KAMEHAMEHA SCHOOLS 2008. Revelation that Kamehameha paid John Doe $7 Million to settle the desegregation lawsuit in 2006 causes outrage. Kamehameha annual report says assets now worth $9.1 Billion. Attorneys Eric Grant and David Rosen file a new desegregation lawsuit against Kamehameha, and Kamehameha files a lawsuit for breach of the nondisclosure clause of the previous settlement.

On this webpage is a history of the controversy regarding Kamehameha Schools' racially exclusionary ("Hawaiian 'preference'") admissions policy, for the year 2008. But first:


For general background about the history of Kamehameha Schools and its racially exclusionary admissions policy, with links to webpages covering each year's history of efforts to desegregate the schools since 2002, see:

There have been several lawsuits against Kamehameha Schools' admissions policy. The one that caused the greatest uproar and reached all the way to the U.S. Supreme Court in 2007, got started in 2003.

Following a series of protest marches by thousands of red-shirted supporters of racial segregaton, protesting the mere fact that such a lawsuit was being brought, Judge Alan Kay, in the U.S. District Court in Honolulu, issued a ruling on Monday November 16, 2003 upholding the schools' policy. That ruling was appealed to the 9th Circuit Court in San Francisco.


On July 2, 2005 the three-judge panel of the 9th Circuit Court of Appeals overturned Judge Kay's decision by a 2-1 vote.



For analysis of the decision, see the webpage: Kamehameha 9th Circuit Decision: the "Big Picture" and Some Brush-Strokes (demolishing Hawai'i's wall of apartheid one brick at a time)

On August 6, 2005 there was a massive red-shirt protest march from the Royal Mausoleum ending with a rally of between 15,000 - 20,000 people at Iolani Palace. The rally included a pro-segregation speech by a red-shirted Governor Linda Lingle, to a crowd that included numerous anti-American signs. Smaller rallies took place on the neighbor islands. For news reports and photos, see:

On August 23, 2005 Kamehameha Schools filed a petition to the 9th Circuit Court of Appeals asking for an en-banc hearing in which perhaps as many as 23 judges would reconsider the 3-judge decision; and Hawaii Attorney general Mark Bennett filed papers supporting the petition.

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. 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.

During 2007 plaintiff filed an appeal to the U.S. Supreme Court, seeking a writ of certiorari whereby the Court would agree to hear the case. Each year there are thousands of cases appealed to the Supreme Court, but only about a hundred are actually taken up. During April 2007 there were three weeks when the case was on the docket for the weekly conference of the Justices to consider whether to grant certiorari (take the case), but no decision on certiorari was forthcoming. It turned out that a settlement was being worked on.

On Monday May 14, 2007 it was announced that a settlement had been reached, and the petition for certiorari was therefore dismissed by the Supreme Court by agreement between the parties. Terms of the settlement were never disclosed, although it was speculated that Kamehameha agreed to pay plaintiff's attorney fees and to provide a generous amount of money for the student (who had by now graduated from a different high school) to attend college.

During the summer of 2007 Honolulu Attorney David Rosen announced that he would be looking for plaintiffs to take up a similar lawsuit -- plaintiffs who would agree never to drop or settle the case until the Supreme Court made a decision. Rosen's theory was that such a lawsuit could work its way rapidly up to the Supreme Court since each court along the way had already ruled and could be expected to rule the same way again promptly. However, by the end of 2007 there were no announcements regarding any actual new plaintiffs.



Honolulu Star-Bulletin, February 1, 2008

Breyer will weigh in on isle issues

By Ken Kobayashi

Associate Justice Stephen Breyer of the U.S. Supreme Court will be on a panel next week discussing the legal challenge to Kamehameha Schools' admissions policy giving preference to native Hawaiian applicants.

Other panelists include two key lawyers in the case - Kathleen Sullivan, who defended the private school's admissions policy, and Eric Grant, who represented the unnamed non-native Hawaiian student in the lawsuit contesting the policy.

The discussion is open to the public and will be held from 11:30 a.m. to 2 p.m. Thursday at the University of Hawaii William S. Richardson law school's moot court courtroom.

Breyer will be visiting here as part of the law school's "Jurist-in-Residence" program, which has brought other Supreme Court justices to Hawaii in the past years.

Breyer, 69, former chief judge of the 1st U.S. Circuit Court of Appeals, was appointed to the high court in 1994 by President Clinton. Breyer is considered part of the liberal wing of nine-member high court.

But in the landmark 2000 decision in the Rice v. Cayetano case, Breyer joined in the 7-2 majority that struck down the requirement that only native Hawaiians could vote for trustees of the Office of Hawaiian Affairs.

Lawyers for the unnamed non-Hawaiian student, identified as John Doe, filed the lawsuit that dealt with the controversial issue of whether Kamehameha Schools' admissions policy violated federal civil rights law. The student was denied admission to the schools. The case is known as Doe v. Kamehameha Schools.

A three-member panel of the U.S. 9th Circuit Court of Appeals ruled in a 2-1 decision in behalf of Doe that the policy violated the federal law. But a larger panel of the appeals court later voted 8-7 to uphold the policy.

Grant asked the Supreme Court to review the case, but the matter was settled before the high court could decide whether to accept the appeal. The terms of the settlement were not disclosed.

The settlement leaves open the question of whether the land's highest court would find that Kamehameha's policy violates the civil rights law.

The law school said one goal of the panel discussion is to "advance legal scholarship by analyzing how the arguments in Doe fit into a historical, sociopolitical and legal context." Another goal is to learn more about the "intricate issues" in the case from the panelists' viewpoints.

Cynthia Quinn, the law school's director of communications and external relations, said Breyer will be visiting Hawaii for the first time and also will participate in a law school class on professional responsibility.

"It's an honor to have them here," Quinn said about Breyer and other justices who visited in the past. "They really want to reach out to the students, which is quite an honor."


The topic of the discussion is "Doe v. Kamehameha Schools: A 'discreet and insular minority' in Hawaii 70 years after Carolene Products (a U.S. Supreme Court decision)." The Doe case involved a challenge to the Kamehameha Schools admissions policy that gives preference to native Hawaiians. The Carolene case involved "discreet and insular" minorities generally and native Hawaiians in particular, according to the University of Hawaii William S. Richardson School of Law.

Associate Justice Stephen Breyer of the U.S. Supreme Court will participate in the first hour of the discussion from 11:30 a.m. to 2 p.m. at the moot court courtroom at the University of Hawaii law school.

Other panelists are:

» Kathleen Sullivan, former dean of Stanford Law School, who defended Kamehameha Schools' admissions policy.

» Eric Grant, a Sacramento, Calif., lawyer who represented Doe, the unnamed student who challenged the policy.

» David Forman, who teaches classes at the University of Hawaii law school and is an attorney with the Hawaii Civil Rights Commission.

» U.S. District Judge David Ezra.

» Jon Van Dyke, a University of Hawaii law school professor, who will moderate and present questions to the panel.

The forum is free and open to the public, but those wishing to attend should call Cynthia Quinn, the law school's director of communications and external relations, at 956-6545.

** [See also March 1, 2008 story, below, from the OHA monthly newspaper]**


Honolulu Advertiser, Friday, February 8, 2008

Kamehameha Schools settled lawsuit for $7M

By Jim Dooley

Kamehameha Schools paid $7 million to settle a lawsuit filed by an anonymous student who claimed the schools' Hawaiians-first admissions policy violates civil rights laws, according to an attorney involved in the case.

Terms of the confidential settlement have been a closely guarded secret since it was signed in May just before the U.S. Supreme Court was to decide whether to hear the case.

The settlement ended a four-year effort by a non-Hawaiian teenager, known only as John Doe, to enter the Kamehameha Schools system.

Attorney John Goemans — who planned the legal action, found the plaintiff and brought the case to Sacramento private attorney Eric Grant to litigate — revealed the amount of the settlement in an exclusive interview with The Advertiser.

"The amount of the settlement is important public information that should be disclosed by a charitable institution that receives tax-exempt status from the Internal Revenue Service," Goemans said in a telephone interview.

The lawsuit challenging the schools' admissions policy was the first case of its kind to reach the doors of the U.S. Supreme Court and stirred enormous controversy in Hawai'i.

Critics of the settlement pointed out that additional legal challenges could still be mounted against the admissions policy, and news of the $7 million that the schools paid could increase the chances of new lawsuits.

Local attorney David Rosen, who made news last year by actively seeking plaintiffs for a new challenge to the admissions policy, said yesterday he is preparing a suit against Kamehameha Schools.

Kamehameha Schools, previously known as Bishop Estate, is a nonprofit organization with assets of $7.7 billion.

Grant, appearing yesterday at a University of Hawai'i law school symposium on the lawsuit, known as John Doe vs. Kamehameha Schools, declined to discuss the settlement when told that Goemans had disclosed the $7 million figure.

Kamehameha Schools' lead attorney in the lawsuit, Kathleen Sullivan, a former dean of the Stanford University law school, also declined comment.

"Terms of the settlement are inviolate," said Sullivan, also a participant at the UH symposium yesterday.

Ann Botticelli, spokeswoman for the Kamehameha Schools board of trustees, also declined to comment on Goemans' statements or the size of the settlement.

The settlement says that anyone who discloses its contents is subject to a $2 million penalty, but Goemans said he was not a party to the agreement and never signed it.

Goemans, who is recovering from heart surgery, said yesterday that he was opposed to the $7 million settlement but that "it was the client's decision" to accept it.


Goemans said an attorney representing Grant breached the confidentiality clause by mailing a copy of the agreement to Goemans last year.

Goemans added that Kamehameha Schools must disclose details of the settlement on its 2007 tax return, which is due to be filed later this year, and on annual financial reports the charity is required to file with the state attorney general's office and with the state court.

Tax returns of nonprofit institutions such as Kamehameha Schools are public records under federal law. The institution's annual financial accountings — which date to its founding by Princess Bernice Pauahi Bishop in 1888 — are also open to the public.

Kamehameha operates three campuses — its flagship at Kapalama Heights on O'ahu, one on Maui and another on the Big Island — for the benefit of children of Hawaiian ancestry.

The institution plays a central role in Hawai'i society, in part because of its financial clout and in part because of its mission to educate children of Hawaiian ancestry. It is also the state's largest private landowner.

There are about 70,000 school-age children with Hawaiian blood, and 5,400 students were enrolled at Kamehameha's various schools last year. Kamehameha served 30,000 other children and adults through outreach programs and through its support of charter schools.


Hawai'i federal Judge Alan Kay initially dismissed the John Doe lawsuit in November 2003, upholding the schools' argument that the admissions policy helped address cultural and socio-economic disadvantages that have beset many Hawaiians since the 1893 overthrow of the Hawaiian monarchy.

The plaintiffs appealed that decision to the 9th U.S. Circuit Court of Appeals, which overturned it in a three-judge decision in 2005. That ruling prompted protest rallies, prayer vigils and other gatherings around the state in support of the schools.

Lawyers for Kamehameha Schools then asked that all members of the appellate court review the matter and the full court reversed the three-judge panel's decision by an 8-7 vote in December 2006.

Grant then petitioned the U.S. Supreme Court to hear the case, and last May, on the eve of the high court announcement on whether it would take the case, the matter was settled out of court.

"We didn't think that there was a strong possibility (of losing) but that risk is always out there," J. Douglas Ing, chairman of the Kamehameha board of trustees, said in announcing the settlement in 2007. "There are no guarantees and there certainly were no guarantees from our lawyers that we would win the case."

