Yamamoto,Susan Kiyomi Serrano and Eva Paterson
On Thursday , the 9th U.S. Circuit Court of Appeals will hear arguments
in one of the most important Native Hawaiian rights cases ever.
In Doe v. Kamehameha Schools, the court, sitting in Hawai'i, will be
asked to decide whether this private school dedicated to the education
of indigenous Hawaiians "discriminates" against non-Hawaiians
in violation of federal civil-rights law.
As non-Hawaiian people of color (Asian-American, Latina and
African-American), we write to say definitively that the Kamehameha
Schools admissions policy favoring Hawaiian children does not transgress
our civil rights. As civil-rights lawyers and scholars, we have seen the
harsh reality of racism for people of color and have fought hard for
equal justice under law. African-Americans suffered slavery, segregation
and present-day discrimination in jobs and housing. Asian-Americans and
Latinos faced racialized immigration exclusion, alien land and
anti-miscegenation laws, the internment and current treatment as
perpetual foreigners. We know the pain of civil-rights violations. And
we can say strongly that the Kamehameha Schools case is not about civil
It certainly is not about a program, as outlandishly described by Doe's
attorney, that is comparable to Jim Crow segregation in the South.
Rather, the case is about a misguided effort to tear apart a successful
educational program by Hawaiians for Hawaiians that aims to repair the
continuing harms of American colonialism — or, in the words of U.S.
District Judge Alan Kay, "the influx of Western civilization."
The Kamehameha Schools were created in 1883, 15 years before the United
States annexed Hawai'i, by the private trust of Princess Bernice Pauahi
Bishop, the last direct descendant of Hawai'i's first king. The princess
created the trust to uplift Hawaiian children through education because
the forces of Western encroachment had nearly decimated the Hawaiian
people and foreshadowed the American takeover of the Hawaiian
government. The princess sought not to exclude others by labeling them
inferior or unworthy (a classic civil-rights violation) but rather to
rebuild her own people (an act of restoration and self-determination).
As the U.S. District Court in Hawai'i recognized, the Kamehameha Schools
admissions policy is about justice for Hawai'i's first people — a
private effort (now also supported by government efforts) to redress the
continuing economic and cultural harms to Hawaiians. It is not about
violating civil rights by treating one group as superior. It is about
combined private and public efforts to restore to Native Hawaiians that
which American colonialism in the late 19th century nearly destroyed:
Hawaiian education, culture and a measure of self-governance. The
school's admission policy is about restorative justice and does not
violate our, or anyone else's, civil rights.
At the ground level, the Kamehameha Schools case is about the education
of Hawaiian children and Hawaiian self-governance. In the big picture,
it is also about how Hawai'i's history should be told, and therefore,
the legitimacy of Hawaiian justice claims.
Four years ago, the U.S. Supreme Court, in Rice v. Cayetano, banned the
state Office of Hawaiian Affairs' Hawaiians-only voting limitation. In
doing so, it badly mischaracterized Hawai'i's history and thereby
undermined Hawaiian justice claims. The same pattern could be replicated
in the Kamehameha Schools case unless the schools' advocates convince
the appeals court to tell the real story of Hawaiian justice claims.
To do this would mean correcting the historical distortions in Rice.
Nowhere in its Rice opinion did the court mention U.S. colonialism in
1898 in Hawai'i, the Philippines and Puerto Rico. Nor did it acknowledge
the destruction of Hawaiian culture through the banning of the Hawaiian
language or the present effects of homelands dispossession, including
poverty, poor levels of education and health, and high levels of
homelessness and incarceration. Nor did the main opinion recognize that
colonial powers often used race to legitimate conquest, denigrating in
racial terms those colonized.
The court's selective historical account also ignored the crucial
differences between indigenous people who were involuntarily made
American through colonization and those who chose U.S. citizenship
through immigration. Instead, it said that Hawaiians had a rough go of
it, as did immigrant groups, but the playing field now is pretty much
leveled — all racial groups are treated equally. Westernization left
no permanent scars; therefore, "privileges" for Hawaiians are
not only undemocratic, they are illegal. What emerged from the court's
selective historical framing is a simple story of racial discrimination
against non-Hawaiians, a story that wrote out of existence the heart of
present-day Hawaiian claims to justice.
This, however, is not the history our Hawaiian friends and neighbors
tell. Hawaiians are not seeking privileges or handouts. Nor are they
seeking "racial preferences" or "racial segregation in
education," as Doe's attorneys argued. Rather, Hawaiians are
asserting human rights — not simply the right to be equal but to
self-determination; not a right to entitlements but to reparations; not
a right to special treatment but to reconnect spiritually with land and
culture; not a right to equality but a form of self-education and
The threshold battle in the appeals court argument Thursday, then, will
be over Hawai'i's history and the legitimacy of Hawaiian justice claims.
Winning that battle will make clear that Princess Pauahi's Kamehameha
Schools violate no one's civil rights. Indeed, it will show that the
schools are part of private and public efforts aimed at restorative
justice, to repair the harm to Hawai'i's first people for the benefit of
Eric K. Yamamoto is a professor at the University of Hawai'i's
William S. Richardson School of Law. Susan Kiyomi Serrano is research
director and attorney at the Equal Justice Society in San Francisco, and
a graduate of the UH law school. Eva Paterson is the president of the
Equal Justice Society. They wrote this article for The Advertiser.