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The Honolulu Advertiser
Posted on: Wednesday, March 3, 2010

Court's ruling doesn't end battle

By Jim Dooley
Advertiser Staff Writer


See a video of the response by Kamehameha Schools Chief Executive Dee Jay Mailer at


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Legal skirmishing between the Kamehameha Schools and attorneys challenging the school's admissions policy continues, despite yesterday's federal appellate decision upholding dismissal of the latest legal challenge.

The ruling by the 9th U.S. Circuit Court of Appeals came in a 2008 lawsuit filed by four anonymous students who claimed that the school's admissions policy that favors students of Native Hawaiian ancestry violates federal civil rights laws.

The ruling upheld earlier decisions last year by Hawai'i Magistrate-Judge Barry Kurren and District Judge J. Michael Seabright that denied anonymity to the student plaintiffs.

The plaintiffs agreed last year to drop their suit because they could not proceed anonymously, but preserved their rights to an appeal.

"Few tenets of the United States justice system rank above the conflicting principles presented in this case: the transparency and openness of this nation's court proceedings and the ability of private individuals to seek redress in the courts without fear for their safety," the appellate court said.

Attorneys for Kamehameha Schools argued they would be prejudiced in their defense if the plaintiffs' identities were kept secret.

Lawyers for the plaintiffs argued their clients would be in physical danger if they were publicly identified.

"We are sympathetic to the concerns of the children and their parents, but we recognize the paramount importance of open courts," the court said.

David Rosen, one of the attorneys challenging the admissions policy, said yesterday: "I'm not sure what to say about the (9th Circuit) ruling. It looks like the end of the line, although we're considering whether to continue with the appeal."


Kamehameha Schools trustees said in a statement: "We have believed from the outset that if this case were to proceed, it should do so as openly and honestly as possible. We understand that these plaintiffs may appeal this decision further, but we are heartened by the consistent, unanimous and affirming legal determinations that have been made so far."

Rosen said another challenge to the admissions policy would have to come from a non-Hawaiian student willing to be publicly named in a lawsuit.

"I'm not sure I would want to be involved in such a case," Rosen said.

Rosen and his co-counsel in the suit, Eric Grant of California, are still enmeshed in a legal struggle related to an earlier admissions suit that Kamehameha Schools settled out of court in 2007 for $7 million.

That original suit, now called "John Doe One," was filed by Grant and Honolulu attorney John Goemans on behalf of an anonymous non-Hawaiian Big Island student who was denied admission to Kamehameha Schools.

The school did not challenge the plaintiff's anonymity in that case, which was appealed all the way to the U.S. Supreme Court.

A federal judge here in 2003 upheld the legality of the admissions policy, agreeing with the school's argument that it helped address cultural and socioeconomic disadvantages that have beset many Hawaiians since the 1893 overthrow of the Hawaiian monarchy,

The school's assets, including thousands of acres of land bequeathed by Princess Bernice Pauahi Bishop, are worth billions of dollars, making the institution one of the wealthiest nonprofits in the world.

Today, Kamehameha Schools occupies a central role in Hawai'i society, in part because of its financial clout and also because of its mission to educate children of Hawaiian ancestry.

The 2003 court decision upholding the admission policy was overturned by three judges of the 9th Circuit in 2005, prompting protest rallies, prayer vigils and other gatherings around the state in support of the schools.

Lawyers for Kamehameha Schools then won another legal reversal when the full 9th Circuit overturned the 2005 ruling by an 8-7 vote in December 2006.

Grant then petitioned the U.S. Supreme Court to hear the case, and the schools agreed to the $7 million confidential settlement on the eve of a high court announcement on whether it would hear the case.


Goemans revealed the $7 million figure to The Advertiser in 2008, saying he was not a party to the settlement, did not agree with it and did not sign it. Goemans died last year.

The school filed a state suit on the Big Island against John Doe and his mother and Grant, demanding return of $2 million because of the breach of secrecy.

Now the school has expanded its claims in the Big Island case, alleging that the 2008 civil rights suit, dubbed "John Doe Two," was a "copy cat" action filed only after the $7 million settlement figure in John Doe One was revealed.

"Doe Two was expressly modeled on Doe One ... about five months after Goemans disclosed the purported amount of the settlement in Doe One," schools attorney Paul Alston said in court papers filed last week.

Alston is arguing that the John Doe One plaintiffs and their lawyers should be liable for legal fees and expenses incurred by the schools in their now-successful defense of John Doe Two.

Rosen said in a declaration filed in the Big Island case that he and his clients in John Doe Two had agreed to sue Kamehameha Schools months before the $7 million settlement was made public. Now Alston wants Rosen to produce records supporting his claims.

"Mr. Rosen injected himself into the case by offering a one-sided declaration," Alston said yesterday. "All we want is to get at the relevant documents and information."

"They're being vindictive," Rosen said yesterday of Kamehameha Schools. "They're trying to run up and cause expenses to Eric Grant and myself."

The Kamehameha Schools "continue to spend ridiculous amounts of money" to avoid a court decision on the legality of the admissions policy, Rosen said.

"We're talking about hundreds of thousands of dollars annually, if not more, to frustrate efforts to find out what the law is," he said.