Secret plaintiffs appeal Kamehameha lawsuit


POSTED: Friday, March 06, 2009

Non-Hawaiians challenging Kamehameha Schools' admissions policy should publicly identify themselves and need not fear for their safety, according to a federal judge and Hawaiians close to the case.

But four students and their families whose case was dismissed in U.S. District Court yesterday are asking the 9th U.S. Circuit Court of Appeals to allow them to pursue the issue anonymously.

Kamehameha Schools gives preference to native Hawaiians in admissions, and the idea of opening the campus to students with no Hawaiian blood has stirred heated emotion. The plaintiffs argued in court that they feared retaliation from “;the public at large”; if their identities were disclosed.

But U.S. Magistrate Barry Kurren ruled in October that they had failed to show evidence of any threats of physical violence or economic harm. He directed them to reveal their identities if they wished to pursue the case.

The plaintiffs declined to go public, and U.S. District Judge J. Michael Seabright dismissed their case yesterday. Lawyers wasted no time in filing an appeal to the 9th Circuit.

“;We've got a disagreement as to whether or not there's a risk to the plaintiffs and their families if their identities are disclosed,”; said David B. Rosen, an attorney for the plaintiffs. “;That's essentially the only issue that's going on appeal.”;

The lawsuit was filed Aug. 6 in the names of Lisa Doe, Karl Doe, Jacob Doe and Janet Doe and their parents. Kamehameha Schools said yesterday the students should not feel intimidated in making their case publicly.

“;The trustees of Kamehameha Schools would never take an action that would place a child in danger,”; said Ann Botticelli, vice president of community relations and communications for Kamehameha Schools. “;We believe an appeal has no merit, and we will oppose it.”;

The students' claims echo those of a 2003 lawsuit filed by a separate plaintiff, who remained anonymous and was known only as John Doe. The U.S. District Court and 9th Circuit rejected his claim and upheld Kamehameha's admissions policy. The suit was settled out of court for $7 million last year before it could be appealed to the U.S. Supreme Court, according to attorney John Goemans.

Jan Hanohano Dill, a 1961 Kamehameha Schools alumnus, said yesterday he objected to giving people anonymity in their court challenges against the schools, the legacy of Princess Bernice Pauahi Bishop. He said nothing negative had happened to families involved in previous lawsuits against the school.

“;The public and the Hawaiian community deserve to know the people that are attempting to essentially steal money from the legacy,”; said Dill, former president of Na Pua a ke Ali'i Pauahi, an organization of Kamehameha Schools alumni, parents and students. “;I just hope that we can resolve it to save the resources for the needs of our keiki.”;

Kamehameha Schools operates campuses on Oahu, Maui and the Big Island, enrolling about 5,000 students. Only one in eight applicants is accepted into the schools.

In arguing for anonymity, Eric Grant, a plaintiffs' attorney, pointed to threats and inflammatory rhetoric surrounding the current case, the John Doe case and another court case involving a 12-year-old non-Hawaiian student from Kauai.

But in his October ruling, Kurren concluded that “;at most, plaintiffs are vulnerable children who have a reasonable fear of social ostracization.”; He said the public interest in the case outweighs that concern.