Part 3: The Next Battle: SFFA vs. Kamehameha (2025)
The Changed Legal Landscape
Between 2006 and 2025, the legal world around affirmative action shifted dramatically:
- 2014: Edward Blum founds Students for Fair Admissions (SFFA), an organization dedicated to eliminating race-conscious admissions policies
- 2023: SFFA defeats affirmative action at Harvard and UNC in a landmark Supreme Court decision (Students for Fair Admissions v. Harvard). The Court rules that race-conscious admissions at universities violate the Equal Protection Clause
- 2025: SFFA turns its attention to Kamehameha Schools
Who Is Students for Fair Admissions?
SFFA is a membership organization with over 19,000 members founded by Edward Blum, a conservative legal strategist who has spent decades challenging race-conscious policies. Before SFFA, Blum was behind several major Supreme Court cases, including Fisher v. University of Texas and Shelby County v. Holder (which limited the Voting Rights Act).
SFFA has been transparent about its mission: systematically eliminating race-conscious policies across American institutions. Their strategy is to identify policies they view as racially discriminatory, find affected plaintiffs, and bring carefully structured test cases designed to reach the Supreme Court and establish nationwide precedent.
After defeating affirmative action at major universities in 2023, Kamehameha Schools—with its explicit race-based admissions policy and multi-billion dollar endowment—became a logical next target in their broader campaign.
The October 2025 Lawsuit
On October 20, 2025, SFFA filed a new federal lawsuit against Kamehameha Schools in the U.S. District Court for the District of Hawaii. The case is Students for Fair Admissions v. Trustees of the Estate of Bernice Pauahi Bishop.
Unlike the 2003 lawsuit brought by a single pseudonymous student, SFFA brings this case as a membership organization on behalf of multiple families (referred to as "Family A" and "Family B") whose children want to attend Kamehameha but cannot because they lack Native Hawaiian ancestry.
The Three Legal Claims
The lawsuit makes three separate arguments under Section 1981:
Count I: Strict Scrutiny
SFFA argues that Kamehameha's race-based admissions policy violates Section 1981 and cannot survive "strict scrutiny." Their argument:
- The admissions process involves multiple contracts (application agreements, enrollment contracts, tuition payments)
- Kamehameha discriminates in these contracts based on race
- After the 2023 Harvard decision, courts should apply strict scrutiny—the highest level of constitutional review—not the looser Title VII employment framework
- Under strict scrutiny, racial classifications are almost never permitted
Count II: Not Valid Affirmative Action
Even if courts recognize an affirmative action exception under Section 1981, SFFA argues Kamehameha's policy doesn't qualify:
- The 2006 Ninth Circuit decision improperly loosened the traditional affirmative action standards
- The Supreme Court's 2023 Harvard decision undermines the "educational deference" the Ninth Circuit relied on
- Kamehameha hasn't published updated educational disparity data since 2021 (using 2018 information)
- The policy has no clear endpoint and appears essentially permanent
- The policy creates an absolute barrier to non-Native Hawaiian applicants
Count III: Congressional Exemption Is Unconstitutional
If the 2006 decision created a special exemption for Native Hawaiians under Section 1981, SFFA argues that exemption itself violates constitutional equal protection principles:
- Congress cannot create race-based exemptions that violate equal protection
- Any such exemption would need to survive strict scrutiny on its own
- No compelling government interest justifies it
Why This Case Is Different From 2003
SFFA learned from the earlier litigation and structured this case to avoid previous pitfalls:
Organizational standing. Rather than relying on individual plaintiffs who might settle or withdraw, SFFA itself is the named plaintiff. This means the case can continue even if individual families drop out.
No pseudonymous plaintiffs. The 2007 lawsuit was dismissed on procedural grounds partly because of issues with the pseudonymous "John Doe" plaintiff. While SFFA's member families use pseudonyms, the organization itself is a real entity with legal standing.
Changed Supreme Court. The Supreme Court that decided Students for Fair Admissions v. Harvard in 2023 is significantly more skeptical of racial classifications than the Court in 2006. Three justices have changed, shifting the Court's ideological balance.
Explicit challenge to the 2006 framework. SFFA directly argues that the legal landscape has shifted since 2006 and that Kamehameha can no longer meet even the relaxed standard the Ninth Circuit created.
The Response in Hawaii
The lawsuit has generated intense reactions across Hawaii.
Support for Kamehameha Schools has been widespread and passionate. Online petitions defending the school's mission have gathered tens of thousands of signatures. Hawaii's governor and other elected officials have publicly voiced support. Community rallies have drawn large crowds. For many Native Hawaiians and Hawaii residents, Kamehameha represents more than just a school—it embodies cultural preservation, educational opportunity, and institutional continuity in the face of historical loss.
