Kamehameha Schools 2007. Appeal to the U.S. Supreme Court of the 9th Circuit Court of Appeals en banc 8-7 decision overturning the earlier 9th Circuit 2-1 ruling that had ordered Kamehameha to desegregate. SETTLEMENT FILED WITH SUPREME COURT ON MAY 11, 2007; THEREFORE, PETITION FOR CERTIORARI DISMISSED BY AGREEMENT OF THE PARTIES. Attorney David Rosen seeks clients for a new desegregation lawsuit not to be settled, provoking numerous outraged responses.

On this webpage is a history of the controversy regarding Kamehameha Schools' racially exclusionary ("Hawaiian 'preference'") admissions policy, for the year 2007. But first, a quick review of events from recent years.

QUICK REVIEW OF 2006:

During 2006 there were major events in the courts regarding Kamehameha Schools racially exclusionary admissions policy. Those events were covered at http://www.angelfire.com/hi2/hawaiiansovereignty/kamschool2006.html

Here are some of the most important court proceedings and decisions from 2006, most-recent at the top

On December 5, 2006 the 9th Circuit Court of Appeals handed down its en-banc decision by a panel of 15 judges. They voted 8-7 to uphold Kamehameha's admissions policy. That decision will be appealed to the U.S. Supreme Court. Here is the full text of the 110-page en-banc decision in pdf format directly from the 9th Circuit Court website. The first 53 pages are the majority ruling, and the last 57 pages are the minority dissents.
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/53333A1C2A376D138825723B005F9EE5/$file/0415044.pdf?openelement

The Decision of December 5 overturned the 2-1 decision by a 3-judge panel of the 9th Circuit Court that was handed down on August 2, 2005. Here is the full text of that 45-page decision by the 3-judge panel, in pdf format:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/A294DE38BC83F75B88257051005488B8/$file/0415044.pdf?openelement

Oral Arguments on November 5, 2004 before the 3-judge panel (8.5 Megabytes) can be downloaded from the 9th Circuit Court website. These are the oral arguments considered by 3-judge panel the 9th Circuit in reaching its decision of August 2, 2005:
http://www.ca9.uscourts.gov/ca9/media.nsf/8DF243E4ECB186DB88256F4300667F53/$file/04-15044.wma?openelement

Analysis of the 3-judge decision, in Q&A format, by Ken Conklin:
http://www.angelfire.com/hi5/bigfiles3/Kam9thCircuitBigPicture.html

August 6, 2005 Red-Shirt rally with 20,000 (twenty thousand) activists at Iolani Palace protesting the 9th circuit decision -- news reports and photos
http://www.angelfire.com/hi5/bigfiles3/AntiAmericanHawaiianProtesters.html

The 9th Circuit decision of August 2, 2005, plus about 120 pages of analysis and news coverage, including the huge red-shirt protest of August 7, are available at:
http://www.angelfire.com/hi2/hawaiiansovereignty/kamschool2005.html

You may also review approximately 150 pages of news coverage and events from August 8 to December 31, 2005, (after the 9th Circuit Court decision was handed down, and after the huge August 6 pro-segregation protest of that decision) at:
http://www.angelfire.com/hi2/hawaiiansovereignty/kamschool2005Aug8toDec31.html

Background information about Kamehameha Schools, including analysis of the admissions policy and news coverage from years before 2005, can be found at:
http://www.angelfire.com/hi2/hawaiiansovereignty/kamschool.html

NOW BEGINS NEWS AND ANALYSIS ABOUT KAMEHAMEHA SCHOOLS ADMISSIONS POLICY FROM YEAR 2007, IN CHRONOLOGICAL ORDER

==============

Why do civil rights activists oppose Kamehameha Schools' racially exclusionary admissions policy? Do they hate Hawaiians? Are they jealous of Hawaiians getting a good education at a low price? What is their motivation? A new book published March 2007 puts the Kamehameha Schools controversy into the "big picture" of racial separatism in Hawai'i and how our beautiful rainbow society is being ripped apart. The book also describes the role of Kamehameha's Policy Analysis and Systems Evaluation (PASE) division in doing junk science to develop victimhood statistics to feed the tycoons of the Hawaiian grievance industry.

"Hawaiian Apartheid -- Racial Separatism and Ethnic Nationalism in the Aloha State" (a new book by Kenneth R. Conklin, Ph.D. 302 pages. See cover, detailed table of contents, and entire Chapter 1, plus information on how to order the book; at http://tinyurl.com/2a9fqa

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http://www.indiancountry.com/content.cfm?id=1096414553
Indian Country Today, February 23, 2007

The Kamehameha Schools issue in Hawaii

by: Steven Newcomb / Indigenous Law Institute

The Kamehameha Schools in Hawaii were founded and their admission policy created on the basis of the will of Bernice Pauahi Bishop, a will that was executed and signed in 1883, a year before her death. [Note from Ken Conklin: As has been shown in this website, and as the judges of the 9th Circuit Court confirmed, the will of Pauahi nowhere requires a Hawaiians-only admissions policy, nor even a racial preference except for the category of orphans and indigents] At that time, the Kingdom of Hawaii was the internationally recognized government in Hawaii, and the Hawaiian monarchy was obviously still in power. The terms of Princess Pauahi's will were perfectly legal and legitimate within the legal and political system existing in Hawaii. [KC note: all judges agree the will does not impose a racial preference except for orphans and indigents; the issue is not the will, from 1884, but the way the trustees implement it in the 21st Century]

In 2003, a lawsuit, John Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, was filed on behalf of an anonymous non-Hawaiian seventh-grade student challenging the Hawaiian-only admission policy of the Kamehameha Schools. The lawsuit challenged that the Kamehameha Schools' admission policy is ''race-based'' and therefore illegal on the basis of the 14th Amendment of the U.S. Constitution.

In November 2003, a U.S. District Court judge upheld the Kamehameha Schools' admission policy, holding that a ''race-consciousness'' policy is a legitimate means of addressing economic difficulties and past injustices suffered by Hawaiians. However, a panel of the Ninth Circuit Court of Appeals held in favor of the non-Hawaiian plaintiff and found the Kamehameha Schools admission policy unlawful on the basis of the civil rights laws of the United States.

On Dec. 6, 2006, the Ninth Circuit Court of Appeals reversed its earlier ruling by upholding the Kamehameha Schools' admission policy. A majority of judges on the Appeals Court agreed that the Kamehameha admissions policy, which only allows Native Hawaiians to attend the Kamehameha Schools, is permissible under U.S. law. Four of the 15 judges on the Ninth Circuit Court of Appeals dissented, and the case will most likely to be appealed to the U.S. Supreme Court.

In its reversal of the earlier 9th Circuit ruling, under the heading ''Historical Context,'' Judge Susan Graber quoted from the Education portion of the U.S. Code, Title 20, Section 7512: ''In 1893, the sovereign, independent, internationally recognized and indigenous government of Hawaii, the Kingdom of Hawaii, was overthrown by a small group of non-Hawaiians including the United States Minister, a United States naval representative and armed naval forces of the United States.'' Then, citing Section 7512 (6), Graber wrote, ''The United States annexed Hawaii not long afterward.''

The problem with Graber's mention of annexation is that it is legally and factually false. The Newlands Resolution, passed on July 7, 1898, failed to effect any legal annexation of Hawaii to the United States pursuant to the U.S. Constitution or international law. This is in part because the U.S. Constitution has no provision that enables the U.S. government to annex a foreign territory to the United States by joint resolution, which is an expression of the joint opinion of both houses of Congress.

Furthermore, according to international law, an underlying treaty of cession is needed in order to transfer lands from one nation to another. The proposed treaty between the fraudulent ''Republic of Hawaii'' and the United States was never voted on in the Senate because the proponents of annexation knew they did not have the two-thirds majority in the Senate needed for treaty ratification. This was in part because Kanaka Maoli representatives successfully delivered to Congress tens of thousands of Kanaka Maoli signatures opposing annexation and advocating a restoration of the legitimate government of Hawaii. Pro-annexationists were able to get the terms of the treaty rewritten and passed in the form of a joint resolution to make it seem as if annexation had occurred when in fact it had not.

The U.S. government has officially admitted to its involvement in the 1893 illegal subversion of the government of Hawaii - President Grover Cleveland admitted this - and so did the congressionally approved ''Apology Bill'' signed by President Bill Clinton in 1993. Thus, it is ridiculous for the legitimacy of the Kamehameha Schools' admission policy to be evaluated on the basis of the laws of the very country responsible for those illegal and criminal actions in 1893 against the Kanaka Maoli and their legitimate constitutional Hawaiian government in 1893.

As gratifying as it is for the supporters of the Kamehameha Schools to have won their 9th Circuit Court of Appeals en banc review, there is the very real possibility that the arguments presented by the 9th Circuit dissenters might be used by a majority of justices on the U.S. Supreme Court to rule against the Kamehameha Schools' admission policy. It is extremely unfortunate that the attorneys for the Kamehameha Schools did not premise their legal strategy on a correction of the erroneous historical presumption of annexation.

Given that the annexation of Hawaii never legally occurred, it makes no sense for the attorneys representing the Kamehameha Schools and the Bishop Estate to have allowed the wrongful presumption of annexation to stand uncontested. There is ample historical evidence that the attorneys could have used to show that the supposed ''fact'' of annexation is nothing other than a long-standing fiction (lie) perpetuated by the United States to the detriment of the Kanaka Maoli.

Because annexation did not occur, Princess Pauahi's will and the Kamehameha Schools' Hawaiian-only admission policy ought to be interpreted within the legal and political context existing in Hawaii at the time that her will was executed and signed in 1883, rather than within the context of the laws and political system of the United States. If the Supreme Court ultimately reverses the 9th Circuit's en banc ruling, the lie of annexation will have once again been used to the detriment of the Kanaka Maoli. Such a ruling would provide yet another example of how the United States uses to its advantage its admitted involvement in the illegal acts that resulted in the subversion of the Kingdom of Hawaii by forcing Queen Liliuokalani's to abdicate her throne in her effort to avoid bloodshed.

Given that the context and purpose of Princess Pauahi's will was to benefit the people of her nation, it is more correct to say that the Kamehameha Schools' Hawaiian-only admission policy is politically grounded and based on nationality rather than race, namely, the originally and rightfully free Kanaka Maoli Nation of Hawaii.

Steven Newcomb is Indigenous Law Research Coordinator at the Sycuan Education Department of the Sycuan Band of the Kumeyaay Nation, co-founder and co-director of the Indigenous Law Institute and a columnist for Indian Country Today.

[note from Ken Conklin: Regarding the issue of the annexation and its legality, see:
http://www.angelfire.com/hi2/hawaiiansovereignty/annexation.html
Of course, Newcomb would like to undo the annexation and restore the Kingdom. But even in the Kingdom there were no schools racially restricted to ethnic Hawaiians only.

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http://the.honoluluadvertiser.com/article/2007/Mar/02/br/br7495130286.html
Honolulu Advertiser, Friday, March 2, 2007, Breaking news, Updated at 3:38 p.m.

High court asked to hear Kamehameha admissions case

Lawyers for an unnamed teenager have requested that the U.S. Supreme Court review their challenge to Kamehameha Schools admissions policy giving preference to Native Hawaiians.

Attorneys Eric Grant of Sacramento and John Goemans of Hawai'i filed their petition Thursday asking the high court to review the U.S. 9th Circuit Court of Appeals decision upholding the admissions policy.

The appeals court's ruling in December said the policy did not violate federal civil rights law.

