More Thoughts on the 9th Circuit Court's Ruling Against the Kamehameha Schools
In response to yesterday's post concerning the Kamehameha Schools legal troubles, a close friend replied with a comment pertaining to the need for consistency in the equal application of law....no exceptions, even if we feel we would like to make one!
It is a good point and one that I will not argue against.
But I did put my response into words and emailed it back to Mark. Just in case you might wonder what I wrote, I am posting it here for you to read, too!
Mark, Thanks for the comment on my blog posting. I don't get very many comments so, when I do, I read them carefully and treat them respectfully.
Your comments really do not differ very much from my own. The law may be an "ass" (as Charles Dicken's once wrote) but it is only functional if it is applied equitably in every case.
I do not necessarily want Kamehameha Schools to be an exception to the law, but I would like to find some "loophole" that would allow it to continue in some way, shape or form to provide a place of pride and advancement for the native Hawaiian people who, through no fault of their own, been alienated from their own land and culture.
Country Clubs can be "Men only."
Churches can require (nearly) all employees to be "Christian."
"Head Start" schools can restrict enrollment to families with low incomes.
Alumni Associations can require all members to be graduates of one particular school.
But, because of the Supreme Court's interpretation of the 14th Amendment, institutions and incorporated associations, whether public or private, are not, by law, allowed to use "race" as a criteria for membership or admission.
Although the there is a substantial weight of legal precedent to support the ruling against Kamehameha Schools, there are many other legal and constitutional issues that could lead the whole 9th Circuit Court or the Supreme Court to rule differently in this case.
After all, while two judges voted for the ruling, one judge dissented from that ruling. The arguments of that one dissenting judge might just prove to be more persuasive to the court as a whole. We shall see.
One issue that falls in Kamehameha's favor is the Constitutional right to "free association." There are others, too, of course, but I won't comment on them here.
Other solutions to the dilemma have been suggested, including private scholarship aid restricted to native Hawaiians (this is legal) while withholding such tuition benefits from non-native Hawaiian applicants. There may also be other ways of rewriting the admission policy that would satisfy the courts and permit the Kamehameha Schools to continue to maintain its unique contribution to the culture, heritage and education of the native Hawaiian people.
In any case, if there is any racism in this matter it would appear to be coming from those who have brought the lawsuit against the Kamehameha Schools.
For non-native Hawaiians there are plenty of outstanding private prep schools that cater to virtually any imaginable specific educational needs they may have. The same is not the case for native-Hawaiians. For them, every other school will treat them both equally and identically with everyone else. But, although "created equal," they are not the same and do not want to be the same as everyone else; especially in the very place where they are historically unique and where their uniqueness is both admired and celebrated (as well as marketed for the tourist trade!).
In the end, it will appear to many that the native Hawaiian people are once again being put under the White Man's thumb. It is not Hawaiian law that is telling the native Hawaiian people what they can and cannot do, but Federal law, imposed on the state by judicial fiat.
Just a thought, since groups like the Mayflower Society can limit membership and benefits to those who can prove that they are direct descendents of the 26 Pilgrims on the Mayflower, perhaps Kamehameha Schools could limit "membership" and educational benefits to those who can show direct lineage to those who were living in the Islands prior to the arrival of Captain Cook in 1778?
Or what about the native American school model? There doesn't seem to be any violation of Federal Law in public funding and chartering of public schools that cater to the particular needs of tribal communities (such as Rock Point Community School--as one example of dozens if not hundreds of similar schools).
I'll stop my rambling. I'm just thinking out loud at this point. Deep down I still feel a tangible sense of injustice and unfairness in all of this. Law has its limitations and this, I believe, is a good example of that truth. The other good example is found in our Christian faith, where the Law, while good, only served to condemn us rather than save us. It took a Divine act of love, sacrifice and grace to accomplish for us what the Law, by itself, could never have achieved
Maybe we shall yet see some manifestation of "grace" as this case meanders upward through our Federal Courts. Like the Apostle Thomas, I'll believe it when I see it.
