Privacy in Kamehameha suit denied


POSTED: Wednesday, March 03, 2010

Students who believe Kamehameha Schools' admissions policy is racially discriminatory must reveal their names publicly if they want to sue in federal court, the 9th U.S. Circuit Court of Appeals has ruled.

“;I think that's wonderful; it's the right decision,”; Antoinette “;Toni”; Lee, a former president of the Kamehameha Alumni Association's Oahu region, said yesterday. “;Everybody should be able to face their accuser. It's our constitutional right to do that.”;

Four Hawaii students had sought anonymity to sue the school over its policy, which they believe violates their civil rights by favoring native Hawaiians. Their parents feared for their safety if their identities were disclosed, pointing to threatening postings on the Internet.

David Rosen, one of their attorneys, said yesterday the plaintiffs may now turn to the U.S. Supreme Court. The idea of opening Kamehameha's campuses to students with no Hawaiian blood has stirred emotional debate. The students filed suit on Aug. 6, 2008, under the names of Jacob, Janet, Karl and Lisa Doe.

In its 3-0 ruling yesterday, the appeals court upheld lower court rulings that the public interest in open courts outweighs the need for privacy in this case.

“;We are sympathetic to the concerns of the Doe children and their parents, but we recognize the paramount importance of open courts,”; a three-judge panel of the 9th Circuit said.

“;The district court did not abuse its discretion in concluding that the plaintiffs' fears were unreasonable. The magistrate judge correctly recognized that many times people say things anonymously on the Internet that they would never say in another context and have no intention of carrying out.”;

In October 2008, U.S Magistrate Barry Kurren ruled that the plaintiffs could not proceed anonymously. He said they had failed to show evidence of threats of physical violence or economic harm, and concluded that “;at most, plaintiffs are vulnerable children who have a reasonable fear of social ostracization.”; That decision was upheld by U.S. District Judge Michael Seabright.

“;We are gratified that the U.S. 9th Circuit Court affirmed the rulings of the district court in this case,”; Kamehameha Schools CEO Dee Jay Mailer said yesterday. “;We have believed from the outset that if this case were to proceed, it should do so as openly and honestly as possible. ... We are heartened by the consistent, unanimous and affirming legal determinations that have been made so far.”;

Yesterday, Rosen said his clients would not challenge the admissions policy without confidentiality.

“;That's not something I would be comfortable with as an attorney,”; he said. “;I would not be comfortable with having young children's identities known, in order to protect both the children and their families. I have a duty to look out for what's in their best interests.”;

Kamehameha's policy, which gives preference to native Hawaiians, has been in contention for years. In 2002 the schools voluntarily admitted a non-Hawaiian, triggering widespread protest. The next year, Kamehameha unwittingly admitted another non-Hawaiian but rescinded its offer later when it discovered he did not have Hawaiian blood. After a court challenge, he was allowed to attend.

In a separate case a student known only as John Doe sued Kamehameha

in 2003, alleging racial

discrimination. The U.S. District Court and 9th Circuit rejected his claim. The suit was settled out of court for $7 million last year before it could go before the U.S. Supreme Court, according to attorney John Goemans.

Kamehameha Schools operates campuses on Oahu, Maui and the Big Island, enrolling about 5,000 students. Only one in eight applicants is accepted. Rosen said Kamehameha's admissions policy deserves scrutiny by the Supreme Court, although in the current case the only aspect that can be appealed is the question of anonymity.

“;There's a public and a private interest in having this issue (the admission policy) decided,”; he said. “;It's a public interest in that this institution is tax-exempt. And it's a private interest in that the trustees have a legal duty to follow the law and ascertain what the law is, not make it up.”;

William Burgess, chairman of Aloha for All, a nonprofit devoted to equal rights for all citizens of Hawaii, said that as minors the children should be able to protect their identity. “;The school should welcome a decision on the merits, not based on someone being in fear for their lives,”; he said.

However, the 9th Circuit Court revealed some mixed feelings on the question of confidentiality. “;Were we permitted to make findings and weigh the factors anew, we might have held that anonymity here was appropriate,”; the judges said.




» PDF of the 9th Circuit's ruling: