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Excerpted From: John Taschner, Native Hawaiians: The Forgotten in Legal Education, 25 Asian Pacific American Law Journal 145 (2021) (75 Footnotes) (Full Document)


JamesBTaschnerRecent court rulings in California are reinforcing opinions that standardized test scores, conceived as equalizers to fairly evaluate students based on generalized content on exams, are broadly biased and not indicative of intellectual abilities or predictive of educational success. Standardized tests are increasingly under fire as institutionalized barriers and exclusionary against minorities. Indeed, harm and education exclusion based on standardized test scores to particular minorities is staggering. Despite quotas and affirmative action policies, the lack of diversity in legal education and the profession have been called a “well-established fact.” This is particularly true in large law firms, where the lack of diversity has been called self-inflicted and the “product of an antiquated and homogenized notion of who qualifies as 'Big Law material.”’ Furthermore, minority law students are disproportionately underrepresented at law schools with fewer scholarships, lower pass rates of the bar exam, and fewer graduated heading into legal jobs. This demonstrates sad and perhaps unintended reality that despite progressive efforts to improve minority representation, there is a surprisingly long way to go.

The United States Census Bureau estimates roughly 1.3 million NativeHawaiians or PacificIslanders (NHPI) are residing in the United States. Of this population of more than a million Islanders, only three (3) have secured admission to America's top 10 law schools according to US News and World Reports in the past three (3) years: one to the University of California, Berkeley, one to Harvard University, and one to the University of Virginia.

The telling admission figures disclosed by the American Bar Association (ABA), while mandated for accredited law schools, are not driving change for native Hawaiians. Significantly, the ABA's Diversity and Inclusion Center strives to “eliminating bias and enhancing inclusion in the Association, legal profession, and justice system”. The Council for Diversity in the Educational Pipeline, also a subgroup of the ABA, has the public mission to “increase diversity, equity, and inclusion in the educational pipeline to the legal profession”. The 509 Information Reports, which compel law school disclose data in several categories, covering admissions, tuition and living costs, financial aid, class and faculty demographics, employment outcomes, bar passage, and more. Consequently, the reports serve as a telling metric for evaluating where ABA-approved schools are in terms of meeting the important ABA goals of diversity and inclusion. The following graph is a conglomeration of data taken from the ABA annual 509 reports regarding the enrollment of NativeHawaiians in law schools. The dearth of NativeHawaiian admissions is disturbing and warrants a reexamination of admission policies and practices with regard to NativeHawaiian admissions.

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Law schools have often been regarded as the least diverse white-collar profession. The admittance of only three NativeHawaiians to the top law schools--from a population of 1.3 million--establishes a 0.0005 percent admissions rate and is sadly indicative of a firmly entrenched pattern and practice of exclusions against NativeHawaiians at elite United States institutions and law schools.

The lack of diversity and inclusion of NativeHawaiians is not an issue unique to law schools, but rather a wide-spread occurrence within the United States higher education system. The data shows that Native Hawaiians also had the lowest rates of admission from 2019-2020 to U.S. medical schools of any race or ethnicity. Significantly, American Indian and Alaska Natives, another minority group that has struggled to achieve representation in the past, now enjoy equal admission rates to Whites and Asians. Regrettably, the bridge to professional school for NativeHawaiians remains unacceptably absent. As such, intentional measures to pull down institutionalized barriers and expects such as standardized testing being the weightiest factor in admissions must be undertaken to remedy the long lingering difficulty in achieving fair representation for NativeHawaiians in higher education.

[. . .]

Harvard University has defined inclusive excellence as “[a] community that draws on the widest possible pool of talent to unify excellence and diversity. One that fully embraces individuals from varied backgrounds, cultures, races, identities, life experiences, perspectives, beliefs, and values”. This standard is one that is admittedly difficult to attain. However, Harvard's Office for Diversity, Inclusion & Belonging “facilitates the collective decision making and localized implementation process in our pursuit of sustainable inclusive excellence. These efforts, working with stakeholders and partners across the institution, will exponentially grow the impact of diversity, inclusion, and belonging (DIB) work across Harvard”. Harvard's actions are notable because they focus on material, tangible planning to instigate their goals and ensure their success. Although there is still significant progress to be made, Harvard's status as one of the only top 10 law schools to admit NativeHawaiians/PacificIslanders demonstrates progress towards their diversity aims. It is no longer enough to simply state that diversity is important to an institution, but rather to have measurable, visible progress towards meeting diversity and inclusivity goals.

It has been demonstrated that all scholars benefit from a diverse population, comprised of both students and faculty. However, NativeHawaiian presence is still strikingly absent from higher education, as shown by the data from 509 Reports and Association of American Medical Colleges. The President of NYU, President Andrew Hamilton, released a statement via university email to compel its recipients to “redouble our exertions to use them [reason, discourse, study, evidence, analysis] in the cause of addressing racism, xenophobia, violence, and hate to underscore social justice, human dignity, inclusion, and peace.” This push for diversity has generated significant national conversation on the race dynamics in America recently, and continues to gain traction. Nonetheless, these talks have happened for years and the data spells out a disappointing narrative of lack of diversity and inclusion for NativeHawaiians within American higher education.

Unintentional harm against minorities will continue without change to the barriers encountered by Native Hawaiians seeking admission to top-tier institutions and professional schools. It is fair to and important state that no motives have been undertaken to intentionally exclude NativeHawaiians from top-tier educational institutions and professional education at American institutions. However, the data and results are alarming and demonstrate a grossly unfair process denying educational opportunity to an entire race and culture. It is time institutions and universities acknowledge the existing barriers created by entrenched practices such as the heavy reliance on standardized testing that has proven to be biased and unfair and to move towards a fair and just process to enable NativeHawaiian to pursue higher learning in the face of the historic disparities and disenfranchisement suffered by the native Hawaiians.

John B. Taschner, New York University.

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