Appellate Ruling Bars Hawaiian Only Admissions policy

A federal appeals court yesterday delivered a devastating blow to Kamehameha Schools' practice of giving admissions preference to students of Hawaiian blood.

In a 2-1 decision, the 9th U.S. Circuit Court of Appeals ruled that the admissions policy violates federal civil rights laws first passed in 1866 barring private institutions from discriminating on the basis of race.

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20050803/NEWS01/508030349

Being a lurker on a few Hawaiian message board groups, this is a really big deal.

The article mentioned that there was preferential treatment when admitting those of Hawaiian descent. Later it said the schools admitted ONLY those of Hawaiian descent. Which one is it?

It is a “Hawaiians first” admissions policy and the Kamehameha Schools,in 2003, admitted a non-Hawaiian student. However, the Court noted that the record suggests the admission was more the result of accident than design.

This is Kamehameha Schools policy:

Specifically, the policy articulated by Charles Bishop was that “boys and girls of pure or part aboriginal blood . . . should have preference; that is[,] they should have the first right.” Accordingly, the admissions process at Kamehameha currently proceeds in two phases: first, the applicant must demonstrate that he possesses the minimum qualifications necessary to meet the Schools’ rigorous academic standards and, second, he must complete an “Ethnic Ancestry Survey” designed to verify his aboriginal blood. The Schools forthrightly admit that as long as there are
qualified students who possess at least some native Hawaiian
ancestry, they will be admitted before even the most qualified of those who lack aboriginal blood.

The Court held that Congress can not "authorize a private school to exclusively restrict admission on the basis of an express racial classification."

On 2005-08-03 18:42, I dream of tiki wrote:
Being a lurker on a few Hawaiian message board groups, this is a really big deal.

Protests abound - they also may occur in Waikiki.

So, are these schools public or private? If these schools are publicly funded, then I can see the non-aboriginal locals having a problem with it.

If the schools are private, it sounds like another case of someone trying to legislate thier sour grapes away.

Re: public v. private; For the most part established law says it doesn't matter if it's public or private, schools can't exist that deny people solely on race-based reasons.
I found it interesting, though, after reading the case that the school "conceded" that this was purely raced-based and didn't attempt to argue more along the lines of the "special relationship with government" lines. That argument has worked in the past for several Native American communities and might have had at least been a more difficult question for the court here.
Perhaps this will be overturned by an en banc ruling, or the Akaka bill will pass which should allow this issue to be revisited, if not overtuned legislatively.

On 2005-08-05 14:54, mahalomo wrote:
I found it interesting, though, after reading the case that the school "conceded" that this was purely raced-based and didn't attempt to argue more along the lines of the "special relationship with government" lines.

Interesting issue, Mahalomo.

The "speical relationship with government" was argued, but the Court did not accept it.

The Court distinguished the Hawaiians from Native Americans by holding Native Americans were a political group, whereas Hawaiians were a race and the KS could not discriminate on race based on the Equal Rights Act of 1964/Title VII USC.

This may be a little convenient because native Americans are also a discrete ethnic group (but I don't know if the underlying briefs addressed that issue).

The Akaka bill seemingly could enable K-schools to more closely resemble native Americans once it passes and provides "Nation within a Nation status" - but it remains stalled in the Senate.

The Court did provide a full paragraph about the uniqueness of Hawaii and Hawaiians, but that did not carry the day.

Maybe the true battle is yet to come - if KS admits only 20% non-Hawaiians and then immediately destroys admission records, so as to prevent them from being available for future lawsuits by non-Hawaiians claiming their grades were better.

The "speical relationship with government" was argued, but the Court did not accept it.

Sorry. You're right. What I meant to say was that in the decision the court said, "Appellees concede [the purpose of admissions classifications] to be exclusively racial in nature, design, and purpose." But then I guess they couldn't effectively argue a distinct and recognized "political" status since such a status doesn't exist the way it does with Native Americans. That is, until the Akaka bill passes. IF it passes.

Too bad, really. I understand the ruling - no discrimination, of course, is a good thing. But it would be helpful to recognize Native Hawaiians as "nations within nations", or at least "domestic dependent nations" like Native Americans (and less so Alaskan Natives) so that these sorts of schools and programs can exist within their communities.

I'm sending my mana their way for good vibes.
And writing my Senators about the Akaka bill while I'm at it.

Okay. I'm still confused. Is the school (or are the schools) Private or Public? I understand that any school has a hard time getting by these days without some money from the Federal Government (Gee... Wonder why...?). Even "Private" doesn't mean, always, without Public Interest. But I haven't seen it stated in this thread or in any News Report whether this is a private school or a public school. This would (and should, of course) have a great deal of impact on how I (or anyone else who pays taxes in America) feels about the admissions policy.