Grant, the attorney for John Doe, said after the case was settled, "Obviously, a settlement is not exactly what either side wanted. But it is something both sides eventually came to terms on."


Goemans is involved in a continuing dispute with John Doe, whose identity has never been revealed, and with Grant over how much money Goemans should receive for his part in the case.

Grant received 40 percent of the overall settlement — $2.8 million — although he had to sue the plaintiff and the plaintiff's mother in federal court in Sacramento last year to collect the money, according to Goemans and federal court records.

That collection lawsuit was filed in June after Kamehameha had paid the $7 million settlement. The dispute over the payment of Grant's fee was settled and dismissed in September.

Goemans said he asked John Doe and Jane Doe for 25 percent of the total settlement — $1.75 million — but has not yet received a response.

Grant filed a separate lawsuit against Goemans in California state court last year regarding how much compensation Goemans is owed for his part in the case.

That suit is still pending, although Goemans said he believes it is groundless and will be dismissed.

Grant yesterday declined comment on the collection lawsuit he filed in Sacramento against his own clients or the related action he filed against Goemans.

Goemans said he has received $20,000 in compensation to date from John Doe and his mother and is contemplating filing a new legal action of his own against them.


Honolulu Star-Bulletin, February 8, 2008

Breyer treads around admissions case

By Ken Kobayashi

Affirmative action cases are so difficult for the U.S. Supreme Court because of two opposing views on how to fairly treat the country's wide diversity of people, Associate Justice Stephen Breyer said here yesterday.

Speaking at the University of Hawaii law school, Breyer said one view is that it is "too dangerous" to deviate from a "colorblind" principle with affirmative action programs.

The other -- which he said he believes in -- views those programs as a way to bring into a democratic society those who have been oppressed or have been victims of "invidious discrimination."

But the lingering issue, he cautioned, would still be to what extent and under what circumstances those programs should be permitted.

Breyer was on a panel that met to discuss the contentious legal challenge by an unnamed student to Kamehameha Schools' admissions policy of giving preference to applicants with Hawaiian blood.

Other panelists at the UH William S. Richardson School of Law included Kathleen Sullivan, a Stanford law school professor who defended the policy, and Sacramento attorney Eric Grant, who represented the student.

Kamehameha Schools reached a confidential out-of-court settlement last year with Grant just before a decision by the U.S. Supreme Court on whether to hear his appeal of an 8-7 vote by the 9th U.S. Circuit Court of Appeals upholding the policy.

Breyer, 69, considered part of the "liberal" group on the nine-member high court, made it clear that he would not talk about the specifics of the Kamehameha case. Although the case is settled, another lawsuit with similar issues could wend its way up to the high court.

Instead, Breyer talked broadly about the difficulties posed by affirmative action cases that sometimes lead to 5-4 decisions.

To underscore the point about the wide diversity in points of views and in the racial, ethnic and historical backgrounds of the population, Breyer used a little levity. He said his mother used to say, "There's no point of view so crazy" that some American does not hold it.

And because he and his mother are from San Francisco, she added, "And they all live in Los Angeles."

Breyer suggested that Chief Justice John Roberts and Associate Justices Antonin Scalia and Clarence Thomas oppose affirmative action, no matter how well motivated, as just not being good for the country.

He cited the rationale for the other point of view in a case in which he joined a majority in upholding an affirmative action program for a law school.

Breyer said lawyers for the military and businesses filed friend-of-the-court briefs saying that unless some version of those programs are permitted, the top military officers and business leaders would all be white, while those who work for them in this diverse country would say, "They're not us."

"Maybe if you allow a little affirmative action, we can try to prevent that," he said.


Honolulu Advertiser, Saturday, February 9, 2008

Kamehameha assets approach $9.1 billion

By Rick Daysog

Kamehameha Schools' endowment grew by a record $1.4 billion during its latest fiscal year, paving the way for expansion of the trust's educational programs.

In its annual report for the year ending June 30, 2007, the charitable trust said its net assets grew from $7.7 billion to nearly $9.1 billion.

Kamehameha Schools, the state's largest private landowner and one of the nation's wealthiest charities, said it increased spending on its educational programs by about $30 million to more than $250 million in the year.

"The reality is the more we make, the more we spend (on education)," said Kirk Belsby, Kamehameha's vice president of endowment.

Kamehameha Schools, which was established by the 1884 will of Princess Bernice Pauahi Bishop and educates children of Hawaiian ancestry, said it served 36,000 students last year, a 27 percent increase from the year-earlier's 28,000 students.

Of those students, 5,354 were enrolled in the trust's K-12th grade programs at its three Kapalama Heights and Neighbor Island campuses.

The trust served another 30,000 children and adults through its various preschool and community outreach programs and support of 14 charter schools.

The school is bound by a Probate Court-approved policy that requires it to spend 2.5 percent to 6 percent of its average endowment value during the previous five years on educational programs.

Last year's $250 million in education spending was about 4.1 percent of Kamehameha's average endowment value for the past five years.

Estate officials would not comment yesterday on last year's legal settlement with an unnamed non-Hawaiian student who had challenged the estate's Hawaiians-first admissions policy.

The Advertiser reported yesterday that the trust paid $7 million to settle the suit out of court just as the U.S. Supreme Court was to decide whether to hear the case.

In its annual report, the estate said its investments generated a 22.3 percent return for the year, surpassing its goal and outperforming many of its peers in the nonprofit world.

The median return for large endowment funds in 2007 was about 20.2 percent, according to Cambridge Associates, a Boston-based investment firm that advises universities, foundations, and other large nonprofits.

The value of the trust's investments in foreign market funds soared 26.5 percent to nearly $1.5 billion while the value of its Hawai'i real estate holdings increased by 31.7 percent last year to nearly $2.5 billion.

The bulk of the trust's asset appreciation — or about $1 billion — came in the form of realized and unrealized gains on various stock market holdings and other investments.

According to Belsby, the estate's diverse portfolio will help it weather the current financial turmoil in the nation's markets.

According to the trust's annual report, investments in U.S. equities and Mainland real estate account for about 17 percent of the estate's $9 billion portfolio.

"I certainly expect our performance to be modified relative to the last few years," Belsby said.

"(But) the bad news you're seeing now in the equities markets and the Mainland real estate markets is not as magnified in our portfolio because we hold lots of assets elsewhere."


Honolulu Advertiser, Saturday, February 9, 2008

School's $7M deal raises ire, eyebrows

By Jim Dooley

Yesterday's disclosure of the $7 million payment made by Kamehameha Schools to settle a civil rights lawsuit prompted questions and anger from individuals on both sides of the schools' controversial admissions policy that gives preference to students of Native Hawaiian ancestry.

"It does seem like a lot of money. It sure would be if it was in my pocket," said University of Hawai'i law school professor Jon Van Dyke, who served as a legal consultant to Kamehameha in the lawsuit.

Van Dyke said yesterday he wasn't part of the settlement discussions and still believes the payment led to the right outcome for the school.

The settlement was signed in May just before the U.S. Supreme Court was scheduled to announce whether it would hear an appeal of the case. Terms of the settlement had been kept confidential until this week. John Goemans, an attorney for the plaintiff in the case, revealed the $7 million figure to The Advertiser.

The settlement meant that an earlier 8-7 vote by the 9th U.S. Circuit Court of Appeals in favor of Kamehameha's admissions policy is still the prevailing law.

H. William Burgess, a local attorney who filed legal papers with the U.S. Supreme Court supporting the plaintiff in the case, said yesterday, "Wow. The settlement was much larger than I thought."

Burgess said he still believes the case should have been heard by the Supreme Court so that legal questions surrounding the school's Hawaiians-first admissions policy were settled.

"I actually think the trustees of the Kamehameha Schools have a legal duty, when there's a legitimate legal question about what they're doing, to seek a resolution of the issue," Burgess said.

News of the $7 million payment provoked more than 500 online postings to The Advertiser that variously criticized school officials who approved the payment and the lawyers and the client who received the money.

Beatrice "Beadie" Dawson, a native Hawaiian attorney who is active in Kamehameha Schools affairs, said yesterday the settlement itself and now news of the $7 million amount "are like an open invitation for more lawsuits."

"I was very dismayed by news of the settlement last year and I was very surprised by the size of it today," Dawson said.

Hawai'i attorney David Rosen, who last year announced plans to file another legal challenge to the school's admission policy, confirmed this week that the lawsuit is taking shape but has not been filed.

He issued a news release yesterday reacting to the settlement amount that said, "The people of Hawai'i should be outraged that the trustees of Kamehameha Schools place a higher value on discriminating rather than educating."

Goemans, the lawyer who publicly revealed the $7 million figure, said he believes the settlement should be a matter of public record given Kamehameha Schools' status as a tax-exempt charitable institution.

Goemans helped bring the civil rights lawsuit against Kamehameha in 2003 on behalf of a non-Hawaiian student denied admission to the high school. The student and the student's mother, who live on the Big Island, have never been identified except as John Doe and Jane Doe.

Goemans also said the settlement is subject to review by the Internal Revenue Service and by the state attorney general's office, which oversees Kamehameha Schools' annual financial accountings filed with state Probate Court.

Attorney General Mark Bennett could not be reached for comment yesterday.

David Fairbanks, a Honolulu lawyer serving as the appointed "master" who must review Kamehameha's financial fillings for the Probate Court, did not respond to a telephone message for comment yesterday.


Honolulu Star-Bulletin, February 9, 2008


An attorney involved in a challenge to Kamehameha Schools' Hawaiians-only policy reveals the amount of a settlement

By Ken Kobayashi

Kamehameha Schools made the first move to settle a legal challenge to their admissions policy giving preference to native Hawaiians and later agreed to pay $7 million, a lawyer involved in the case said yesterday.

John Goemans, an attorney for an unnamed non-native Hawaiian student who filed a lawsuit contesting the policy, said the charitable trust offered for the first time to talk about an out-of-court settlement last May, just days before the U.S. Supreme Court was to decide whether to hear the case.

Goemans, a former Big Island attorney recuperating in Florida from heart surgery, and Sacramento, Calif., lawyer Eric Grant, the lead attorney, represented the unnamed student and his mother.

"They (the schools) approached Eric and said we wanted to settle and we have to settle by Friday morning," when it was believed the high court was to make a decision about accepting the case, Goemans said.

He said it appeared the high court would accept their appeal of an 8-7 decision by the 9th U.S. Circuit Court of Appeals that upheld the policy. "They (the schools) were worried about losing in the Supreme Court," Goemans said.

Goemans said he did not know how Grant and the Kamehameha Schools arrived at the $7 million figure.

The hotly disputed federal civil rights lawsuit caused a firestorm of controversy among Kamehameha Schools supporters who believed the challenge struck at the more than century-old admissions policy and the heart of the charitable trust's mission to educate children of Hawaiian ancestry.

The confidential settlement was announced on May 14. Those connected with the case repeatedly refused to disclose the terms.

Goemans said he was disclosing the amount because he said he recently learned from Internal Revenue Service officials that Kamehameha Schools, a tax-exempt charitable trust, cannot keep the figure confidential.

"Because exempt organizations operate in the public good, you got to report all your expenses with particularity, and you cannot keep information relative to those expenses confidential," he said. "It's in the public interest to have full disclosure."

Ann Botticelli, Kamehameha Schools spokeswoman, said yesterday the settlement contained a confidentiality clause.

"We intend to honor the terms, and we will not be discussing the settlement or John Goemans' assertions," she said.

Grant said yesterday he had no comment.

