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Students for Fair Admissions (SFFA), an organization founded to eliminate “affirmative action” in higher education, has turned its sights on the private, trust-funded K-12 institution, Kamehameha Schools (KS). On Monday, it filed a federal lawsuit against the trustees of the Bernice Pauahi Bishop estate, seeking to end KS’ policy, which is “to give preference to applicants of Hawaiian ancestry to the extent permitted by law.” The suit amounts to an attack on KS’ very existence, ignoring Kamehameha Schools’ history, which predates Hawaii statehood. Kamehameha Schools and Bishop Estate, the trust formed to support it, were formed under a very different set of circumstances than affirmative action, which arose from the U.S. civil rights movement and the nation’s history of slavery. However, KS is now being targeted based on SFFA’s simplistic goal of ending all “race-conscious” admissions in education. KS does not legally or traditionally base its operations on race as an exclusionary tactic, and it asks for and receives no federal funding. Despite that, the institution’s efforts to maintain its historic character may now face a hostile reception by federal courts — and this is a challenge that must be overcome. In fact, KS does not practice “affirmative action.” The school serves those of Native Hawaiian ancestry because they are a specific political class — descendants of those who lived on and held sovereignty over these islands long before the arrival of Americans. Those who oppose KS’ mission to serve Hawaiian students push “color blind” actions that also turn a blind eye to Hawaii’s history and Hawaiians’ unique legal and political status. The case raises a sense of deja vu for longtime Hawaii residents. In 2003, Doe v. Kamehameha Schools challenged KS’ preference for Native Hawaiian applicants, charging the school practiced racial discrimination in violation of federal law. A full-panel decision by the 9th U.S. Circuit Court of Appeals upheld the policy — but that decision appears legally vulnerable today: The majority opinion declared that the school’s admissions preference was justified as a “remedy” to historical disadvantages faced by Native Hawaiians. Last week, in response to SFFA’s Hawaii challenge, KS board of trustees Chair Crystal Rose, a lawyer for KS/Bishop Estate on the Doe litigation, said, “The law and the facts are on our side.” However, there’s little certainty in “the law,” in this era. Courts have swung to the right, with the U.S. Supreme Court in the vanguard. In a 2023 case pressed by SFFA, the Supreme Court ruled that race-conscious college admissions at Harvard and the University of North Carolina were unlawful — quoting the historic decision banning segregation in Brown v. Board of Education in stating, “The time for making distinctions based on race” in education has “passed.” That successful challenge of college admission policies has been described as “the end of affirmative action,” and the high court seems poised to overturn any policies defended as a “remedy” to racial injustice, as the 9th Circuit did in the Doe case. Last week, the Chronicle of Higher Education published an analysis, “Why Colleges Can No Longer Trust the Courts,” noting that “the Supreme Court has repeatedly shown a willingness to reject or fundamentally reframe precedent,” supported by an executive branch taking “an aggressive and adversarial stance.” Reliance on 20th-century legal precedent can now be a liability for institutions, and KS must take note. While past defenses citing racial injustice, which certainly exists, have been powerful, this seems to hold no sway with the current Supreme Court. Today, KS’ argument must be that Native Hawaiians are part of a political class, due to Hawaiians’ historic sovereign status: They belong to a nation usurped without the consent of the Hawaiian people. Kamehameha Schools was founded in 1887, six full years before the overthrow of the Hawaiian kingdom. As she observed the shifting trends in land ownership and power within the islands, Princess Bernice Pauahi Bishop, a descendent of the Kamehameha royal line, founded the trust to ensure that Native Hawaiian children would have access to a quality education. Eleven years after the trust and school were founded, the then-Republic of Hawaii was annexed as an American territory. However, the trust’s legacy wealth and land holdings were not seized, and the autonomy of Kamehameha Schools/Bishop Estate was preserved. This vestige and manifestation of sovereignty is the legal basis for KS’ continued legacy operations. Contrary to SFFA’s claim that KS’ preference for students of Hawaiian ancestry is “discriminatory” and “unlawful,” the institution serves Hawaiian students not because of their race, but as descendants of those who were citizens of a pre-overthrow, pre-annexation nation. To ignore this and characterize the aims of the school as exclusionary is a misrepresentation. As Office of Hawaiian Affairs trustee and Kamehameha Schools graduate Brickwood Galuteria states, “This is not ‘affirmative action.’ It is an act of indigenous equity — rooted in Hawaii’s unique constitutional and legal recognition of Native Hawaiians as the indigenous people of this land.”
