Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Wednesday, August 31, 2005

Implementation of Hawaiian Trust Deemed Discriminatory

The Ninth Circuit has recently released its opinion in Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 416 F.3d 1025 (9th Cir. 2005), holding that the way in which a charitable trust was administered was discriminatory because it barred individuals from a non-preferred race from receiving benefits.

Here are a few excerpts from the case:

Since 1887, the Kamehameha Schools have operated as the charitable legacy of Princess Bernice Pauahi Bishop, the last direct descendant of King Kamehameha I. Private and non-sectarian, the Kamehameha Schools give preference to students who are of native Hawaiian ancestry. As a result of this policy, attendance at the Kamehameha Schools is effectively limited to those descended from the Hawaiian race. The issue considered here is a significant one in our statutory civil rights law: May a private, nonsectarian, commercially operated school, which receives no federal funds, purposefully exclude a student qualified for admission solely because he is not of pure or part aboriginal blood? * * *

The facts are not in dispute. The Kamehameha Schools comprises a system of private, nonsectarian schools which are dispersed among the Hawaiian Islands. * * * The school system was founded in 1887 under a “charitable testamentary trust established by the last direct descendent of [Hawaii's] King Kamehameha I, Princess Bernice Pauahi Bishop.” * * * At the time of her death in 1884, Princess Pauahi Bishop was the largest landowner in Hawai‘i, owning approximately one-tenth of the aggregate lands. Her will provided that the bulk of her estate should be placed in a charitable trust “to erect and maintain in the Hawaiian Islands two schools, each for boarding and day scholars, one for boys and one for girls, to be known as, and called the Kamehameha Schools.” * * *

The Schools forthrightly admit that as long as there are qualified students who possess at least some native Hawaiian ancestry, they will be admitted before even the most qualified of those who lack aboriginal blood. It is this “Hawaiians first” admissions policy that motivates the instant controversy. * * *

We cannot agree with the district court's conclusion that the challenged program constitutes a valid affirmative action plan supplying a legitimate nondiscriminatory reason for the Schools' racially exclusionary admissions policy. Under the principles we find controlling, the Schools' absolute bar to admission on the basis of race is invalid. * * *

We emphasize that our ruling today is a narrow one. We conclude only that the plaintiff-appellant has met his burden of establishing the invalidity of the racially exclusionary affirmative action plan in place at the Kamehameha Schools, as that plan currently operates as an absolute bar to admission for those of the non-preferred race. Nothing in our decision, however, implicates the validity of the Pauahi Bishop Will, as we do not read that document to require the use of race as an admissions prerequisite.

https://lawprofessors.typepad.com/trusts_estates_prof/2005/08/implementation_.html

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