March 5, 2010

Doe v. Kamehameha Schools: "Kill Haole Day" is not a reasonable concern

By Doe v. Kamehameha Schools: "Kill Haole Day" is not a reasonable concern

Author: Ralph W. Kasarda

For anyone unfamiliar with Native Hawaiian language, a "haole" is a term used to describe a foreigner, especially a white person. Over time, it has become a derogatory slang term to be used in contempt of white people. See here.

While some Native Hawaiians may use the term in contempt, others use the term in connection with racial animus.  For instance, a tradition in Hawaiian schools includes "Kill Haole Day." On Kill Haole Day, which is traditionally the last day of school before summer, some school children of Hawaiian ancestry harass and beat up white students. The tradition dates back to the 1950s, and still occurs. See here and here Even the Southern Poverty Law Center, which is known for tracking and exposing hate groups, has documented racially motivated attacks against white students and adults by native Hawaiians. 

Recently, in Doe v Kamehameha Schools, the Ninth Circuit Court of Appeals held that white students could not bring a lawsuit anonymously as "Doe" plaintiffs against an alleged discriminatory private school system, using fear of reprisal as justification. Though racial hatred and racially motivated assaults on white students are well documented, as noted above, the court found that any such fear was "unreasonable."

An unintended consequence of this decision may be to quell lawsuits brought by non-Native Hawaiian students seeking to enroll in the prestigious Kamehameha Schools, which is a generously funded private school system in Hawaii As the court noted, the Kamehameha school system has a private educational endowment worth $9.1 billion, which is more than most private universities. It is not surprising that the Kamehameha Schools, funded both by this huge endowment and student tuition, provide an excellent education.

But the Kamehameha Schools gives such preferences to students of Native Hawaiian descent, that students of other races are virtually excluded. That is despite the fact that in Runyon v McCrary, the Supreme Court held that commercially operated private schools could not discriminate in enrollment on the basis of race.  In 2003, by a 8-7 decision, the Ninth Circuit rejected a constitutional challenge to the discriminatory enrollment policy of the Kamehameha Schools. The case settled before it could be heard by the Supreme Court.

At least one blogger respectfully suggests that Non-Native Hawaiian students who identify themselves and continue to challenge the legality of the Kamehameha Schools will face real and certain harm.  The blogger also questions whether the court would have ruled the same way if the case involved minority students challenging a private school for whites only:     

Would the Ninth Circuit's ruling really be the same as it is here if we were talking about Little Rock in 1957? Would the Ninth Circuit really say that a district court could legitimately have found that the Little Rock Seven unreasonably feared for their safety? I think not. And, in this regard, the colors may have changed, as well as the reasons (and perhaps even the legitimacy of the opposition).

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