On 2005-08-06 17:32, Traitor Vic wrote:
Okay. I'm still confused. Is the school (or are the schools) Private or Public?

Here are the first two paragraphs from the news article:

***A federal appeals court yesterday delivered a devastating blow to Kamehameha Schools' practice of giving admissions preference to students of Hawaiian blood.

In a 2-1 decision, the 9th U.S. Circuit Court of Appeals ruled that the admissions policy violates federal civil rights laws first passed in 1866 barring private institutions from discriminating on the basis of race.***

Sounds like the Kamehameha Schools are private.

The Public Radio story I was listening to indicated that although private, the schools were accredited by the government and did not pay any property taxes. Thus I suppose that the government exerts some control over policies. The Kamehameha Schools are the largest private property owners in all of Hawaii. If they had to pay property taxes, it would bankrupt the schools.

Sabu

On 2005-08-06 17:32, Traitor Vic wrote:
Okay. I'm still confused. Is the school (or are the schools) Private or Public? I understand that any school has a hard time getting by these days without some money from the Federal Government (Gee... Wonder why...?). Even "Private" doesn't mean, always, without Public Interest. But I haven't seen it stated in this thread or in any News Report whether this is a private school or a public school. This would (and should, of course) have a great deal of impact on how I (or anyone else who pays taxes in America) feels about the admissions policy.

I only read the case quickly, but I'll try to give a quick run-down of my understanding (someone please correct me if I'm wrong). Courts have held that even private schools cannot discriminate solely on the basis of race. This school doesn't receive any federal money, and the court doesn't go into the fact that they have tax exempt status.
Instead, they base their ruling on one of the original "anti-slavery" laws from 1866, and later interpretations of it (much later, in fact - over 100 years later), and say that this law, in conjuction with later laws, amendments, and interpretations prohibits private discrimation. (Think segregation in the south by whites against blacks on the part of private people - the government has the power to alleviate that). Later, courts held that these laws protect white and non-whites alike, although it's a little unclear which of two statutes the original court based this on. Either way, this court said "whether it stems from a broad reading of section two of the Thirteenth Amendment, or a similarly broad reading of the Commerce Clause, Congress’s power to prohibit private race discrimination has not yet been seriously questioned."
So while the laws were originally written to protect blacks against discrimination, they were later interpreted to protect whites and others as well.
Native Hawaiians don't have an exemption from these laws (Native Americans have a special recognized relationship with the US government as political "nations", but Native Hawaiians do not - and this special relationship is what the Akaka bill is trying to get established). Therefore, they are treated just like any other private establishment and they fall under these non-discrimination laws.
But the idea that the government can't prohibit private discrimination isn't questioned here. Intuitively many people think private institutions having little or no connection with government are allowed to discriminate as they please, but this is not the case.

The Court repeatedly used the phrase, "absolute bar" to admissions by non-Hawaiians. In my opinion, it allowed the inference that if the K-schools admit, say, 20% non-Hawaiians, it might by okay.

The Court distinguished Hawaiians from Native American tribes in two ways, holding that Congress has not always linked the two and, on occasion, has specifically excluded native-Hawaiians groups from the laws benefiting Native-Americans.

Congress also defines certain tribes recognized by the federal government as political entities, as opposed to a racial category of all Native Americans.

The Court also repeated law that the anti-discrimination statutes apply to non-governmental entities as well as public entities. Therefore, the anti-discrimination statutes are applicable to KS, regardless of whether it receives federal funding (which, as Sabu pointed out, it does not.)

Now that this is thread in Beyond Tiki, I no longer have to measure my Post:

The decision is a travesty and merely the latest in a long line of situations in which the federal government has, and continues to, subjugate Hawaiians.

The Court provided a strict scrutiny legal rational to justify overlooking the basic underlying premises:

1. Hawaii is, even more than Native Americans, a separate political entity. The imprisoned queen, Liliuokalani, was ruler of all of Hawaii, until imprisoned in her own palace and then forcefully made the 5oth state.

2. Hawaii is the land of Hawaiians - the US merely came and successfully occupied it, initially through force, and then by oligarchy and ultimately by deposing their own rulers.

Even the Court had to acknowledge the role the US government has played in subjecting Hawaiians and the how Hawaiians score the highest on the negative socioeconomic indicators: (1) lower education, (2) incarceration (3) homelessness, etc.

The KS schools are possible the last and best way to enable Hawaiians to help themselves, "by their own bootstraps," by the Hawaiian schools.

On 2005-08-03 18:42, I dream of tiki wrote:
Being a lurker on a few Hawaiian message board groups, this is a really big deal.

