Cover page of the complaint filed by Students for Fair Admissions against Kamehameha Schools in the U.S. District Court for the District of Hawaii, October 2025 (Civil Action No. 1:25-cv-450).
Why I'm Writing This
I support Kamehameha Schools. I believe Princess Pauahi's vision remains vital. I believe Native Hawaiian students deserve this institution.
But after reading the lawsuit and studying the legal landscape, I'm worried that our community isn't taking this threat seriously enough.
The recent Civil Beat article captures the anger many of us feel. Yes, SFFA is a Virginia-based organization led by Edward Blum who has made a career of challenging affirmative action. Yes, the timing feels opportunistic after their Supreme Court victory against Harvard. Yes, it's galling that they're targeting an institution serving an Indigenous people in their own homeland.
But anger isn't a legal defense.
The lawsuit isn't going away because we're mad about it. It isn't going away because state legislators flew to Virginia to confront Blum. It isn't going away because 30,000 people signed a petition.
It's going away only if Kamehameha wins in court. And to win in court, we need to understand the actual legal arguments—not the caricatures of them.
Princess Bernice Pauahi Bishop (circa 1870s). Her 1884 will established Kamehameha Schools "for the education and upbringing of Native Hawaiians." Image courtesy of Hawaii State Archives.
What the Article Gets Right
The Civil Beat piece makes several important observations:
About the wealth angle:
Yes, Kamehameha's $15 billion endowment and 364,000 acres make it a target. SFFA probably wouldn't be suing a struggling Native Hawaiian charter school with the same admissions policy. The resources matter.
About the hostile response:
The documented threats against Blum are real and shameful. Nobody should be sending death threats, regardless of their feelings about this lawsuit. That behavior doesn't help Kamehameha—it helps SFFA build their case for anonymous plaintiffs.
About student diversity:
This point is actually crucial and legally significant. Kamehameha students ARE racially diverse—over 60 different racial and ethnic groups have been represented. Students are white, Black, Asian, Pacific Islander, and mixed. What they share is Native Hawaiian ancestry, not a singular racial appearance.
About the small percentage served:
Only 6% of Native Hawaiian students get into Kamehameha. That's a devastating statistic, and yes, it means 94% of Native Hawaiian families face the same educational challenges without access to this school.
Where the Article Misses the Mark
But here's where the article—and much of the community response—gets dangerous:
1. "If this was a righteous cause, there would be hundreds of plaintiffs"
This fundamentally misunderstands how civil rights litigation works.
You don't need hundreds of plaintiffs. You need one person with legal standing—someone who was harmed by the policy and can prove it. That's how Brown v. Board of Education worked. That's how Fisher v. UT Austin worked. That's how SFFA's successful Harvard case worked.
The absence of mass protests outside Kapalama doesn't mean there's no legal claim. It means most families don't have the resources, legal knowledge, or organizational backing to sue a $15 billion institution.
Dismissing the lawsuit because there aren't "hundreds of names" is like saying voting rights violations don't exist unless thousands of people file complaints. The legal system doesn't work that way.
2. "Why reproduce all those threatening messages in the lawsuit?"
The article treats the pages of documented threats as performative—"almost as though a badge of honor."
That's not what's happening.
In the previous Kamehameha lawsuit (Doe v. Kamehameha Schools II, ~2009), the court required plaintiffs to reveal their real names. They refused. The case was dismissed.
SFFA learned from that. Now they need to prove to the judge: "Your Honor, here's why our plaintiffs need anonymity." The threats aren't a rhetorical flourish—they're evidentiary exhibits to establish that disclosure would expose plaintiffs to substantial risk of harm.
Every documented threat, every violent message, every social media post serves a legal purpose: proving the necessity of pseudonymous plaintiffs.
This is how you make a legal motion for anonymity. You don't just assert it—you prove it with contemporaneous evidence.
3. "People in the majority feel righteous in proclaiming racism against themselves"
This is where the article makes a political argument but ignores the legal reality.
The author is right that civil rights laws were designed to protect minorities from discrimination by powerful majorities. Historically and politically, that's absolutely true.