Kamehameha Schools, a multibillion-dollar charitable trust and the state's largest private landowner, was established under the 1883 will of Princess Bernice Pauahi Bishop. It educates more than 6,700 students at its flagship campus at Kapalama Heights, two other campuses on Maui and the Big Island, and 31 preschools throughout the state.

Senior U.S. District Judge Alan Kay upheld the school's Hawaiians-first policy, but a panel of the appeals court in San Francisco ruled 2-1 that the practice violated federal civil rights laws. That decision triggered statewide protests and marches by school supporters.

Later, a larger appeals court panel voted 8-7 to uphold the policy.

It was an appeal by Grant of that 8-7 ruling that was on the doorsteps of the U.S. Supreme Court when the settlement was announced.

At the time, school officials indicated that the settlement calling for the dismissal of the lawsuit leaves intact the appeals court's 8-7 decision upholding the admissions policy.

But the dismissal does not guarantee that another lawsuit might surface and make its way to the high court, although it would first have to go through the federal trial and appeals courts, where the 8-7 ruling would be considered to be binding on the issue. But even if those who file the new lawsuit lose on those two levels, they could still ask the high court to review the case.

Honolulu attorney David Rosen said he has plaintiffs for a lawsuit to challenge the admissions policy. He said the settlement does not affect his case. Rosen said he expects the suit will be filed this year.

Goemans said Grant received 40 percent, or $2.8 million of the $7 million. Goemans said he is preparing to file his own lawsuit seeking to recover a "reasonable percentage" of the $7 million for his work in the case.

Goemans said he found the unnamed student and arranged for Grant to be the attorney for the student and his mother.

"I put the whole thing together," Goemans said. "But for me there would not have been a $7 million payment."

The student never was admitted to Kamehameha Schools because his case was pending. He has since graduated from high school and had been attending college, Grant said last year.


Honolulu Star-Bulletin, February 9, 2008

Amount of settlement raises critical concern

By Robert Shikina

Supporters and critics expressed surprise yesterday at the $7 million Kamehameha Schools paid a student to settle a lawsuit disputing its Hawaiians-first admission policy.

One Kamehameha Schools alumnus says disclosure of the settlement with the anonymous, non-Hawaiian student will prompt questions among Hawaiians.

"I'm not happy with $7 million," said Kamehameha Schools alumnus Jan E. Hanohano Dill. "Unfortunately, that's a lot of money, and it's going to create a lot of questions in the Hawaiian community whether it was right or wrong and to continue."

Dill, also a board member of Na Pua a Ke Ali'i Pauahi, a nonprofit group whose members include students, parents, and alumni of Kamehameha Schools, said he continues to support the school's decision.

"I don't know the details, and I think that's something that has to be cleared," he said. "You settle because you want to avoid costs that would be incurred as you go forward."

He added, "I have to believe that they understood that this was something good for the Hawaiian people. ... It will be clear as things unfold whether that was true."

Dill, who is also president of the nonprofit Partners in Development Foundation, said the admissions policy must eventually be addressed and that the settlement avoids this case but does not stop other cases.

Marion Joy, former vice president of Na Pua, called the settlement a "misuse of trust funds."

"The trust is continually going to be challenged," she said. "This is not going to be the last. ... As far as settling for the particular lawsuit, it's not in the best interests of the beneficiaries (of the 1883 will of Princess Bernice Pauahi Bishop)."

Kamehameha Schools declined comment.

Honolulu attorney David Rosen, who has sought potential clients to sue Kamehameha over its admissions policy after the settlement, sent out a statement yesterday that said the $7 million settlement was used to "buy off this case."

He added that the trustees should open a campus on the Leeward Coast of Oahu and possibly Molokai where increased educational opportunities are needed.

H. William Burgess, a retired attorney and founder of Aloha for All, a group opposed to Hawaiian sovereignty, said the settlement raises questions about the proper use of the trust funds.

"Normally, trustees, if they're doubtful about doing something, they ask the court to give them instructions," he said. "Yet in this case, the biggest charitable trust, probably in the nation, instead of welcoming the opportunity to get the highest court in the land to settle it, they pay $7 million to leave it open. And it is very much open."


Hawaii Reporter, February 13, 2008

Kamehameha School's $7 Million Should Have Been Used to Educate Instead of Discriminate and Litigate

By David B. Rosen, Esq

The people of Hawaii should be outraged that the trustees of Kamehameha Schools place a higher value on discriminating rather than educating. The community should also understand that the $7 million apparently paid to buy off this case (filed against the school for its Hawaiians-first admission policy) is only the tip of the iceberg.

In addition to the millions of dollars in legal, public relations, lobbying and insurance fees that the Trustees have expended solely to discriminate against disadvantaged non-native-Hawaiians, the Trustees also continue to place the Trust’s tax-exempt status at risk. This decision could end up costing Kamehameha Schools hundreds of millions of dollars when its racially exclusionary admissions policy is declared illegal by the United States Supreme Court.

It should be understood that the Trustees have admitted and the Judges of the Ninth Circuit have unanimously recognized that the will of Princess Bernice Pauahi Bishop does not require the use of race as an admissions criteria – nowhere did the Princess express that non-native-Hawaiians should be excluded from Kamehameha Schools.

Consequently, instead of continuing to focus the majority of its program funds on educating an elite group who share the meaningless characteristic of at least one drop of common ancestry, Kamehameha Schools should instead be focusing on educating those expressly identified by the Princess – “indigents and orphans” – regardless of their current intellectual aptitude and irrespective of their race.

As a community we need to be demanding that the Trustees immediately move forward with opening a campus on the Leeward Coast of Oahu and possibly on Molokai. In addition to these areas having high percentages of native-Hawaiians, they are also the areas in which increased educational opportunities are the most needed in Hawaii.

David B. Rosen, Esq. is a Honolulu attorney who advocates against racial entitlement programs.


Ka Wai Ola [monthly newspaper of the State of Hawaii Office of Hawaiian Affairs]
March 1, 2008

** Photo caption:
U.S. Supreme Court Justice Stephen Breyer, center, at the UH William Richardson School of Law. From left are: Stanford law professor Kathleen Sullivan, U.S. District Judge David Ezra and attorneys David Forman and Eric Grant.- Photo: Courtesy of Jeffrey Galicinao

Justice Breyer speaks on merit of minority-preference programs
But the Supreme Court justice sidesteps direct comment on Kamehameha Schools policy

By Liza Simon / Ka Wai Ola

Does affirmative action redress the effects of past wrongful discrimination against minorities or does it dangerously depart from the democratic principle of equal protection under the law for all citizens? This was the rhetorical question put forth to a University of Hawai'i law school audience by U.S. Supreme Court Associate Justice Stephen Breyer, whose liberal affirmative-action stance could be the deciding vote in court challenges to programs that help Native Hawaiians.

Breyer, a Clinton-appointee to the nine-member bench that now includes two Bush-appointees, said that cases involving legal protection of minorities have divided the nation's top court into two opposing camps, reflected in narrowly split 5-4 decisions.

“One view looks at existing legal structures as sufficient in supporting minority rights and insists on applying the color-blind principle of Constitutional law,” Breyer said. Clearly favoring the other view, Breyer said it is better that our Constitution “works harder at bringing people into society” by providing fair access to employment and education. “Otherwise, we will end up with all-white institutions where subordinates are all minorities. It will be a 'them' and an 'us.' Our best leaders know that is a system that just won't work,” he said.

Breyer was one of several panelists that met to discuss Kamehameha Schools' Hawaiian-preference admission policy. In a case known as John Doe v. Kamehameha Schools, a non-Hawaiian student challenged the school to stop giving preference to Native Hawaiians. The lawsuit ended last year in a confidential out-of-court settlement, but a day after the UH panel discussion, an attorney for the plaintiff revealed that Kamehameha Schools agreed to pay the student's family $7 million.

Citing the possibility that similar challenges would make their way into the nation's high court, Breyer said he would not comment directly on the Kamehameha Schools lawsuit, but he criticized the argument by plaintiffs in similar court cases, where groups have claimed that exclusionary programs for minorities violate civil rights law. This argument was used successfully in a recent Supreme Court decision that overturned partly the Equal Pay Act, originally established to protect the rights of minorities in the workplace. Supporters of minority programs, including the privately run Kamehameha Schools, see increased legal challenges by members of majority groups as distorting the original intent of civil rights law.

“Let us not lose sight of why the court is involved in guaranteeing minorities equal protection from discrimination,” said Breyer, citing mistreatment of African-Americans that lingered through eight decades of segregation. “We suffered through this even after post-Civil War laws guaranteed slave descendants would not be treated badly, and so we need the flexibility to deviate from principle for affirmative action,” Breyer said.

While Breyer talked broadly about the history of affirmative action and minority rights, other panelists offered more pointed comments on Kamehameha Schools, including Stanford law school professor Kathleen Sullivan, who defended the school's admission policy and California-based attorney Eric Grant, who represented the non-Hawaiian applicant to the school.

Grant said legal protection of minority rights was not at stake in his client seeking admission to Kamehameha Schools: “You adopt those affirmative action rules only when (the minority) faces an imbalance within an institution – (that's) not the case at a 100 percent Hawaiian institution.”

Sullivan said the courts use a wider view of society to remedy discrimination. “Education is the groundwork on which all society is built and Kamehameha Schools (admissions) has fundamentally been about assuring that Native Hawaiians will no longer be excluded from society.”

Prior to the 1964 landmark Civil Rights Act and subsequent affirmative action rulings, Congress had long recognized that Native Hawaiians deserve special preferences as redress for the destruction that followed the overthrow and annexation, Sullivan added. “It would it be inharmonious for the court to undo on one hand what it has pursued on the other.”

Breyer said court controversies over affirmative action are likely to continue. He said much work must be done toward a better understanding of an increasingly diverse America and “figuring out the circumstances that count as criteria.”

Breyer, 69, sided with the majority opinion in the Rice v. Cayetano Supreme Court decision that gave non-Hawaiians the right to vote in Office of Hawaiian Affairs elections. A publicly financed election must guarantee all voters' rights, not the civil rights of minorities, he said.

Striking a note of amiability on his first-ever visit to Hawai'i, Breyer said he was impressed by UH law school's diverse student body. “You are the heart of the Western rim,” he said. “You are living the diversity that will bring new experiences to the field of law.”


Honolulu Advertiser, Thursday, March 6, 2008

Kamehameha Schools' gap in spending widens

By Rick Daysog

Kamehameha Schools' spending on educational programs has remained flat in recent years as its endowment grew by more than $3 billion, exposing the estate to criticisms that it is hoarding its assets, according to a court-appointed overseer.

The value of Kamehameha Schools' endowment climbed from about $5.5 billion in 2003 to $7.7 billion in 2006 and $9.1 billion in 2007.

Meanwhile, the estate's spending on its educational programs has remained relatively constant at about $220 million for most of that period, although the trust did increase its spending to $250 million last year.

"The significant revenue and spending variances might expose the trust to criticism for possibly 'hoarding' and correspondingly not adequately expanding its reach to assist Princess Pauahi's intended beneficiaries," wrote David Fairbanks, a Honolulu lawyer serving as the appointed "master" who must review Kamehameha's financial filings for the Probate Court.

Trust officials denied that they are hoarding income and said that spending on educational programs actually increased by nearly $30 million last year.

Kamehameha Schools spokeswoman Ann Botticelli said the trust's spending on education was up 13 percent to $250 million during its 2007 fiscal year. She added that the trust expects to increase its spending further in 2008.

Last year, the trust served more than 35,000 Native Hawaiian students and families, a 27 percent increase from the year-earlier period.