The lawyers said the high court is expected to decide before summer recess in late June whether to take up the case.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20070303/NEWS23/703030331/1173/NEWS
Honolulu Advertiser, Saturday, March 3, 2007

Ruling on admissions appealed

By Gordon Y.K. Pang

Attorneys for a teenager denied entry into Kamehameha Schools have asked the U.S. Supreme Court to look at the legality of the institution's Hawaiians-first admissions policy.

Last December, the San Francisco-based 9th U.S. Circuit Court of Appeals ruled 8-7 to uphold the policy, which reversed an earlier 2-1 panel decision that appeared to strike it down.

Attorneys for the boy say the policy violates federal civil rights laws that prohibit racially segregated schools. Kamehameha officials said the school's situation is unique and part of a private will designed to provide an educational remedy to correct the ills suffered by Native Hawaiians.

Eric Grant, an attorney for the student identified only as John Doe, yesterday acknowledged that only 3 percent of petitions to the nation's highest court to review court decisions are accepted. But Grant said that number is misleading since they include cases with little chance of being accepted. The John Doe case, he said, stands "a pretty good chance" because of the narrow margin of the appeals court decision and because of the importance and interest of the case. He noted that the Supreme Court also currently has before it two other cases involving school admissions issues. "It's a natural case for them to take," Grant said. "There are no sure things, but in my judgment and that of other lawyers I talked to, this has a pretty good chance, so we'll see."

Kamehameha Chief Executive Officer Dee Jay Mailer said in a statement that the institution has a strong case for opposing the petition. "This case does not raise issues of national importance," she said. Kamehameha's situation is unique, she said, in that it was "founded by a princess in her sovereign homeland, who bequeathed her private wealth to provide an educational remedy for the ongoing socioeconomic disadvantages suffered by her native people." The lawsuit involves a federal statute enacted by Congress, Mailer said. "The same Congress has recognized and supported our mission."

Grant said the boy graduated from his local public high school in Hawai'i and is now attending college.

Kamehameha officials said they expect to respond to the petition within 30 days. Grant said Kamehameha has until early April to respond, and that he expects the Supreme Court to decide whether to hear the case before it leaves for summer recess in late June.

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http://starbulletin.com/2007/03/03/news/story01.html
Honolulu Star-Bulletin, March 3, 2007

Ruling by high court sought
Attorneys seek a review and reversal of an appeals court's decision that backed Kamehameha Schools' admission policy

By Alexandre Da Silva

Attorneys for a student challenging Kamehameha Schools' admission policy of giving preference to native Hawaiians have asked the U.S. Supreme Court to review an appeals court ruling upholding the century-old practice.

Eric Grant, a Sacramento, Calif., attorney representing a non-Hawaiian student who was denied admission at the prestigious school, filed the 34-page petition Thursday. It seeks a review and reversal of a December ruling on the case by a 15-judge panel of the 9th U.S. Circuit Court of Appeals.

The panel voted 8-7 to affirm U.S. District Judge Alan Kay's 2003 ruling that found Kamehameha's preference policy does not violate federal civil rights laws and has the legitimate purpose of addressing economic and educational imbalances suffered by native Hawaiians.

Kamehameha Schools spokesman Kekoa Paulsen said the school will read the petition and, within 30 days, ask that the high court reject the request.

The student, named as John Doe in court papers, had his application to Kamehameha denied twice after he told the school that none of his grandparents had Hawaiian blood. He graduated from a local public school with honors last spring and is enrolled in a four-year undergraduate college, according to his lawyers.

Grant expects the Supreme Court to decide whether to take up the case sometime before the summer recess in June. If the court agrees to the petition, the case could be heard as early as October, he said.

The petition contends that the appeals court's decision to back the school's policy is wrong because it creates an exemption to the Civil Rights Act of 1866, authorizing Kamehameha "to operate racially segregated schools forever," Grant said. "That's a sufficiently important ruling that the Supreme Court ought to have the last ruling on whether that's permissible," he said.

In defending its 118-year-old admission policy, Kamehameha Schools has argued that it serves to remedy educational, social and economical disadvantages suffered by native Hawaiians since the U.S.-backed overthrow of their kingdom in 1893. The school contends that Hawaiians also have a special political relationship with Congress, which has enacted a number of laws aimed at helping them. "We have a strong case to oppose a petition for certiorari before the U.S. Supreme Court," Kamehameha Schools CEO Dee Jay Mailer said in a statement. "This case does not raise issues of national importance. There is simply no other school in the country like Kamehameha."

The school, which enrolls some 6,715 students, was established in 1887 under a charitable trust set up by Princess Bernice Pauahi Bishop to educate the children of Hawaii. The $7.6 billion trust funds K-12 campuses on Oahu, Maui and the Big Island, as well as 31 preschools statewide.

Legal battles

June 25, 2003: Attorneys for an unidentified non-Hawaiian boy sue Kamehameha Schools in federal court, challenging the school's Hawaiians-only preference for admissions. The suit contends that federal civil rights laws prohibit private schools from denying admission on the basis of race.

Nov. 17, 2003: U.S. District Judge Alan Kay strikes down the challenge by the unidentified student. Attorneys for the student later appeal the case to the 9th U.S. Circuit Court of Appeals.

Aug. 2, 2005: Two out of three justices on a 9th Circuit panel rule that the schools' admission policy constitutes "unlawful race discrimination." The ruling reverses Kay's ruling.

Dec. 5, 2006: A 15-judge panel of the 9th Circuit votes 8-7 to affirm Kay's November 2003 ruling that the preference policy does not violate federal civil rights laws. The ruling reverses the Aug. 2, 2005, ruling against Kamehameha Schools.

Thursday: Attorneys for John Doe ask the U.S. Supreme Court to review the appeals court's Dec. 5 ruling.

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** E-mail circulated by Eric Grant, attorney for Doe

Interested Persons,

Yesterday I filed a petition for certiorari in Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate. The petition asks the Supreme Court to review the Ninth Circuit's 8-7 en banc decision, 470 F.3d 827 (Dec. 5, 2006), upholding a private school admissions policy that categorically excludes children who lack "Hawaiian ancestry." PDF versions of the petition are available from my website:

http://www.eric-grant.com/work/KSBE1.pdf * (petition alone, 188K);

and

http://www.eric-grant.com/work/KSBE2.pdf * (petition with Appendix, 720K).

I welcome any questions or comments you might have.

Cordially,
Eric Grant
Attorney at Law
8001 Folsom Boulevard, Suite 100
Sacramento, California 95826
http://www.eric-grant.com

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20070317/NEWS23/703170352/1173/NEWS
Honolulu Advertiser, Saturday, March 17, 2007

School opposes high court review

By Gordon Pang

Kamehameha Schools attorneys contend there is no constitutional grounds for the country's highest court to review an appellate court ruling that upheld the institution's Hawaiians-first admissions policy.

What's more, Kamehameha attorneys said in a legal brief filed yesterday, the decision is not in conflict with any other court decisions and is not of national importance.

Kamehameha's case is unique, the brief said. "Nowhere in the United States does there exist another school like Kamehameha Schools, which is entirely private and not-for-profit, and which carries out a remedial educational mission for the benefit of the children of an indigenous people with whom Congress has a special trust and political relationship," the brief said.

The case involves a non-Hawaiian child identified only as John Doe, who was denied admission to Kamehameha. Attorneys for John Doe say Kamehameha's preference policy violates civil-right statutes and discriminates against non-Hawaiians.

But Kamehameha attorneys and supporters say the policy is needed because Hawaiians, on the whole, continue to do poorly in a variety of socio-economic categories.

They also note that Congress has continued to support funding remedial measures aimed exclusively at helping Hawaiians.

Doe has 10 days to respond. The Supreme Court is expected to respond to both filings in the coming weeks.

Last December, the full 9th U.S. Circuit Court of Appeals declined to strike down the school's admissions policy.

------------------

Kamehameha's brief in opposition to the petition for certiorari can be downloaded from the Kamehameha website in pdf format, at:
http://www.ksbe.edu/pdf/writresponse.pdf

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From: Eric Grant

Subject: Reply Brief in Doe v. Kamehameha Schools

Date: Tue, 27 Mar 2007

Interested Persons,

Today I filed a reply brief in support of the petition for certiorari in Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate. A PDF version is available from my website:

http://www.eric-grant.com/work/KSBE3.pdf

According to my calculations, the petition and other filings will be "distributed" this week for consideration by the Justices at their Conference on Friday, April 13th. Barring a postponement, we should know the result (grant or denial) in the Orders List released on the morning of Monday, April 16th.

Here is a link to the Supreme Court's online docket for the case:

http://www.supremecourtus.gov/docket/06-1202.htm

Cordially,
Eric Grant
Attorney at Law
8001 Folsom Boulevard, Suite 100
Sacramento, California 95826
Telephone: (916) 388-0833
Facsimile: (916) 691-3261
http://www.eric-grant.com

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20070409/NEWS01/704090350/1001
Honolulu Advertiser, Monday, April 9, 2007

No predictions on Kamehameha decision

By Ken Kobayashi
Advertiser Courts Writer

The U.S. Supreme Court could issue a decision as early as next Monday that would either leave Kamehameha Schools elated over the end of the legal challenge to its Hawaiians-first admission policy or set the stage for the most significant high-court ruling involving Native Hawaiians in years.

The Supreme Court will be deciding whether to take the Kamehameha case. A decision not to take the case would let stand an earlier ruling in favor of Kamehameha Schools and its 120-year-old admissions policy. A decision to hear the case would lead to a Supreme Court ruling by summer 2008 on the legality of the admissions policy that favors Native Hawaiians.

The 9th U.S. Circuit Court of Appeals held by an 8-7 vote that the policy does not violate federal civil rights law.

But if lawyers for a non-Hawaiian teen who sought admission persuade at least four of the nine Supreme Court justices to agree to hear the case, the high court is likely to issue a ruling that will be the most monumental for Native Hawaiians since its Rice v. Cayetano decision seven years ago.

At issue is a challenge by an unnamed teenager to how students are admitted to the private, nonprofit institution, established to educate students of Hawaiian blood and address educational disadvantages of the state's indigenous population.

The legal briefs have been submitted for the justices to consider at a conference Friday, and the court will disclose, starting on Monday, which of the appeals from lower courts it will accept.

School officials have been reluctant to say how they would comply with any ruling to drop the Hawaiians-first policy, which supporters say is at the heart of the institution.

"We are concentrating on defending the admissions policy that is currently in place," schools spokeswoman Ann Botticelli said.

The emotional issue is of huge importance to the Native Hawaiian community.

When a three-member panel of the 9th Circuit ruled 2-1 in August 2005 that the policy violated the federal civil rights law, thousands of Kamehameha supporters marched in protest around the state. The ruling later was overturned by a larger "en banc" court panel of 15 appeals judges in December last year.

Eric Grant, the Sacramento lawyer representing the teenager who was rejected for admission at the schools and is now attending a four-year college, said he believes he has a "good" chance that four justices will agree to hear the case, but neither he nor others on both sides of the issue want to make a definitive prediction.

The high court accepts only a small fraction of requests to review lower-court rulings, but experts said it's difficult to say whether the justices will take the case.

"The fact of the matter is, nobody really knows," said state Attorney General Mark Bennett, who supports Kamehameha Schools' admission policy and will be filing a brief on behalf of the state if the high court accepts the case.

Kamehameha Schools, the largest private landowner in the state, was established in 1887 under the will of Princess Bernice Pauahi Bishop. It serves nearly 5,000 of the more than 70,000 Native Hawaiian schoolchildren at the flagship Kapalama Heights campus and in schools on Maui and the Big Island.

In his legal brief, Grant cites the high court's history of decisions prohibiting the "separate but equal" argument for segregated schools dating back to the landmark Brown v. Board of Education ruling in 1954. He argued that Kamehameha Schools' position that non-Native Hawaiians can get an adequate education elsewhere is creating a new standard for schools: "separate but adequate."

