Kamehameha Schools should decide how to end lawsuits for good

THE ISSUE A new lawsuit challenging Kamehameha Schools' Hawaiians-only admission policy is similar to a suit settled out of court last year.

As predicted, Kamehameha Schools' settlement last year of a legal challenge to its Hawaiians-only admission policy gave it a reprieve but kept it vulnerable to other lawsuits. Such a suit has been filed by the same attorney who brought the first one to the door of the U.S. Supreme Court, forcing the schools to decide whether to follow the same path or seek a lasting solution.

The new lawsuit filed by lead attorney Eric Grant of Sacramento, Calif., states that it is "virtually identical" to the one that was settled as the Supreme Court was deciding whether to hear an appeal of an 8-7 ruling by a panel of the 9th Circuit Court of Appeals that upheld the schools' admission policy. The suit says brazenly that its purpose is "to have that ruling overturned" by the high court.

Kamehameha Schools spokesman Kekoa Paulsen said the suit was expected. He said the private school was founded by the 1883 will of Princess Bernice Pauahi Bishop "to correct imbalances that were created years ago." That has been the purpose of affirmative action, which has come under increased scrutiny in the courts.

The Republican-dominated Supreme Court struck down the University of Michigan's undergraduate affirmative action program five years ago and likely would have overturned the 9th Circuit Court ruling in the Kamehameha case last year. Kamehameha contended that its admission policy is not an "absolute bar" to non-Hawaiians, but that was also true at the University of Michigan.

Even enactment of Sen. Daniel Akaka's bill granting Hawaiian sovereignty might not be enough to establish the "special relationship" between Kamehameha and the federal government to shield the school from lawsuits. Courts have ruled that Indian tribal status does not protect discrimination by private parties.

Like the last lawsuit, this one accuses Kamehameha of violating an 1866 civil-rights law prohibiting racial discrimination in contracts. The Supreme Court ruled in 1976 that the law prohibits discrimination by private schools because tuition in return for education is a contract.

Eliminating tuition would make the suit go away. Grant's co-counsel, David Rosen of Honolulu, has maintained that the Kamehameha policy violates the 5th and 14th amendments' prohibition against discrimination, but the suit makes no such assertion.

The new lawsuit should be relatively inexpensive for both sides, which might have to merely re-file documents prepared in the earlier "John Doe" case, replacing the plaintiff's name with Karl Doe, Lisa Doe, siblings Jacob and Janet Doe and their parents.