined the unique situation of a school established by a member of a native royalty (of a kingdom later overthrown and annexed by the United States in violation of international law) to provide education for native children using revenues generated by native lands she held in trust for the benefit of her people. If a court saw a conflict between the broad goals of the 1866 Civil Rights Act and the "congressionally sanctioned mandate to provide special measures to Native Hawaiians" noted in Ezra's opinion last week, the more specific statutes recognizing the importance of these preferential programs for Hawaiians would prevail over the more general principles found in the 1866 statute.

If a court felt obliged to apply the strict-scrutiny/compelling-state-interest level of judicial review, the goal of allowing natives who are beneficiaries of a trust established for them to have a preference in the utilization of their shared native property should meet that high standard.

>> The schools' tax-exempt status.

Another major concern of the trustees of the Kamehameha Schools has been the schools' tax-exempt status, which could conceivably be revoked by the Internal Revenue Service. In 1983, the U.S. Supreme Court did uphold the revocation of the tax-exempt status of Bob Jones University in South Carolina because it had engaged in racial discrimination against African Americans with regard to its student body.

But the applicability of the Bob Jones case to the Kamehameha Schools is remote because the Supreme Court said such tax-exempt status can be revoked only when the institution's purpose is "so at odds with the common community conscience as to undermine any public benefit that might otherwise be conferred." The U.S. Constitution condemns racial discrimination, but it also recognizes the separate and distinct status of native peoples, and the United States formally affirmed the legitimacy of native autonomy in President Nixon's Special Message to Congress of July 8, 1970.

>> Kamehameha Schools plays a vital role.

The Kamehameha Schools has played an important role in our community by promoting and protecting Hawaiian culture and providing children of Hawaiian ancestry with a place where they can be together for a time, to learn about and build upon that heritage. Everyone living in Hawaii -- non-Hawaiians as well as Hawaiians -- will benefit if the Hawaiian culture can continue as a developing and dynamic part of our community. The unique ability of the Kamehameha Schools to promote the bond that Hawaiians have to their ancestors and their culture is an essential element in that effort. It therefore is appropriate and lawful for the schools to continue to admit only students of Hawaiian ancestry.


Jon M. Van Dyke is a professor of law at the University of Hawaii and a consultant for the Office of Hawaiian Affairs.

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