"We are absolutely not hoarding income," Botticelli said.

Fairbanks' 97-page report, which will be the subject of a Probate Court hearing tomorrow, comes as Congress may be looking to require wealthy schools and universities to spend more of their endowments each year.

Under a Probate Court-approved spending policy, Kamehameha Schools spends between 2.5 percent and 6.5 percent of its assets each year, although the actual spending amounts have been slightly less than 4 percent, Fairbanks said. By contrast, charitable foundations are required to spend 5 percent of their holdings each year.

Botticelli said the trust's educational spending policy is pegged to a five-year rolling average of the endowment's fair market value and is not just a one-year valuation.

The trust's average value for those five years was $6.1 billion, not $9.1 billion, and the $250 million the trust spent on education in 2007 represents about 4.1 percent of the $6.1 billion average, she said.

She added that much of the increase in the value of Kamehameha Schools' endowment was in the form of unrealized stock market gains, not income.

"Our endowment group has done a great job in a bull market. But as you can see by the headlines of late, markets change," Botticelli said.

"We can't incur costs in good times unless we're certain we can continue to carry those costs in bad times."

Founded under the 1884 will of Princess Bernice Pauahi Bishop, the Kamehameha Schools is a tax-exempt trust that educates children of Hawaiian ancestry. It's one of the nation's wealthiest charities and is the state's largest private landowner.

Fairbanks' report also raised concerns about the estate's budgeting process. In 2006, Kamehameha Schools spent $308 million on educational services and other programs, which was $39 million less than its initial budget. In 2005, the trust spent $306 million, or $20 million less than what it had budgeted.

Botticelli said the unspent money isn't hoarded but remains in the endowment and is used for future projects.


Overall, Fairbanks' report, which was filed last week, noted that the trust has made much progress in improving its CEO-based management system. That system was put in place in response to the late-1990s trust scandal, which resulted in the ouster or resignation of former board members Henry Peters, Richard "Dickie" Wong, Lokelani Lindsey, Gerard Jervis and Oswald Stender.

Fairbanks also complimented the trust for reaching out to more orphans and indigent students.

The percentage of indigent and orphaned students at Kamehameha's Kapalama Heights campus was 19 percent during the 2005-06 fiscal year, which was up from 14 percent during the 2002-03 year.

He also praised the quality of education at Kamehameha campuses, in which 97 percent of the graduates would go on to four-year universities, community colleges or technical schools.


Roy Benham, a 1941 graduate and former president of the Kamehameha Schools Alumni Association, said the school is reaching more students than it ever has but could do more, given its resources.

"I still think they should look for more inventive ways of reaching our children," he said.

Deputy Attorney General Hugh Jones, whose office serves as a legal advocate for the estate, believes that Fairbanks' remarks are important when viewed in the context of past practices by the estate.

In a 1998 report, attorney Colbert Matsumoto, the court-appointed master for Kamehameha Schools' 1994-96 fiscal years, concluded that the estate's former trustees secretly accumulated $335 million in income that should have been spent on educating Hawaiian children.

The accumulation was one of the key reasons for the removal of then-trustees Peters and Wong, Jones said.

"The foregoing historical context, and the significant growth in the trust's endowment ... and significant variance in budgeted and actual expenditures re-emphasized the importance of the master's statement," Jones said.


Honolulu Advertiser, Saturday, March 8, 2008

Kamehameha to hike spending

By Rick Daysog

Kamehameha Schools will increase spending on its educational programs by at least $20 million this year, according to the chairman of the school's board of trustees.

During a Probate Court hearing yesterday, trustee Douglas Ing said the estate expects to spend between $270 million to $277 million on educating Hawaiian students during the year ending June 30, 2008.

The amount represents an 8 percent increase from the $250 million spent in 2007.

"We are trying to reach many more thousands of students," said Ing. "We know we have to reach more children."

Ing's remarks came in response to a recent report by the estate's court-appointed master David Fairbanks. The report, filed with the court last week, said the estate faces potential criticism for "hoarding" since its spending has remained relatively flat for several years at a time when its assets have grown by more than $3 billion.

Ing told Probate Judge Colleen Hirai the estate is pushing hard to expand its reach but stressed that it also has to be prudent with its investments.

Under a long-term plan, Kamehameha Schools aims to increase the number of students it serves from 35,000 to 55,000 by the year 2018, Ing said.

To do that, the trust would have to increase its educational spending to about $430 million a year and fair value of its endowment would have to average $10.7 billion over five years.

"We have to try to change a lifestyle for a generation," Ing said.

Founded by the 1884 will of Princess Bernice Pauahi Bishop, the Kamehameha Schools educates children of Hawaiian ancestry. It is one of the nation's wealthiest trusts and is the state's largest private landowner. The endowment was worth $9.1 billion in 2007.

The trust spends between 2.5 percent and 6.5 percent of its endowment each year under a Probate Court-approved spending policy.

That spending policy is pegged to a five-year rolling average of the endowment's fair value, which was $6.1 billion last year.

Last year's expenditures of $250 million was about 4.1 percent of the value of the schools' endowment.

During yesterday's hearing, Fairbanks said he wasn't criticizing the estate but was pointing out a potential problem faced by other large educational trusts.

Some universities and large schools on the Mainland have come under scrutiny for not spending enough, prompting Congress to push for legislation requiring them to spend a minimum amount of their endowments.

According to the Wall Street Journal, Yale University and Harvard University recently increased the amounts that they spend from their endowments. Stanford University also has agreed to boost its financial aid for middle-class and poor students.

"This is not an accusation or a criticism, but it's a potential problem," said Fairbanks. "They need to be careful."


Honolulu Advertiser, March 11, 2008, LETTER


Is Kamehameha Schools spending enough? Yes.

A growing number of Hawai'i keiki are benefiting from Kamehameha Schools' commitment to "extend the reach."

At the Hawai'i Association of Independent Schools, we observe the powerful force for good that is created by the school's contributions to educational programs at many of our member schools all across the state.

With designs in place to affect long-term generational change, we believe the school is building capacity within its own organization and with partners throughout our state's academic community, creating the potential for exponential future social dividends. We point to just a few of these as examples:

The impact of Pauahi Keiki Scholars, with an initial investment of $15 million in tuition assistance funding over the past three years to send deserving young children to preschool.

The promise of the Hawai'i Change Leaders Project, a $1.8 million investment at 21 public schools, demonstrating the potential of transformational leadership to enhance teaching and learning in all of Hawai'i's public and private schools.

The multi-million-dollar, multi-year investment in Hawaiian culture and conversion charter schools that values and supports community ownership of schools where traditionally underserved students are finding their way to academic success and self-confidence.

Private schools are at their best when they serve a broadly defined public purpose, and when their missions address issues of equity and justice in our society. When a school with a unique purpose serves a population of students who are not otherwise well-served, everyone benefits.

Kamehameha is such a school.

Robert M. Witt
Executive director, Hawai'i Association of Independent Schools


Honolulu Advertiser, Thursday, April 24, 2008

Kamehameha wants $2 million returned
School points to breach in terms of confidential settlement paid in 2007

By Jim Dooley
Advertiser Staff Writer

Kamehameha Schools is trying to get back as much as $2 million of the $7 million it paid last year to settle a lawsuit that challenged its admissions policy favoring Hawaiian students, according to legal papers filed in federal court in California.

The papers are contained in new litigation filed after publication of an Advertiser news story in February that revealed that the settlement was $7 million.

The money was paid to a Big Island mother and child in return for their agreement to drop the lawsuit just before the U.S. Supreme Court was to decide whether it would hear an appeal of the case.

The plaintiffs, who have never been publicly identified and are known as Jane and John Doe, alleged in the California case that the schools "threatened" to publicly identify them if they did not place $2 million in an escrow account for possible return to the schools because terms of the confidential settlement had been revealed.

Ken Kuniyuki, a Hawai'i lawyer who now represents the pair, is alleging that David Schulmeister, an attorney for the schools, said that if the schools were forced to file suit over the issue, the names of the Does would become public.

Kuniyuki made the allegation in a sworn declaration filed this month in federal court in Sacramento, seeking a court order barring public identification of the plaintiffs.

Schools attorney Paul Alston denied that Schulmeister threatened to reveal the plaintiff's identities.

"Schulmeister told Kuniyuki that the (Kamehameha Schools/ Bishop Estate) believed the settlement agreement had been breached and that the estate was entitled to damages," Alston said in court papers filed April 14 in Sacramento.

"He further explained that a public lawsuit could make it difficult for the Does' anonymity to be preserved" and suggested that the $2 million be held in escrow while the parties discussed resolution of the dispute short of a lawsuit, according to Alston.

Alston stressed on Tuesday that Kamehameha Schools has not filed a lawsuit or taken any action that would publicly identify the Does.

"Kamehameha Schools is closely scrutinizing how to proceed," he said.

Tuesday night and yesterday, the Kamehameha Schools board of trustees and Chief Executive Dee Jay Mailer sent a mass e-mail to parents and alumni notifying them of the new legal skirmishing in California and alerting them that The Advertiser was preparing a story on the subject.

"A breach of confidentiality has occurred, and an investigation into the line of responsibility is in process. Legal action as appropriate shall follow," the trustees' e-mail said.

"It is aggravating to be drawn into this complicated and unsavory infighting," the trustees' message continued. "However, we will not allow this latest legal maneuver to distract us from our mission."


Jane and John Doe filed legal papers in Sacramento federal court denying any role in the release of the settlement figure by John Goemans, an attorney who used to represent them but who now is involved in a dispute over compensation for his services in the case.

Their attorney, Kuniyuki, also asked the federal court to issue a restraining order against all parties in the case preventing any attempts to disclose the identities of Jane and John Doe.

He attached an April 2 sworn statement from Jane Doe that said, "both John Doe and I fear for our safety if our identities are made public."

She noted that more than 1,550 reader comments were posted on the Advertiser's Web site following the February story that disclosed the settlement amount.

"Many of them are extremely critical of us. Some include threats of violence against us," she said.

"I have lived in Hawai'i for many years. The negative comments and threats posted to the Honolulu Advertiser's February 8, 2008 article are entirely consistent with my experience with many local residents regarding the admissions policy of the Kamehameha Schools."

If their identities become public, she said, "we are prepared to move and go into hiding."

Last week, following a hearing before U.S. District Judge Frank Damrell Jr., all parties in the federal court case stipulated that they would not disclose the true identities of the Does.

Goemans told The Advertiser in February that he believed the settlement amount should be a matter of public record, given Kamehameha Schools' status as the wealthiest and most influential nonprofit institution in Hawai'i.


In a separate civil case now pending in Sacramento state court, Goemans was sentenced earlier this month to serve eight days in jail and fined $4,000 for violating a court order to keep the settlement amount secret.

Goemans, 73, now living in Florida with his sister, said by telephone, "I have zero money, I have serious health issues, and now I've been ordered to serve an eight-day jail sentence in California in the middle of May. I don't know what's going to happen."

The California state case was filed against Goemans by Eric Grant, a Sacramento attorney who litigated the Does' lawsuit from the time it was first filed in Hawai'i in 2003 through its settlement in May 2007.

Under the terms of the settlement agreement, Grant was entitled to 40 percent of the $7 million total, or $2.8 million.

He sued Goemans in Superior Court in Sacramento last year to try to settle the outstanding question of how much Goemans should be compensated.

Goemans conceived the civil rights lawsuit against the schools, found the plaintiffs on the Big Island and brought them together with Grant.