Kamehameha Schools have contended the case does not have any nationwide impact, one of the standards the justices use for accepting cases. The schools' lawyers defend the appeals court ruling and argue that its decision deals with a private school with a unique history. They contend the schools' mission is supported by Congressional actions providing educational and other benefits for Native Hawaiians.

The schools' lawyers also argue that prior high-court rulings outlawing discrimination by private schools did not deal with the issue of "remedial" admissions for disadvantaged minorities.

The case has drawn friend-of-the-court briefs by the Center for Equal Opportunity, a nonprofit group in Sterling, Va., that opposes affirmative action and race-based programs, and Earl Arakaki and nine other Hawai'i residents who have opposed government funding for programs exclusively for Native Hawaiians in another case.

Both urge the court to accept the admissions case. Hawai'i's Congressional delegation filed a friend-of-the-court brief asking the court to reject the appeal.

In the Rice v. Cayetano case, the justices issued a 7-2 decision that threw out a state law that excluded non-Hawaiians from voting for Office of Hawaiian Affairs trustees. The justices said the law was a violation of the Constitution's 15th amendment protections for voting rights.

U.S. Supreme Court Chief Justice John Roberts Jr., a private attorney at the time, was hired by the state to defend the OHA voting policy and argued the case before the high court.

The 2000 ruling spawned other challenges to OHA, however. The unnamed non-Hawaiian teenager also filed the challenge to Kamehameha Schools' admission policy in the wake of the Rice decision.

Grant said he has no qualms about Roberts participating in the Kamehameha case because of the passage of time and the fact that different parties are involved in the admissions case.

"Just because justices have said something on similar issues does not disqualify them under the law," Grant said.

Robert Klein, a former Hawai'i Supreme Court justice who is the board counsel for OHA, said the briefs urging the court to take the case tried to focus on persuading the conservative justices. Roberts, Klein said, is a conservative justice and his position on the OHA case might not appeal to him now, given his conservative background.

Like the others, Klein won't make a prediction on what the justices might decide.

"I don't think anybody can say, 'Oh, yeah, definitely this is a case they will (accept) or the other way,' " he said.

JOHN DOE V. KAMEHAMEHA SCHOOLS

Legal briefs have been submitted for the U.S. Supreme Court to decide whether to hear a case involving Kamehameha Schools' Hawaiians-first admissions policy.

A teenager identified only as John Doe is asking the high court to review and overturn a 9th U.S. Circuit Court of Appeals decision that held by an 8-7 vote that the policy does not violate federal civil rights laws.

Here are some points raised in the briefs:

JOHN DOE

Congress has agreed that racial discrimination in schools violates "fundamental public policy."

"Given that policy, this court cannot give the final say to a lower court that has interpreted the nation's oldest civil rights law to sanction the system of racially segregated schools operated openly by respondents. If not overturned, that interpretation would sanction racially exclusive private schools for any group that could point to 'significant imbalances in educational achievement.' "

KAMEHAMEHA SCHOOLS

The appeals court complied with prior U.S. Supreme Court rulings in issuing an "exceedingly narrow" decision.

The appeals court considered the "unique history of Kamehameha Schools, the special trust and political relationship between the United States and the Native Hawaiian people, and the particular statutory context in which Congress has repeatedly enacted express and exclusive preferences for Native Hawaiians. This factual and legal backdrop is too similar to give rise to an issue of national importance warranting this court's review."

CENTER FOR EQUAL OPPORTUNITY

The nonprofit group, which opposes race, ethnic and gender "discrimination" by public and private organizations, cites two 1976 U.S. Supreme Court cases.

In Runyon v. McCrary, the court held that federal civil rights laws cover two private secondary schools that denied admissions to two black students.

In McDonald v. Santa Fe Trail Transportation, the court held the law covers two white employees who were fired for stealing when a black worker was not fired.

"Given the Ninth Circuit's clear and unjustified departure from this court's decision in Runyon and McDonald, the court may wish to consider summary reversal." The group urges a high-court review.

EARL ARAKAKI AND 9 HAWAI'I RESIDENTS

The group and its attorney, H. William Burgess, also have challenged government money to the Office of Hawaiian Affairs.

"Racial tensions in Hawai'i are simmering. The Supreme Court must say firmly and soon, that the U.S. Constitution and its promise of equal protection of the laws for every person, applies with full force in Hawai'i and especially to the giant tax-subsidized charitable public trust that has corrupted and dominates Hawai'i's government." The group urges a review.

HAWAI'I'S CONGRESSIONAL DELEGATION

U.S. Sens. Daniel K. Inouye and Daniel Akaka and Reps. Neil Abercrombie and Mazie Hirono say Congress has provided benefits to Native Hawaiians since the 1920 Hawaiian Homes Commission Act and is now considering the Akaka bill confirming a political relationship between between the United States and Native Hawaiians.

"As these issues continue to be debated in both Houses of Congress, (the delegation) urge the court to defer consideration of issues involving Native Hawaiian preferences, public or private, pending legislative resolution of these significant questions of policy." The delegation opposes a high-court review.

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http://www.mauinews.com/story.aspx?id=29477
Maui News, Friday, April 13, 2007
HAKU MO'OLELO [regular Friday editorial commentary]

By EDWIN TANJI, City Editor

Kamehameha Schools has expended thousands in attorneys' fees to defend an admissions policy of giving preference to children of Hawaiian ancestry, an issue that may be going before the U.S. Supreme Court.

It seems a waste.

Part of the problem is the reaction of many school advocates that to change the policy would somehow violate the intention of Princess Bernice Pauahi Bishop. No reading of the terms of the princess's will could support that passion.

The wording of the 13th Codicil of the will includes:

"I give, devise and bequeath all of the rest, residue and remainder of my estate real and personal, wherever situated unto the trustees below named, their heirs and assigns forever, to hold upon the following trusts, namely: to erect and maintain in the Hawaiian Islands two schools, each for boarding and day scholars, one for boys and one for girls, to be known as, and called the Kamehameha Schools. . . .

"I direct my trustees to invest the remainder of my estate in such manner as they may think best, and to expend the annual income in the maintenance of said schools; meaning thereby the salaries of teachers, the repairing buildings and other incidental expenses; and to devote a portion of each years income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood; the proportion in which said annual income is to be divided among the various objects above mentioned to be determined solely by my said trustees they to have full discretion. . . .

"For the purposes aforesaid I grant unto my said trustees full power to lease or sell any portion of my real estate, and to reinvest the proceeds and the balance of my estate in real estate, or in such other manner as to my said trustees may seem best.

"I also give unto my said trustees full power to make all such rules and regulations as they may deem necessary for the government of said schools and to regulate the admission of pupils, and the same to alter, amend and publish upon a vote of a majority of said trustees."

The will does not say the schools are only for Hawaiian children, although it provides the trustees the power to decide. It says that a portion of the income of the princess's trust shall support and educate orphans and indigent children, with preference to those of Hawaiian blood. There could be an issue whether the trustees today are making sufficient effort to comply with the direction that the preference apply to students in "indigent circumstances."

Understanding the situation of the Native Hawaiian population when Pauahi Bishop composed her will, it is safe to assume that her intention was to provide education for the maka'ainana – the people of the land – struggling to cope with cultural, social and economic disruptions in their islands in 1883. It was still 10 years before a coalition of non-Hawaiian business owners led the overthrow of the monarchy.

An educated woman, Pauahi Bishop understood the need for education in including in her instructions:

"I desire my trustees to provide first and chiefly a good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women; and I desire instruction in the higher branches to be subsidiary to the foregoing objects."

She anticipated that the people of the islands needed to be knowledgeable in the "common English branches" to be equal to the English-speaking businessmen and entrepreneurs who were dominating the economy of the islands.

But the wording of her will does not exclude anyone, except for a provision mandating the teachers be Protestants – a provision that was struck down as a violation of equal-protection laws.

There is no reason for the Kamehameha Schools not to have an open-admissions policy. There also is no reason that students accepted to the schools should not expect to pay a tuition based on the costs of the education provided as is the case with any school setting standards for excellence. What the will justifies is waivers and scholarships to students who have financial need, with preference given to students of Hawaiian ancestry.

If there are significant numbers of students willing to pay full tuition, regardless of ethnicity, that is a fresh stream of revenue the school's trustees can use to extend opportunities to deserving scholarship students.

An appropriate response to the claims by attorneys William Burgess and Eric Grant may be to have their efforts promote an opportunity for Kamehameha Schools to extend its reach, and to instill an even broader segment of the multiethnic community with an understanding of cultural, social, political and economic views of the Native Hawaiian.

-------------------

From: "Eric Grant"
Date: Mon, 16 Apr 2007
Organization: http://www.eric-grant.com

Interested Persons,

Although the Supreme Court's electronic docket indicated that the case was "distributed" for the Justices' Conference that was held last Friday the 13th, the Order List issued by the Court this morning made no reference to the case either way. Accordingly, the case will be "relisted" for a future Conference.

I do not read any significance into this non-action.

Cordially,
Eric Grant
Attorney at Law
8001 Folsom Boulevard, Suite 100
Sacramento, California 95826
Telephone: (916) 388-0833
Facsimile: (916) 691-3261
http://www.eric-grant.com

** Note from Ken Conklin:
Here is a link to the Supreme Court's online docket for the case, which includes a list of documents filed (including amicus briefs) and the dates of Supreme Court actions.
http://www.supremecourtus.gov/docket/06-1202.htm

-----------------

http://the.honoluluadvertiser.com/article/2007/Apr/16/br/br3472918650.html
Honolulu Advertiser, Breaking News, Posted at 5:09 a.m. HST, Monday, April 16, 2007

U.S. Supreme Court still mulling Kamehameha case

Advertiser Staff

Kamehameha School officials will have to wait another day to see if the U.S. Supreme Court will hear the legal challenge against the schools' Hawaiians-first admission policy.

A school official said this morning the court did not make a decision either way today, but it could be made tomorrow or in the near future.

A decision not to take the case would let stand an earlier ruling in favor of Kamehameha Schools and its 120-year-old admissions policy. A decision to hear the case would lead to a Supreme Court ruling by summer 2008 on the legality of the admissions policy that favors Native Hawaiians.

Earlier, the 9th U.S. Circuit Court of Appeals held by an 8-7 vote that the policy does not violate federal civil rights law.

---------------

** Note from Ken Conklin: The final paragraph of this "news report" contains two terrible errors of fact which clearly show the strong editorial bias of the un-named Honolulu "Advertiser staff" who wrote it. I sent the following material to the Advertiser asking them to issue a correction of these errors.

(1) Kamehameha school was NOT "established to educate students of Hawaiian blood".

School officials have issued racist propaganda for many years about the Will of Princess Pauahi, to justify their racially exclusionary admissions policy. But the will of Princess Bernice Pauahi Bishop [who ESTABLISHED the charitable trust] never imposed any racial requirement, and specified merely a "preference" for "children of the aboriginal blood" but ONLY FOR THOSE CHILDREN WHO WERE ORPHANS OR INDIGENTS.

