John Doe versus the Hawaiians

The Supreme Court is in the midst of considering whether to take a case that involves a princess, an old conspiracy, and a lot of high emotion. It’s called Doe v. Kamehameha.

Here are the broad strokes. The Kamehameha Schools is a non-profit organization that also, happens to be the largest private landowner in the state of Hawaii. The organization runs three K-12 schools, and 31 preschools that, together, educate nearly 7000 of the 70,000 native Hawaiian school children, making it largest independent school system in America. The schools were established in 1887 according to the will of Princess Bernice Pauahi Bishop, to make sure that indigenous Hawaiians got a good education yet didn’t lose their native culture.

Okay, so far not a problem. But although the princess didn’t specifically say to exclude all non-native Hawaiians, that’s pretty much what the schools have done for nearly 120 years. The legal question at issue is whether the Kamehameha schools can continue to take only native Hawaiians and, not, say….white kids. Or any other ethnicity of kid, for that matter.

There are, however, a few other slightly more complicated issues at stake here. But we’ll get to all that in a minute.

A group using an unnamed non-native boy as a plaintiff (John Doe) hopes that the Supreme Court will say that Kamehameha has to let non-Hawaiians in. The plaintiff’s lawyers cite Brown v. the Board of Education and liken Kamehameha’s policies to Gov. George Wallace barring the school door in the Jim Crow South. Anti-affirmative action types are predictably siding with the plaintiffs.

The Kamehameha Schools call the plaintiff’s statements specious and insulting claptrap (or words to that effect)—and siding with them there are such local heavy hitters as Hawaii’s governor and the state’s attorney general, who calls the case of “exceptional importance” and has written an amicus brief supporting the schools.

Pretty much all the indigenous Hawaiians are rooting hard for a Kamehameha victory too, and they came to demonstrate by the thousands when one earlier court decision went against the schools. For them, the case is about far more than school admissions.

The Kamehameha folks contend that non-Hawaiians have plenty of places to get educated, while indigenous kids are traditionally educationally disadvantaged. ((Figures bear this latter statement out.).) And, as a consequence, the schools should not fall into the separate-but-equal prohibition established by Brown v. the Board, because, in essence, they are providing remedial education.

But that’s not the main part of the schools’ defense.

When the Princess established the schools in 1887 out of a desire educate her people, Hawaii was still a monarchy, recognized as a “sovereign kingdom” by the U.S.. Hawaii’s last queen, Liliuokalani, wasn’t overthrown until six years later, in 1893, in a conspiracy aided by representatives of the U.S. government. Hawaii was annexed for the U.S., in 1898, and all Hawaiian public lands were confiscated. (Congress officially apologized for the deception in 1993.)

Thus, at one level the Kamehameha Schools case is about the education of Hawaiian children—native and non-native—and legal arguments surrounding that issue. Yet, to native Hawaiians it is also about how Hawaii’s history should be told, and about the legitimacy of Hawaiian justice claims in general.

Or as the trustees, explain it, the case is about

“….a Princess in her sovereign homeland, [who] bequeathed her private wealth to provide an educational remedy for the ongoing socioeconomic disadvantages suffered by her native people.”

What the Kamehameha Schools are eventually hoping for—and what a growing number of native Hawaiians want—is legal status akin to that of an Indian tribe. Then the issue becomes not one about race, but about nationality.

Four years ago, the Federal District Court bought the argument, at least in relation to the schools issue, and found in Kamehameha’s favor, and so did the 9th Circuit Court of Appeals. (The 9th Circuit at first ruled against them, then reconsidered, and ruled for the schools in a larger en banc session.)

If the Supremes don’t take the case, then that’s the ball game. Kamehameha folks have won as the 9th Circuit decision stands. If SCOTUS does agree to hear it, this will be a hot one to watch.

The Honolulu Advertiser has the local take on the story.

Plus you might want to check this old Washington Post article written in 2003, when the lawsuit was originally filed, as it has some interesting background.

FRIVOLOUS UPDATE: Not that I would ever dream of trying to unduly influence any SCOTUS votes but, as the Supremes consider whether they’re going to take the the case, I’d like to humbly suggest that they put on this CD as background music. (Most of you have heard the one “Over the Rainbow” cut, but the rest of IZ’s work is pretty sublime too. Voice of an angel.)