Goemans said the only money he has received was a $20,000 loan from Jane Doe but believes he is entitled to as much as 25 percent of the total settlement, or $1.75 million.

According to documents filed in the California state case, Grant became concerned early this year that Goemans intended to reveal the amount of the legal settlement and on Feb. 5 obtained a court order against Goemans blocking any such disclosures.

Three days later, The Advertiser published a news story based on Goemans' statements about the settlement amount.

Goemans said in a sworn statement filed with the California court March 17 that he is "not medically or mentally 100 percent" and had no memory of being informed of the Feb. 5 court order.

"I want to emphasize to the court that it was not my intent to deliberately and knowingly violate the court's order," the statement said.

But he reiterated his belief that Kamehameha Schools, as a tax-exempt organization, should not and cannot keep the terms of the settlement confidential.

After the settlement terms were made public, Grant filed a new federal lawsuit March 28 in Sacramento against Kamehameha Schools and his own clients, Jane and John Doe, asking the court for a ruling that he was not responsible for the disclosure and has no financial liability because of it.

Grant and an attorney who represents him did not return telephone requests for comment.

Alston filed a lengthy legal memo in the case last week questioning the Sacramento court's jurisdiction in the matter since the Does and the schools are in Hawai'i.


May 1 2008: Capital Research Center devoted its monthly report to a description of Kamehameha Schools' history of racial separatism and financial shenanigans, and how the Akaka bill would help perpetuate those things.

Capital Research Center; Foundation Watch, May, 2008

** This lengthy essay Comments on the relation between the Akaka bill and Kamehameha schools. It is also available in pdf format, which includes several photos of a sovereignty rally and the Kamehameha Schools Trustees; see:

Racial Separatism in the Aloha State:
The Bishop Estate Trust and Hawaii's Kamehameha Schools

By Phil Brand, James Dellinger, and Karl Crow

Summary: The Bishop Estate, a 501(c)(3) nonprofit and Hawaii's largest private landowner, operates the racially separatist Kamehameha Schools, the wealthiest secondary educational institution in the U.S. The 121-year history of the Estate and Schools is a story of race, politics and ultimately, the corrupting nature of power in Hawaii. But issues concerning Hawaiian identity and culture have now reached the mainland. The school system is backing a bill inspired by one of Hawaii's Democratic senators, Daniel Akaka, that would grant special privileges based on race. The bill, which would give Native Hawaiians the right to create their own government, is now pending in the U.S. Senate.

Last February, Hawaii's Kamehameha Schools system paid $7 million to settle a lawsuit by a student who was denied admission to the system's boys' school because of its policy of giving first preference to Native Hawaiians. The settlement short-circuited a much-anticipated review of the school's policy by the U.S. Supreme Court. That ruling might have had a profound impact on many federal and state public policies and programs that target Native Hawaiians for assistance. There is some disagreement about what constitutes a Native Hawaiian, but it is generally agreed that a Native Hawaiian is someone who can trace his or her ancestry to the indigenous people living in the Hawaiian islands at the time Captain James Cook discovered them in the late 1700s.

But while the Supreme Court was shut out of the issue of Hawaiian race and ethnicity, the U.S. Congress was getting in on the action. On October 24, 2007, the House of Representatives passed by a vote of 261 – 153, the Native Hawaiian Government Reorganization Act of 2007 (H.R. 505). A Senate version of the bill (S. 310), known as the Akaka bill after its sponsor, U.S. Senator Daniel Akaka (D-Hawaii), may be voted on in the coming weeks. Senator Akaka is an alumnus of the Kamehameha Schools. If the bill passes and becomes law, it will grant Native Hawaiians a legal status comparable to that enjoyed by Native American Indian tribes, and allow them to create their own separate government based merely on their racial ancestry. It will exempt government offices and policies affecting Native Hawaiians from the equal protection provisions of the U.S. Constitution. And it will give Native Hawaiians the sort of sovereign immunities enjoyed by Indian tribes that are exempted from the full authority of our founding document. The Akaka bill does not lay out in detail what form the new governmental entity will take, nor does it require that the new entity be subject to the same taxes, health, safety, environmental, and homeland security regulations and laws that apply to other citizens of the United States.

To understand the origins and likely consequences of the Akaka bill you need to know something about how native Hawaiians relate to other Hawaiians. And that brings up the crucial role played by the Bishop Estate and the Kamehameha Schools. The stories of politics and race and the accusations of abuse of power that circulate in Hawaii today only scratch the surface of the century- long saga of the Kamehameha Schools.

The Kamehameha Schools

The history of the Schools dates back to October 31, 1883, when Princess Bernice Pauahi Bishop, a member of Hawaii's royal family and Hawaii's largest private landowner, signed her will. She bequeathed her estate to the care of five trustees, including her husband, Charles R. Bishop, a businessman and philanthropist. She indicated that the Bishop Estate—which in 1883 had an estimated value of $470,000—was to be used to "erect and maintain" two schools, one for boys and one for girls, to be called the Kamehameha Schools, named after her greatgrandfather, the legendary Hawaiian king.

The two-page testament dictated that the Schools were "to devote a portion of each year's income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood." Bishop gave the trustees the power to "regulate the admission of pupils."

Since its founding —the boys' school in 1887 and the girls' school seven years later— the Kamehameha Schools has wrestled with the meaning and intent of Bishop's will.

In accordance with the will, the Schools' early curricular focus was heavily vocational— reflecting the thinking of the time—and military training was prominent at the boys' school. In the early decades of the 20th century, the focus began to shift away from vocational training and towards academic excellence. In order to raise standards, the Schools implemented IQ tests and admission exams. By the early 1940s, less than 2% of Hawaii's 26,000 Hawaiian children were admitted into the Schools. The Hawaiian community responded bitterly, accusing the system and its trustees of ignoring the will's clear command to improve the plight of all Native Hawaiians, particularly those most in need. The policy again changed. During the next two decades entrance exams were dropped and the Schools' student population ballooned.

In the 1960s the Schools moved back towards a merit-based policy. The lottery admission system was dropped and entrance exams were reinstated. To preempt the community's accusations of elitism, the system added an "outreach" program to help Hawaiian students in the public schools who were rejected by Kamehameha. But in the 1990s the Schools again reversed course, as a micromanaging trustee, Lokelani Lindsey, reintroduced testing and cut many of the system's programs to help poor Hawaiians.

Has the Schools system done enough to help those it was established to help? That has been the enduring debate. Some complain that the system isn't putting enough money into operating the Schools. And of the money that goes to educational programs, they say administrative costs take a disproportionately high percentage of the costs.

According to its 2005 IRS Form 990, Kamehameha's income for the year was $656 million, but it spent only about $255 million on the Schools. Program services for the Schools consumed $176 million, while administrative overhead was $78 million, nearly a third of the total.

Compare that to other large private nonprofit schools in Hawaii: the Iolani School, with 2005 income of $34 million, spent $33 million, $30 million of which went to program services; the Mid-Pacific Institute with 2006 income of $23 million, spent $21 million, $16.5 million of which went to program services; and the Punahou School with $71 million in income, reported expenses of $68 million, of which $57 million went directly to programs.

With an income more than double its expenses, why doesn't Kamehameha expand the number of students it serves? Any answer requires a consideration of Hawaii's complex racial history and the role of the Bishop Estate in it.

Race at Kamehameha

The Princess's will requires that her trust give preference in charitable giving to orphans and indigent Hawaiians of "pure or part aboriginal blood," but it does not list race as an explicit criterion for admission to the Schools. The trustees were granted "full power…to regulate the admission of pupils," and they established an admission policy of racial-preference for Native Hawaiians.

As a result, applicants must first meet the system's academic standards, and then verify that they possess aboriginal blood. The Schools then employs a "Hawaiians first" policy, where any qualified applicant with at least a drop of Native Hawaiian blood is admitted before even the most highly qualified non-Native Hawaiian. This policy of racial preference is well established at Kamehameha, though it clashes with the multiracial reality of Hawaii.

Hawaii is a melting pot of people of different races and ethnicities. Hawaii was first settled by Polynesians, around 1000 A.D. The first European to discover the islands was Captain James Cook in 1778, who called them the Sandwich Islands. In 1810 King Kamehameha I (Princess Pauahi was the last Hawaiian royal who was a direct descendant of the king) united the Islands for the first time, but relied on British protection. The King included foreigners as full members of society, and gave high government positions to non-Hawaiians. In the early 19th century, the work of American missionaries helped to convert Hawaii into a majority Christian nation. As the century progressed, demand for Hawaiian sugar rose dramatically, and a large influx of Asian workers migrated to Hawaii to work on the plantations. Interracial and interethnic marriage was commonplace, and the population of Hawaii was diverse long before its inhabitants voted overwhelmingly (94%) for U.S. statehood in 1959.

The Office of Hawaiian Affairs, which is a state agency, defines Native Hawaiians as people who can trace some ancestry to the islands prior to Captain Cook's arrival. The 2000 U.S. census puts the number of Native Hawaiians living in Hawaii at just under 240,000, about 20% of the state's total population of some 1.3 million. Many Native Hawaiians –160,000— live on the mainland.

In order to facilitate the verification of Hawaiian ancestry, the Kamehameha Schools system founded the Ho'oulu Hawaiian Data Center in 2003. According to the system, "The center verifies the Hawaiian ancestry of program applicants who wish to be considered under the schools' preference policy. During the 2005 fiscal year, the center received a total of 19,200 ancestry verification applications. Since its inception, the center has reviewed over 42,000 applications resulting in the verification of nearly 26,000 Hawaiian learners."

Of the nearly 70,000 school-age children with Hawaiian blood, the Kamehameha Schools enrolled about 5,400 students last year. Kamehameha has accepted only a handful of non-Native Hawaiians in its 121-year history.

The Bishop Estate

The official name of the tax exempt 501(c) (3) entity that manages the Kamehameha Schools is "Trustees of the Estate of Bernice Pauahi Bishop." The Estate's tax return for 2005, the most recent year available on the online database, Guidestar, reveals total assets of $6.1 billion, though a Honolulu Advertiser article in February reported that the system's net assets are now closer to $9.1 billion. According to a January 2008 New York Times article, Kamehameha's endowment outranks those of all secondary institutions nationwide, and is comparable in size to the endowments of America's wealthiest universities. The wealth of the Estate during its early years was derived mostly from land holdings throughout the Hawaiian Islands. At its peak, the Estate controlled over 9% of all land in Hawaii.

Until the 1990s the schools were funded from revenue derived directly from the land. The Estate, a tax exempt charity, was allowed to generate revenue only through passive investment. This meant the Estate was not allowed to develop or systematically sell its property. It was allowed only to rent its undeveloped land. In the post-WWII era, land for housing and resort development became a premium asset in Hawaii. The Estate, as the state's largest private landowner, was positioned to make huge profits if it could find a way around the passive investment regulation. It found a loophole and began leasing tracts of land to developers for unusually long-term leases that ran anywhere from 50 to 99 years.

But an Estate land development project in the 1970s stoked public resentment. Flush with cash and eager to take advantage of rising land values, the Estate looked to develop the area around the Kalama Valley, which was home to many low-income and working class Native Hawaiian families. The Estate began clearing its land to prepare for development, and driving out those who resisted. When lawyers couldn't evict inhabitants, the Estate systematically shut off their power and water. Residents sued but lost in court. Whether or not the Estate was acting illegally was largely irrelevant at this point because it had already lost in the court of public opinion. The irony of the non-profit Bishop Estate, whose mission was "educating and bettering Native Hawaiians," was not lost on the residents of the Aloha State: They saw it clearing its land for commercial development at the expense of Native Hawaiians who were living on it.

