Everyone, no-one, someone and the Native Hawaiian learner: How expanded equality narratives might account for guarantee/reality gaps, historico-legal context and an admission policy which is actually levelling the playing field

Abstract

This thesis asks how a school which was established to help a group of children consistently identified with disparities in education achieve equality—and which has actually done so—could be sued for discrimination because it prefers those children in admissions. In search of answers, this thesis critically analyzes the narratives of equality evident in the United States Ninth Circuit Court of Appeal’s reasoning in Doe v Kamehameha Schools, arguing that the dissent, majority and concurrence opinions suggest three conflicting narratives of equality—what the thesis calls the adamant everyone/no-one, weak someone and limited indigenous learner narratives. It demonstrates how these narratives reflect an identity-specific, racialized history of slavery and segregation but fail to account entirely for either the unique historico-legal history of the Native Hawaiian people or the huge gap between formal constitutional guarantees of equality and everyday realities of complex discrimination and disparities almost unrelentingly attracted to Native Hawaiian identity. It recommends an expansion of these narratives within federal law consistent with liberal theory, international law and the legal experience of a sister settler jurisdiction—Aotearoa New Zealand. More importantly, it demonstrates that such expansion is consistent with substantial equality, non-discrimination and rights of self-determination that may have the greatest capacity for reconciling the guarantee/reality gap. Finally, specific good, better and best recommendations are made including philosophical consistency with the expanded multi-narrative, and the intentional importation of the human right to education and Article 14 of the UN Declaration on the Rights of Indigenous Peoples 2007 into federal law.