School Set Aside for Hawaiians Ends Exclusion to Cries of Protest

Magazine article

By: Adam Liptak

Date: July 27, 2002

Source: Liptak, Adam. "School Set Aside for Hawaiians Ends Exclusion to Cries of Protest."New York Times, July 27, 2002.

About the Author: Adam Liptak is an attorney, an instructor at Columbia University's Graduate School of Journalism, and a regular writer for the New York Timeson legal issues. He received the 1999 New York Press Club's John Peter Zenger Award for his efforts on behalf of freedom of the press.

INTRODUCTION

Civil Rights litigation in the United States has most commonly involved minority groups or individuals seeking legislative or judicial protection against discrimination by majority whites. The major civil rights legislation of the 1950s and 1960s addressed the rights of minorities in employment and education, prohibiting hiring or admissions discrimination on the basis of race or ethnic background. In the years since their passage, these laws have helped African-Americans, Hispanics, and other minority groups make great strides in overcoming workplace and educational barriers.

While equal opportunity law is intended to address past injustices in hiring and promotion, it generally does so by making changes to present actions. In practice, such laws mean that minority individuals may be hired or admitted in place of majority applicants who have stronger objective qualifications. In the decades since these laws were passed, their constitutionality has been consistently upheld in court decisions. However, some majority job applicants have filed lawsuits of their own, claiming that they are now victims of discrimination on the basis of their race. These cases, in which majority litigants claim unfair treatment, are referred to as reverse discrimination suits.

A typical reverse discrimination action might involve a law school with an affirmative action policy under which minority applicants are given preferences in admissions. Such policies take a variety of forms, but typically involve a modification of applicants' admission scores, such as a ten percent upward adjustment to minority test scores. Such a policy will generally increase minority admissions by rejecting majority applicants with higher scores. Reverse discrimination lawsuits are commonly brought by majority applicants who would have been admitted if the adjustment policy were not in place. Reverse discrimination suits claim that such policies are inherently discriminatory because they give preferential treatment to applicants of a specific race. Such suits have achieved mixed results.

While race-based admission policies are generally considered a violation of federal law, exceptions do exist. The century-old Kamehameha School System in Hawaii is named for an eighteenth century ruler who unified the Hawaiian Islands; the school was endowed by the ruler's last direct descendent. In the intervening years, the school has grown to include three campuses and serve more than 4,000 students, funded by an endowment estimated to be worth $6–7 billion. In accordance with the terms of the original trust, Kamehameha School continues to extend enrollment preferences to Native Hawaiians. As a result, non-Hawaiian applicants are admitted only if spaces remain after all qualified applicants have been considered. Because more than 70,000 school-aged children qualify as natives, non-Hawaiians are effectively barred from admission, and only a handful have been admitted in the school's history. In 2002, the school broke this long-standing tradition by admitting a single non-native student.

PRIMARY SOURCE

HONOLULU, July 24— The modern history of Hawaii is, in the view of many people here, a series of tragedies and crimes. The native population was decimated by Western diseases, its monarchy was overthrown by Western businessmen, and its culture and language were for generations actively suppressed.

But one shining thing always belonged to native Hawaiians. The Kamehameha Schools, the only beneficiary of the $6 billion legacy of a 19th-century Hawaiian princess, educates native Hawaiian children—and only native Hawaiian children.

It thus came as a wrenching surprise to many here when the schools recently admitted a student not of Hawaiian ancestry. School policy requires students to prove that at least one ancestor lived on the Hawaiian Islands in 1778, when Capt. James Cook arrived. The competition for admission is intense, and few native Hawaiians make the cut.

The decision to accept the student, Kalani Rosell, into the eighth grade on the schools' Maui campus was driven in part by a concern that the admission policy cannot survive legal scrutiny. The move has set off furious protests, rooted in historical grievances, cultural differences and the conviction that the legal categories developed by mainland courts to promote racial equality cannot address the needs of a multiracial society that was a monarchy little more than a century ago.

"An attempt by kings and queens to help their people has not meshed well with American law," said Beadie Kanahele Dawson, a lawyer here.

The schools' main campus occupies about 600 acres in the lush hills above Honolulu's harbor. Some 3,200 students, from kindergarten through 12th grade, use its 70 buildings, Olympic-sized swimming pool and sports stadium. The view from almost anywhere on campus is so stunning that its beauty is not lost even on teenagers.

Another 1,200 students attend the schools' two other campuses on Maui and the Big Island, and the schools sponsor many other programs from preschool through college. All the programs together reach less than 10 percent of all the children who meet the ancestry requirements. High-school tuition for day students, which is heavily subsidized, is about $1,400 .