This is not merely my own opinion based on reading the clearly-written will, it is also the opinion of every judge who has ever ruled on the current case. The original 3-judge decision of the 9th Circuit Court of Appeals, in the case now under appeal to the Supreme Court, very clearly and explicitly states what I have just said. Although the 2-1 decision was later overturned by an 8-7 reversal, NONE OF THE JUDGES EVER DISSENTED FROM THE FOLLOWING PORTIONS OF THE 3-JUDGE RULING AVAILABLE IN ITS ENTIRETY AT http://www.angelfire.com/hi5/bigfiles3/Kamehameha9thCircuit070205.pdf

"Pauahi's will contains several instructions pertaining to the administration of the Kamehameha Schools, none of which establish race as an admissions criteria." (pages 5-6) "... She further instructs that a portion of the trust's annual income should be devoted 'to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood.' Pauahi Bishop Will at 18. While this racial preference is expressly listed as a criterion for the administration of estate resources charitably directed to orphans and indigents, the Will is notably devoid of any mention of race as a criterion for admission into the Kamehameha Schools. As the Schools' 1885 Prospectus observed: 'The noble minded Hawaiian chiefess who endowed the Kamehameha Schools, put no limitations of race or condition on her general bequest. Instruction will be given only in English language, but The Schools will be opened to all nationalities.'" (page 6). Footnote #2 on page 6 adds: "Similarly, in a February 11, 1897 letter, Charles Bishop noted: 'There is nothing in the will of Mrs. Bishop excluding white boys or girls from the Schools . . . .' In a February 20, 1901 letter he further stated: 'According to the reading of Clause 13 on Page 8 of the Will as published, the preference to Hawaiians of pure or part aboriginal blood, applies only to education of orphans and others in indigent circumstances.'" And again, on page 40 in summarizing the decision, the judges wrote: "[14] We emphasize that our ruling today is a narrow one. We conclude only that the plaintiff-appellant has met his burden of establishing the invalidity of the racially exclusionary affirmative action plan in place at the Kamehameha Schools, as that plan currently operates as an absolute bar to admission for those of the non-preferred race. Nothing in our decision, however, implicates the validity of the Pauahi Bishop Will, as we do not read that document to require the use of race as an admissions prerequisite. Consequently, we affirm the entry of summary judgment for the Bernice Pauahi Bishop Estate and its individual trustees."

(2)

Kamehameha School was NOT "established to ... address educational disadvantages of the state's indigenous population."

That is the viewpoint of the schools' trustees (and of the Honolulu Advertiser). The majority in the 8-7 en banc 9th Circuit ruling drew a conclusion of racial profiling that the schools at present are serving the purpose of addressing the [alleged] educational disadvantages of [all] the state's ethnic Hawaiians, and used that conclusion to justify racial discrimination when admitting students to the school. However, it is the Honolulu Advertiser and today's school officials who make that tortuous assertion, and not the person who established the school, Princess Pauahi. On the contrary, it seems obvious that Pauahi's intention was to help the children of Hawai'i assimilate to Western culture and Western educational norms.

In recent years Kamehameha schools have adopted a policy of dis-assimilation. The schools now focus on racial pride, racial separatism, and ethnic nationalism -- all because the only thing that all the children there have in common is at least one drop of native blood. Paul D. Carrington, Professor of Law at Duke University, in his article "Testamentary Incorrectness" in the December 2006 edition of the Buffalo Law Review, provides evidence and good reasoning to show that the primary purpose for which Kamehameha School was established was to help the children of Hawai'i assimilate to Western culture; and it is Professor Carrington who used the word "disassimilation" to describe the wayward policy of the current trustees.

It is my opinion that Princess Pauahi would be horrified by the racially exclusionary admissions policy adopted by the trustees. But whether I am right or wrong about that, it is very clear that Pauahi's intention was NOT racial separatism, and certainly the word "indigenous" was never part of her vocabulary -- it is a recent invention. Indeed, as noted by the judges in the quotes above, Kamehameha Schools have always used English as the language of instruction even in the decade before the monarchy was overthrown. Pauahi herself, in her Will, makes clear the reason why the school was established -- not to foster racial pride, not to encourage dis-assimilation -- but "to provide first and chiefly a good education in the common English branches, and also instruction in morals and in such useful knowledge as may tend to make good and industrious men and women; and I desire instruction in the higher branches to be subsidiary to the foregoing objects."

--------------------

** Five and a half hours later on Monday April 16 the Honolulu Advertiser published a greatly improved report signed by the newspaper's courts reporter and not repeating the false and inappropriate editorial comments of the earlier article.

http://the.honoluluadvertiser.com/article/2007/Apr/16/br/br8031549276.html
Honolulu Advertiser, "breaking news" Posted at 10:48 a.m., Monday, April 16, 2007

No ruling today on Kamehameha Schools case

By KEN KOBAYASHI
Advertiser Courts Writer

The U.S. Supreme Court did not issue a ruling today on whether it will accept the legal challenge against the Kamehameha Schools Hawaiians-first admission policy.

The next time the court will decide whether to accept or reject the case may be a week from now, according to Eric Grant, the Sacramento lawyer representing and unnamed non-Hawaiian teenager and his mother who filed a lawsuit contending the policy violates federal civil rights law.

Today was the earliest that the court would have issued a ruling on the case because it had indicated it had received all the legal briefs for its conference on Friday.

Grant said the court this morning issued a list of about 200 to 300 cases that it was rejecting for consideration, but the Kamehameha Schools case was not one of them. He said none of the cases was accepted.

Grant said he did not see any significance in the court not issuing ruling in the Kamehameha Schools case.

Ann Botticelli, Kamehameha Schools spokeswoman, said this morning the schools believe it filed a strong opposition against the court taking the case, but will just have to wait for the decision.

Grant is asking the high court to review an 8-7 decision by the 9th U.S. Circuit Court of Appeals last year that found the school policy did not violate the federal civil rights law.

The high court has the discretion of accepting or rejecting any requests to review appeals. It grants only a small fraction of the requests. Four of the nine justices must agree to hear the case before the court accepts it.

-----------------

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20070417/NEWS20/704170336/1170/NEWS
Honolulu Advertiser, Tuesday, April 17, 2007

Kamehameha waits for court's list on Monday

By Ken Kobayashi
Advertiser Courts Writer

The U.S. Supreme Court won't likely rule until Monday at the earliest on whether it will accept the legal challenge against the Kamehameha Schools' Hawaiians-first admission policy.

The high court yesterday refused to accept about 200 to 300 cases, but it did not list the challenge by an unnamed non-Native Hawaiian teenager among them, according to the teenager's lawyer, Eric Grant of Sacramento.

Grant said the decision could be on the next list of cases from the high court on Monday.

He said he did not see any significance in the court not issuing a ruling yesterday in the Kamehameha Schools case.

Ann Botticelli, Kamehameha Schools spokeswoman, said the schools filed what it believes was a strong opposition against the court taking the case, but will just have to wait for the decision.

Yesterday was the earliest that the court could have issued a ruling on the case because it had indicated it had received all the legal briefs for its conference on Friday.

Grant represents the teenager and his mother who filed a lawsuit contending the policy violates federal civil rights law.

He is asking the high court to review an 8-7 decision by the 9th U.S. Circuit Court of Appeals last year that found the school policy did not violate federal law.

The U.S. Supreme Court has the discretion of accepting or rejecting requests to review appeals. It grants only a small fraction of the requests. Four of the nine justices must agree to hear a case before the court accepts it.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com

-----------------

http://www.mauinews.com/story.aspx?id=29684
The Maui News, Thursday, April 19, 2007, letter to editor

OHA trustee disagrees with reading of princess' will

Ed Tanji's opinion about the purpose of the Kamehameha Schools is, with all due respect, opinion and not the law ("Haku Mo'olelo," April 13). Kamehameha Schools has been in existence since 1887 and has always sought to educate the boys and girls of Hawaii as known in 1887, that is, those of the aina whose ancestors lived and died with those of the Princess Bernice Pauahi Bishop.

Her husband, her trustees, her lawyers to this day have made it abundantly clear that her will was to leave a legacy for the children she could never have and to educate her people and thus secure for them not only success but survival in their own land.

But for the school, Hawaiians today would likely not be as prominent in government, business, education, culture, community, etc. They, like many others from indigenous cultures, would be relegated to a life without promise and a home without a homeland. The bad statistics in health, housing, crime, etc. would be significantly worse.

Kamehameha Schools provides the link for Hawaii's indigenous people to their past and a bond to their future. The Hawaiian people have struggled since the illegal overthrow and to remove from them the best means of their survival as a people, education, would be to deprive all Hawaii of the core, the heart, the na'au of this great state. The money spent to defend this position is minimal compared to the impact a Supreme Court decision will have on Hawaiians, Hawaii and all people who call Hawaii home.

Boyd P. Mossman
Maui Trustee
Office of Hawaiian Affairs

============

Monday April 23 all those interested in the Kamehameha Schools desegregation lawsuit were once again anticipating a possible decision from the U.S. Supreme Court on whether to take the case (grant certiorari). And once again no decision was announced.

And once again the Honolulu Advertiser was manipulating the way it reports the news by including total falsehoods previously corrected and now also by making it appear that something is happening which is ominous, unusual, unique, or even improper. The Advertiser's handling of this matter reflects the very great importance of the Kamehameha case in the local culture, and also the attitude that ethnic Hawaiians are victims constantly being oppressed and singled out for abuse. We can apparently expect similar false and misleading "news" reports every Monday until the Court issues an order granting or denying certiorari, as the Advertiser either carelessly repeats outright falsehoods or else knowingly repeats them for the purpose of stirring up anger.

Below are an April 23 message from plaintiffs attorney Eric Grant, and a "breaking news" report from the April 23 Honolulu Advertiser. The items from April 16 should also be reviewed, showing the Advertiser's report of the identical falsehoods and its later correction of them, along with the explanation of why they are false.

There's no way to force Hawai'i's "newspaper of record" to provide straightforward factual reporting except by shining a spotlight on their false reporting in hopes that any remaining vestige of journalistic integrity will cause them to mend their ways.

To understand why the latest Advertiser report is paranoid and misleading one must first understand what is the normal practice of the Court.

What normally happens with Supreme Court conferences and orders?

Cases decided in the lower courts can be appealed to the Supreme Court. Thousands of cases are appealed every year, but the Court only has time to consider a small percentage of them. Each Justice has several law clerks (a very prestigious job) who read the petitions for certiorari and the accompanying briefs and make recommendations to their boss. The Justices then hold a conference each Friday to discuss which cases to accept. Any particular case might or might not be discussed during that conference, depending on how much time is available, how many cases have been submitted, and which cases seem more urgent than others. Thus, any particular case might or might not be discussed at the first (or any subsequent) conference following submission of the petition for certiorari and deadline for briefs. Even when a particular case has been discussed in a Friday conference, the Justices may or may not make a decision at that time on whether to accept it. They might instruct their clerks to do further research or to write more detailed memos; or the Justices might want more time to weigh the importance of the issues or to discuss them at later conferences. Decisions on certiorari are announced on Mondays at 10 AM (Eastern time) in the list of "orders." Thus, the decision on certiorari for any particular case could theoretically be announced on the first Monday list of orders after the first Friday conference following the deadline for submitting briefs (Monday April 16 in this case); or it might take several weeks or months before a decision on certiorari is announced (perhaps the end of June).

The Friday conferences, of course, are always private (not open to the media).

The first conference when the Kamehameha case could have been discussed (following the filing of the petition for certiorari and related legal briefs) was Friday April 13. So on Monday April 16 observers were anxiously awaiting the outcome, but the case was not mentioned in the list of orders. Plaintiffs attorney Eric Grant informed all interested people by e-mail that there was no decision on certiorari. The Honolulu Advertiser on Monday April 16 published a series of "breaking news" announcements that started with a terribly biased report un-named staff reporters including total falsehoods about the purpose for which Kamehameha Schools had been founded and its role in helping poor downtrodden ethnic Hawaiians today (both of which are issues for the Court to decide but which the Advertiser has long ago decided). On April 16 the Advertiser's Courts Reporter Ken Kobayashi finally wrote a revised "breaking news" several hours later which removed the falsehoods.

