Kamehameha Admissions: Without Affirmative Action Defense, Who Needs Victimology?
“Hit ‘em where they ain’t.” – Willie Keeler
by Andrew Walden
A lot has happened since the Ninth Circuit 2006 8-7 opinion upholding Kamehameha Schools’ Hawaiians-only admissions policy—but nobody bothered to tell the lawyers representing Students for Fair Admissions (SFA).
Specifically, Hawaiians moved to Indian Country; thankfully, without forming a tribal government.
Fresh off its’ victory over Harvard University’s affirmative action program, Students for Fair Admissions filed suit against Kamehameha Schools October 20, 2025, demanding:
“a permanent injunction prohibiting Kamehameha from knowing or considering applicants’ race, including their native Hawaiian ancestry, when making admissions decisions.”
Ironically, Harvard’s affirmative action program discriminated most intensely against anybody lumped in with ‘Asian and Pacific American.’ But I digress.
SFA describes Kamehameha admissions policy as “race-based” and “affirmative action” and therefore a violation of USC1981. These phrases each pop up 28 times in SFA’s 55 page complaint. USC1981 is cited 63 times.
The US Department of Interior explains:
“Congress enacted … many statutes that … explicitly extend to the Native Hawaiians many of the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities . . . . All of these enactments reflect the special legal and political status of the Native Hawaiian Community.”
One of the laws cited by DOI is the Native Hawaiian Education Act, 20 U.S.C. § 7512(12)(8) which states:
"Congress does not extend services to Native Hawaiians because of their race, but because of their unique status as the indigenous people of a once sovereign nation as to whom the United States has established a trust relationship."
Therefore, as with any schools operated exclusively for tribe members by Indian tribes or Alaskan native corporations, KS does not practice “affirmative action.” The school serves those of Native Hawaiian ancestry because they are a specific political class.
SFA only touches on this argument indirectly, noting:
104. …(the Ninth Circuit’s 2006) conclusion states that the “the most plausible reading of §1981” is that the statute does not bar “a preference for Native Hawaiians, in Hawaii, by a Native Hawaiian organization, located on the Hawaiian monarchy’s ancestral lands.” Under this reading of the opinion, §1981 cannot apply to race-based admissions policy like Kamehameha’s, regardless of whether the school’s preference for native Hawaiians satisfies Doe I’s test for a valid affirmative-action plan.
105. If §1981 has a carveout for certain preferences “for Native Hawaiians,” id., then that carveout is unconstitutional. The carveout is a racial classification….
SFA’s lawyers do not acknowledge their argument would render much of US Indian policy unconstitutional. This is their blind spot.
In the landmark 1974 Morton v. Mancari ruling, the US Supreme Court upheld Bureau of Indian Affairs hiring preferences, based not on victimology, but on the political status of tribes:
2. The Indian preference does not constitute invidious racial discrimination in violation of the Due Process Clause of the Fifth Amendment but is reasonable and rationally designed to further Indian self-government.
(a) If Indian preference laws, which were derived from historical relationships and are explicitly designed to help only Indians, were deemed invidious racial discrimination, 25 U. S. C. in its entirety would be effectively erased and the Government's commitment to Indians would be jeopardized.
(b) The Indian preference does not constitute "racial discrimination" or even "racial" preference, but is rather an employment criterion designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups.
(c) As long as the special treatment of Indians can be tied rationally to the fulfillment of Congress' unique obligation toward Indians, such legislative judgments will not be disturbed.
The US DoI explains:
Since there is no currently recognized governing entity, the government-to-government relationship is carried out directly with the Native Hawaiian people, and various organizations they have formed.
Kamehameha Schools is a registered Native Hawaiian Organization.
Success and achievement need not be the enemy.
By eliminating affirmative action as a defense for Kamehameha’s admissions policy, SFA has done us all a favor. Not only is it easier for ‘APAs’ to get in to Harvard and other ‘elite’ schools, but, here at home, Kamehameha, protected by its’ federal trust relationship, neither needs to, nor can, justify its admissions policy with heapings of Hawaiian victimology.
Hawaii housing could even become affordable again.
How?
Without victimology, the ‘power of yes’ exceeds the ‘power of no’.
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