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The Honolulu Advertiser
Posted on: Wednesday, August 10, 2005

Hawaiians must now become creative

By David Shapiro

Members of the Hawaiian community rallied Saturday against the Kamehameha Schools ruling.

Rebecca Breyer | The Honolulu Advertiser

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Of all the words spoken at emotional rallies over the weekend to support Hawaiians-only admissions at Kamehameha Schools, perhaps the most important were stated by schools trustee Douglas Ing: "Plan B."

Hawaiians were rightly aggrieved by the ruling of the 9th U.S. Circuit Court of Appeals that Kamehameha's century-old admissions policy constitutes racial discrimination.

As Gov. Linda Lingle said, this decision lacked common-sense justice whatever the legalities, and Kamehameha trustees should pursue every possible legal appeal.

But prudence requires that they also take to heart Ing's warning to "consider the unthinkable that somehow this further appeal may not be successful."

Because the fact is, the "unthinkable" already has occurred; rulings at this level seldom are overturned, and there's no guarantee that the 9th Circuit or the U.S. Supreme Court will even agree to hear an appeal.

Passage of the Akaka bill in Congress could possibly change the legal battlefield in Kamehameha's favor by clarifying indigenous Hawaiian rights, but the measure's chances in a hostile Republican Congress are uncertain.

Thus the pressing need for a Plan B, which hopefully Kamehameha trustees have been thinking about all along.

Trustees clearly knew that Hawaiians-only admissions were on shaky legal ground in 2002 when they admitted a non-Hawaiian student to Kamehameha's Maui campus as an obvious trial balloon.

It set off furious protests among Hawaiians and demands for the ouster of the trustees.

Instead of acting as leaders and insisting that the painful issue needed to be addressed, trustees quickly backed down and reiterated the Hawaiians-only policy more strongly than ever. This was specifically cited in the adverse ruling of the appeals court.

It's easy to sympathize with Hawaiian resistance to any change in the longstanding admittance policy, since enrollment of even a single non-Hawaiian student means a deserving Hawaiian child is denied a Kamehameha education.

But as a practical matter, this position may no longer be legally defensible.

It leaves Hawaiians to decide if they'll devise their own solution that protects Kamehameha's historic mission while passing legal muster — or have a solution imposed on them by unsympathetic outsiders.

They are up against adversaries who don't play nice in their mean-spirited drive to separate Hawaiians from their few remaining assets.

These antagonists twist civil rights laws, skew history, distort polls, hire Mainland guns to speak for them on issues that are uniquely local, and drum up legal cases that can yield fees of up to six figures for lawyers leading the movement.

Their dubious mantra of "aloha for all" tells all we need to know about how little they understand Hawai'i and the concept that aloha is something to be given, not taken.

Against such opposition, a Hawaiian strategy of marches, petitions and vague threats of "drastic action" is unlikely to prevail.

Hawaiians must become as creative as the other side in using the law to their advantage.

Importantly, the federal appeals court did not order that all races be admitted equally to Kamehameha Schools, just that race not be the overriding consideration in admissions.

This leaves the door wide open for a Plan B basing admissions on culture and other non-racial factors that satisfy the courts while still allowing for very few admissions of non-Hawaiian students.

In devising a fallback plan, Kamehameha trustees must abandon their compulsive secrecy and involve the Hawaiian community in the process.

Hopefully, Kamehameha Schools will win on appeal and there will be no need for a Plan B, but if there is, better it be settled in advance with some semblance of buy-in among Hawaiians rather than fought out at a crisis point with tears and rancor.