But the laws were written in facially neutral language.
Section 1981 doesn't say "minorities can't be discriminated against." It says "all persons shall have the same right to make contracts as is enjoyed by white citizens."
The Supreme Court held in McDonald v. Santa Fe Trail Transportation (1976) that this language protects everyone—including white people—from race discrimination. Justice Marshall, who argued Brown v. Board, wrote the opinion.
Whether you like that interpretation or not, it's the current law.
But we lost that argument at the Supreme Court last year.
The current legal framework is: race discrimination is prohibited regardless of who is harmed. Intent and history matter less than text and precedent.
Wishing that weren't true doesn't help Kamehameha win this case.
Timeline: From Princess Pauahi's Vision to Today's Challenge
The Real Legal Threat
Here's what worries me: the article's framing suggests this lawsuit is frivolous or easily dismissed. It's not.
The 2006 decision is not safe
In 2006, the Ninth Circuit upheld Kamehameha's policy in Doe v. Kamehameha Schools I. By an 8-7 vote, the en banc court held that the school's preference for Native Hawaiian students satisfied a modified affirmative action standard.
That decision relied heavily on Grutter v. Bollinger (2003), which approved limited use of race in university admissions to achieve diversity.
But the Supreme Court overruled Grutter in June 2023.
In Students for Fair Admissions v. Harvard, the Court held that race-conscious admissions violate the Equal Protection Clause unless they remedy specific, identified instances of past illegal discrimination. The Court explicitly rejected diversity as a compelling interest.
The arguments have gotten stronger
SFFA's complaint makes several arguments that didn't exist or weren't as developed in 2006:
Five Key Arguments SFFA Will Make:
- The Harvard decision changed everything: The Ninth Circuit gave schools deference on educational policy and accepted broad diversity rationales. The Supreme Court rejected both. Schools must now prove a compelling interest (remedying specific past discrimination) and show no race-neutral alternatives exist.
- The data has changed: In 2006, the court relied on the 2005 Ka Huakai report showing Native Hawaiian educational gaps. The 2021 report shows some gaps narrowed, some widened, but critically: achievement gaps exist for ALL students in Hawaii, not just Native Hawaiians. SFFA will argue: if the problem is Hawaii's underfunded schools generally, then a race-based remedy isn't "narrowly tailored."
- The "absolute bar" argument is stronger: In 2006, the court noted that Kamehameha occasionally admitted non-Hawaiian students to preschool and summer programs. Since then, K-12 admissions have become 100% Native Hawaiian. Zero non-Hawaiian students admitted to main campus programs in recent years. SFFA will argue this is an "absolute bar" that Supreme Court precedent prohibits.
- The effectiveness question: Kamehameha serves 6% of Native Hawaiian students. SFFA will ask: "If 94% of Native Hawaiian students don't attend Kamehameha and still face educational challenges, how can you claim this race-based policy is 'necessary'?"
- The "no end date" problem: The policy has existed for 137 years. The Ninth Circuit said it need not have an "explicit end date" but must be "temporary." SFFA will argue: at what point does a 137-year-old policy stop being a temporary remedy?
What about the other 94%?
Why "It's About Money" Isn't Enough
The article is probably right that SFFA wouldn't be suing if Kamehameha were a small, struggling school.
But "they're motivated by money" doesn't defeat the legal claim.
Motives don't determine whether a policy violates Section 1981. The question is: does the policy discriminate based on race in the making of contracts?
If yes, does an exception apply?
Those are legal questions that need legal answers.
What Kamehameha Needs to Argue (And Why It's Complicated)
If I were defending Kamehameha, here's what I'd focus on:
1. Ancestry ≠ Race
The argument: Native Hawaiian is not merely a racial classification—it's a political/genealogical classification tied to Indigenous status. The definition is "descended from people who exercised sovereignty in Hawaii prior to 1778."
Why it matters: If this is political rather than purely racial, different legal standards might apply (like those for Native American tribes).
The problem: The Supreme Court rejected a similar argument in Rice v. Cayetano (2000), holding that "Hawaiian" was a racial classification for voting rights purposes. We need to distinguish that case or explain why education is different from voting.
