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Vernellia R. Randall
Professor of Law
The University of Dayton






 Eric 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 rights.

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 governance.

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 us all.

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.
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