Wednesday, November 17, 2010

A Little Controversy To Start The Day

The other day, I wrote about Kill Haole Day and a somewhat recent federal appellate case.  Here is a little more information on that case and a few additional thoughts.  Last week, in Doe v Kamehameha Schools, the Ninth Circuit Court of Appeals held that white students could not bring a lawsuit anonymously against an alleged discriminatory private school system.  Though racial hatred and racially motivated assaults on white students are well documented, the court found that fear of reprisal was "unreasonable" and the students had to disclose their identities.

I thought this deserved an update because according to some, this is just the latest case in a longstanding debate about whether the Bishop's Trust (set up by Princess Bernice Pauahi Bishop, the last descendant of the Hawaiian monarchy) can continue to exclude all non-Native Hawaiians from the Kamehameha Schools (Evans v. Newton, anyone??).  The long and short of it is that the Kamehameha Schools are for students of Native Hawaiian descent (read their mission statement here).  The Ninth Circuit says that these schools were established because by the time the U.S. had brought sophisticated technology, education, and resources annexed Hawaii, "U.S. and foreign settlement had brought economic distress, mortality and disease; the Native Hawaiian population had dwindled to 22,600 in 1919, from a population 10 to 50 times larger a century and a half earlier." Doe v. Kamehameha Sch./Bernice Pauahi Bishop Estate, 470 F.3d 827, 831 (9th Cir. 2006) (en banc).  Today, the prestigious Kamehameha school system has a private educational endowment worth $9.1 billion.

Despite the vast changes that have occurred over the last 100 years, students of other races are still virtually excluded.  But isn't this a private school system with a private endowment? Can't they do whatever they want?  No.  In Runyon v McCrary, the U.S. Supreme Court held that commercially operated private schools could not discriminate in enrollment on the basis of race.  Despite that ruling, in 2003, the Ninth Circuit rejected a constitutional challenge to the discriminatory enrollment policy of the Kamehameha Schools.  The case settled before it could be heard by the Supreme Court.

So why do I bring all this up?  Well, because it's news that is going on around Hawaii, for one.  Also, the Supreme Court may take the case (though, it's doubtful).  But also, it relates to the first case I was involved in when I started working here.  Specifically, the Hawaiian Homeland Act.  Although the history is far too detailed and complicated to discuss in any length, Hawaiian Homelands were lands dedicated to Native Hawaiians by legislation known as the Hawaiian Homes Commission Act of 1921.  The Act sets aside certain land that is only available to people with Native Hawaiian ancestry.  You do not have to be 100% Native Hawaiian, just have Native Hawaiian blood somewhere in your line. Among other things, the purpose of the Act is to "to enable Native Hawaiians to return to their lands in order to fully support self-sufficiency for native Hawaiians and the self-determination of native Hawaiians in the administration of this Act, and the preservation of the values, traditions, and culture of native Hawaiians."

In conjunction with that, there is also the pending Akaka Bill (named for Sen. Akaka of Hawaii).  The Akaka Bill proposes to establish a process for indigenous Native Hawaiians to gain federal recognition similar to an Indian tribe.  If the Akaka Bill passes, then I'm pretty sure the Kamehameha Schools would definitely not have to admit non-Native Hawaiians because it would essentially be a sovereign nation's school.  Supporters of the Bill actually hope this is the case.  So while currently I am sure the Kamehameha Schools' policy is impermissibly discriminatory, I can see a valid legal argument being made that if the Bill passes, the Schools might not be subject to the same rules and regulations that govern a typical private school.  For what it's worth, though, it looks like the Bill is as good as dead.  Although the Bill had a lot of support among the Democrat-controlled House and Senate, the Republicans spanked them in the mid-terms re-gained control of the House, which seriously hurts the Bill's chances.  And just for my Republican-hating readers, the U.S. Commission on Civil Rights opposes the Akaka Bill because it "discriminates on the basis of race or national origin."


  1. Brian.McLaughlin@justice.gc.caNovember 25, 2010 at 5:11 AM

    Very interesting article. I practice Aboriginal law with the Canadian Department of Justice, and follow Native Hawaiian legal issues as an exercise in comparative law. I do a monthly newsletter for my colleagues here about those issues. I will follow your blog with interest. If I may, I will quote you from time to time, with footnotes of course.

    This month's newsletter will be about the dissenting reasons in the latest Doe v. Kamehameha battle. By Canadian standards, the language in those dissents is pretty close to the edge. What I do not have a feel for, at this distance, and as someone who only gets to Hawaii once every year or so for a few weeks, is how seriously to take things like "Kill Haole Day." Obviously, they would not let tourists in Waikiki know about such things, but I am skeptical....

  2. It turns out that Kill Haole Day may be more of a myth. At the very least, it seems it is a relic of the past. In response to the court case and subsequent articles covering it, most of the stories involved incidents from the 50s and 60s.

    In fact, in terms of actual, first-person, eyewitness accounts of Kill Haole Day, no one mentioned any that happened in the last three decades. Not one teacher, not one police officer, not one victim or perpetrator. To be clear (though people will read their own issues into any discussion of this subject), it would be absurd to suggest there are no problems of racism or bullying or hate crimes in Hawaii schools. If those things exist in the larger society, they will of course exist in a school setting.

    But to state that Kill Haole Day is some sort of long-standing tradition in Hawaii schools that continues unchecked year after year up through contemporary times doesn't have much merit.