Aloha, Jim
It is a good point and one that I will not argue against.
But I did put my response into words and emailed it back to Mark. Just in case you might wonder what I wrote, I am posting it here for you to read, too!
Mark, Thanks for the comment on my blog posting. I don't get very many comments so, when I do, I read them carefully and treat them respectfully.
Your comments really do not differ very much from my own. The law may be an "ass" (as Charles Dicken's once wrote) but it is only functional if it is applied equitably in every case.
I do not necessarily want Kamehameha Schools to be an exception to the law, but I would like to find some "loophole" that would allow it to continue in some way, shape or form to provide a place of pride and advancement for the native Hawaiian people who, through no fault of their own, been alienated from their own land and culture.
Country Clubs can be "Men only."
Churches can require (nearly) all employees to be "Christian."
"Head Start" schools can restrict enrollment to families with low incomes.
Alumni Associations can require all members to be graduates of one particular school.
But, because of the Supreme Court's interpretation of the 14th Amendment, institutions and incorporated associations, whether public or private, are not, by law, allowed to use "race" as a criteria for membership or admission.
Although the there is a substantial weight of legal precedent to support the ruling against Kamehameha Schools, there are many other legal and constitutional issues that could lead the whole 9th Circuit Court or the Supreme Court to rule differently in this case.
After all, while two judges voted for the ruling, one judge dissented from that ruling. The arguments of that one dissenting judge might just prove to be more persuasive to the court as a whole. We shall see.
One issue that falls in Kamehameha's favor is the Constitutional right to "free association." There are others, too, of course, but I won't comment on them here.
Other solutions to the dilemma have been suggested, including private scholarship aid restricted to native Hawaiians (this is legal) while withholding such tuition benefits from non-native Hawaiian applicants. There may also be other ways of rewriting the admission policy that would satisfy the courts and permit the Kamehameha Schools to continue to maintain its unique contribution to the culture, heritage and education of the native Hawaiian people.
In any case, if there is any racism in this matter it would appear to be coming from those who have brought the lawsuit against the Kamehameha Schools.
For non-native Hawaiians there are plenty of outstanding private prep schools that cater to virtually any imaginable specific educational needs they may have. The same is not the case for native-Hawaiians. For them, every other school will treat them both equally and identically with everyone else. But, although "created equal," they are not the same and do not want to be the same as everyone else; especially in the very place where they are historically unique and where their uniqueness is both admired and celebrated (as well as marketed for the tourist trade!).
In the end, it will appear to many that the native Hawaiian people are once again being put under the White Man's thumb. It is not Hawaiian law that is telling the native Hawaiian people what they can and cannot do, but Federal law, imposed on the state by judicial fiat.
Just a thought, since groups like the Mayflower Society can limit membership and benefits to those who can prove that they are direct descendents of the 26 Pilgrims on the Mayflower, perhaps Kamehameha Schools could limit "membership" and educational benefits to those who can show direct lineage to those who were living in the Islands prior to the arrival of Captain Cook in 1778?
Or what about the native American school model? There doesn't seem to be any violation of Federal Law in public funding and chartering of public schools that cater to the particular needs of tribal communities (such as Rock Point Community School--as one example of dozens if not hundreds of similar schools).
I'll stop my rambling. I'm just thinking out loud at this point. Deep down I still feel a tangible sense of injustice and unfairness in all of this. Law has its limitations and this, I believe, is a good example of that truth. The other good example is found in our Christian faith, where the Law, while good, only served to condemn us rather than save us. It took a Divine act of love, sacrifice and grace to accomplish for us what the Law, by itself, could never have achieved
Maybe we shall yet see some manifestation of "grace" as this case meanders upward through our Federal Courts. Like the Apostle Thomas, I'll believe it when I see it.
Aloha, Jim
posted by Bird of Paradise at 9:57 PM
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