In 1967 the state's legislature enacted the Hawaii Land Reform Act, a law that abridged the Estate's property rights by giving leaseholding renters on Estate lands the opportunity to buy the land, regardless of the wishes of the Estate. The Estate was provided "just compensation" for the forced sales. The Estate fought the law, taking its legal challenge all the way to the U.S. Supreme Court. In a decision that helped set the stage years later for the infamous Kelo v. New London decision (2005), the high court upheld Hawaii's land-redistribution scheme. In Hawaii Housing Authority v. Midkiff (1984), the court deferred to the judgment of the state legislature which had found that land ownership in Hawaii was too concentrated and needed to be broken up.

The compelled sale of the lands to long-term lease holders brought in a windfall of $2 billion more to the Bishop Estate. The Estate, which had long been a land-based trust, now had amassed a large amount of liquid capital—cash. According to its critics, the influx of cash quickly led to the Estate's politicization and corruption.

More Money Than Brains

In the 1970s, Jack Burns, a Democrat, was beginning his third term as governor of Hawaii. He had appointed all five of the state's sitting Supreme Court justices, who in accordance with Bernice Bishop's will, were designated to appoint Bishop Estate trustees. In 1971 the court appointed Matsuo Takabuki, a political operative with ties to the governor, to be a Bishop trustee. Activists sued to block the controversial appointment, but a panel named by the court's chief justice unanimously upheld it.

Takabuki's appointment was a turning point in the history of the Bishop Estate because it was clearly political. Hereafter, trustee openings were treated as patronage posts, sinecures for the well-connected. Moreover, Takabuki was an activist trustee who took the lead in making what many considered financially reckless investment decisions.

In 1991, the current governor of New Jersey, Democrat Jon Corzine, at that time a partner in powerhouse investment bank Goldman Sachs, reached out to Takabuki, urging him to invest $250 million of the Bishop Estate's money. Two years later, Corzine came back to Takabuki hat in hand to beg him for another $250 million cash infusion for Goldman Sachs, which had recently fallen on hard times and was teetering on the brink of collapse.

Although Goldman Sachs nowadays is the King Midas of investment banks, at that time, the investment was considered risky. Takabuki got lucky. When Goldman Sachs had a public stock offering in 1999, the Estate's $500 million investment was suddenly worth a whopping $1.5 billion.

Takabuki was outgunned when he met with outgoing Goldman Sachs co-chairman Robert Rubin in 1992, according to Samuel P. King and Randall W. Roth, authors of Broken Trust (University of Hawaii Press, 2006). Rubin, who was leaving the bank in order to become Bill Clinton's treasury secretary, needed to dispose of his private holdings and managed to convince Takabuki to have the Estate enter into an unusual, potentially disadvantageous financial transaction. Rubin, the master negotiator, had the Estate guarantee a promissory note covering his interest in the bank, estimated then at $50 million, in exchange for Rubin's annual payment to the Estate of a mere $200,000.

Let's recap: the Estate is on the hook for $50 million in the event a shaky bank failed, and in exchange, it receives an annual payment equivalent to 0.4% of the total amount at risk. Not a bad deal – for Rubin, that is. In the end, Takabuki got lucky again and Goldman Sachs recovered from a temporary crisis and went on to become the world's preeminent investment bank.

In 1993, when three trustee positions became vacant, Democratic Governor John Waihe'e appointed Richard Sung Hong "Dickie" Wong, Lokelani Lindsey, and Gerard Jervis to the board. Their primary qualifi cation was a close friendship with the governor. Lindsey, a retired gym teacher, was put in charge of education and communications at the Estate, while Dickie Wong, a former state senator, headed government relations, and Gerard Jervis, a lawyer with little knowledge of trust law, assumed control of the Trust's legal affairs.

The trustees made what observers considered unusual and ethically questionable investments and appeared to violate their fiduciary responsibility to act in the best interests of the Estate. In one case, the trustees invested $12 million of the Estate's funds in a methane exploration company. The trustees also invested their own personal funds in the same company. As the company floundered, the trustees tried to keep it afloat by directing more Estate monies to it. Though Bishop's will stated that she wanted the Estate's financial affairs to be transparent, the trustees shrouded the investment in secrecy, repeatedly citing attorney-client privilege and refusing to produce requests for documents. By the time the company failed, the Estate had invested almost $80 million. The board members' compensation also sky rocketed. By the 1990s, the trustees were each pocketing $1 million annually in trustee service fees. King and Roth observed in their book:

"Trustees at prominent private schools in Hawaii, such as Punahou, ‘Iolani, and Mid- Pacifi c Institute on O'ahu; Seabury Hall on Maui; and Hawaii Preparatory Institute on the Big Island, took no compensation. Neither did members of the governing boards at well-endowed universities, such as Harvard, Yale, and Stanford. It had always been that way. Why would the Bishop Estate be different?"

Curiously, in 1995, the Bishop Estate parted ways with essentially the entire nonprofit sector to oppose a proposed change in the tax code that would have given the IRS the power to pursue "intermediate sanctions" against individual wrongdoers at an organization. The proposal, which became law in 1996, enjoyed widespread support among nonprofit leaders because it gave the IRS the option when probing wrongdoings at an organization to go after individuals rather than take the more drastic step of revoking nonprofit status. Bishop Estate trustees, perhaps fearing what might happen if the corporate veil were pierced and they were made answerable for their conduct, called it a terrible idea, and, according to King and Roth, spent nearly $1 million to defeat it.

In a bizarre incident in the 1990s, reports suggest the Estate was searching for ways to avoid government scrutiny. "In an apparent attempt to circumvent state and federal oversight, the Bishop Estate paid Washington D.C.-based Verner Liipfert Bernhard McPherson and Hand more than $200,000 to look into moving the estate's legal domicile, or corporate address, to the mainland, sources said," according to a Honolulu Star-Bulletin report (October 12, 1999).

Hawaiians eventually became suspicious of the Estate's business dealings. In an article in a local Hawaiian newspaper, five respected Hawaiians wrote about the politically rigged selection process and serious breaches of trust, including "excessive compensation and inadequate pursuit of the trust's charitable mission." In 1997 Patrick Yim, a retired judge, was brought in to look for mismanagement at the Schools. His initial report in November found that the "trustees were nowhere near compliance either with the law or with Pauahi's will." Caught up in the Estate's ongoing controversies, the Supreme Court of Hawaii in 1999 announced that it would no longer select Trustees, citing "a climate of distrust and cynicism" that would "undermine the trust that people must have in the judiciary." In addition, Judge Bambi Weil ruled that Lindsey could no longer serve as trustee. In May 1999, a federal judge ordered the other four trustees removed from the Estate's board.

Admission Policy in Jeopardy

While the Bishop Estate was losing the trust and esteem of Hawaiians of all races and ethnicities, the state of Hawaii was increasingly caught up in legal disputes over race and ethnicity. In 1997, Harold Rice, a Hawaiian rancher not of Native Hawaiian descent, sued the state of Hawaii and then-Governor Ben Cayetano, a Democrat. Rice challenged a state law that allowed only Native Hawaiians to vote in statewide elections for the Office of Hawaiian Affairs (OHA), an agency created in 1978 to handle policy related to the Native Hawaiian population. OHA receives and distributes federal funding specifically earmarked for Native Hawaiian programs. In 2000, the case reached the U.S. Supreme Court, which ruled in Rice v. Cayetano that the election policy was unconstitutional because it violated the Fifteenth Amendment.

Because there are over 150 federal statutes that relate specifically to Native Hawaiians, the Rice decision opened up a Pandora's box. The decision also affected the private Kamehameha Schools, calling into question the system's Native Hawaiian-first policy.

Building on Rice, attorney Eric Grant challenged the school system's race-testing policy. He represented an anonymous Hawaiian student whose application to Kamehameha was rejected on the grounds that he had no aboriginal blood. In 2003, a federal district judge ruled against the student and in favor of the Schools. But the U.S. Court of Appeals for the Ninth Circuit overturned the decision in John Doe v. Kamehameha Schools (2005), ruling 2-1 that a policy of race-based discrimination was unconstitutional. The judges noted that although Congress had established a special relationship with Native Hawaiians, it does not give "blanket approval for private race discrimination."

Kamehameha supporters were outraged. Robert Kihune, chairman of the five-member board of trustees, said, "Let me make this clear, as long as our admissions policy is at risk, we will do whatever is necessary to protect our right to offer preference in admissions to our native Hawaiian people."

University of Hawaii professor Lilikala Kame'eleihiwa sounded strangely like an Aztlan- embracing racial separatist when she commented on the decision:

"There are only two kinds of Hawaiians that live in Hawaii: the ones who like Hawaiians and the ones who don't like Hawaiians. Good Hawaiians will never try to steal from the Hawaiian people by applying to Kamehameha Schools and to take a place of a Hawaiian child who needs education. The non-Hawaiians who are bad and against us, we ask them to please leave our country."

The outrage had its desired effect, and on December 6, 2006, a 15-judge panel of the Ninth Circuit voted 8-7 to uphold the school system's policy. Encouraged by the split decision, on March 1, 2007, Grant filed papers asking the U.S. Supreme Court to review the decision. But before the high court could rule on the request, the parties reached a settlement out of court. In February 2008 the Kamehameha Schools paid $7 million to "John Doe," the anonymous student, leaving its admission policy in place for the time being.

The Akaka Bill

The Rice decision in 2000 spurred legislative action in the U.S. Congress. Senator Akaka introduced a bill a few months after Rice to grant Native Hawaiians the right to create their own separate government. The thinking was that by giving Native Hawaiians a kind of tribal status, the legislation could preserve the constitutionality of the race-based preferences practiced by the Kamehameha Schools. Akaka has re-introduced the measure in every Congress since. His bill, which would also create a U.S. Offi ce for Native Hawaiian Relations within the Office of the U.S. Secretary of the Interior, was approved by the Senate Indian Affairs Committee in February. The measure could come up for a Senate vote at any time.

Passed in the fall of 2007 by the U.S. House of Representatives, the proposed Native Hawaiian Government Reorganization Act of 2007, introduced by U.S. Representative Neil Abercrombie (D-Hawaii), could be taken up by the Senate as soon as this May. The federal legislation confers on Native Hawaiians a tribe-like status and creates a nine-member board which will have "expertise in the determination of Native Hawaiian ancestry and lineal descendancy." This racial purity panel will determine who is a Native Hawaiian and thus eligible to be a beneficiary of any entitlements or programs created by the new office.

The House bill provides that the existing state Offi ce of Hawaiian Affairs (OHA) would help transfer lands that are held by the state of Hawaii for the benefit of Native Hawaiians to the new entity that the bill would create. Abercrombie, who represents Honolulu, told the House Committee on Natural Resources (May 2, 2007), "The bottom line here is that this is a bill about the control of assets. This is about land, this is about money, and this is about who has the administrative authority and responsibility over it."

Between 2003 and November 2006, OHA spent over $2 million of ceded lands trust funds on its congressional lobbying efforts for the Akaka-Abercrombie measure. That amount does not include the $900,000 that OHA spent to maintain a Washington office. "It paid $660,000 in 2005 to Patton Boggs, helping the firm finish first in the race for lobbying revenue last year," reported Jim Snyder in The Hill newspaper in 2006. OHA also appears to have spent millions of dollars on advertising campaigns to win public support.