Monday April 23 is the second possible Monday list of orders which could include a certiorari decision on Kamehameha. Once again there was no mention of the Kamehameha case. And once again the Advertiser published a very strange news report containing the same falsehoods published and corrected a week previously; plus a new element of paranoia.

--------------

From: "Eric Grant"
Subject: Doe v. Kamehameha Schools -- No Action (Again) on Petition
Date: Mon, 23 Apr 2007 07:58:34 -0700 [California time]

Interested Persons,

Although the Supreme Court's electronic docket indicated that the case was "distributed" for the Justices' Conference that was held last Friday, the Order List issued by the Court this morning made no reference to the case either way. Accordingly, the case will be "relisted" for a future Conference.

Again, I do not read any significance into this non-action.

Cordially,
Eric Grant
Attorney at Law
8001 Folsom Boulevard, Suite 100
Sacramento, California 95826
Telephone: (916) 388-0833
Facsimile: (916) 691-3261
http://www.eric-grant.com

-------------

http://the.honoluluadvertiser.com/article/2007/Apr/23/br/br9350127648.html
Honolulu Advertiser, Breaking News, Posted at 7:36 a.m. [Hawaii time], Monday, April 23, 2007

Supreme Court to privately examine Kamehameha case

By DENNIS CAMIRE
Advertiser Washington Bureau

WASHINGTON — The Supreme Court has scheduled a private conference among the justices for Friday to look at whether it will accept the legal challenge against Kamehameha Schools' Hawaiian-first admission policy.

[Ken Conklin's note: There is nothing unusual or ominous that the conference will be private -- all such conferences are private. The news report gives an impression that the entire purpose of the forthcoming conference is to discuss the Kamehameha case; which is silly. There will be dozens, perhaps hundreds, of cases discussed in the conference. Also, most observers, including the zealous Kamehameha alumni and trustees, acknowledge that the admissions policy is "Hawaiians ONLY", not "Hawaiian-first" because there are always more ethnic Hawaiians seeking admission than there are spaces available. Now read the above paragraph again to see the paranoia and misleading reportage]

That will be the first time the justices have examined the case and the earliest a decision about accepting the case will be known is April 30, according to the court's public information office. There is no time limit on when the court must decide on taking the case.

[Ken Conklin's note: This may not be the first time the Justices have examined the case -- it could have been discussed at the previous conferences on Friday April 13 and/or April 20; we simply do not know, because all such conferences are private]

A decision against taking the case would mean letting stand an earlier 8-7 ruling from the 9th U.S. Circuit Court of Appeals in favor of Kamehameha Schools and its 120-year-old admissions policy.

If the high court takes the case, it could set the stage for one of the most significant court actions in years involving Native Hawaiians. A ruling could come as early as summer 2008.

[Ken Conklin's note: No, oral arguments in the case could come as early as October 2007, with a decision anytime thereafter. The Court hands down decisions constantly, from the first Monday in October right through the end of its term which is usually the end of June. It is usually not in session in summer.]

The case involves an unnamed teenager who is challenging the way students are admitted to the private, nonprofit school system, which was created to educate students of Hawaiian blood and address educational disadvantages of the state's indigenous population.

[Ken Conklin's note: This sentence repeats the identical sentence in a terribly biased "breaking news" story a week ago. There are two false statements in the final clause of that sentence. Both of them were discussed at length in a message I sent privately to the Advertiser editors a week ago and which was also posted on AADAP; and has been copied below for anyone who cares to review the details. Briefly: every judge who has ruled on this case agrees that Kamehameha Schools were NOT "created to educate students of Hawaiian blood"; and it is a matter of dispute whether ethnic Hawaiians are "indigenous" and whether it is correct to stereotype every ethnic Hawaiian as educationally disadvantaged.]

The high court has the discretion of accepting or rejecting any requests to review appeals and grants only a small fraction of the requests. Four of the nine justices must agree to hear a case before the court accepts it.

[Ken Conklin's note: Well, at least that paragraph is accurate!]

Contact Dennis Camire at dcamire@gns.gannett.com.

-----------------

** Ken Conklin's note:

The Honolulu Advertiser issued a corrected "breaking news" item about the Kamehameha non-decision, at 2:19 PM (Hawai'i time) on Monday, about 7 hours after its error-filled earlier version. The newspaper has covered its tracks very well -- both versions have the same URL, which means that from this point forward nobody will ever see the original error-filled version, except on this webpage, just above here.

I sent my comments (above) about the errors, to the Advertiser about 4-5 hours before the corrected version was posted, but of course never received an acknowledgment and have no idea whether the changes were made because of my comments. I sometimes have other commitments and cannot always promptly monitor the newspaper's accuracy. Perhaps the next time the Advertiser publishes false and misleading "breaking news" the error-filled biased report will actually make it into print beyond the point where the errors can be covered up merely by re-using the same URL in an electronic edition.

Here's the revised "breaking news" report, with errors and bias and paranoia nicely cleaned up; and using the same URL as the originally posted error-filled report. After that, the final report as published the following day in the print edition.

-------------

http://the.honoluluadvertiser.com/article/2007/Apr/23/br/br9350127648.html
Honolulu Advertiser breaking news, Updated at 2:19 p.m., Monday, April 23, 2007

No decision today on Kamehameha Schools case

Advertiser Staff

WASHINGTON — In its 10-pages of orders issued today on almost 200 cases, the Supreme Court again did not decide whether it would accept the legal challenge against Kamehameha Schools' admission policy.

The case along with others awaiting Supreme Court action has been rescheduled for a conference Friday and the earliest a decision about accepting the case will be known is April 30.

There is no time limit on when the court must decide whether to take the case, and the court did not mention the school's case in its list of Monday orders issued April 16, the first date a ruling could have come down.

A decision against taking the case would mean letting stand an earlier 8-7 ruling from the 9th U.S. Circuit Court of Appeals in favor of the Kamehameha Schools and its 120-year-old admissions policy that effectively excludes non-Hawaiians.

If the high court takes the case, it could set the stage for one of the most significant court actions in years involving Native Hawaiians. A ruling could come as early as summer 2008.

The case involves an unnamed, non-Hawaiian teenager and his mother who filed a lawsuit contending the private, nonprofit school system's admissions policy violates federal civil rights law.

----------------

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20070424/NEWS23/704240339/1173/NEWS
Honolulu Advertiser, Tuesday, April 24, 2007

Supreme Court postpones admissions policy decision

By Dennis Camire
Advertiser Washington Bureau

WASHINGTON — The U.S. Supreme Court yesterday again did not decide whether it would accept the legal challenge against the Kamehameha Schools' admissions policy.

The case, along with others awaiting Supreme Court action, has been rescheduled for a conference Friday. A decision about whether the court accepts the case won't be known until Monday at the earliest.

There is no time limit on when the court must decide whether to take the case, and the court did not mention the schools' case in its list of orders issued April 16, the first date a ruling could have come down.

A decision against taking the case would let stand an earlier 8-7 ruling from the 9th U.S. Circuit Court of Appeals in favor of the Kamehameha Schools and its 120-year-old admissions policy that effectively excludes non-Hawaiians.

If the high court takes the case, it could set the stage for one of the most significant court actions in years involving Native Hawaiians. A ruling could come as early as summer 2008.

The case involves an unnamed, non-Hawaiian teenager and his mother who filed a lawsuit contending the private, nonprofit school system's admissions policy violates federal civil rights law.

Reach Dennis Camire at dcamire@gns.gannett.com.

=============

** Note from Ken Conklin

On Monday April 30 it was reported that The Supreme Court has once again taken no action regarding whether it will accept the appeal in the school desegregation case Doe v. Kamehameha.

The Honolulu Advertiser published a "breaking news" report at 9:21 AM HST (3:21 PM EDT). Plaintiffs' attorney Eric Grant sent an e-mail to interested persons approximately 5 hours before that. The Advertiser report contains one inconsequential error of fact but has a very different date for the next Supreme Court conference from the date given by Eric Grant. I'm sure Mr. Grant knows the correct date for the next conference, and the newspaper was probably assuming the pattern of conferences every Friday would continue unchanged.

Below are

(1) The Advertiser report [with 2 corrections by myself]

(2) Eric Grant's e-mail

(3) A list of useful links to the Supreme Court website, specially focused on the Doe v. Kamehameha certiorari topic

----------------

(1)

http://the.honoluluadvertiser.com/article/2007/Apr/30/br/br2104359786.html
Honolulu Advertiser, breaking news, posted at 9:21 a.m., Monday, April 30, 2007

No decision today on Kamehameha Schools case

Advertiser Staff

WASHINGTON — The Supreme Court again did not decide whether it would accept the legal challenge against Kamehameha Schools' admission policy.

The case along with others awaiting Supreme Court action has been rescheduled for a conference Friday. [Ken Conklin's note: According to Eric Grant the next conference will be Thursday May 10] There is no time limit on when the court must decide whether to take the case, and the court did not mention the school's case in its list of Monday orders issued April 16, the first date a ruling could have come down.

If the high court takes the case, it could set the stage for one of the most significant court actions in years involving Native Hawaiians. A ruling could come as early as summer 2008. [Actually, oral arguments could come as early as October 2007 with a decision at any time thereafter; the Court usually finishes its work and adjourns for the Summer with a last-minute flurry of decisions during the week just before the July 4 holiday]

The case involves an unnamed, non-Hawaiian teenager and his mother who filed a lawsuit contending the private, nonprofit school system's admissions policy violates federal civil rights law.

----------------

(2)

From: "Eric Grant"
Subject: Doe v. Kamehameha Schools -- No Action (Again) on Petition
Date: Mon, 30 Apr 2007

Interested Persons,

Once again, the Order List issued by the Supreme Court this morning made no reference to the case either way. Accordingly, the case will be "relisted" for a future Conference. (The next Conference is scheduled for Thursday, May 10th, with the corresponding Order List to be released on Monday, May 14th.)

The Court's repeated non-action is atypical but not unprecedented.

Cordially,
Eric Grant
Attorney at Law
8001 Folsom Boulevard, Suite 100
Sacramento, California 95826
Telephone: (916) 388-0833
Facsimile: (916) 691-3261
http://www.eric-grant.com

---------------

(3)

** Note from Ken Conklin:

The Supreme Court website is
http://supremecourtus.gov

All the orders of the Supreme Court for the term which began in October 2006 and runs to Summer 2007 are available, listed by date with most recent at the top, at
http://supremecourtus.gov/orders/06ordersofthecourt.html

The orders published April 30 are typical of other dates. They make interesting reading to see what sorts of cases are under appeal and how they are disposed of. In one April 30 case, for example, certiorari was denied but the names of 3 Justices who voted to grant certiorari are listed (4 are required to grant it). The orders of April 30 take 10 pages in pdf format, covering many dozens of cases, and can be downloaded from
http://supremecourtus.gov/orders/courtorders/043007pzor.pdf

The docket for a case includes a list of all the briefs filed (including amicus briefs), the actions taken by the Court (including dates of distribution of briefs for conference and dates of conferences), and names and contact information for all attorneys who filed briefs. The docket for Doe v. Kamehameha is at
http://www.supremecourtus.gov/docket/06-1202.htm

-----------------

On Wednesday May 2, 2007 Kamehameha Schools CEO Dee Jay Mailer spent an hour on the Honolulu Advertiser "Hot Seat" in a live on-line chat room, responding to questions from the public. Among many questions asked and answered, three questions were asked about the racially exclusionary admissions policy, and two of those were answered. Mailer basically seems to say defiantly that Kamehameha will find some way to continue its current admissions policy regardless whether the Supreme Court takes the case and even if the Court rules the policy is unconstitutional.

http://blogs.honoluluadvertiser.com/index.php?blog=19&title=on_the_hot_seat_kamehameha_schools_ceo_d&more=1&c=1&tb=1&pb=1

The Hot Seat

Welcome to The Hot Seat! Joining us live from noon to 1 p.m. today is Kamehameha Schools CEO Dee Jay Mailer.

