Kamehameha Schools

The Kamehameha School's in Hawaii were created from the will of Princess Bernice Pauahi Paki Bishop, a Hawaiian monarch. She left much of her estate for this purpose to be executed by trustees whom she selected. The school is well known in Hawaii and is widely considered to be of high academic standards, but its most famous attribute is its admissions policy of preference to native Hawaiians.

Currently, Kamehameha Schools (Kam) is the defendent in a case under a rare en banc review in the 9th U.S. Circuit Court of Appeals. The student, only identified as John Doe, brought the suit against Kam arguing that he was denied admission because of his race in violation of civil rights laws, specifically one that forbids racial discrimination in the making and enforcing of contracts.

John Doe applied twice for admission and was twice deemed a qualified applicant. However, he also failed, twice, to demonstrate that he was of Hawaiian ancestry. The facts in this case are not in dispute; both parties agree that he was denied admission because he is not of Hawaiian ancestry.

John Doe lost in the district court in Hawaii with a summary judgement decision. However, they soon appealed the the 9th district court and won. The 3 judge panel made the 2-1 decision in favor of the plaintiff, overturning the ruling.

In their opinion, they felt that Kam should not receive a relaxed level of scrutiny due to its special relationship with the goverment and is therefore subject to the same rules as other schools in the U.S.. (There are cases of Native American and Native Alaskan tribes being exempt from the restriction on giving preference to peoples of indigenous blood.) They also felt that the nature of Kam's preference for native Hawaiians in admissions effectively bars all non-native Hawaiians from admission. Furthermore, they interpreted the will of Bishop as devoid of any mention of race as a criterion for admission.

There is still hope for Kam. The recent en banc review nullifies the decision by the appellate court and will review the case under 15 judges (including the 3 previous judges).

The Will

Contrary to public belief, the will of Bishop does not require that Kam school's only admitt those who have native Hawaiian ancestry. The race of students comes into play in directing the trustees to:

"devote a portion of each years income to the support and education of orphans, and others in indigent circumstances, giving preference to Hawaiians of pure or part aboriginal blood"

The appellate court interpreted this as not intending to be a part of the admissions process. In the statement that directly calls for the creation of Kam, there is no mention of race. Furthermore, other criterion, such as the religion of the teachers, is much more specified (they must be Protestant).

On the other hand, the will is clear on the authority that Bishop passes on to her trustees in carrying out her will, giving them "full pwer to make all such rules and regulations...to regulate the admission of pupils." The preference to native Hawaiian admission policy was decided by the first trustees soon after her death and the founding of Kam. All of this was done before Hawaii was annexed into the U.S. in 1898.

There is much more that can be debated about whether Bishop's intentions on giving preference to native Hawaiians was meant for the admission policy of the shool or not. However, while it was not the deciding factor in the appellate court's decision, it is likely to make a reappearance in the en banc review.

Native Hawaiian Recognition

The more contigent issue in the lawsuit is the status of native Hawaiians with the U.S. government. While the immediate dispute to be resolved is over John Doe's denial of admission to Kam, the courts opinion also focuses on other issues, such as the status of native Hawaiians and the type of restitution received. This suggests that this case is not just about the making and defining the policies that govern race in admisions but about making and defining the policies that govern the status of native Hawaiians. Such a brave action by the court to address this issue helps to explain in part their willingness to grant the rare en banc review of the case.

At the same time, the Akaka bill is awaiting voting in congress. Also known as the Native Hawaiian Recognition Act, the Akaka Bill is said to provide native Hawaiians with a similar status afforded to native Americans and native Alaskans. Support for the Akaka Bill, however, is divided, even amongst native Hawaiians, some who feel that the bill does not go far enough in provisions.

Were the Akaka Bill passed, provided that it delivers on its promises, the ruling in Kam's case would be affected as the school would have more backing in an argument that it should recieve a relaxed scrutiny because of the unique political arrangement between native Hawaiians and the U.S.. However, while it is still hard to say what the affect of the Akaka Bill, if passed, will be on Kam's case, it is very likely to have some affect.

While many are divided on Hawaiian issues such as the Akaka Bill and the Office of Hawaiian Affairs, it remains difficult to find a Hawaiian resident who is not sympathetic to Kamehameha Schools. This helps to put into perspective the relatively short summary judgement that the school received in Hawaii compared to the school's ongoing battle in California (the place of the 9th U.S. Circuit Court of Appeals).

There is much at stake in this lawsuit and the potential affects on native Hawaiians are great. With so much at stake, it is important that those in Hawaii pay attention, not only to the outcomes of the case, but the reasoning behind the decisions of the judges.

Currently, there exists various programs that aim to give aid to native Hawaiians and to help undo the injustices suffered in the past. However, many native Hawaiians today live in poverty and other undersirable social situations which only leads one to question the effectiveness of such aid programs. While the role that Kam Schools plays in addressing these social inequalities is difficult to define, this lawsuit remains a defining moment in Hawaiian history.

Sex, Sumo, Suicide, and Statutes

It's an intriguing bi-line for a book about law in Japan. I just read the book review from the Japan Times and the author of the book, "Law in everyday Japan: Sex, Sumo, Suicide, and Statutes," Mark West, appears to prupose an interesting thesis regarding the dynamism of courts. Within these diverse areas of social life, West will argue that law shapes social norms rather than the other way around. This suggests that the law is dynamic in terms of culture, rather than constrained by it. In a way, it takes the dynamic court view even further. But then, I have yet to read the book to see how West attributes the culture changes to the law.