Balkanizing, multi-culturalist groups also support Akaka's bill. According to www.nativehawaiians.com, a website established by the Office of Hawaiian Affairs to promote the bill, the measure is endorsed by: the Mexican American Legal Defense Education Fund (MALDEF); the National Council of La Raza; the League of United Latin American Citizens (LULAC); and the National Association for the Advancement of Colored People (NAACP).

It should also surprise no one that the Kamehameha Schools system, arguably the most powerful private entity in Hawaii, wants to safeguard its privileges and racially discriminatory admissions policy by supporting the measure. (Editor's note: On October 24, 2007, during a speech on the U.S. House floor, Representative Mazie K. Hirono, a Hawaii Democrat, read into the official record a document called "Standing together for justice" that identifies the Kamehameha Schools as an endorser of both the Akaka and Abercrombie bills. The document Hirono referenced appears at page H11967 of the Congressional Record for the 110th Congress. Until recently, an OHA website also displayed the same document, but as of April 18, 2008, a modified version of the document was displayed. On the altered document, the name of endorser Kamehameha Schools is conspicuously absent. The web page appears at http://www.nativehawaiians.com/listsupport.html .)

Congressional horse-trading has allowed Akaka-Abercrombie supporters to secure the support of several Republican lawmakers. Surprisingly, four of the Senate bill's nine cosponsors are Republicans: Norm Coleman (Minnesota), Gordon Smith (Oregon), and both Alaska senators, Ted Stevens and Lisa Murkowski. Among the House bill's seven cosponsors are two Republicans: Tom Cole (Oklahoma), and Don Young (Alaska). Hawaii's Republican state legislators have joined Democrats in supporting the measure. Governor Linda Lingle, a Republican, wholeheartedly backs the bill and has aggressively lobbied federal lawmakers.

Are Native Hawaiians Really an "Indian Tribe"?

Invoking the authority of the Commerce Clause of the U.S. Constitution, the Akaka bill gives Native Hawaiians an Indian tribe-like status. Since the Founding of the American Republic, Indian tribes have been treated by the courts and the federal government as quasisovereign; neither a state nor an independent nation. Following the defeat of the western Indian tribes after the Civil War, Congress exercised more power than ever over Indian tribes. Tribes were confined to reservations and grew increasingly dependent on government subsidies to survive. That dependency theme dominated federal Indian law for the early part of the 20th century as Congress attempted to assimilate the defeated Indian tribe members into American society. American citizenship was conferred on all American Indians in 1924. By 1934, however, Congress had re-embraced the sovereignty approach. Congress reorganized the Indian tribes, granting them greater autonomy in their affairs. Trying to mesh sovereignty with American citizenship, however, revealed some ugly inconsistencies. How can one be an American citizen, but not have to follow the U.S. Constitution? The schism led Congress in 1968 to pass the Indian Civil Rights Act, requiring tribal constitutions to include similar constitutional protections found in the Bill of Rights. The Act sought to extend widely accepted constitutional norms like free speech, due process, and equal protection, to tribal territory.

But over time, tribal sovereignty has trumped the individual rights that the Act was created to preserve. In Santa Clara Pueblo v. Martinez (1978), the Supreme Court affirmed a Navajo tribal decision denying membership to children whose mother, but not father, was a tribe member. Under a tribal law, members must have both a father and a mother who are tribe members. And in 2006, a Cherokee court ruled in Lucy Allen v. Cherokee Nation Tribal Council that tribe membership must be open to descendants of slaves held by the Cherokee prior to the outbreak of the Civil War. These so-called "Freedmen" had been registered as tribe members during the assimilationist period of the early 20th century and were often living side by side on tribal land. Following the controversial 2006 decision, the entire Cherokee tribe membership voted the Freedmen out of the tribe, leaving them second-class citizens on their own land.

The Akaka bill's award of a kind of tribal status to Native Hawaiians poses similar problems. Enactment of the measure could disenfranchise many Hawaiian residents whose lineage dates back centuries. Furthermore, the bill leaves issues of land allocation and claims against Hawaii and the United States up for future negotiation. This ominous ambiguity relies significantly on the 1993 Apology Resolution, in which the federal government officially apologized for alleged American complicity in the nonviolent overthrow of the Hawaiian monarchy.

The Akaka bill sets a dangerous precedent. Could ethnic activists in the American Southwest argue that they deserve tribal status? What about ethnic Cajun or Creole peoples in Louisiana, who trace their roots in the Mississippi Delta to the exodus from French Nova Scotia before the Louisiana Purchase? The federal government has a constitutional duty to protect the individual equality of all Americans on the basis of their citizenship. It should not balkanize neighbors on the basis of their race or ethnic heritage.

Opposition to the Bill

In 2006, the U.S. Commission on Civil Rights held hearings on the Akaka bill and published a report recommending strongly against it. Gerald Reynolds, chairman of the commission, observed that the bill "would authorize a government entity to treat people differently based on their race and ethnicity… This runs counter to the basic American value that the government should not prefer one race over another." The Project 21 black leadership network, a nonprofit organization sponsored by the National Center for Public Policy Research, said the Akaka bill would represent a step backwards in the civil rights struggle for equality under the law.

Conservative columnist George Will has been a vocal opponent of the legislation. After the bill passed the House, he wrote that Native Hawaiians don't meet the criteria laid out in federal law for recognition as a tribe: "Tribes were nations when the Constitution was written and are geographically separate and culturally distinct communities whose governments have long continuous histories." However, Will notes that Native Hawaiians are interwoven in the nation's most multiethnic and multiracial state. "As the state of Hawaii has said, ‘The tribal concept simply has no place in the context of Hawaiian history.'"

Senator John Kyl (R-Arizona) is the leading opponent of the legislation in the Senate. He characterizes the bill as a "recipe for permanent racial conflict ... motivated by a desire to immunize government preferences for Native Hawaiians from constitutional scrutiny." Senator Lamar Alexander (R-Tennessee) has also denounced the Akaka bill. In 2006, he said "It is about sovereignty. It is about race. We are taking a step toward being a United Nations and not the United States."

An Uncertain Future

The legal question of Kamehameha's racebased admissions policy also remains unsettled. The Schools recently dodged a bullet when the lawsuit challenging its policy was settled out of court. It would make things a lot easier for Kamehameha if Akaka's bill succeeded in redefining Native Hawaiians as an Indian tribe: then the Schools wouldn't have to worry about legal challenges. The Bishop Estate could continue to stash away its cash while enforcing a race-based admissions policy at its Schools.

And the Akaka bill, which narrowly failed in a June 2006 procedural vote in the U.S. Senate, faces an uncertain future. Although Akaka is hoping this year he will finally have enough votes in the Senate to pass the bill, President Bush has promised to veto the measure should it reach his desk. Members of the current field of presidential candidates have differing views on the Akaka bill. Republican Senator John McCain of Arizona previously seemed to flirt with supporting the bill but now opposes it. Suggesting he would vote in favor of the bill, McCain said in 2005, "Here in Washington, it's hard for us to go against the view of the governor, the Legislature — Republican and Democrat — the senators and the congressmen," (Honolulu Advertiser, June 29, 2005). But on the Senate floor (June 8, 2006) McCain blasted the bill because it "would lead to the creation of a new nation based exclusively—not primarily, not in part, but exclusively—on race." Democratic Senators Hillary Clinton and Honolulu-born Barack Obama both support the legislation. Clinton told reporters earlier this year that she supported the 1993 Apology Resolution and now supports Akaka's legislation that "remedies a long history of problems." (Honolulu Star Bulletin, February 14, 2008) Obama spoke in favor of the bill on the Senate floor on June 7, 2006, suggesting its enactment would promote "liberty, justice, and freedom," by giving "Native Hawaiians the opportunity to recognize their governing entity and have it recognized by the federal government." Obama also said the bill enjoys the support of "the indigenous peoples of America, including American Indians and Alaska natives."

Phil Brand is Director of EducationWatch, and James Dellinger is Executive Director of GreenWatch at Capital Research Center. Karl Crow is a student at Temple University Beasley School of Law. Colin Dunn, an intern at Capital Research Center in 2008 who is studying Political Science at American University, assisted in researching this article. The article relies heavily on the work of Samuel P. King and Randall W. Roth in Broken Trust (University of Hawaii Press, 2006).


Hawaii Reporter, May 8, 2008

Hawaii’s Bishop Estate and all Its Royal Ties
Capital Research Center’s Foundation Watch Finds It’s No Mere Pawn in the Foundation Game

By Larry E. Farnsworth

Washington, DC – Issues concerning Hawaiian culture and identity have now reached the mainland, fueled in large part because of the Bishop Estate, Hawaii’s largest private land owner and operator of the racially separatist Kamehameha schools.

In the May 2008 edition of Capital Research Center’s Foundation Watch, authors Phil Brand, James Dellinger and Karl Crow examine the history of the Bishop Estate; how it relates to the Kamehameha schools; how the estate has made the schools America’s wealthiest secondary education institution; and, how the U.S. Congress is working to pass a law that will allow these schools to deny the neediest of Hawaii’s children an education strictly because of their race.

The Bishop Estate was named after Princess Bernice Pauahi Bishop, the legendary Hawaiian King Kamehameha’s great-grand daughter and its funds were to be used to erect two schools that would provide educational opportunities to orphans and other less fortunate youth – one for boys and one for girls. The schools were to be called the Kamehameha schools and would give a preference to orphans and other needy Hawaiian children with pure or part aboriginal blood.

The trustees to the Estate were appointed by the Supreme Court of Hawaii and to keep good stead, the state’s high court continued to appoint political allies of the Governor to the board. For years these positions because a symbol of political patronage and lead to political corruption with trustees investing in shady land deals that had the backing of some of the state’s most powerful politicians.

These land deals allowed the Estate to become Hawaii’s largest private land owner, earned the Estate egregious amounts of equity and offered its trustees large annual personal bonuses. The Estate at one point was so awash in cash that then-Goldman Sach’s Chairman (and current New Jersey Governor) Jon Corzine (D-NJ) came to the trustees twice in 1993, seeking $250 million each time to bail out his investment company during dire financial straits.

The Kamehameha Schools, run by the Bishop Estate recently showed more political savvy than fairness in settling out of court for $7 million dollars when a student challenged its raced-based admissions policy. Even the liberal Ninth Circuit Court of Appeals, which once ruled that it was unconstitutional to require the phrase “Under God” in the pledge of allegiance, ordered the Kamehameha schools to desegregate.

A loss in court to the student challenging these admission guidelines would have meant a much-anticipated review of the schools admissions policy by the U.S. Supreme Court and, would have had a profound impact on federal and state public policy programs that target native Hawaiians for assistance.

Enter Senator Daniel Akaka (D-HI), a product of the Kamehameha School system, and his bill that would give native Hawaiians legal status comparable to that of Native Americans. Passage of the “Akaka Bill” critics say would make it easier for institutions like the Kamehameha Schools and their racially-based admissions policy to be exempt from legal challenges.

The companion legislation to the Akaka bill rode the wave to passage in U.S. House of Representatives and now awaits the Senate’s big Kahuna, Majority Leader Harry Reid (D-NV), to put it on the Senate’s legislative calendar.

For more information about the article contained in the May issue of Foundation Watch, please contact Larry Farnsworth via email at mail lfarnsworth@crosbyvolmer.com Capital Research Center is a non-profit public policy research organization based in Washington, D.C. and established in 1984 to study critical issues in philanthropy with a special focus on non-profit “public interest” and advocacy groups, the funding which sustains them, their agendas and their impact on public policy and society. For reprint information or to read the full editorial, visit http://www.capitalresearch.org


Honolulu Star-Bulletin, May 17, 2008

Kamehameha's tuition aid will further educational mission

Kamehameha Schools will give scholarships to students who attend other private schools.