Dee Jay and her team at Kamehameha Schools have been waiting for a decision (which could come at any time now) on whether the Supreme Court will hear an appeal in the case challenging the school's admissions policy of granting preference to Native Hawaiians.

She also will field questions about Kamehameha Schools in general and efforts to extend its reach through a variety of programs, including support of Hawaiian-focused charter schools and a learning center for the state's transitional housing on the Leeward side.

** Here are all 3 questions and all 2 answers related to the admissions policy

Comment from: Jere Krischel [Visitor] · http://morganreport.org
If the Supreme Court rules against Kamehameha, will Kamehameha Schools admit students of all racial backgrounds, or will they close the school? What plans have been made to help successfully integrate students of all races into the student body if the Supreme Court rules the admissions policy unconstitutional?

Comment from: Dee Jay Mailer [Member]
Aloha Jere, We are not going to close our school. No matter what happens in the courts, we will keep providing more educational opportunities for the benefit of Hawaiian children. It is what the Princess intended when she left her assets to build Kamehameha Schools, and it is what we will continue to do until Hawaiian children are no longer lagging their peers in school and Hawaiians as a people are holding their rightful places in our homeland, as strong stewards of our lands, thriving citizens in our communities and fair and respected leaders in our State.

Comment from: Nalu [Visitor]
If the Supreme Court hears the Jon Doe case and rules against the Kamehameha Schools, does the school have a contingency plan to protect the wishes of the Princess?

Comment from: Dee Jay Mailer [Member]
Aloha Nalu, We are often asked about our "Plan B." It is the same as our Plan A - to keep providing more educational opportunities that benefit Hawaiian children, as our Princess intended.

Comment from: Jeanne Mariani-Belding [Member] Thanks, Dee Jay. Just squeezing in one more question sent via e-mail from Duke K. McAdow:

If the Supreme Court rules against the current admissions policy at Kamehameha, would (or could) the school consider modifying the policy to admit only descendants of the citizens of the Hawaiian Kingdom, as others have suggested?

[** There was no answer the question, perhaps because time was short]

==================

http://the.honoluluadvertiser.com/article/2007/May/14/br/br2179083645.html
Honolulu Advertiser, Breaking news, Updated at 7:00 a.m., Monday, May 14, 2007

Suit on Kamehameha admissions dropped

Associated Press

WASHINGTON — A non-Hawaiian student denied admission at a private school in Hawai'i has agreed to dismiss his federal civil rights lawsuit, which had been appealed to the Supreme Court. The student's claim that the 120-year-old Kamehameha Schools violated civil rights law by effectively excluding applicants who have no Hawaiian blood had been awaiting Supreme Court review.

The justices had been scheduled to take up the case at their private conference last week. Instead, the court's electronic docket noted the case had been dismissed by agreement of the parties.

The school has had one non-Native Hawaiian student in the past 40 years.

The school admits qualified Hawaiian students, with non-Hawaiians getting in only if there are openings available. But only one in eight eligible Hawaiian applicants is admitted, effectively excluding non-Hawaiians.

A sharply divided 9th U.S. Circuit Court of Appeals upheld the admissions policy.

The student, identified as John Doe, sued the school after he was denied admission. The Supreme Court has previously ruled that private schools can't deny admission based on race.

Kamehameha was established under the 1883 will of Hawaiian Princess Bernice Pauahi Bishop as part of a trust now worth about $6.8 billion. Part of the school's mission is to counteract historic disadvantages Hawaiians face in employment, education and society.

There are roughly 5,400 students, from kindergarten through high school, enrolled at the school's three campuses.

The case is Doe v. Kamehameha Schools, 06-1202.

---------------------

From: "Eric Grant"
Subject: Doe v. Kamehameha Schools -- Settlement
Date: Mon, 14 May 2007

Interested Persons,

As indicated by the Supreme Court's electronic docket,
http://www.supremecourtus.gov/docket/06-1202.htm
the petition for certiorari has been dismissed pursuant to a stipulation of the parties. This stipulated dismissal was part of a complete settlement of the case, the terms of which are confidential.

You may wish to read Kamehameha's statement regarding the settlement, posted here:
http://www.ksbe.edu/article.php?story=20070514062928373

I expect to make a public statement on behalf of John Doe at a later time.

Cordially,
Eric Grant
Attorney at Law
8001 Folsom Boulevard, Suite 100
Sacramento, California 95826
Telephone: (916) 388-0833
Facsimile: (916) 691-3261
http://www.eric-grant.com

-------------------

** Ken Conklin's note: Here's the Supreme Court's docket for this case, showing the settlement and dismissal on May 11, 2007

