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The Honolulu Advertiser
Posted on: Tuesday, May 15, 2007

Kamehameha accord signals need for more work

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Kamehameha Schools started the week yesterday with extraordinarily good news, when the two sides in a raging court dispute over its admissions policy finally inked a settlement.

For the school, there is reason to celebrate. The end of Doe vs. Kamehameha means the end of a supremely divisive (not to mention colossally expensive) legal battle that has occupied its attention for four years. The mission of the school to improve the lot of Native Hawaiians is better served by bringing the dispute to a close, if it can do so without financially handicapping the charitable trust.

Regrettably, the accord is confidential — even the state's attorney general, who oversees Hawai'i's charitable trusts, said he doesn't know its terms.

But the fact that an agreement was reached at all is significant. It happened before the U.S. Supreme Court could decide on whether it would take the case on appeal. That means that technically the question of whether Kamehameha's Hawaiian-preference policy violates an old civil rights law is unsettled at the highest judicial level.

But in a practical sense, the settlement solidifies the U.S. 9th Circuit Court of Appeals ruling, which favored the pro-Hawaiian policy. That means the bar to a future challenge has been raised so high as to make such a challenge unlikely in the short term. Any future challenger would need to start at Square One, incurring expenses as they battle back up the judicial ladder. Alternatively, the next plaintiff could argue that the policy violates the Constitution, rather than federal law, but that case would be harder to press.

So the status quo at the school seems fairly well insulated for now. Regardless, the settlement should not signal that the school should rest on its laurels.

For starters, the school trustees need to continue their support for federal recognition of Native Hawaiians as a political class. The Akaka bill seeking federal recognition for Native Hawaiians is key to that.

Failing the passage of that bill in Congress, there may be other clarifications in federal law that should be sought.

For example, the majority opinion of the circuit's judges argued that Congress has implicitly exempted Native Hawaiians from being covered by the civil rights law cited in the case. The majority opinion pointed to an update of that law in 1991 and cited various subsequent programs benefiting the education of Native Hawaiians as evidence that Congress affirms them as consistent with federal law.

The dissenters find fault with that conclusion, and in fact it would be prudent for a congressional delegation to seek more specific language in federal law spelling out the exemption as part of the special status Hawaiians have enjoyed under the federal umbrella.

Additionally, the appellate judges cautioned Kamehameha that its affirmative-action role, to improve achievement levels among Native Hawaiians, is not open-ended. It's being allowed only as long as Native Hawaiians need the added support to counter socioeconomic disadvantages.

This suggests that the school needs to redouble its focus on correcting the imbalance, with more outreach into the communities where Hawaiians live.

The private school campus programs themselves are an important component, but Kamehameha should continue — even intensify — its work with the public schools, where enrichment programs can be available to all students. Helping the broad population will enhance Kamehameha's standing within the community, and should be seen as central to the mission.

The Kamehameha Schools comprise an institution that has, especially in recent years, supplemented the state's own service to a critical sector of the population. With a legal impasse surmounted, that work must continue and expand to more children.