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Letter from the President: Putting Race Back on the Table

Notes from the Right: Race and Poverty —Getting a Legal Burial?

Law Review Summaries: Racial Lines and Property Rights

Funders Support Innovative Meeting on Intent Doctrine

EJS and California Teachers Association Collaborate on Unconscious Bias Project

EJS Argues Admissions Policy of Hawai'i Private School for Native Hawaiian Children Does Not Violate Civil Rights

New Chief Justice: Where Will He Stand on Civil Rights?

Staff/Board News and Notes

Newsletter Editors:
Elaine Elinson
Miguel Gavaldon

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EJS Argues Admissions Policy of Hawai'i Private School for Native Hawaiian Children Does Not Violate Civil Rights

By Keith Kamisugi
Associate Director for Communications and Development

The Equal Justice Society has joined efforts to defend a private school for Native Hawaiian children from a lawsuit now being reviewed in the Ninth Circuit Court of Appeals - a lawsuit with potential impact for all people of color in this country. The suit, Doe v. Kamehameha, claims that Kamehameha Schools, a private educational institution, cannot give preference to children of Hawai'i's indigenous people.

The Equal Justice Society, the Japanese American Citizens League-Hawai'i Chapter and Centro Legal de la Raza filed an amicus brief on Aug.30 supporting the school's admissions policy as restorative justice for an indigenous people whose culture, property and self-governance were nearly destroyed by 19th and 20th century colonialism.

In 2003, the U.S. District Court ruled in favor of the Kamehameha Schools. However, on Aug. 2 of this year, a three-judge panel of the appeals court reversed and ruled for the plaintiff. The Ninth Circuit is currently considering a request by the Schools for an en banc hearing. If the court denies the request, Kamehameha Schools will appeal to the United States Supreme Court.

"The Kamehameha Schools' admissions policy does not imperil the civil rights of racial minorities," said University of Hawai'i law professor Eric Yamamoto, an EJS board member who is co-counsel to the three amici. "The Native Hawaiian experience is unique and we support restorative justice for Native Hawaiians."

The Schools were founded in 1887 under the Will of Princess Bernice Pauahi Bishop, the last surviving heir of Kamehameha I, monarch of the Hawaiian Kingdom. By the time of her death, a Westernized society in Hawai'i had pushed Native Hawaiians down to the bottom of the socio-economic ladder.

Pauahi saw education as her people's salvation and left her vast estate in trust for the creation and operation of schools that would focus on and uplift Native Hawaiian children. Students at Kamehameha, in addition to being Native Hawaiian, also come from almost every ethnic group in the world, including, Hispanic/Latino, white, Asian, Pacific Islander, as well as other indigenous peoples.

"There is a critical difference between an affirmative action or diversity program and the efforts of a private institution to help an indigenous people almost wiped out by Western influence," said David Forman, a member of the JACL-Hawai'i board. "The civil rights of Americans are not threatened with a program by Native Hawaiians designed to uplift their own people."

The brief contends that the appeals court panel was incorrect in comparing the Schools' admissions policy to an affirmative action diversity program in private businesses. Unlike programs by other ethnic groups, a private program for indigenous peoples that uses race as a determining factor is legitimate as long as it is crafted as a "restorative response" to the devastation of colonialism, the attorneys stated. Both Congress and other court cases have supported this distinction.

The brief cites a 1974 Supreme Court decision in Morton v. Mancari that hiring preferences favoring Native Americans do not conflict with the Constitution. "The Indian preference does not constitute 'racial discrimination' or even 'racial' preference," said the high court in that ruling.

Citing Morton, the amicus brief noted, "Indeed race/ancestry had to be an integral factor in the political restoration process because race/ancestry had been key originally in the U.S.'s justification for the confiscation of land … and the destruction of culture and self-governance."

Ninth Circuit Judge Susan Graber, in a partial dissent from the three-judge panel, argued that Congress has expressly considered Native Hawaiians as a unique group. "In the absence of more specific Supreme Court guidance, we should look directly to congressional intent," wrote Graber. "Congress intended that a preference for Native Hawaiians, in Hawaii, by a Native Hawaiian organization, located on the Hawaiian monarchy's ancestral lands, be upheld because it furthers the urgent need for better education of Native Hawaiians…"

The appellate panel decision represented another blow to the future of Native Hawaiian culture, which has been slowly eroded through the past three centuries. In 1778, there were about 300,000 Native Hawaiians. In a little over a century, by 1884, there were only 46,000. The Westernization of Hawai'i almost crushed Native Hawaiians and their culture. In 1893, agents and citizens of the United States overthrew the Hawaiian monarchy. From 1826 to 1893, the United States recognized the independence of the Kingdom of Hawai'i and extended full and complete diplomatic recognition to the Hawaiian government, a fact often hidden from history The Kingdom had diplomatic relations with England and other countries as well.

"If left standing, a ruling in favor of Doe will prevent Kamehameha Schools from completing what Pauahi intended - the restoration of the Native Hawaiian people through education. The court decision could also impact all people of color in this country - not just Native Hawaiians," said EJS president Eva Paterson.

"With Doe as precedent, the courts in this country could prevent any private person, trust, or organization from giving educational scholarships or financial aid to a disadvantaged ethnic group. It threatens any private entity that gives financial aid to Latinos, African Americans, Asian and Pacific Islanders or Native Americans as a way of helping correct past injustices against people of color," Paterson added.

Prof. Yamamoto, Paterson and former EJS research director Susan Kiyomi Serrano co-authored an opinion piece in The Honolulu Advertiser in Nov. 2004 refuting Doe's claims against the Schools. To see that article and to learn more about this issue, visit www.equaljusticesociety.org/kamehameha.