Ka Wai Ola - Office of Hawaiian Affairs, Volume 23, Number 6, 1 June 2007 — Legal BREATHER [ARTICLE+ILLUSTRATION]

Legal

BREATHER

CHfameham^^T settles admissions policy cg6^fbut may face a possible^lass-action suit

By Sterling Kini Wnng | Publicatinns Editnr On May 14, Kamehameha Schools announced it settled the lawsuit challenging the school's Hawaiian-prefer-enee admissions policy, bringing the four-year-old legal battle to a sudden close as the U.S. Supreme Court was deciding whether it would hear the case. But before Kamehameha

Schools supporters could breathe a sigh of relief, reports surfaced that a loeal attorney was searching for plaintiffs for a new classaction lawsuit against the school's admissions policy. The terms of the settlement between Kamehameha Schools and the unnamed student who was denied admission into the school because he is not Hawaiian are confidential. However, most people observing the case speculate that the school, whose trust tops $7 hillion, paid for the plaintiff to withdraw his case. Kamehameha Schools officials said that while settling the case presented them with a "very difficult decision," the agreement was made because it protected the school's right to preserve its admissions policy and fulfill its mission. "From the beginning of this lawsuit, we have been prepared to defend our policy to the very end of the judicial process," said a joint statement from the school's board of five trustees and chief executive officer. "However, it is becoming increasingly clear that this lawsuit is only one pieee of a mueh broader risk to the rights of Native Hawaiians, as the indigenous people of this state, to manage and control our own resources. "[The settlement] allows us all to move forward with a eommon

purpose: protecting the rights of kanaka maoli, private individuals and indigenous people everywhere to use our own resources to take care of our own people." Eric Grant, one of the attorneys representing the plaintiff in the case told the Honolulu StarBulletin, "Winning this case in the Supreme Court certainly is something that I had hoped to do.

It's fair to say I'm disappointed. But lawyers represent clients, and clients make the final decision." The attorneys for the anonymous non-Hawaiian student,

identified only as lohn Doe, filed the lawsuit in 2003, claiming that Kamehameha's 120-year-old admissions policy is racially discriminatory and violates federal civil rights law. In December 2006, the 9th Circuit Court of Appeals ruled 87 that Kamehameha's admissions policy is legal because it seeks to improve the poor educational standing of Native Hawaiians. The attorneys for the plaintiff appealed the case to the Supreme Court, and the high court was expected to indicate whether it would consider the case when the settlement was announced. The 1884 will of Princess Bernice Pauahi Bishop, the greatgranddaughter of Kamehameha I, established Kamehameha Schools to educate indigent and orphaned ehikken, with a preference given to Native Hawaiian keiki.

Today, the school's trust is worth about $7.6 hillion and provides for the educational needs of more than 6,700 students at its Maui, Hawai'i island and O'ahu campuses, as well as its 30 preschools statewide. Another lawsuit The day after the settlement was announced, loeal attorney David Rosen sent out an email indicating that he was attempting to put together a group lawsuit modeled after the Jolm Doe case against the school's admissions policy. Rosen sent the email to two prominent critics of Hawaiian programs, Richard Rowland and H. William Burgess, who then forwarded the email out. In the week following the announcement of the settlement, Rosen's email spread like wildfire among Kamehameha Schools supporters.

In the email, Rosen said he is looking for 10 to 20 potential plaintiffs ages four through 16 who must be willing to attend the school if they are accepted. He said the students' identities would remain "extremely confidential" and that the plaintiffs would incur no legal costs. "A lot of people were hoping that the lohn Doe case being considered by the Supreme Court would have resolved this issue," Rosen told the Honolulu StarBulletin. "I don't want to create a case that the school ean settle by just throwing a huneh of money at people." In a statement, Kamehameha Schools officials called Rosen's efforts "outrageous." "This attorney is gambling, and it's a huge gamble," the statement said. "We have legal precedent at

the 9th Circuit Court level that our policy is lawful, and that it does not trannnel the rights of nonHawaiians. Our case is extremely strong." Supporters of a hill that would extend federal recognition to Native Hawaiians said that passage of the measure would make the school's case even stronger. OHA Chair Haunani Apoliona said that the measure, coimnonly known as the Akaka Bill after its chief sponsor, Sen. Daniel Akaka, would provide a "key legal shield" against the many lawsuits attacking Hawaiian programs. Apoliona said that if the hill were passed, "the courts would get the clear signal that Native Hawaiians have a legal and politieal relationship with the United States, a relationship that is clearly constitutional." S

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HONA'AUAO • EDUCAĪION

Kamehameha Schools officials (top), along with the student body (right), celebrated the settlement in a march and assembly at the school's Kapalama campus. - Photos courtesy Miehael Young, Kamehmeha Schools.