Kamehameha Schools
admissions policy challenge

A three-judge federal appeals panel will hear arguments Thursday in a lawsuit challenging the the Hawaiians-only admission policy of Kamehameha Schools. U.S. District Judge Alan Kay ruled last November that the policy is justified in correcting societal imbalances suffered by Hawaiians as the result of Western contact. He held that the schools' history and mission are "exceptionally unique" and noted that the institution is privately funded and aims at correcting imbalances that have been recognized by Congress. The lawsuit contends that the policy violates the Civil Rights Act of 1866, which the U.S. Supreme Court has determined forbids discrimination against any race in private schools.

The admissions preference:
Correcting a historical imbalance

As an estate and trust law attorney born and raised in Hawaii, I have watched the controversy over the admissions preference implemented by Kamehameha Schools with great interest. Initially, I believed that the preference was unconstitutional, given American concepts of racial equality and constitutional law. However, for various reasons, including respect for friends of Hawaiian ancestry, I decided to learn more about the preference before reaching conclusions.

What I expected to conclude was that the schools, although established by Princess Bernice Pauahi Bishop, should be forced to abolish the preference. Instead, I soon realized that little attention has been paid to the exceptionally unique circumstances under which the schools were established, and the effect that those circumstances and later events should have upon how we evaluate the preference. It also became apparent that an analysis based only upon current U.S. law would not only be incomplete, but could impose a severe injustice upon current and future beneficiaries of the schools, and constitute another example of disregard for the interests of those of Hawaiian ancestry, whenever inconsistent with American values and beliefs.

The preference originates from the princess' last will and testament. When the princess died, her will was administered, and passed most of her property to the trust that established Kamehameha Schools in 1887 and today bears the same name. These events confirmed that the princess' will, including the preference in favor of orphaned and indigent students of Hawaiian ancestry, was legal and enforceable under the laws of the Kingdom of Hawaii. All of these events occurred before the kingdom was overthrown.

During the princess' lifetime, the United States accorded full and complete recognition to the Kingdom of Hawaii, as an independent and sovereign entity. Treaties and conventions existed between the two nations, governing commerce and navigation. These treaties confirmed the sovereign status of the kingdom and its status as a friendly nation.

In January 1893, the kingdom was overthrown by a group of non-Hawaiian American business owners, with the direct participation and assistance of the U.S. government. The historical evidence confirms that the overthrow would not have been successful without assistance from the U.S. military. And, while there is disagreement about the reasons for the overthrow, our own government has confirmed that its actions in participating in the overthrow were illegal. Grover Cleveland, president at the time of the overthrow, described the actions of those who participated as an "act of war, committed with the participation of a diplomatic representative of the United States and without the authority of Congress." He went on to call for the restoration of the Hawaiian monarchy.

In 1993, the United States acknowledged again in Public Law 103-150, that its actions in overthrowing the Kingdom of Hawaii were illegal and wrong, and apologized. That law also acknowledged that the overthrow resulted in the deprivation of the rights of native Hawaiians to self-determination, and expressed a commitment to acknowledge the ramifications of the overthrow, to provide a proper foundation for reconciliation between the United States and the Hawaiian people.

The overthrow resulted in the laws and legal system of the kingdom being replaced with those of the provisional government, which later became known as the Republic of Hawaii, and, after annexation, the United States. The laws of the Kingdom of Hawaii recognized and permitted the schools to implement the admissions preference. Given that it was improper for our government to participate in the overthrow that removed the legal system and laws under which the schools were established, how can we now require the schools to abolish the preference?

Consider this point from your own perspective. If you sign a will or trust agreement that is legal and valid under our laws, would you want your will or trust (or portions of those documents) disregarded because it wasn't legal under the laws of a country that had sent its military to invade the United States? Would it be proper, for example, for the perpetrators of an attack upon the United States to tell you that your will or trust is partly or entirely unenforceable, because it was illegal under the laws of their country or their beliefs? We should not impose this same injustice upon the princess and her legacy. It wouldn't be fair, it wouldn't be right, and frankly, it wouldn't be very American.

To ignore the historical consequences of the overthrow would be setting a dangerous precedent. Specifically, it would establish that we as a country can intentionally overthrow the government of any nation, including one that we recognize as sovereign and friendly, without good reason so long as we suppress the leadership, culture and people of that country to the point that they no longer have sufficient political clout to respond or defend themselves under our legal system. It would mean that we can also effectively disregard what the leaders of that country did to benefit their own people, simply because those actions are not consistent with what we believe is right. Certainly, this is not what the people who wrote our Constitution intended.

