I’ve been a long-time activist on behalf
of Native Hawaiian causes. It’s always struck me as being
totally unfair that the independent Nation of Hawai‘i
was overthrown with the help of U.S. Marines in 1893—a
coup d’etat acknowledged by the U.S. Congress, in 1993,
to be illegal. Yet the Nation of Hawai‘i and Hawaiian
rights from those days of independence have not yet been restored.
If anything, the latest Ninth Circuit Court decision shows that
the U.S. government is going backwards in terms of its relationship
to Native Hawaiians, whose rights the United States took away—by
its own acknowledgment—illegally. So, I can understand
the outrage and the lack of aloha expressed by many Hawaiians
interviewed in the media about the decision, and I can understand
the overwhelming sense of sadness felt by students and alumni
on hearing of the decision.
However, like Kamehameha School’s trustee Nainoa Thompson
on the day the decision was released, I would quote the famous
assertion of professional baseball player Yogi Berra: “It
ain’t over till it’s over!” There’s still
an outside chance that the Hawaiians-first preference policy
would be upheld on an appeal to an 11-member panel of the Ninth
Circuit—called in our attorneys’ language, an “en
However, if that fails, there are still options. A petition for
certiorari (a certificate of permission) with the U.S. Supreme
Court would have to be filed, asking that it review the negative
Ninth Circuit decision.
Not to be depressing, but the chances of the U.S. Supreme Court’s
granting certiorari and then hearing the case are those of an
ice cube on Waikiki Beach—very small, particularly because
a large 7-to-2 majority of that court has already ruled, in the
Rice v. Cayetano case of 2000, that Native Hawaiians are a “race” and
cannot discriminate against others under the U.S. Constitution.
If Hawaiians were, instead, an “Indian tribe” under
the Commerce Clause to the Constitution (what the so-called Akaka
Bill proposes to establish), then they would have a new, clarified
political relationship with the U.S. government and could legally
discriminate against others, as “Indian tribes” are
allowed to do, for example, in tribal elections and even in educating
their own school children.
The Akaka Bill, then, holds out hope even if the Ninth Circuit
en banc hearing upholds the 2-to-1 decision against Hawaiians-first
preference and if the U.S. Supreme Court declines to hear the
case. And if the Akaka Bill fails to pass, believe it or not,
there are still legal methods under the U.S. Constitution for
all three campuses of Kamehameha Schools—Kapalama, Maui,
and the Big Island—to remain predominantly Hawaiian even
without the Hawaiians first preference.
The best possibility is passage, and signing into law, of the
Akaka Bill. Then Kamehameha Schools could be designated as an
official school system associated with the Nation of Hawai‘i “tribe,” and
like “Indian” schools, it could be restricted in
applicants and admissions to only native children.
A second, more likely and more realistic, option would be to
adopt the practices of black colleges such as Tuskegee Institute
(Ala.), Fisk University (Tenn.), and Howard University in the
District of Columbia.
The 2-to-1 Ninth Circuit Court decision is based on an interpretation
of an 1866 law passed by the U.S. Congress to prevent racial
discrimination by any private institution, which of course includes
a private nonprofit such as Kamehameha Schools. Based on the
1866 law and on the U.S. Civil Rights Act of 1964, all-black
colleges were told by the federal government that they could
no longer discriminate against whites and other non-blacks who
wanted to apply to those colleges and to be accepted, if they
met the admission standards.
The black colleges redefined their admission standards to seek
applicants who, among others, have demonstrated an appreciation
for black culture, traditions, and values. Everyone—whites,
blacks, Asians, and others—is allowed to, and in fact encouraged
to apply. When the admission standards have been applied, the
colleges have been able to remain predominantly black, without
creating what the Ninth Circuit called “an illegal racial
bar” against applying or being admitted.
Following that approach, if the 2-to-1 decision of the Ninth
Circuit is not reversed, then Kamehameha Schools should—without
discriminating against non-Hawaiians—reiterate and re-emphasize
its mission, under the 1887 will of Princess Pauahi, to perpetuate
the culture, traditions, and values of Native Hawaiians in the
education of what she calls “the aboriginal children of
In some ways, ironically, a redefinition of the Schools’ mission
to focus on nondiscriminatory education in and study of Native
Hawaiian culture, traditions, and values will allow non-Hawaiians
who apply to demonstrate that—regardless of the circumstance
of non-Hawaiian birth—they, too, know and understand Native
Hawaiian culture, traditions, and values. If a non-Hawaiian applicant
can demonstrate, in competition with Hawaiian applicants for
admission, that he or she ranks higher than others in such matters,
then he or she should be accepted, along with Hawaiian applicants
who can do the same.
All of us who have had children at Kamehameha—even non-Hawaiians
whose children’s Hawaiian ancestry comes from our spouses—are
aware of capable non-Hawaiian students of good will who can demonstrate
knowledge, understanding, and valuing of Native Hawaiian culture
and traditions. Indeed, two of the best speakers of the Native
Hawaiian language today are men who happens to be haole (white)
with the last name of Nogelmeier and a Japanese-American woman
who was “hanaied” (adopted) into a Hawaiian family.
In the past, with the Hawaiians-only preference, if either of
those individuals had applied to Kamehameha as youths, their
applications would have been rejected immediately because they
would not have been able to provide proof of two past generations
of Hawaiian ancestry.
Assuming, just for the sake of discussion, that the 2-to-1 decision
of the Ninth Circuit is not reversed, then it might be taken
as an opportunity. Kamehameha Schools should—like the Hokulea—sail
forth into a brave new world of admissions standards that ask
all applicants, regardless of ethnicity, to demonstrate their
knowledge, understanding, and valuing of various aspects of Native
Hawaiian culture so that, through their education at Kamehameha,
that culture will be perpetuated—and will flourish—in
this 21st century! Imua, Kamehameha!