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by Mel Masuda, J.D., M.P.A.

Editor’s note: The following is a public letter written by HPU Associate Professor of law Mel Masuda, an attorney and a non-Hawaiian, to his daughter, Kaiewa, a Hawaiian and a class of 2001 Kamehameha graduate, after the recent federal appeals court decision finding the Hawaiians-first admissions policy at Kamehameha Schools in violation of a federal civil rights law.

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 banc” hearing.

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 Hawai‘i.”
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!



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