http://www.supremecourtus.gov/docket/06-1202.htm

No. 06-1202
Title: John Doe, a Minor, by His Mother and Next Friend, Jane Doe, Petitioner v. Kamehameha Schools/Bernice Pauahi Bishop Estate, et al.
Docketed: March 5, 2007
Lower Ct: United States Court of Appeals for the Ninth Circuit
Case Nos.: (04-15044)
Decision Date: December 5, 2006

~~~Date~~~~~~~~~~Proceedings and Orders

Mar 1 2007 Petition for a writ of certiorari filed. (Response due April 4, 2007)
Mar 16 2007 Brief of respondent Kamehameha Schools/Bernice Pauahi Bishop Estate, et al. in opposition filed.
Mar 27 2007 Reply of petitioner John Doe, a Minor, by His Mother and Next Friend, Jane Doe filed.
Mar 28 2007 DISTRIBUTED for Conference of April 13, 2007.
Mar 29 2007 Brief amicus curiae of Center for Equal Opportunity filed. (Distributed)
Apr 3 2007 Brief amici curiae of Earl F. Arakaki and Other Residents of Hawaii filed. (Distributed)
Apr 4 2007 Brief amicus curiae of Hawaii Congressional Delegation filed. (Distributed)
Apr 16 2007 DISTRIBUTED for Conference of April 20, 2007.
Apr 23 2007 DISTRIBUTED for Conference of April 27, 2007.
May 7 2007 DISTRIBUTED for Conference of May 10, 2007.
May 11 2007 Stipulation to dismiss the petition for a writ of certiorari pursuant to Rule 46 received.
May 11 2007 Petition Dismissed - Rule 46.

------------------------

http://the.honoluluadvertiser.com/article/2007/May/14/br/br4760819325.html
Honolulu Advertiser, Breaking news, Posted at 7:06 a.m., Monday, May 14, 2007

Kamehameha Schools issues statement

** Ken Conklin's note: Also available on Kamehameha Schools website at
http://www.ksbe.edu/article.php?story=20070514062928373

News Release

We have reached agreement with "John Doe" to resolve Doe's lawsuit seeking to overturn our admissions policy. The terms of the settlement are confidential. By settling this case, we protect our right to offer admissions preference to Native Hawaiians. The plaintiff has withdrawn his petition for U.S. Supreme Court appeal of the 9th Circuit Court ruling upholding our preference policy as legally permissible.

This means that the Circuit Court ruling stands – our legal right to offer preference to Native Hawaiian applicants is preserved. Our work to fulfill our mission and Pauahi's vision, on our campuses and in our communities can proceed without distraction.

The ruling from the 9th Circuit Court is a pono one for Kamehameha Schools and for kanaka maoli. The majority opinion written by Judge Susan Graber acknowledges our unique history and the importance of our mission. In addition, the concurring opinion by Judge William Fletcher recognizes that Native Hawaiians have political status with the U.S. as a Native people. It is a great ruling to uphold, for Kamehameha Schools and the many federal and state programs that acknowledge and support the determination of our people to thrive. By settling this case we preserve our rights to serve our people in the manner we feel is best.

This was a very difficult decision. From the beginning of this lawsuit, we have been prepared to defend our policy to the very end of the judicial process. However, it is becoming increasingly clear that this lawsuit is only one piece of a much broader risk to the rights of Native Hawaiians, as the Indigenous people of this state, to manage and control our own resources.

We cannot ignore the treacherous landscape before us. We have all seen the systematic attempts to take Hawaiian Homelands, dismantle the Office of Hawaiian Affairs, to eliminate federal funding for programs that serve to improve the well-being of Native Hawaiians, and to scuttle attempts in the U.S. Congress to solidify our peoples' Indigenous status.

We have all heard our efforts to protect our rights as Indigenous people described as "Balkanization," "separatist" and "racist." We have all read essays and opinions that seek to rewrite Hawaiian history and the overthrow of the Hawaiian Kingdom and government.

The John Doe v. Kamehameha Schools case was just one more attempt by a few to chip away at Native Hawaiian rights. Settling this case preserves our ability to fulfill our mission and our right to use our resources for their directed purpose, as a completely private Trust established by the bequest of one of our Ali`i during the time of Hawaiian Sovereignty. Settling this case also reserves the rights of other private trusts – Native and non-Native, as well as the rights of all Indigenous people to control and use resources designated for their benefit.

This settlement, which preserves a favorable 9th Circuit Court ruling, has the same legal effect as a denial of the plaintiff's petition for Supreme Court review. It allows us all to move forward with a common 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.

As a Native Hawaiian trust, we will stand strong with other organizations and individuals to protect our assets. And as an Educational institution, we will move ahead with speed and diligence to extend our reach into our communities to more Native Hawaiian children and families, as our Princess intended. We have made significant gains in the number of children and families we serve in the past year, and we are ready to do more.

You have been stalwart in your support as we have fought to protect our rights and our mission. Mahalo piha for all that you do for Kamehameha Schools and for the children and families we serve.

Me ka ha'aha'a,

Trustee J. Douglas Ing, Chair
Trustee Nainoa Thompson
Trustee Diane Plotts
Trustee Robert Kihune
Trustee Corbett Kalama
Dee Jay Mailer, CEO

---------------------

http://www.usatoday.com/news/nation/2007-05-14-Hawaiian-school_N.htm?csp=34
USA Today, May 14, 2007

Student settles with Hawaiian school

HONOLULU (AP) — A private school system has reached a settlement with a white student who was denied admission because he isn't a Native Hawaiian, ending a case pending before the U.S. Supreme Court. The settlement between the unidentified student and the Kamehameha Schools system ends the four-year-old lawsuit. Terms of the settlement were not disclosed.

The student, who has since gone to college, claimed that the 120-year-old Kamehameha Schools violated civil rights law by excluding applicants who cannot prove Hawaiian ancestry.

The school, which has 6,700 students at schools on three islands, admits qualified Native Hawaiian students, with non-Hawaiians getting in only if openings are available. But only one in eight eligible Hawaiian applicants is admitted, effectively excluding non-Hawaiians.

A sharply divided 9th U.S. Circuit Court of Appeals upheld the admissions policy on an 8-7 vote in 2006.

John Goemans, a lawyer for the student, acknowledged the settlement came late in the process but said his client wanted to resolve the case.

"What counts is the best interest of our client," Goemans said. "And at this point, our client is satisfied. This does not affect the constitutionality of the program."

J. Douglas Ing, chairman of Kamehameha Schools Board of Trustees, said dismissal of the case preserves Native Hawaiians' political status as an indigenous people.

It also recognizes the federal government's "obligation to the native people of Hawaii and provides judicial support for programs that serve to promote and improve the well-being of the Hawaiian people," Ing said.

Kamehameha was established under the 1883 will of Hawaiian Princess Bernice Pauahi Bishop as part of a trust reported to be worth $7.7 billion last June 30. The trust reported spending $221 million on education. Part of the schools' mission is to counteract historical disadvantages Hawaiians face in employment, education and society.

------------------

http://www.nytimes.com/2007/05/15/us/15hawaii.html
New York Times, May 15, 2007

Prestigious Private Schools Settle Rights Suit by a Non-Hawaiian

By ADAM LIPTAK

The private Kamehameha Schools in Hawaii announced yesterday that they had settled a civil rights lawsuit brought against them by a student denied admission because he did not possess Hawaiian ancestry. The settlement avoided the possibility of a decision by the United States Supreme Court on the status of Native Hawaiians.

The terms of the settlement, between the schools and a student identified only as John Doe, were not disclosed. But it left in place an 8-to-7 decision of the federal appeals court in San Francisco that allows the schools to admit only students who can prove that at least one of their ancestors lived on the Hawaiian Islands in 1778, when the British explorer Capt. James Cook arrived.

The Supreme Court had considered whether to hear the case four times but had not reached a decision by Friday, when the parties informed the court of the settlement. The case was dismissed the same day.

The schools are the beneficiaries of the enormous legacy of a 19th-century Hawaiian princess, Bernice Pauahi Bishop, who intended them to raise the educational level of Native Hawaiians. Their endowment exceeds $6 billion. They have an enrollment of some 6,700 students, from preschool through 12th grade, with campuses on three islands and preschools throughout the state. Admission is a great prize, as older students pay about $3,000 in annual tuition for an education worth more than $20,000.

The student in the suit dismissed Friday had initially sued to gain admission to the schools, but he has since graduated, making that aspect of his case moot. The settlement presumably includes a payment to him and his lawyers.

In a letter released yesterday, the schools' trustees said the decision to settle was a difficult one.

"We cannot ignore the treacherous landscape before us," the trustees wrote. "It is becoming increasingly clear that this lawsuit is only one piece of a much broader risk to the rights of Native Hawaiians, as the indigenous people of this state, to manage and control our resources."

Eric Grant, a lawyer for the student, said in a e-mail message that he had no immediate comment on the settlement.

The settlement does not preclude further suits challenging the admissions policy, but it could take years for another suit to reach the Supreme Court again, and there is, of course, no guarantee that the court would agree to hear it.

In its decision in December, the United States Court of Appeals for the Ninth Circuit ruled that students without Hawaiian ancestry could be denied admission to the schools based on their race without running afoul of a civil rights law. The majority cited what it said were unique factors in the history of Hawaii, the plight of Native Hawaiians and the schools' distinctively remedial mission.

"The schools are a wholly private K-12 educational establishment, whose preferential admissions policy is meant to counteract the significant, current educational deficits of Native Hawaiian children in Hawaii," Judge Susan P. Graber wrote for the majority.

In a dissent joined at least in part by six other judges, Judge Jay S. Bybee said the schools' worthy mission nonetheless violated "the Supreme Court's requirements for a valid affirmative action plan."

-------------------

http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20070515/NEWS23/705150344
Honolulu Advertiser, Tuesday, May 15, 2007

KAMEHAMEHA LAWSUIT SETTLEMENT
Money buys time for Kamehameha Schools

by Ken Kobayashi

Kamehameha Schools paid to settle the most serious legal threat yet to its Hawaiians-first admissions policy, legal experts believe, but the agreement won't prevent future challenges to the 120-year-old practice.

However, any new case would take years before it reached the doorstep of the U.S. Supreme Court — where the latest case was when it ended yesterday.

Details of the settlement were not disclosed, but the agreement ends the four-year effort by a non-Hawaiian teenager, known only as John Doe, to enter the Kamehameha system.

School officials praised the settlement, saying they were pleased to put the case behind them and concentrate on educating Hawaiian youth.

The settlement removes the possibility that the Supreme Court might rule against Kamehameha in this case.

"We didn't think that there was a strong possibility (of losing) but that risk is always out there," said J. Douglas Ing, chairman of the Kamehameha board of trustees. "There are no guarantees and there certainly were no guarantees from our lawyers that we would win the case."

The settlement leaves intact a U.S. 9th Circuit Court of Appeals decision last year in Kamehameha's favor. In that 8-7 ruling, the court upheld the Hawaiians-first policy and ruled that the admissions practice does not violate federal civil rights laws.

Eric Grant, the Sacramento, Calif., lawyer representing John Doe and his mother, said the settlement doesn't preclude others from filing similar lawsuits.

"Obviously, a settlement is not exactly what either side wanted," said Grant. "But it is something both sides eventually came to terms on."

Officials also declined to discuss the terms of the settlement, although legal observers believe it had to include payment to John Doe for him to drop the lawsuit.

The settlement preserves Kamehameha Schools' policy of requiring all applicants to prove they have Hawaiian ancestors. The private school subsidizes the costs of the education it provides to Hawaiian youth.

Ing said there will be no changes to the admissions policy as a result of the settlement. "We're not making any changes now because the policy is preserved and protected," Ing said. Ing would not say how long Kamehameha and John Doe attorneys had been discussing a settlement, nor would he disclose who first broached the subject.

NEW CASE WOULD TAKE YEARS

"It's an excellent outcome," said Jon Van Dyke, a University of Hawai'i law professor who worked as a consultant for the school in the case. The 9th Circuit's ruling will "stand as the governing law," he said. Another challenge would take years of litigation and considerable attorney fees and costs in the "six-figure range," Van Dyke estimated.

Critics of the policy expressed disappointment that the U.S. Supreme Court won't have a chance to decide on the legality of what they believe is an illegal racial policy, and agree that future challenges face an uphill fight, but not an insurmountable one.

"They flinched," said attorney H. William Burgess, who filed court papers supporting John Doe in the Supreme Court case. "I think Kamehameha Schools saw that they were right on the verge of the Supreme Court probably (accepting the case). And they knew that if that happened, it would be very likely the ruling would go against them."

A decision from the Supreme Court on whether it would hear the case was pending when the two sides agreed to settle out of court.

Burgess said the next challenge to Kamehameha will likely be rejected in trial courts in Hawai'i and at the appeals level because of the 9th Circuit ruling. He added that another challenge might not be as expensive and would move through the courts quicker because the briefs in John Doe's case already outlined the legal arguments. Although Burgess predicted future challenges, he also said he does not know of any potential challenger at this point.

HIGH-PROFILE CHALLENGE

Like Burgess, Roger Clegg, president and general counsel of the Center for Equal Opportunity in Falls Church, Va., which also urged the high court to accept the John Doe case, said he believes Kamehameha Schools wanted the settlement because it thought it might lose before the Supreme Court.

"My suspicion is that they opened their wallets in a big way to make this case go away," Clegg said.

Van Dyke, the UH law professor, said it might not be easy to find a new challenger, given the high-profile nature of the John Doe case and the lack of others stepping forward to contest the policy. He said his personal feeling is an "overwhelming majority" of the public supports the schools and understands its history and mission.

John Doe filed the lawsuit four years ago after he was rejected for admissions, but has since graduated and is now attending a four-year college and intends to get a degree, said Grant, his lawyer. Although the teenager's request for enrollment is moot, the suit was still alive because he was seeking money damages as a result of his rejection.

Legal observers suggest that John Doe, even if he prevailed, might have had a difficult time establishing a huge money recovery because it would be hard for the court to measure how much he was harmed, if at all. Although he was rejected by Kamehameha, he graduated from public high school with good enough grades to enroll in college.

In the past, Grant said he didn't know how much money they would be seeking because they were focused more on establishing that the policy violated civil rights law rather than the amount of damages. Grant also previously said his clients wanted to take the case to the U.S. Supreme Court as a matter of principle. He declined yesterday to explain why they now chose to settle.

John Goemans, an attorney involved in the case on John Doe's side, declined to comment on what the teenager, now older than 18, and his mother say about the settlement. "We're satisfied," he said. "We've done the best we can for our client."

The roller-coaster case included Senior U.S. District Judge Alan Kay ruling in favor of the schools, a three-judge panel of the 9th U.S. Circuit Court of Appeals deciding 2-1 in favor of the teenager and last year's 8-7 decision for the schools by a larger en banc panel of 9th Circuit judges.

Grant asked the Supreme Court to review the 8-7 decision. He needed four of the nine Supreme Court justices to agree to hear the case before the court would take up the appeal and review the legality of the admissions policy.