"If you are a kid with Hawaiian blood and pass the test and get into Kamehameha Schools, man, you have just hit the lottery," said Daniel B. Boylan, a history professor at the University of Hawaii.

Haunani-Kay Trask, a professor of Hawaiian studies at the university, said the schools were unprepared for the outcry over the decision to admit Kalani Rosell, a 12-year-old boy described as a straight-A student and a champion swimmer.

"It really hurt people," Ms. Trask said, "and the pain was so palpable you could almost smell people's anger." At a meeting to discuss the matter last week, alumni angrily attacked the schools' trustees.

"They just got it frontally, full blast, both barrels," Ms. Trask said.

John Tehranian, a University of Utah law professor who has written on the schools' tax status, said the trustees were missing the point.

"Forget all the legal arguments," Professor Tehranian said. "There are profound emotions here. This is the last thing that native Hawaiians have."

At the meeting with alumni, J. Douglas Ing, chairman of the trust's board, likened the issue to chess.

"There are those in this country that would like to erode if not eliminate rights for indigenous and native people," Mr. Ing said. "We're attempting to protect the admissions policy. To do that it may be necessary for us to give up a pawn here and a pawn there."

In an interview in the campus library here, the schools' chief executive, Hamilton McCubbin, said that powerful societal and legal forces were challenging the admissions policy. "We're working against the waves," he said.

But the admissions decision appears to have backfired on all fronts. It has drawn attention to the issue at a time when the schools hope to avoid legal scrutiny, and it has alienated the schools' own constituencies.

"I assume," said John Goemans, a lawyer who has been active in challenging preferences for people of Hawaiian ancestry, "that this was a surfeit of would-be cleverness."

Dr. McCubbin acknowledged the unpopularity of the Rosell admission.

"Many, many people thought the decision of the Kamehameha Schools was a betrayal," he said. "The perception is that if there is any entity that can stand up to the anti-affirmative-action, anti-entitlement forces, it's the Kamehameha Schools."

He emphasized, though, that the issue was not racebased. "Ancestral roots have significant meaning for Hawaiian people," he said. "It is that linkage to ancestral roots that defines who you are."

In one sense the school, like the state, is remarkably diverse racially. In a recent school year, 78 percent of the students said they were part Caucasian, 74 percent said they were part Chinese, 28 percent said they were part Japanese, and 24 percent said they were of other ancestries, including African-American, Arab, Brazilian, Indian, Alaska Native and American Indian.

The requirement of one pre–1778 Hawaiian ancestor means that many students are of Hawaiian descent in only a quite attenuated sense.

"My goodness," said Gladys Brandt, a former principal of the Kamehameha Schools, "you're one-twenty-fourth Hawaiian, you're in." Indeed, assuming nine intervening generations, children who are less than one-five-hundredth original Hawaiian may qualify.

When asked about the legal significance of the decision to admit Kalani Rosell, Dr. McCubbin started to answer but was interrupted by Colleen I. Wong, the schools' chief lawyer, who told him not to respond.

Through a representative, Kalani Rosell's mother and father declined a request for an interview.

The schools have recently dropped several federally supported programs to avoid challenges to its admissions policy. Their key remaining fear is that the trust's tax-exempt status will be revoked, which would cost the schools perhaps $80 million a year. They might also be liable, according to their former accountants, for back taxes of $1 billion.

The trust was created by the will of Bernice Pauahi Bishop, the great-granddaughter and last direct descendant of Kamehameha I, the 18th-century king who unified the Hawaiian Islands. The princess, who died in 1884, left some 400,000 acres, including a prime tract on Waikiki Beach, to the schools.

In 1999, an earlier board of trustees was ousted under pressure from the Internal Revenue Service, which threatened to revoke the trust's tax-exempt status during an investigation of financial mismanagement and self-dealing.

The new trustees, who adopted a more transparent management style, disappointed many in their handling of the admissions decision.

"They've been given legal advice that they should be quite cautious," Jon M. Van Dyke, a University of Hawaii law professor, said. "But something is lost if they move away from the exclusive ancestry criteria. The schools are the only forum in which native Hawaiians can get together as native Hawaiians."

Mr. Goemans said he planned a class-action lawsuit against the Kamehameha Schools. "I would hope that by this fall the racially exclusive policy will be dropped by the school," he said. "If they were smart, they would roll over."

In 2000, in a lawsuit litigated by Mr. Goemans, the United States Supreme Court dealt a blow to the cause of preferences for people of Hawaiian descent. The state had limited the right to vote for the trustees of a state agency to people who could prove Hawaiian ancestry; the court ruled that limitation violated the Fifteenth Amendment, which concerns voting rights.