2. Private Trust vs. Government Action
The argument: Kamehameha is a private trust established by Princess Pauahi's will in 1884, decades before civil rights laws existed. Property rights and testamentary intent should matter.
Why it matters: Courts give more deference to private action than government action. Maybe Section 1981 shouldn't override the explicitly stated intent of a private will.
The problem: Section 1981 explicitly applies to private parties. The Supreme Court held in Runyon v. McCrary (1976) that private schools can't exclude students based on race. We need to explain why Kamehameha is different.
3. The Contract Exception
The argument: Section 1981 only applies when there's a "contract." Judge Kozinski noted in a 2006 dissent that if Kamehameha stopped charging tuition entirely, Section 1981 might not apply at all.
Why it matters: Kamehameha's tuition ($1,784) is heavily subsidized and covers only a fraction of actual costs ($20,000+). Most students receive financial aid. Is this really a "commercial contract" that Section 1981 regulates?
The problem: The school does charge tuition and require parents to sign contracts. Courts have held this is sufficient for Section 1981 to apply.
4. Remedial Purpose + Ongoing Need
The argument: Native Hawaiians were subjected to colonization, land dispossession, cultural suppression, and educational disadvantage. Those harms continue. Kamehameha addresses specific, documented educational gaps.
Why it matters: Even under strict scrutiny, remedying specific past discrimination is a compelling interest.
The problem: The Supreme Court in Harvard held that the discrimination must be "specific, identified instances" that "violated the Constitution or a statute." The overthrow of the Hawaiian Kingdom predates the Constitution's application to states. We need to show either: (a) more recent discrimination, or (b) why Indigenous sovereignty cases are different.
5. Congressional Recognition
The argument: Congress has repeatedly passed legislation recognizing Native Hawaiians' special status and need for educational support (Native Hawaiian Education Act, etc.). Congress's 1991 reenactment of Section 1981 occurred amid this broader framework.
Why it matters: Maybe Congress intended Section 1981 to coexist with Native Hawaiian-specific legislation, not override it.
The problem: Native Hawaiians have never been federally recognized as a tribe. The legal framework that protects Native American tribal sovereignty doesn't clearly apply. We'd need to argue for extending that framework or creating a new one.
The Uncomfortable Statistics
The article cites this statistic to show Native Hawaiians need Kamehameha:
"Today, Kamehameha educates around 6% of the island's native Hawaiians – 5,400 K-12 students, (100% of whom are Native Hawaiian) out of 86,000 school-aged native Hawaiians."
But this statistic actually helps SFFA's case.
Think about it: If the goal is remedying Native Hawaiian educational disadvantage, but only 6% of Native Hawaiian students attend Kamehameha, then what's happening with the other 94%?
They're being educated elsewhere. In public schools, other private schools, charter schools.
SFFA will argue: "The existence of 80,600 Native Hawaiian students who don't attend Kamehameha proves the policy isn't 'necessary' to address Native Hawaiian educational needs. Whatever challenges Native Hawaiian students face, 94% of them face those challenges without this school."
If 94% of the target population doesn't benefit from the policy, how can it be "narrowly tailored"?
What We Can't Do
We cannot:
- Assume the 2006 decision is safe (it relied on overruled precedent)
- Dismiss SFFA's arguments as obviously frivolous (they're sophisticated)
- Rely on public opinion or political support (courts decide based on law)
- Ignore the changed legal landscape post-Harvard (it matters enormously)
- Pretend the hard questions don't exist (judges will ask them)
What We Must Do
We must:
- Take the legal threat seriously: This isn't just opportunism or racism. These are real legal arguments that have won at the Supreme Court before.
- Understand the opposition's best arguments: Steel-manning SFFA's case isn't defeatism—it's preparation. We need to know what we're countering.
- Develop sophisticated responses: "This is about Indigenous sovereignty" is a starting point, not an argument. We need legal frameworks, precedents, and specific doctrinal theories.
- Prepare for setbacks: There's a real chance Kamehameha loses at the district court level. That's not the end—appeals exist. But we need to be psychologically and strategically prepared.