'GOOD RESULT FOR SCHOOLS'

Both sides had submitted their legal briefs and were awaiting word on whether the U.S. Supreme Court should accept the case.

Van Dyke speculated that it was Grant who felt he might not have the four votes among the nine justices to accept the case and became more open to the settlement because the high court had still not decided that issue. The court docket indicated the justices reviewed legal briefs in the case three times without announcing whether it would take the case.

State Attorney General Mark Bennett, who filed legal papers urging the appeals court to uphold Kamehameha's policy, said it's hard to predict whether another challenge will be filed, but the 9th Circuit ruling made "the admission policy of the school far more difficult to challenge." "So I think (the settlement) is a good result for the schools and we support that."

KEY MOMENTS IN LEGAL BATTLE AGAINST KAMEHAMEHA SCHOOLS

Here is an abbreviated history to the challenge of Kamehameha's admissions policy, which effectively excludes non-Hawaiians:

June 2003
On behalf of an unnamed non-Hawaiian student, identified only as John Doe, attorneys John Goemans and Eric Grant file a civil-rights lawsuit disputing Kamehameha's admissions policy.

June 2003
A non-Hawaiian seventh grader – 12-year-old Brayden Mohica-Cummings of Kaua'i – files a similar suit seeking to overturn Kamehameha Schools' admission policy.

November 2003
U.S. District Judge Alan Kay decides against John Doe, upholding the Hawaiians-preference admissions policy due to its unique and historical circumstances. The two lawyers appeal Kay's ruling.

November 2003
Kamehameha Schools settles Mohica-Cummings' suit, allowing him to attend the school until he graduates.

August 2005
A panel of the 9th U.S. Circuit Court of Appeals votes 2-1 for John Doe, ruling that Kamehameha's admissions policy constitutes unlawful racial discrimination. A week later, the same panel denies a request by John Doe to be admitted in the fall, pending an appeal by the school.

August 2005
About 20,000 Kamehameha students, alumni and other supporters rally on all major Hawaiian islands and the Mainland. Thousands in Honolulu hear a string of fiery speeches before marching two miles to Mauna 'Ala, the Royal Mausoleum in Nu'uanu where the school's founder, Princess Bernice Pauahi Bishop, is buried.

2006
In an 8-7 decision, the full 9th Circuit rules that the admissions policy does not violate a federal civil rights law.

March 2007
Doe's attorneys ask the U.S. Supreme Court to look at the legality of Kamehameha Schools' admissions policy.

Yesterday
Kamehameha Schools and Doe settle the lawsuit, which was pending before the U.S. Supreme Court.

----------------------

http://starbulletin.com/2007/05/15/news/story01.html
Honolulu Star-Bulletin, May 15, 2007

MORE SUITS PREDICTED
Disappointment, praise follow Kamehameha settlement
A lawsuit against Kamehameha Schools over their Hawaiians-only admission policy is dropped in a settlement

By Alexandre Da Silva

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:

Rice 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.

Arakaki 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."

Brayden 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.

John 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.

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http://honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20070515/NEWS23/705150360
Honolulu Advertiser, Tuesday, May 15, 2007

Policy has varied since school's start

By Rick Daysog

In recent years, the Kamehameha Schools' Hawaiians-first admissions policy has come under legal attack as racially exclusive. But throughout its 120-year history, the school's policy hasn't been as cut and dried.

Until the early 1960s, the school occasionally admitted non-Hawaiian children of faculty and administrators at its Kapalama Heights campus. In 2002, Kamehameha accepted a non-Hawaiian student from Wailuku to its Maui high school after administrators exhausted the list of qualified Hawaiian applicants.

More recently, the school was forced to admit a non-Hawaiian Kaua'i student, 12-year-old Brayden Mohica-Cummings, to its Kapalama Heights campus to settle a federal court lawsuit challenging the policy. The Maui student is to graduate this year, and Mohica-Cummings is a sophomore.

"It's a rarity when it happened, but we've had a number of non-Hawaiians attending the schools over the years," said former Kamehameha Schools admissions director Howard Benham, who graduated from the school in 1944.

The admission policy was upheld in December by 15 judges of the 9th U.S. Circuit Court of Appeals, but the case had been awaiting Supreme Court action before it was settled yesterday.

Terms of the settlement were not disclosed, but Doe won't be attending Kamehameha Schools because he has already graduated from high school.

The 1884 will of the school's founder, Princess Bernice Pauahi Bishop, does not state the schools should admit Hawaiians exclusively, but that Hawaiians would have preference in admissions.

That opened the door for the admission of a handful of non-Hawaiian children of Kamehameha Schools employees over the years.

Up until the 1940s, many teachers and staff lived in faculty housing near the campus, which was then near the Bishop Museum in Kalihi.

To avoid the long commute to private and public schools elsewhere on O'ahu, some non-Hawaiian students were given special permission from the school's board of trustees to attend Kamehameha Schools, said Bob Springer, who served as a Kamehameha Schools teacher and administrator from 1959 to 1995. The practice was stopped in 1962 by president Jim Bushong.

"It wasn't a big thing in those days," said Springer, who headed the school's outreach programs in the early 1990s and now heads Island School, a small independent school on Kaua'i. "I was never aware of any problems with it."

David Scarlett, a non-Hawaiian student who graduated from the Kapalama Heights campus in 1963, said he felt privileged to attend the Kamehameha Schools. Scarlett, whose father was on the school's ROTC staff and headed its maintenance department, said he supports the school's current policy of giving preference to Hawaiian students, and that there should be no question that Pauahi meant for her endowment to be used for the Hawaiian people. "Attending Kamehameha Schools was a great privilege that has great meaning for me," said Scarlett, who is retired and lives in Folsom, Calif. "It's a privilege and an honor that I can never repay."

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Honolulu Advertiser, May 15, 2007

Money buys time for Kamehameha Schools

By Gordon Y.K. Pang

With one legal battle over, many Hawaiian groups and individuals say their next focus should be defeating other challenges threatening programs that benefit Hawaiians.

"I'm telling you we still have to fight because while our challenge might be over right now, there are all kinds of challenges before us as a native people," Dee Jay Mailer, Kamehameha Schools chief executive officer, told students at the Kapalama campus. The speech was videotaped by the school and a copy given to the media.

But first it was time to celebrate at the Kekuhaupi'o Gym with songs of joy and thanks during an emotional assembly. Jared Ushiroda, a Kamehameha graduate whose son is in kindergarten there, had a "big sigh of relief" when he learned about the settlement. "The school was founded to help out the Hawaiian kids, and it's going to stay that way for now," he said.

Kamehameha board chairman J. Douglas Ing said that while school officials felt the Hawaiians-first admissions policy was correct and legal, they had no assurances the U.S. Supreme Court would have agreed if it had chosen to hear the case. "It was in our best interest to settle," Ing said. "We didn't think that there was a strong possibility but that risk is always out there. We went into this case with the idea that we're going to take this case as far as it can go and we're going to win. But there are no guarantees and there certainly were no guarantees from our lawyers that we would win the case."

The settlement does not bar others from challenging the admissions policy. However, Ing said, "They would have to go initiate the case before the United States District Court here in Hawai'i, and from there they would have to take it to the 9th Circuit and the law is in our favor there at the 9th Circuit." All of that, he said, makes a "very strong disincentive."

Attorney Bill Meheula, who has been helping defend the Office of Hawaiian Affairs against legal challenges, said it made good sense for Kamehameha to settle. "Given the makeup of the U.S. Supreme Court at this time, it is unknown what the result may have been although based on case precedent, it should be that Congress has authority (over the admissions policy)," he said.

Moses Haia, an attorney with the Native Hawaiian Legal Corp., agreed. "That's a chance, a huge chance, that if the Supreme Court took it, the decision may have required some significant changes to the admissions policy," he said.

Even Richard Rowland, who heads the Grassroot Institute of Hawaii — which has opposed the federal Native Hawaiian Recognition Bill, also known as the Akaka bill, and Hawaiian-preference programs — believes it will be a hard climb for the next student or group who challenges Kamehameha. But he also believes that there will be no shortage of opponents ready to step up to the plate. "There's still an open invitation for people who have their kids apply and then turned down, to sue," Rowland said. "I think it's probable that people will be standing in line looking for a way to sue Kamehameha Schools."

SEEKING UNITY

Mailer, in addressing the students yesterday, said the end of the lawsuit is important not only to the school and its community, but to federal programs aimed at helping Hawaiians. "We cannot ignore the treacherous landscape before us," she said. "We have all seen the systematic attempts to take Hawaiian Homelands, dismantle the Office of Hawaiian Affairs, to eliminate federal funding for programs that serve to improve the well-being of Native Hawaiians, as the indigenous people of this state, to manage and control our own resources."

The settlement allows Kamehameha supporters to refocus their energies at "the bigger picture of unity among all other Hawaiian organizations and maybe all the legal challenges they're going to be facing as a whole in the future," said Adrian Kamali'i, president of Na Pua A Ke Ali'i Pauahi. Kamali'i, a Kamehameha graduate, said he's not looking at any particular political or cultural issues. "I think all the different Hawaiian organizations know that legal challenges are a part of the future," he said. "How do they address that together?"

Many said they now believe Hawaiians should concentrate on supporting the Akaka bill. "What I'm concerned about is that the Congress recognize the Hawaiian people as an indigenous people or as Native Americans," said Roy Benham, a former teacher and OHA trustee. "Everybody else does." Formal recognition would help Hawaiians prevail in future lawsuits, said Clyde Namu'o, OHA administrator. "The need to pursue the Akaka bill becomes even more significant because we know there are going to be other challenges that may be trying to get past the 9th Circuit decision," he said.

Members of Hawai'i's Congressional delegation and top state officials — all of whom support Kamehameha's admissions policy — applauded the settlement. "I hope that Kamehameha Schools will now be able to carry forward its special mission and fulfill the dreams of Princess Pauahi," U.S. Sen. Daniel K. Inouye said.

Gov. Linda Lingle, in showing her support, said in a release, "I believe Kamehameha Schools is perhaps the most important institution for preserving Hawaiian culture for future generations."

Hawai'i's Congressional delegation had filed an amicus brief in support of Kamehameha Schools that urged the Supreme Court not to review a 9th Circuit Court of Appeals ruling in the case, thereby upholding the admissions policy and "restating our position that Native Hawaiians are indigenous peoples, as are Alaska Natives and American Indians," said U.S. Rep. Mazie Hirono. The settlement allows Kamehameha Schools to focus on providing education for Native Hawaiian children, she said. Hirono said Sen. Daniel K. Akaka, author of the Native Hawaiian Recognition Bill, said he will continue to push the legislation through Congress. "I am pleased that both parties have resolved their differences. But the matter of federal recognition for Native Hawaiians remains unresolved," Akaka said in a news release. "I remain committed to working with my colleagues in Congress to enact legislation formalizing the existing legal and political relationship that Native Hawaiians have with the United States."

'NOTHING BUT POSITIVE'

The political implications and legal ramifications of the Kamehameha Schools settlement were "nothing but positive" for the Native Hawaiian bill, U.S. Rep. Neil Abercrombie said.

On the Kapalama campus, sophomore Wiliama Sanchez said students erupted in cheers when principal Julian Ako announced the news via campus TV yesterday morning. "It was just like a giant weight was lifted for everyone, and everyone was just excited and ecstatic," said Sanchez, whose great-grandfather, grandmother and uncle attended Kamehameha. "There were cheers everywhere," he said. "Everyone was yelling. We were just relieved and happy about the news. ... It was so hard to do the rest of the day because we were so excited."

Parents also said they were relieved to hear the lawsuit had been settled. "Hawaiians have been stripped of so much that they should be able to have something of their own, a school where they can learn," said Mahele Nitahara, a Kamehameha alumnus whose daughter attends the third grade at the school. "The people who are challenging it, I don't know why they do it," said Nitahara, also a part-time teacher. "I don't understand because if they really wanted to go to Kamehameha they would see the values that are instilled in the children there. They wouldn't challenge it if they had any respect for the things that are taught." Jen Puaoi, who also graduated from Kamehameha and has a first-grade daughter at the school, said she was "overjoyed." "It was a battle that they were fighting for a long time," the 26-year-old payroll clerk from Pearl City said. "If others were allowed to attend, then they wouldn't be able to help as many Hawaiians as they are helping now." Jeff Domdoma, Puaoi's cousin, is not Hawaiian but was happy to hear about the dismissal. "It's a local lifestyle — everybody born and raised in Hawai'i knows that only Hawaiian and part-Hawaiian kids go to Kamehameha," he said. "It's from the will. We should just leave it alone."

KAMEHAMEHA SCHOOLS

Founded: 1887
Assets: $7.7 billion
Chief executive officer: Dee Jay Mailer
Trustees: Douglas Ing, Nainoa Thompson, Diane Plotts, Robert Kihune, Corbett Kalama
K-12 enrollment: 5,400
Preschool enrollment, scholarships, early childhood and other programs: 10,000
Campuses: Kapalama Heights on O'ahu; Maui; and Big Island
Land ownership: 365,000 acres
2006 investment income: $897 million*
2006 Educational spending: $221 million
*Fiscal year ending June 30, 2006
Source: Kamehameha Schools

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Honolulu Advertiser, Tuesday, May 15, 2007

Reaction from around the state to Kamehameha lawsuit settlement

"I hate to see the money that is supposed to go to Hawaiian children going to other people, but I don't question these legal eagles because they know what they are doing. My whole feeling is that (Pauahi's) will stated a desire and no one should question it. ... It would be like if your grandma left you money for a certain something and someone else is questioning it. That's wrong, and it's stealing."
Sandra Haskell of Volcano, whose son is a seventh-grader at the Kea'au campus

"According to Pauahi's will, (Kamehameha Schools) is to educate children of Hawaiian ancestry, and it should be followed. ... Hawaiians don't have that many opportunities."
Cerie Kamaunu, 36, administrative assistant, Hau'ula

"Sometimes it's hard for minorities to find a place in education, and it's good to have a school that supports them in that regard. It's a good policy that it's a school for people with Hawaiian blood, and I think it should be kept that way."
Steven Warne, 53, Kailua

"I really think Kamehameha Schools has been experiencing more than its share of negativity over the last probably 10 years, with the trustees as well as with the students and enrollment, and I prefer to have them just be left alone. They're doing a good thing up there."
Sasha Springer Asato, administrative assistant, Kailua

"I'm actually torn. With the history of the civil rights movement on the Mainland, it's sort of the opposite happening here. On the one hand, I don't think that there should be discrimination, but on the other hand ... I understand that there's a difference in having a native Hawaiian curriculum and having extra opportunities for Native Hawaiians in Hawai'i."
Farrah Greene, 31, psychology graduate student, downtown Honolulu

"Kamehameha Schools is for the Hawaiians. I think that's the goal. Let the Hawaiians have something no one else has."
Adam Killermann, irrigation consultant, Hanapepe, Kaua'i

"In theory, I don't th