MORE SUITS PREDICTED
Disappointment, praise follow Kamehameha settlement
A lawsuit against Kamehameha Schools over their Hawaiians-only admission policy is dropped in a settlement
Kamehameha Schools has survived another challenge to its Hawaiians-only admissions, but both supporters and opponents of the policy say the school should be prepared for more battles.
A non-Hawaiian student who was denied admission settled his lawsuit against the school, which was pending before the U.S. Supreme Court, it was announced yesterday. Terms of the settlement were not disclosed.
Honolulu attorney H. William Burgess, an opponent of programs for native Hawaiians who filed a brief in support of the plaintiff, told the Associated Press that he feels the settlement opens the door for other students to bring lawsuits against Kamehameha since there was likely a big payoff in this case.
"I assume if it was a generous settlement, then that to me is encouragement to other applicants," he said. "And it will be easier because it's a simple complaint."
The fear of more challenges to Kamehameha Schools and to government programs that favor native Hawaiians has many isle politicians calling for passage of the so-called Akaka Bill, which is currently before the U.S. Senate. The bill would set up a framework for a native Hawaiian government to be recognized by the federal government.
"We must remain mindful that a host of other important programs serving native Hawaiians remain targets of opportunistic lawsuits," said Haunani Apoliona, chairwoman of the Office of Hawaiian Affairs. She called for an increased effort in Washington to pass the Akaka Bill.
Gov. Linda Lingle echoed the sentiment. "This action doesn't remove the need for the Akaka Bill. The need is stronger than ever," she said.
The lawyer for a student who dropped his lawsuit challenging Kamehameha Schools' policy of giving enrollment preference to Hawaiians said he is disappointed at losing a chance to win the civil-rights case before the U.S. Supreme Court.
"Winning this case in the Supreme Court certainly is something that I had hoped to do," Eric Grant, a Sacramento, Calif., attorney who took the case in 2003, said yesterday. "It's fair to say I'm disappointed ... but lawyers represent clients and clients make the final decision."
The student, whose application to Kamehameha was rejected because he lacked Hawaiian blood, withdrew the suit because he was "satisfied" with an out-of-court settlement the school was willing to accept, said his other attorney, John Goemans.
"We've done the best job that we could for our client, and that's what we are in business to do," he said.
Details of the settlement were not disclosed.
William Burgess, a critic of the bill to grant federal recognition to native Hawaiians, said, "I think this opens the door to more lawsuits."
Burgess said he thinks Kamehameha must have offered the unknown student a large settlement.
"I think they must have decided to put some money on the table, and I think it must not have been a small amount," Burgess said.
The student, whose name has been kept secret, graduated with honors from a local public high school in spring 2006 and is now finishing his first year of college on the mainland, Grant said. His suit, which was pending before the high court, argued that the admission requirement is race-based and violates the Civil Rights Act of 1866.
School officials hailed the settlement, saying Kamehameha can continue its 120-year-old practice of favoring Hawaiian applicants. The policy, according to officials, follows the 1883 will of Princess Bernice Pauahi Bishop, who set up the school system to remedy economic and educational disadvantages endured by native Hawaiians.
Backed by a $7.6 billion charitable trust, Kamehameha's tuition is heavily subsidized, and only one in eight applicants get in. Only two non-Hawaiians have been accepted to the school in recent years.
"Our work to fulfill our missions and Pauahi's vision, on our campuses and in our communities, can proceed without distraction," said J. Douglas Ing, chairman of the schools board of trustees.
In summer 2005 some 15,000 native Hawaiians marched through downtown Honolulu to protest a 9th U.S. Circuit Court of Appeals ruling striking down Kamehameha's policy as "unlawful race discrimination." Hawaiian activists and politicians feared that other programs benefiting Hawaiians also could be threatened if the school lost the case.
Kamehameha narrowly won its appeal in December, when a panel of federal judges voted 8-7 to affirm U.S. District Judge Alan Kay's 2003 ruling in favor of the school.
The settlement that stopped the suit came about two months after the student's attorneys asked the Supreme Court to consider the case.
Gov. Linda Lingle said the four-year battle highlights the need for passage of the Native Hawaiian Government Reorganization Act, the so-called Akaka Bill before Congress, which would give Hawaiians federal recognition.
"I believe Kamehameha Schools is perhaps the most important institution for preserving Hawaiian culture," she said.
SUITS CHALLENGE LEGALITY OF HAWAIIAN PROGRAMS
A look at recent litigation involving programs and entitlements for native Hawaiians:
Ric e v. Cayetano. Landmark case in which the U.S. Supreme Court ruled in February 2000 that OHA is a state agency and that all citizens have the right to vote for OHA trustees, not just native Hawaiians.
Ara kaki v. Lingle. The 9th U.S. Circuit Court of Appeals ruled in February against a group of 14 Hawaii taxpayers who say the state unconstitutionally discriminates against non-Hawaiians by giving money to programs that benefit only Hawaiians. The court stopped short of dismissing the 2002 lawsuit, originally filed as Arakaki v. Cayetano, but overturned its own earlier decision by finding the 14 taxpayers lack legal standing to challenge state funding of the Office of Hawaiian Affairs. The court sent the case back to U.S. District Court in Honolulu to determine if any of the plaintiffs are eligible "in any other capacity."
Bra yden Mohica-Cummings. In a case similar to John Doe v. Kamehameha Schools, the non-Hawaiian boy challenged the institution's preference policy. Under a settlement reached in November 2003, Mohica-Cummings was allowed to attend the school's Kapalama Heights campus in exchange for dropping the lawsuit.
Joh n Carroll/Patrick Barrett. In September 2003 the 9th Circuit upheld a lower court's ruling dismissing two lawsuits that challenged Hawaiian entitlements. The court agreed that plaintiffs John Carroll and Patrick Barrett, who filed separate lawsuits in October 2000 that were later consolidated, did not have standing to challenge the constitutionality of Hawaiian programs. Carroll sued to stop state ceded-land payments to the Office of Hawaiian Affairs, arguing that the office serves only Hawaiians and was established by a discriminatory state law. Barrett, a Moiliili resident, challenged the validity of the 1978 state constitutional amendment creating the Office of Hawaiian Affairs and the enactment by Congress in 1921 of the Hawaiian Homes Commission.