Backlash against SFFA has been severe. Edward Blum has received numerous threatening messages, including death threats, racist and antisemitic attacks, and messages threatening violence or doxing. The complaint documents pages of hostile communications, revealing the depth of emotion this case has triggered.
The intensity of these reactions reflects what Kamehameha Schools means to many Native Hawaiians: one of the last major institutions created by and for Native Hawaiians, operating continuously since before the overthrow of the Hawaiian Kingdom in 1893. For many, the lawsuit feels like another attempt to dismantle Native Hawaiian self-determination.
What's at Stake
If Kamehameha Loses
(SFFA Wins)
- End of 140-year admissions policy
- Potential transformation of school's mission and character
- Loss of cultural heritage institution
- Impact on other Native Hawaiian programs
- Princess Pauahi's will deemed unenforceable
- Precedent affecting race-conscious policies nationwide
If Kamehameha Wins
(SFFA Loses)
- Preservation of 140-year educational mission
- Continued focus on Native Hawaiian students
- Validation of remedial affirmative action approach
- Recognition of historical context in civil rights law
- Princess Pauahi's testamentary intent honored
- Precedent allowing race-conscious policies for remedial purposes
For Kamehameha Schools and Native Hawaiians, the stakes are existential:
If they lose, Kamehameha might have to fundamentally transform its admissions. Even a "preference" system (rather than a near-absolute requirement) might not survive under current Supreme Court precedent. Other Native Hawaiian programs could face similar challenges. Princess Pauahi's testamentary wishes, written in 1883 in an independent kingdom, could be deemed unenforceable under federal civil rights law.
Beyond the school itself, the case touches deep historical wounds: the overthrow of the Hawaiian Kingdom in 1893 (with U.S. involvement), suppression of Hawaiian language and culture, massive land loss, and ongoing educational and socioeconomic disparities. Kamehameha Schools is viewed by many as one of the last major Native Hawaiian institutions still serving its original mission.
For SFFA and its supporters, the case is about legal principle and individual rights:
They argue that civil rights laws must be colorblind and apply equally regardless of who implements racial classifications or why. In their view, allowing exceptions for "sympathetic" reasons would undermine the entire framework of anti-discrimination law. They emphasize that the families in this case have concrete grievances—their children cannot attend a school they're otherwise qualified for, solely because of ancestry.
SFFA's supporters also point to a broader concern: if Kamehameha's policy is permitted, what principle would prevent other institutions from creating similar race-based programs? They argue that the only way to prevent racial discrimination is to prohibit all racial classifications in contracts and admissions, without exceptions for intent or historical context.
How SFFA Supporters See the Stakes
The asymmetry in consequences—Kamehameha potentially losing everything while SFFA gains only legal precedent—is obvious. SFFA's supporters acknowledge this but argue it's legally irrelevant.
In their view, the question isn't "Who loses more?" but "What does the law require?" They point out that many landmark civil rights cases imposed severe costs on losing parties: businesses that had to integrate, schools that had to desegregate, employers that had to change hiring practices. The principle, they argue, is that civil rights law protects individuals from discrimination regardless of the institutional costs of compliance.
They also argue that framing obscures what's actually at stake. From their perspective, this case isn't about destroying a school—it's about whether American civil rights law means what it says. If courts create an exception for Kamehameha because it serves a sympathetic group with real needs, what principle prevents other schools from making similar arguments? What about a school that claims some other group "also faces disadvantages"?
SFFA supporters would point to the civil rights movement's answer to segregationists who argued that integration would destroy their communities and way of life: those costs don't justify discrimination. The law protects individuals, not institutions.
Whether this argument seems principled or callous depends largely on whether you believe civil rights law should be strictly colorblind or should account for historical context and remedy past injustices.
The Legal Process: What Happens Next
This case will move through several stages, and early decisions could significantly affect the outcome:
The case starts in the U.S. District Court for the District of Hawaii. Kamehameha will likely file multiple motions to dismiss:
First: Challenge to Standing. Kamehameha will likely argue that SFFA lacks standing to bring this case—that is, SFFA doesn't have the legal right to sue on behalf of its anonymous members. This is a threshold issue that must be resolved before the court considers the merits. SFFA has tried to pre-empt this challenge by explaining why their organizational structure gives them standing even with pseudonymous member families.
Second: Challenge on the Merits. If SFFA's standing survives, Kamehameha will argue that:
- The 2006 Ninth Circuit decision is binding precedent that already resolved these issues
- SFFA's claims fail as a matter of law under existing precedent
- No need for a trial—the case should be dismissed immediately
What these motions mean: A motion to dismiss on standing says "you don't have the right to bring this case at all." A motion to dismiss on the merits says "even if everything you claim is true, you still can't win under the law." These are Kamehameha's first lines of defense.