The court also rejected two of the general premises on which the arguments in favor of preferences for people of Hawaiian ancestry were built.

The court first held that native Hawaiians are not historically or legally akin to American Indians on the mainland. The court said that preferences enjoyed by Indians were permissible because they are based on politics, not race. The court reasoned that Indian tribes are political units.

But Hawaiians, the court held, have no similar political status that would insulate such preferences from challenges.

The court also held that the requirement of proof of Hawaiian ancestry was a proxy for race. Racial distinctions, at least when they are made by the government, are almost always forbidden.

In the context of private entities, the Supreme Court has ruled that race discrimination can result in the loss of tax-exempt status. In 1983, the court held that taxpayers should not be made to support the discriminatory policies of Bob Jones University, at least when "there can be no doubt that the activity involved is contrary to fundamental public policy."

Many legal scholars say that the two Supreme Court cases spell trouble for the Kamehameha Schools.

The Rosell decision was said by the schools to have been a product of ordinary admissions criteria. All qualified applicants of Hawaiian descent were admitted, the schools said, leaving one open slot.

"It's not only insulting," Professor Trask said of this explanation, "it's also untrue. I'm sure they accepted a non-Hawaiian because they were afraid of getting sued."

Samuel P. King, a federal judge here, said the schools misplayed this aspect of the decision. "It was a mistake to say you couldn't find a Hawaiian," he said. "That's like putting a red flag in front of a bull."

SIGNIFICANCE

The public response to the school's admission decision was vocal and overwhelmingly negative. Protestors, including parents and numerous graduates, claimed that admitting non-natives would ultimately destroy the unique educational opportunities which native Hawaiians had enjoyed at the school. In response, the school's leadership responded by reaffirming its policy of admitting native islanders first, and school trustees promised to amend admission policies to further clarify the school's admission objectives. Some observers already critical of the school's admission policy charged that the school administration had accepted the student solely to provide legal defense against potential charges of discriminatory admissions.

In 2003, two lawsuits were filed challenging the school's admissions policy. One of these suits dealt with a student who was mistakenly admitted, then later rejected when his Hawaiian ancestry came into question. The school quickly settled the lawsuit by granting the student admission for the remainder of his educational career.

The second case went to the U.S. District Court, which reviewed the arguments and dismissed the case, ruling in favor of the school. The plaintiff then appealed to the Ninth Circuit Court of Appeals, and in 2005 that three-judge panel ruled the school's admission practices unlawful, ordering the school to change its admission policy. In February 2006, following an appeal by the school, the same court granted an en banc review, which provides for an additional hearing before a panel of fifteen Ninth Circuit judges. The school's restrictive admissions policy was left intact pending a ruling in the case.

The Kamehameha case raises several important legal questions. Specifically, it asks the court to determine whether a century-old decision to establish a racially segregated school provides grounds for continued discrimination in the school's policies. In broader terms, the case seeks to further define the specific situations in which privately funded institutions are allowed to apply racial preferences in the pursuit of specific philosophical goals. It also examines the issue of whether non-discrimination law apply in situations where majority citizens may benefit.

FURTHER RESOURCES

Books

Goldman, Alan H. Justice and Reverse Discrimination. Princeton, N.J.: Princeton University Press, 1979.

Mayo-Jefferies, Deborah. Equal Educational Opportunity for All Children: A Research Guide to Discrimination in Education, 1950–1992. Buffalo, N.Y.: William S. Hein & Company, 1994.

Miller, Arthur Selwyn.Racial discrimination and private education: A legal analysis. Charlotte: University of North Carolina Press, 1957.

Periodicals

"Civil Rights—Section 198—Ninth Circuit Holds That Private School's Remedial Admissions Policy Violates Section 1981." Harvard Law Review. 119 (2006): 661–668.

Rutherglen, George. "The Improbable History of Section 1981: Clio Still Bemused and Confused." Supreme Court Review. 303 (2003): 307–337.

Sullivan, Kathleen M. "Sins of Discrimination: Last Term's Affirmative Action Cases." Harvard Law Review. 78 (1986): 93–94.

Web sites

Asian Week. "Kamehameha Schools Seek Justice." August 26, 2005. <http://news.asianweek.com/news/view_article.html?%20article_id=b13172d9cc05d1cc759ba8d9ce43cc23> (accessed June 2,2006).

Humanitarian Demining. "Landmine Threats." <http://www.humanitarian-demining.org/demining/threats/proliferation.asp> (accessed May 28,2006).

Kamehameha Schools. "Appeals Court to Rehear Admissions Policy Change." <http://www.ksbe.edu/article.php? story=20060222115656371> (accessed June 1,2006).