A new federal court lawsuit challenging Kamehameha Schools' controversial admissions policy that favors students of Native Hawaiian ancestry was filed yesterday on behalf of four unnamed students who allege they were denied entry because of their ethnicity.

The action came just after the school filed a separate suit on the Big Island to recover some of the $7 million paid last year to settle a similar challenge by a non-Hawaiian student.

The latest suit against the school was filed by local attorney David Rosen and Sacramento lawyer Eric Grant.

Grant earlier represented a Big Island youth, identified in court papers only as John Doe, who filed a similar claim against the school's admission policy in 2003, but agreed to drop the suit last year after pursuing it all the way to the U.S. Supreme Court.

The new suit "is essentially identical" to the John Doe case, Grant said in a news release, a factor one legal expert said could give weight to the argument the lawsuit is frivolous, citing Rule 11 of the federal Rules of Civil Procedure.

"Lawyers are not supposed to clog the courts with matters that have been adjudicated and resolved," said Jon Van Dyke, a professor at the University of Hawai'i-Manoa Richardson School of Law. Van Dyke was a paid consultant for Kamehameha Schools on the original John Doe lawsuit but not currently doing work for the institution. "The fact that they themselves say it's the identical lawsuit is just bizarre."

Meanwhile, Kamehameha graduates said they are weary of the legal assaults against the schools.

"I'm tired of all this stuff," said Adrian Kamali'i, president of the Na Pua a Ke Ali'i Pauahi group of students, parents and alumni.

Kamehameha Schools and other organizations of Hawaiian ali'i set up to aid Native Hawaiians continue to serve a people still at the bottom of important socio-economic categories.

"These organizations don't exist to be greedy," Kamali'i said. "They have a purpose."

Several alumni, however, said they welcomed the possibility that the issue of the admissions policy may get to the U.S. Supreme Court.

In his statement on the lawsuit, plaintiffs lawyer Grant said "The purpose of today's action is to obtain a definitive ruling from the Supreme Court that the (Kamehameha Schools) trustees' racially exclusionary admissions policy violates our nation's civil rights laws."

The trustees, in their own news release, called the lawsuit an attack not just on the schools but "on our history, our heritage and the values of Hawai'i."

They said that prevailing law, a 2005 opinion from the 9th U.S. Circuit Court of Appeals in San Francisco, upheld the legality of the school's admissions policy.

"We enter into this battle from a position of strength, well prepared to defend our admissions policy with legal precedent at the 9th Circuit Court on our side," said the trustees.

"Eric Grant and David Rosen have a steep uphill battle ahead of them," the written statement said.

DIFFERING OPINIONS

Rosen yesterday acknowledged that legal precedent is against his clients, so far. He noted that a three-judge panel of the 9th Circuit originally found the admissions policy to be illegal, but that ruling was set aside when all of the appellate judges met "en banc" to re-examine the case and ruled in an 8-7 decision that the admissions policy is legal.

"It was a very divided court," Rosen said.

However, Van Dyke said accepting the settlement meant accepting the 9th Circuit en banc ruling.

"They can argue that the U.S. Supreme Court could reverse the 9th Circuit, but they certainly can't argue that the law of this circuit supports their position, and the fact that Mr. Grant himself decided to settle rather than have the U.S. Supreme Court decide the matter, I think, perhaps undercuts his argument."

Grant said via e-mail that he believes the case could be "argued and decided" by the U.S. Supreme Court in the October 2009 term, which runs to June 2010.

"It is difficult to predict these things, however, and the case could easily be put over to the following term" which runs from October 2010 to June 2011, Grant said.

The trustees said yesterday that the suit was filed after they refused a demand from Grant and Rosen to admit the four students to the schools.

"Clearly, we cannot comply," the trustees said. "We have no idea if any of the students qualified for admission, or even applied to our campus programs."

Grant and Rosen described the students and their families as "representative of Hawai'i."

The plaintiffs "reside across the state, and they are Hawaiian in every sense save the merely genetic, i.e., the birthplace of their ancient ancestors," Rosen and Grant said.

Some schools alumni yesterday said they hope the case gets to the highest court in the land.

"How else does Kamehameha stop them from coming back and bringing six guys next time?" said Jan Dill, another Na Pua board member. "We need to have legal closure."

Dill echoed Kamali'i's comments about the need for a Hawaiians-only program, and especially those provided by Kamehameha and its considerable financial resources.

"There are families hurting throughout our entire community that Kamehameha is willing to help, and this is all a distraction from that," Dill said.

SCHOOL SEEKS DAMAGES

In a second major legal development, the trustees filed their own suit on the Big Island yesterday against John and Jane Doe, the student and parent who filed the 2003 admissions lawsuit against the school.

The new suit seeks an unspecified amount of damages because John Goemans, an attorney who once represented the Does, revealed to The Advertiser in February the confidential terms of the $7 million settlement paid by the school to the Does.

The agreement specified that a party breaching the confidentiality agreement could be found liable for damages of as much as $2 million.

"Under the terms of the agreement, the Does agreed to be held liable for any breaches of confidentiality by their legal counsel," the trustees said in a news release about the new suit.

"This includes Goemans, who was one of the attorneys of record throughout the four-year-long litigation."

Local attorney Ken Kuniyuki, who now represents the Does, yesterday would not comment on the new lawsuit.

Goemans, reached by telephone on the Mainland, repeated his belief that Kamehameha Schools, as a tax-exempt, non-profit institution, cannot keep confidential such a settlement payment without endangering its Internal Revenue Service tax exemption.

And he said that he was not an attorney of record in the case.

"I haven't been practicing law since 2000 and I was not admitted to appear before the Supreme Court" when the appeal was filed there by Grant, Goemans said.

"My name was included in some places (when the case was being litigated)," Goemans said. "But that was Eric Grant's doing. He never asked me and I never agreed."

Further, Goemans said that he learned the terms of the settlement from Grant before it was signed and "before there was ever a confidentiality agreement."

SOME ALUMNI PLEASED

Regarding the new challenge to Kamehameha Schools' admissions policy filed by Grant and Rosen, Goemans said, "I'm glad. I don't think the first case should have been settled. The admissions policy is unconstitutional and they will find that out unless there's another settlement of this (new) case."

Grant would not comment on the new suit filed against John and Jane Doe.

But some school alumni applauded it.

"I think it's really good (Kamehameha) starts going on the offensive instead of going on the defensive all the time," said alumnus and kumu hula Vicky Holt Takamine. "(The Does) opened the door by not abiding by the court ruling and not keeping everything quiet."

Takamine said Kamehameha should consider releasing the identity of the original John Doe. She also criticized the parents of the unnamed children who have challenged the admissions policy.

"I think parents of these children are making them pawns in this," she said. "I wouldn't want my children or grandchildren put in that position."

Dill said: "I think that it's late in coming. I'm glad (the school is) doing it. They should really pursue every legal avenue to hold these people accountable."