The district court is likely to follow the 2006 Ninth Circuit precedent on the merits, but the standing question is newer and less certain given SFFA's organizational structure.
The losing party will appeal to the Ninth Circuit, which created the 2006 precedent. This is where things get interesting.
The Ninth Circuit faces a difficult choice. The same court that ruled 8-7 for Kamehameha in 2006 must now decide whether to:
- Reaffirm its 2006 decision despite the changed legal landscape
- Distinguish this case from the 2006 case on some factual basis
- Overrule or narrow its 2006 precedent in light of subsequent Supreme Court developments
Some judges have changed since 2006, and the Supreme Court's recent skepticism toward racial classifications creates pressure to reconsider. However, courts generally respect their own precedents unless there's a compelling reason to overturn them.
Unless both sides are satisfied with the Ninth Circuit's decision, the losing party will petition the Supreme Court to hear the case. The Court receives thousands of petitions each year and accepts only a small fraction—typically cases involving:
- Conflicts between different circuit courts
- Important constitutional questions
- Cases where lower courts may have defied Supreme Court precedent
This case likely checks multiple boxes, especially if the Ninth Circuit reaffirms its 2006 decision despite the 2023 Harvard ruling.
What Supreme Court review means: If the Court agrees to hear the case (grants "certiorari"), it will issue a decision that applies nationwide and becomes binding precedent. Given the Court's recent decisions on race-conscious policies, and given that this case involves explicit racial classifications, the Court might very well take the case.
The Court wouldn't just decide whether Kamehameha's specific policy is legal—it would potentially establish rules governing all private race-conscious admissions policies nationwide.
Settlement possibility: At any stage, the parties could settle. Like in 2006, Kamehameha might choose to settle rather than risk an adverse Supreme Court precedent. However, SFFA is a membership organization with an explicit mission to eliminate such policies—they may be less willing to settle than an individual plaintiff seeking compensation.
The Fundamental Questions
This case forces us to confront questions American society has struggled with for generations:
Should the law be colorblind? One view holds that the only way to end racial discrimination is to prohibit all racial classifications, period. The opposing view argues that colorblind law ignores historical injustices and ongoing disparities, making it impossible to remedy past wrongs.
Do individual rights always trump group interests? Civil rights law traditionally protects individuals from discrimination. But what about situations where a group has suffered historical oppression and seeks to create institutions for its own community's benefit?
Can a private person use their wealth to help their own people? Princess Pauahi left her estate specifically to help Native Hawaiian children. Does federal civil rights law prohibit private, voluntary, race-conscious charity? Or does the contractual nature of admissions (tuition for education) bring even private charity under anti-discrimination law?
Should old laws apply to situations they never contemplated? Section 1981 was written in 1866 to protect freed slaves. Should it be applied to invalidate a Native Hawaiian institution created in 1883 in an independent kingdom, especially when that law wasn't even thought to cover private schools until 1976?
What do we owe indigenous peoples whose sovereignty was lost? The Hawaiian Kingdom was overthrown with U.S. involvement. Does this historical context create moral or legal obligations that should affect how courts interpret civil rights laws?
These questions have no easy answers. Reasonable people of good faith hold passionate and conflicting views.
Why This Matters Beyond Hawaii
The Kamehameha case reveals fundamental tensions in how American law handles race, discrimination, and equality.
Our legal system has created a structure where:
- An all-girls school operates legally, but a school preferring Native Hawaiians faces repeated litigation
- A law from 1866 can be reinterpreted in 1976 to invalidate practices from 1883
- Private charitable preferences face the same legal scrutiny as government-imposed discrimination
- Good intentions and historical context provide limited legal protection
The case also highlights different visions of what civil rights law is for. One vision sees civil rights law as establishing colorblind rules that must apply to everyone equally, without regard to historical context or remedial purpose. Another vision sees civil rights law as a tool for remedying historical injustices and addressing ongoing disparities—tools that lose their power if they can't account for who has historically held power and who has been oppressed.
Whatever the courts decide will shape how America balances individual rights against group identity, colorblind principle against historical reality, legal formalism against practical justice—not just for Kamehameha Schools, but for any institution seeking to address historical disadvantage through race-conscious policies.
The question extends far beyond one school system in Hawaii. It's about what kind of society we want to be, what role race can play in addressing historical injustices, and whether the law can distinguish between discrimination that oppresses and policies that seek to remedy oppression.
These are questions that will outlast any single court decision.