ANALYSIS

THE FUTURE OF NATIVE HAWAIIAN
PREFERENCES AT KAMEHAMEHA SCHOOLS

DENNIS ODA / DODA@STARBULLETIN.COM An open forum on Kamehameha Schools' admission policy Thursday started with a chant asking ancestors for guidance and inspiration. The forum was hosted by Pau Ike Ahi, a group of educators and students who are beneficiaries of Princess Bernice Pauahi Bishop.

Kamehameha struggles
to adjust as courts redefine
native entitlement rights

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By Rick Daysog
rdaysog@starbulletin.com

When Kalani Rosell shows up for the first day of class at Kamehameha Schools' Maui campus in August, he will be walking into a national "chess game" pitting the rights of native Hawaiians against opponents of racial entitlement programs.

In many ways, the Kamehameha Schools' emotionally charged decision to admit the Wailuku eighth-grader as its first non-Hawaiian student in more than 30 years represents a tacit acknowledgment by its board of the decade-long erosion in the nation's courts of native entitlement rights, some legal experts said.

The U.S. Supreme Court's ruling in the Rice vs. Cayetano case two years ago not only overturned the Hawaiians-only voting for trustees of the state Office of Hawaiian Affairs, it also signaled a new environment in which the $6 billion trust must be more forceful in defending its tax-exempt status and its Hawaiian-preference admission policy, they said.

"My view is that the trustees feel their positions have become more and more tenuous and that with this action they're trying to confront the issue head-on because the risks are very high," said local attorney Mark Davis.

Lawyer John Goemans, who represented Big Island rancher Harold "Freddy" Rice in his landmark suit that overturned OHA voting restrictions, said he is considering filing a class-action suit against Kamehameha Schools to overturn its Hawaiian-preference admission policy.

Goemans, who sued the estate over its admission policy in 1997 but later withdrew the case, recently filed administrative charges with the Bush administration and the U.S. Department of the Treasury, urging them to yank the trust's tax-exempt status since its admission policy is racially discriminatory and unconstitutional.

Kamehameha Schools, which was founded by the 1884 will of Princess Bernice Pauahi Bishop, is a nonprofit charitable trust that gives preference to students of Hawaiian ancestry in its educational programs.

Under that admission policy, non-Hawaiians can be admitted when the list of qualified Hawaiian applicants is exhausted.

Until the Maui case, a non-Hawaiian student has not been admitted into the Kamehameha Schools since the early 1960s.

"After Rice vs. Cayetano, every program is presumed unconstitutional for native Hawaiians. ... You can't give a preference and say it's not race discrimination," Goemans said. "The admission policy is objectionable, nonofficial discrimination and the charity itself is subject to suit for maintaining a racially discriminatory admission policy."

'A huge chess game'

The estate's five-member board of trustees and Chief Executive Officer Hamilton McCubbin have declined comment on the legal issues surrounding the Rosell case, saying such matters touch on privileged attorney-client matters.

They said the decision to admit a non-Hawaiian student to the Maui campus was made after school administrators exhausted the list of applicants of Hawaiian ancestry that met the admission requirements.

McCubbin noted the "unanticipated vacancy" was created after the Kamehameha Schools doubled the number of spaces in the Maui campus' kindergarten through ninth-grade programs this year.

But J. Douglas Ing, the chairman of the estate's board of trustees, recently hinted at a legal motive behind the move -- a motive that strongly implies the estate's board will not alter the Hawaiian-preference admission policy and will not rescind last week's decision to admit Rosell.

During a meeting with more than 600 hostile graduates and parents at the schools' Kapalama Heights campus Monday night, Ing placed the decision in the context of the national debate between minority-rights advocates and opponents of government entitlement programs.

"There is a huge chess game being played across the country and the rules of the game are being made as we sit here tonight by the U.S Supreme Court, the Bush administration and federal agencies including the IRS. There are people in this country who are determined to eliminate and erode the rights of indigenous and native people," Ing told the crowd.

"In this game, the king and queen is the admission policy. In the game that is being played here, we may lose a pawn here and a pawn there in order to protect the king and queen. So while we may lose a pawn, at the same time, we move a knight or a bishop into position. And if we don't do that we run the risk of losing the very thing we're trying so hard to protect."

Rejection of preferences

The schools' Hawaiian-preference admission policy was first upheld by the Internal Revenue Service in 1975. That ruling -- which was reaffirmed by the IRS in 1999 -- concluded that the trust does not discriminate racially since "virtually all races and ethnic groups are represented in the student body."

Since the IRS's initial ruling, the Supreme Court has ruled consistently against programs that give preference to racial and ethnic groups, said Roger Clegg, general counsel for the Center for Equal Opportunity of Sterling, Va.

Clegg, whose group filed an amicus brief in the Rice case, cited the 1983 case of Bob Jones University in which the high court upheld the IRS's revocation of the school's tax-exempt status for violating its policy against racial discrimination.

In a more recent case involving a Colorado construction company, Adarand Constructors Inc., the high court ruled that a government program that provided preferences to minority business was unconstitutional, he said.

"There have been a bunch of decisions in the past 15 years that say that racial and ethnic preferences are presumptively illegal regardless of whom the so-called beneficiaries of the preferences are," said Clegg, who noted that Rice's mainland attorney, Ted Olson, is now the U.S. solicitor general.

The solicitor general supervises all appellate work, including arguments before the Supreme Court, for the U.S. government.

"I think that the Supreme Court has made it clear over the past decade that government classifications on the basis of race and ethnicity are presumptively unconstitutional and they can only be justified in very narrow and extraordinary circumstances."

Exception to the rule?

Jon Van Dyke, a constitutional law scholar at the University of Hawaii, said Kamehameha represents an exception.

Kamehameha Schools is a private institution that receives little funding from the federal government, unlike OHA, which is a state agency funded by taxpayer dollars, said Van Dyke.

Kamehameha Schools recently dropped its Army Junior ROTC, lunch support and drug education programs, which relied on federal funding.

According to Van Dyke, groups such as Hawaiian civic clubs and the Japanese American Citizens League practice a form of private discrimination when they offer scholarships to students of Hawaiian and Japanese ancestry.

He also argued that the recent Rice vs. Cayetano case has limited application to Kamehameha Schools' admission policy because the Supreme Court's decision was narrowly framed on the issue of voting rights.

"A private body can discriminate in many ways. For instance, a store could say we don't want any left-handed people. It might be stupid, but not illegal," Van Dyke said. "In my judgment, the Kamehameha Schools is in its rights to maintain an all-Hawaiian student body."