Affirmative action ruling could test admission policies at Hawaii schools

The U.S. Supreme Court’s ruling last week striking down affirmative action in college admissions and favoring a “colorblind Constitution” has some educators and legal experts debating whether there may be ripple effects for Kamehameha Schools, the University of Hawaii and other entities and programs that are focused on Hawaiian people and culture.

The court said Thursday that race cannot be a factor in college admissions. Conservative Justice Clarence Thomas in his concurring opinion wrote in support of a colorblind Constitution in which all forms of discrimination based on race — including affirmative action — are prohibited.

“The law must apply equally to everyone, even when it is aimed at redressing historical racial discrimination,” Thomas said.

The court decision was a landmark for conservatives who have long sought a ruling that race-conscious college admissions procedures violate the Constitution, as well as a law that applies to recipients of federal funding, as nearly all colleges and universities are.

Hawaii leaders have railed against the decision. In the islands and elsewhere, “I can see litigation coming,” said Scott Greenwood, a constitutional lawyer who is executive director of American Civil Liberties Union Hawaii.

While the court’s decision did not address K-12 education, “that doesn’t mean that it won’t spur further challenges along those lines,” Greenwood said. “I think it is quite foreseeable that programming that is specifically created for people of Indigenous backgrounds, such as Kamehameha Schools … that those could be attacked with similar arguments.”

The admissions policy at the private Kamehameha Schools is to “give preference to applicants of Hawaiian ancestry to the extent permitted by law,” following the will of Bernice Pauahi Bishop, who died in 1884. Kamehameha has campuses on Oahu, Maui and Hawaii Island, and supports a wide network of preschools and programs statewide.

Greenwood said he thinks challengers would have an uphill battle today questioning the will that established the school, plus the will’s probate and decades of precedent. Kamehameha’s admission policy has withstood several lawsuits.

In an e-mailed statement to the Honolulu Star-Advertiser, Kamehameha Schools called the Supreme Court decision “extremely disappointing. While our histories are different and our experiences are unique, Native Hawaiians are among the many marginalized communities impacted by this decision.”

“This ruling does not change the way Kamehameha Schools operates,” the statement continued. “We remain committed and steadfast to fulfilling the vision of our founder, Ke Ali‘i Bernice Pauahi Bishop, to empower Native Hawaiians through education. We will continue reviewing the decision and will always comply with governing law.”

Greenwood is uncertain whether such initiatives as Hawaiian language immersion programs in Hawaii’s public schools or UH’s mission to be an “Indigenous serving institution” also might be challenged.

“I think it’s unknown. But I believe that what (the court’s) decision will do is it will embolden people who want to turn the clock back, people who assert that being colorblind or race blind is superior in society at all levels,” he said.

Hawaii’s major universities, including UH, Hawaii Pacific University and Chaminade University, do not have race-based admissions practices because they already enjoy wide diversity thanks largely to Hawaii’s ethnically mixed population.

“But the universities still have diversity policies,” Greenwood said. “What the ruling will definitely do is cause every single institution of higher learning (nationwide) to take a hard look at their existing policies to determine whether they’re compliant.”

David Lassner, president of the 10-campus UH system, said in a statement that UH remains committed “to provide higher education opportunities for all, especially those historically underrepresented in our student bodies, as well as to continue to diversify our faculty, staff and leadership.”

“UH takes great pride in the fact that our campuses are often ranked as the most diverse in the country, reflecting the population of Hawaii,” Lassner said. “Our seven UH community colleges have an ‘open door’ admissions policy, and our three universities currently admit all qualified undergraduate applicants to the campus. … We are now analyzing the Supreme Court ruling and will need to determine if any changes will be required to adhere to the ruling while maintaining our commitments to diversity and equity to meet the educational and workforce needs of Hawaii.”

The court ruling also may spark scrutiny of other college admissions policies nationwide that are based on criteria other than race, according to Greenwood. The ruling “focused a light on another type of admissions to higher education that creates an imbalance and creates a privilege, and those are admissions that are based upon legacy status, or even athletics,” he said.

U.S. Education Secretary Miguel Cardona in a statement Friday specifically mentioned Native Hawaiians and Pacific Islanders among the groups of students he hopes will not be discouraged by the court’s ruling.

The court decision “takes our country decades backward, sharply limiting a vital tool that colleges have used to create vibrant, diverse campus communities,” Cardona said.

Still, he said, “Our commitment to educational opportunity for all Americans is unshaken, and our efforts to promote diversity in higher education are undeterred. The Department of Education is a civil rights agency, committed to equal access and educational opportunity for all students.

“I want to send a message to all aspiring students, especially Black, Latino, Asian American, Native American, Alaska Native, Native Hawaiian, Pacific Islander, and other students from underserved communities: We see you and we need you,” Cardona’s statement continued in part. “Do not let this ruling deter you from pursuing your educational potential.”