- Build the factual record: Courts need evidence, not assertions. Updated Ka Huakai data. Evidence of ongoing discrimination. Proof of why race-neutral alternatives won't work. Expert testimony on Indigenous education. All of this matters.
- Consider legislative solutions: Congress could clarify Section 1981's application to Native Hawaiian institutions. Congress could grant Native Hawaiians formal federal recognition. These are long shots, but they're options.
The Hard Truth
I want Kamehameha to win. I believe in its mission. I believe Princess Pauahi's intent should be honored. I believe Native Hawaiian students deserve this institution.
But wanting to win isn't the same as having a winning argument.
The Supreme Court has moved significantly toward colorblind interpretation of civil rights laws. The justices who would have been most sympathetic to Kamehameha's position (Ginsburg, Breyer) are gone. The current Court struck down affirmative action at Harvard and UNC.
This is a genuinely hard case.
There are legitimate tensions between:
- Civil rights laws and Indigenous sovereignty
- Remedying historical injustice and current equal treatment
- Private property rights and anti-discrimination principles
- Testamentary intent and modern legal standards
These tensions don't have obvious resolutions.
Why the Civil Beat Article Worries Me
When I read articles that dismiss SFFA's lawsuit as obviously meritless, motivated purely by racism and greed, with no legitimate legal basis, I worry we're not preparing for the actual fight.
Yes, SFFA is opportunistic. Yes, they're well-funded. Yes, their broader project is dismantling race-conscious programs.
But that doesn't mean they'll lose this case.
They beat Harvard. They beat UNC. They've won repeatedly at the Supreme Court.
We need to understand why they're winning, not just that we disagree with them.
A Call for Strategic Thinking
I'm writing this not to demoralize our community, but to mobilize it differently.
Anger is easy. Legal strategy is hard.
Emotional responses are natural. Sophisticated legal arguments take work.
We need lawyers who understand Indigenous sovereignty law, civil rights jurisprudence, trust law, and education law. We need historians who can document specific instances of discrimination. We need educators who can prove why race-neutral alternatives won't work. We need economists who can explain the role of the endowment. We need cultural experts who can explain what Kamehameha means beyond test scores.
We need to be smarter than our opposition, not just angrier.
What You Can Do
If you support Kamehameha:
- Educate yourself on the legal issues: Read the actual complaint. Read the 2006 Ninth Circuit decision. Read the Harvard decision. Understand what courts have said and why.
- Support Kamehameha's legal defense financially: This will be expensive litigation, possibly going to the Supreme Court. Money matters.
- Share your story—carefully: If Kamehameha changed your life, that matters. But avoid threats, avoid personal attacks on Blum or SFFA, avoid anything that could be used against us in court.
- Push for legislative solutions: Contact Hawaii's congressional delegation. Push for federal recognition. Push for clarifying legislation. Courts aren't the only venue.
- Demand sophisticated defense: Don't let Kamehameha's lawyers rely on old arguments that don't account for Harvard. Don't let them assume the 2006 precedent is safe. Hold them accountable for adapting to the changed legal landscape.
Final Thoughts
The Civil Beat article ends with:
"We are living through such a strange time when people in the majority feel so righteous in proclaiming racism against themselves and there is money and political power to be gained in taking on programs that support people of color."
I understand the frustration. I share it.
But we can't win a legal case by pointing out that our opponents are in the majority or well-funded or motivated by politics.
We win by having better legal arguments.
We win by understanding the current state of the law, acknowledging the challenges we face, developing sophisticated responses to hard questions, and building an evidentiary record that supports our position.
We win by taking this seriously.
Princess Pauahi created something extraordinary 137 years ago. Generations of students have benefited. The institution has preserved culture, developed leaders, and changed lives.
It's worth fighting for—smartly.
That means understanding what we're up against, not dismissing it.
That means preparing for a long legal battle, not assuming we'll win easily.
That means building the strongest possible case, not just the most emotional one.
But only if we fight it on legal terms, with legal arguments, understanding the legal landscape.
Anger won't be enough.