Which of those boards are the most fun?

On 2005-08-07 15:34, christiki295 wrote:
Now that this is thread in Beyond Tiki, I no longer have to measure my Post:

The decision is a travesty and merely the latest in a long line of situations in which the federal government has, and continues to, subjugate Hawaiians.

The Court provided a strict scrutiny legal rational to justify overlooking the basic underlying premises:

1. Hawaii is, even more than Native Americans, a separate political entity. The imprisoned queen, Liliuokalani, was ruler of all of Hawaii, until imprisoned in her own palace and then forcefully made the 50th state.

**Tough issue. I find it interesting that, in general, aggrieved groups are actually just the last group of oppressors who were in charge of a place before the current aggressors took over. I don't think people realize that all of history is civilization through conquest - it's not like Hawaii was an idyllic utopia of democratic sharing and loving. The kingdom had been forcibly united through long standing internecine violence, with the installation of a totalitarian regime called "royalty."

Why no concern for the poor unfortunate natives who the royal family had executed or suppressed?

Remember, it was nearly 1,000 years before King Kamehameha the Great "united" the kingdom.

Stolen from an Hawaiian history site:

Kamehameha I (the Great) of the Island of Hawaii first consolidated his power there. *He then conquered Maui and Oahu. There were bloody battles, particularly on Oahu, and his conquest was vigorously opposed by the rulers of the other islands and their warriors. Kamehameha then attempted to invade Kauai, but his fleet was turned back by a storm. *Following several years, the ruler of Kauai decided to pledge his allegiance to Kamehameha, and the unification of the Hawaiian islands was complete. Kamehameha used some European advisers and weapons in his fight to conquer the island chain.

Kamehameha and his predecessors were hereditary monarchs. They ruled by divine right and the right of birth, with the support of the religion and the priesthood (kâhuna). All land belonged to the monarch and passed to their heir. The nobility (ali) got their grants of land from the King. The commoners (maka'âinana) had certain understood rights to use the land, and obligations to provide support to the `i and the King.

Hawaii in 1778 in many ways resembled feudal Europe. The major difference, other than religion, was the absence of writing and metal. Hawaii was isolated and had no continuous contact with other civilizations. The absence of iron, tin, or copper limited how far technology could advance.

Tell me how that's a more enlightened culture than what is in place now.
**

2. Hawaii is the land of Hawaiians - the US merely came and successfully occupied it, initially through force, and then by oligarchy and ultimately by deposing their own rulers.

Again, how would you classify the ruling regime at the time? Certainly not a benign meritocracy.

Even the Court had to acknowledge the role the US government has played in subjecting Hawaiians and the how Hawaiians score the highest on the negative socioeconomic indicators: (1) lower education, (2) incarceration (3) homelessness, etc.

**What was the education level of the average native before the arrival of the new evil overlords?

How would you classify the royalty pressing their fellow natives into servitude for the policies of undemocratically chosen policies and warfare?

What were the wages of defeat at the hands of royal aggressors in the native culture - low incarceration due to execution, eh?

I think the fact that our society has so many "oppressed natives" is actually a good sign - it shows we did not undertake genocide to the extent of the cultures who lack any residual indigenous people to be alive to be able to claim to be oppressed.**

The KS schools are possible the last and best way to enable Hawaiians to help themselves, "by their own bootstraps," by the Hawaiian schools.

[ Edited by: Geeky Tiki 2005-08-30 17:44 ]

I am inclined to agree with Geeky Tiki. I think there's an unwritten notion afoot that "oppression" means "what white people do (and did) to nonwhite people." Besides being historically inaccurate, it can cause people (willingly or unwillingly) to not perceive oppression that doesn't fit that particular script. Idealizing precolonial pasts is one example of this.

I'm not trying to caricature anyone's views, and respect the passion for this topic exhibited by some, but for heaven's sake, those were extremely turbulent times, with colonial fever in high pitch, and fascistic, racial-supremicist ideologies taking hold in some major European and Asian countries, which also eyed Hawaii with great interest to put it mildly. Times were tough, if not cataclysmic, all over, and frankly I don't think that ending up part of a democratic, multicultural, largely federalistic republic with civil liberties and a free-market economy has been the worst of outcomes for Hawaii, given the easily imaginable alternatives. No, I'm not an expert, but common sense just kind of speaks to me here.

Aloha, Geeky Tiki & Thomas,

Your question, "Tell me how that's a more enlightened culture than what is in place now" was already addressed by my issue that Hawaii was its own nation and the U.S. took it over. Now the U.S. continues to subjugate native Hawaiians by depriving it of the full access to the K-Schools.