Perhaps the greatest lesson that we can learn from the princess' will is that if we truly believe that education is important, something can be done about it. The princess no doubt realized that as the world advanced, education would be one of the keys for her people to be able to survive and prosper. Knowing that she could leave her lands and other assets to anyone, the princess chose instead to devote the bulk of her estate to establishing Kamehameha Schools to help those of Hawaiian ancestry.

If we are serious about wanting better educational opportunities for our keiki, the solution is not legal action to force Kamehameha Schools to help solve our public education problems. Rather, it would be more productive to urge our legislators to be equally passionate about education, and to work toward improving and maintaining the quality of our public school system.

If Kamehameha Schools is forced to abolish its admissions preference, our country would in effect be forcing its values and beliefs upon the princess and the schools, even though what the princess did was perfectly legal and enforceable under the laws of her country, and even though our government illegally overthrew her kingdom. Essentially, this would be the same mistake that was made by those who overthrew the Kingdom of Hawaii, and who imposed their values and beliefs upon Queen Lili'uokalani and the Hawaiian people in 1893.

Please, let us learn from history, and let us not again deprive those of Hawaiian ancestry of rights that have been and always will be rightfully theirs.

Preserving the independence
of private schools is
beneficial to everyone

We believe that education is prominent among forces for good and that 29,000 private schools educating more than six million students in our country are contributing significantly to the health of communities and the betterment of people's lives.

For these benefits to continue, the independence of these schools must be preserved and strengthened, and the contributions these schools make in our democratic society must be better understood and recognized. Private schools are good for students, good for families and good for America.

Central to private education is the prominence of the relationship between the unique mission of the school and its policies governing student admission. The alignment of mission and admissions is a key independent school value: When school culture and student learning needs are attuned, high achievement becomes an attainable standard.

The upcoming legal challenge to the admission policies of Kamehameha Schools must not be viewed as a single challenge to a single school. It must be viewed in its broader context -- a challenge to Kamehameha's independence, and, as such, a challenge to the independence of every private school in Hawaii.

Both public and private schools prepare youth to become responsible and contributing members of society. Private schools approach this social responsibility with an added value proposition. We provide choice.

Private schools increase diversity within the educational marketplace, endowing parents with the ability to choose programs that best fit their children's needs. Distinctive missions and educational philosophies are the hallmarks of private schools.

In Hawaii, 138 private, independent schools provide high-quality learning to more than 38,000 K-12 students. Some enroll those students who have demonstrated a high level of academic success. Others serve the gifted, or those who show academic promise. Still others offer programs for students who have encountered difficulty in previous learning situations.

Private schools are at their best when their missions address issues of equity and justice in our society. That is, when a school with a unique purpose serves a population of students that are not otherwise well served, everyone benefits.

Kamehameha is such a school. It stands alone, as a private school dedicated to providing urgently needed educational remedies for native Hawaiians, a disadvantaged people struggling to achieve social and economic parity.

The Hawaiian community continues to experience poor socioeconomic and health conditions that need to be addressed. The expectations of No Child Left Behind are more likely to be realized if the good work of Kamehameha Schools continues and expands.

Kamehameha spends more than $200 million annually on educational programs designed to correct this imbalance, and in the process mitigates the overwhelming social and legal obligations to develop similar remedies that would otherwise be placed on our public schools.

Private schools provide educational programs to more than 15 percent of Hawaii's school-aged children -- services that the state would otherwise need to provide. Informal estimates put savings to the state well above $300 million annually.

Kamehameha Schools funds its own operating expenses and employs a workforce numbering in the thousands, providing both direct educational services while also engaging in research.

On the capital investment side, a recent article in Honolulu magazine, estimates current construction investment by Kamehameha Schools to be $580 million.

The contribution of private schools to the public good must be sustained and strengthened. The best strategy for doing so is to protect their independence, and to encourage their individualized approaches to building and sustaining a healthy community here in Hawaii.

The case in point here, Kamehameha Schools, is all the more important because of its bearing on issues of equity and justice. Campus programs are uniquely designed and are best suited to meet the needs of those Hawaiian students contemplated in the school's mission. Admission policies are crafted to select those students most likely to achieve maximum benefit from such programs.

In his ruling upholding Kamehameha's admission preference last November, federal Judge Alan Kay emphasized that the school is a private institution, endowed by the legacy of a Hawaiian monarch, which neither seeks nor accepts federal money.

Private schools are dedicated to the betterment of humankind and contribute to the economic health of communities. Social justice is served by the good work of these schools, none more noteworthy than Kamehameha Schools. Preserving the independence of these schools is a noble cause and must prevail in our efforts to build a better world.