Your comment that as the US can overtake over nations, just so long as it does "not undertake genocide" of those peoples appears, at best, misguided.

I do not believe in "might makes right," nor our subjective belief that our "moral authority" based on having a "better democracy" provides the U.S. with post-hoc justification for the invasion of Hawaii and the overthrow or annexation of the Hawaiian government.

However, the U.S. Supreme Court failed to provide weight to the historical facts in order to justify its decision against the K-schools.

The Court also failed to acknowledge that native Americans are just as much as a race as native Hawaiians because native-Americans are a protected race, not merely a political institution under Title VII, which Congress also passed.

[ Edited by: christiki295 2005-08-31 18:24 ]

Hi, Christiki,

I wasn't implying a "might means right" approach. I was pointing out that the ruling party in Hawaii had hands that were as blood stained as any. It was basically a totalitarian state that has now been romanticized into a nation of enlightened hippie-like hula dancers and men who juggled torches.

The literacy rate was zero, the ability to work hard and change one's social status was minimal. Why is it so romanticized, because at least it was natives oppressing natives?

I'm not trying to justify white man hegemony, but I think we should keep in mind that all civilations are built on the bones of the vanquished, so perhaps U.S. acquisition of the place was less cruel than having left things as they were or waiting for another civilization to come in and wipe out the whole sheebang.

My poor ancestors may have been driven out of Ireland, but I don't have any quaint notions of returning to someplace that is five generations removed in history to demand reparations or a new sovereignty.

If we thought things like that, we'd have to find out who the Native Americans had vanquished before Columbus arrived and settle up with them, too.

Every square inch of the planet is inhabited by those who drove out the people who were there previously - this return to Eden stuff is a little too too.

I'm just getting victim fatigue, I guess.

I apologize for sounding harsh, I don't mean to make you feel like I'm aiming anything at you on a person to person level in this argument. Especially now that only us cool people with the wherewithall to pony up funds are posting on this exclusive forum. I bet it excludes many native Hawaiians and may not make for a fair argument.

[ Edited by: Geeky Tiki 2005-08-31 22:23 ]

Christiki, first of all let me say that I'm reminded of why we aren't supposed to discuss politics on TC -- because even gentle, civil disagreements like this can get testy. (Thank goodness we seem to be classy enough to avoid this, but we can all feel that potential I think.) Who needs it?

Anyway, I think that in order to sustain a sense of historical grievance on the part of an ethnic group, one has to fight some strong headwinds, such as the explosion of "intermarriage" in modern societies, as well as social mobility (for example, "Hawaiians" are everywhere, and people from "everywhere" now reside in Hawaii), and modern thinking in general which eschews tribalism and regards the future as intrinsically more interesting than the past. I think these are all good things; others don't. To those that choose to fight them, I say, good luck -- you'll need it.

The desire among many, though certainly not all, "ethnic Hawaiians" to retain the use of traditional lifeways, language, etc., is interesting. But it is rightly a matter for voluntary initiative on the part of persons and groups, in the realm of "civil society," not government.

I could go on, but I see that Geeky Tiki has (again) expressed my approximate viewpoint better than I could anyway. Instead, I'll say that I'm ready to give this a rest (though gladly cede you the last word). Hope to meet you some day (and discuss anything but politics!). Best wishes.

On 2005-08-31 21:37, Geeky Tiki wrote:
Hi, Christiki,

It was basically a totalitarian state that has now been romanticized into a nation of enlightened hippie-like hula dancers and men who juggled torches.

True enough, the grass skirt clad hula dancer, and the nostaligic Hawaiiana in general, often serves as a stereotypical summary which fails to address the very serious, complex and not often easily resolved issues which face contemporary Hawaii, one of which we have discussed above.

[i]On 2005-08-31 22:41, Thomas wrote:

Anyway, I think that in order to sustain a sense of historical grievance on the part of an ethnic group, one has to fight some strong headwinds, such as the explosion of "intermarriage" in modern societies, as well as social mobility (for example, "Hawaiians" are everywhere, and people from "everywhere" now reside in Hawaii), and modern thinking in general which eschews tribalism and regards the future as intrinsically more interesting than the past.

"What is Hawaiian is not an easy issue (I used the phrase inappropriately in another thread & then fell all over myslef trying to make amends).

Here is how the KS desribes it:

"Specifically, the policy articulated by Charles Bishop was that “boys and girls of pure or part aboriginal blood . . . should have preference; that is[,] they should have the first right.”

However, to determine aboriginal blood, the candidate "completes an “Ethnic Ancestry Survey” designed to verify his aboriginal blood."

Sorry if I came across too strong - sometimes my work tone inadvertently gets the better of me.

Aloha, Chris.