A plan to offer scholarships for students to attend private schools on Oahu and three neighbor islands expands Kamehameha Schools' educational commitment beyond its three campuses. The strategy will open classrooms to more children than Kamehameha can accommodate at its own facilities, diversify student populations at 61 participating schools and broaden options for learning. In addition, it will further the trust's goal of educating Hawaiian children.

Kamehameha currently offers tuition aid to more than 1,000 3- and 4 year-olds to attend 100 preschools statewide, including 30 it operates. It has received court permission to expand scholarships to kindergarten students beginning the next school year at accredited private schools.

Many of the schools are faith-based, such as Sacred Hearts, Hongwanji Mission, St. Andrew's Priory and Our Redeemer Lutheran. Others include Iolani, Mid-Pacific, Punahou and Hanahauoli.

In some instances, scholarships would cover almost all of tuition costs, but the amount of aid will depend on need, parents' ability to pay and contributions from schools.

Children who receive scholarships - 240 in each year of a three-year pilot program - also could be given financial help until graduation, assuring stability through the course of their education.

Kamehameha expects to spend $1.2 million a year for the pilot program and a total of $47 million for the full 15 years of awarding assistance to as many as 720 students.

The schools' three campuses on Oahu, Maui and Hawaii island have enrollment of about 6,700, but only one in eight applicants can be accepted. Scholarships of up to $6,000 annually will help parents pay for tuition at other independent schools, which can be prohibitively expensive.

Private schools should welcome the aid since the program could add a measure of racial and economic variety to their student populations and expose children to a spectrum of experiences.

Kamehameha Schools, often criticized for inadequacies in reaching Hawaiian children, has done much to include more students in recent years. Besides the preschool program, it provides funds for charter schools that emphasize Hawaiian learning and several public school efforts. It clearly is on a path to widened its scope.


Honolulu Advertiser, Saturday, May 17, 2008

Kamehameha ups pay for executives

By Rick Daysog

In a year it hit several educational and financial milestones, Kamehameha Schools rewarded Chief Executive Officer Dee Jay Mailer with a $17,437 pay increase.

In its annual tax filings with the Internal Revenue Service, Kamehameha Schools said it paid Mailer $591,677 in salary, benefits and other compensation during the fiscal year ending June 30, 2007.

That pay package was up from Mailer's year-earlier compensation of $574,230.

The $9.1 billion trust's highest compensated executive was Kirk Belsby, vice president of endowment. He received $689,560 last year, which was up nearly 3.9 percent from his 2006 compensation of $663,724.

Mailer's and Belsby's compensation were on the high end of what large Hawai'i foundations and trusts pay their top executives. But it was well below the $820,000 average that the state's largest healthcare nonprofits pay their CEOs.

Kamehameha Schools spokesman Kekoa Paulsen said the trust's compensation policies are performance based and reflect the credentials and qualifications of its executives.

The estate's endowment grew by a record $1.4 billion in its 2007 fiscal year, paving the way for future expansion of its educational programs.

Founded by the 1884 will of Princess Bernice Pauahi Bishop, Kamehameha Schools educates children of Hawaiian ancestry.

The trust, the state's largest private landowners and one of the nation's wealthiest charitable trusts, spent a record $250 million on its educational programs last year and reached 35,000 Native Hawaiian students and families last year.

Kamehameha Schools said it expects to spend another $270 million to $277 million this year. And under a longer-term plan, Kamehameha Schools aims to increase the number of students it serves to 55,000 by the year 2018.

According to its tax filing, two dozen Kamehameha Schools employees and trustees received more than $100,000 in compensation last year.

Two former trustees —Henry Peters and Matsuo Takabuki — also receive six-figures payments through a decades-old deferred compensation that was discontinued in the early 1990s.

Peters, who resigned in 1999 after the IRS threatened to revoke the school's tax-exempt status, took home $488,619 in deferred pay last year while Taka-buki, who retired in 1993, received $307,806 in deferred pay.

A deferred compensation plan is a tax-savings strategy that allows an executive to postpone the payment of part of his or her annual compensation until a later date, when the executive is in a lower tax bracket.

Among its officers and managers, Kamehameha Schools said it paid Vice President of Strategic Planning Christopher Pating $422,088, Financial Assets Director Elizabeth Hokada $325,864 and Commercial Assets Director Paul Quintiliani $302,111.

Special Projects Director Susan Todani earned $231,756 last year while Michael Chun, headmaster of the Kapalama campus, received $237,888.

Kamehameha's board members Douglas Ing, Nainoa Thompson, Diane Plotts and retired Adm. Robert Kihune earned between $97,500 and $113,500 each last year while Constance Lau, who stepped down from the board during the 2007 fiscal year after she became Hawaiian Electric Industries Inc.'s CEO, received $73,500.

Her replacement, First Hawaiian Bank executive Corbett Kalama, earned $27,000. Trustee's pay is set by the state Probate Court.

Others executives listed in the tax filing included:
Neil Hannahs, director of the trust's land assets division, who earned $204,510.
Human Resources Director Richard Lau, who earned $221,109.
Ann Botticelli, the trust's vice president of community relations and communications, who made $182,293 in pay and benefits.
Colleen Wong, vice president of legal services, who earned $257,350.


Honolulu Advertiser, Sunday, August 3, 2008

Trustees' pay to soar
Kamehameha Schools' 5 board members await court decision on pay

By Rick Daysog

The five Kamehameha Schools trustees stand to receive pay increases of 65 percent to 123 percent under a plan submitted by a court-appointed panel.

Board members Diane Plotts, Robert Kihune, Corbett Kalama and Doug Ing could see their annual compensation jump from about $100,000 to about $187,000, according to the report filed in state Probate Court on Thursday.

Chairman Nainoa Thompson could see his compensation increase to a maximum of $217,500 from the $97,500 he earned last year.

The Probate Court-appointed trustee compensation committee said its recommendations reflect the complexities of a board that sets policy for a $9.1 billion charitable trust.

The recommendations are based on a study by an outside expert, San Francisco-based Mercer LLC, which found that Kamehameha Schools board spends more than twice as much time on trust matters — 2 1/2 to 3 days a week — than do the boards of comparable nonprofit organization and for-profit corporations. "It is Mercer's opinion that this is a reasonable annual amount of compensation which takes into account the difference between the role of a typical corporate director or exempt organization trustee and that of a KS trustee," the Mercer report said.


Others question the necessity of pay increases of 65 percent or more.

Bill Coleman, chief compensation officer at Waltham, Mass.-based Salary.com., said it's highly unusual for a board to receive such a steep pay hike unless the board was severely underpaid in previous years. "There aren't a lot of jobs that have a pay increase of 65 percent," Coleman said.

Roy Benham, a 1941 graduate of Kamehameha Schools and a former president of the school's alumni association, said he'd rather see money for pay increases go toward the trust's main purpose: educating Hawaiian children. Benham said he sees no reason to up the pay since the current compensation levels haven't deterred qualified people from applying for recent board openings. "Give me a break," he said. "I can understand a cost-of-living increase, but 65 percent or more is a little bit out of hand."

The recommendations require the approval of Probate Judge Colleen Hirai.

Trust spokesman Kekoa Paulsen declined comment until the probate court makes a final ruling on the matter.


Kamehameha Schools, which was established by the 1883 will of Princess Bernice Pauahi Bishop, is a nonprofit trust that educates Hawaiian children. It is one of the nation's largest charities and is Hawai'i's largest private landowner with more than 360,000 acres.

The issue of trustee compensation played a major role in the late 1990s turmoil at Kamehameha Schools.

The Internal Revenue Service threatened to revoke the trust's tax-exempt status due in part to the $1 million a year paid to then-board members Richard "Dickie" Wong, Henry Peters, Lokelani Lindsey, Gerard Jervis and Oswald Stender.

The IRS later settled with the estate after board members resigned and the trust reformed its governance and pay policies.

The trustee compensation committee was set up in the aftermath of the controversy to cap trustee pay at "reasonable" levels. In 2004, the committee recommended increasing the maximum pay for a trustee by more than 70 percent to as much as $180,000 for regular board members and $210,000 for the board's chair. The probate judge approved most of the increase but all five trustees agreed to turn down the raise.


The current committee — whose members include Kamehameha Schools alum Michael Rawlins, insurance executive Douglas Goto and attorney Rosanne Goo — said its recommendations are based on an analysis of board pay at multibillion-dollar foundations, publicly traded corporations, for-profit real estate investment trusts and some local publicly traded companies such as Bank of Hawaii Corp. and Alexander & Baldwin Inc.

The Mercer study did not include the pay policies of local nonprofit boards due to "lack of comparability," the committee said.

Board members of most local nonprofits receive no pay for their work.

Salary.com's Coleman believes the report might be skewed toward the higher end due to its inclusion of for-profit corporation. He believes a more accurate study would have compared Kamehameha Schools board pay with that of large tax-exempt organizations such as the $12.3 billion in assets of the Ford Foundation and Robert Wood Johnson Foundation, which holds $9.4 billion in assets. Board members of those foundations receive $21,500 to $46,500 a year.


Honolulu Advertiser, Wednesday, August 6, 2008
Columnist David Shapiro commentary

Estate trustees should decline pay increase
Proposed raise poorly timed, disturbing move in wrong direction

By David Shapiro

It was a trip down bad-memory lane to read that a court-appointed panel is again proposing to virtually double the pay of the five Kamehameha Schools trustees, to $217,500 for chairman Nainoa Thompson and $187,000 for trustees Diane Plotts, Robert Kihune, Corbett Kalama and Douglas Ing.

We're not talking the million-dollar salaries of the disgraced trustees who were ousted in 1999 in a corruption and mismanagement scandal, but it's a disturbing move in the wrong direction for the $9.1 billion charitable trust that still bears scars from the turmoil of a decade ago.

The current compensation of about $100,000 a year is more than generous for part-time positions that the salary panel appointed by the Probate Court says take 2 1/2 to 3 days a week.

This is the second attempt to significantly boost trustee pay since the 1999 reformation. Trustees declined similar raises in 2004 in the face of strong community opposition that is likely to re-emerge this time around.

"Give me a break," said Roy Benham, a former president of the Kamehameha alumni association who thinks the money would be better spent educating native Hawaiian children. "I can understand a cost-of-living increase, but 65 percent or more is a little bit out of hand."

The current pay level was set by the court not only to end the outrageous compensation collected by the former trustees that threatened the estate's tax-exempt status, but also to limit the trustees to a broad policy-setting role and reduce their involvement in hands-on management.

The former trustees ridiculously considered themselves to be five CEOs and micromanaged every aspect of Kamehameha Schools.

But under court order, the trust now has a $591,677 professional CEO and a $689,560 vice president of endowment to do the heavy lifting on administration and asset management.

If trustees are putting in more time on the job than their counterparts at other charitable institutions, as the salary panel says in pushing for higher pay, that's not necessarily a good thing.

Some experts, such as senior U.S. District Judge Samuel King, co-author of "Broken Trust," think Kamehameha Schools should be moving in the opposite direction — toward conversion into a nonprofit corporation with directors serving for little or no compensation, such as schools like Harvard and Yale.

Even at a tenth of the compensation of the former trustees, a seat on the Kamehameha board at $100,000 a year is still considered a plum. Increasing the pay wouldn't attract better trustees; it would only make it a bigger plum.

The last board opening in 2006 drew numerous qualified applicants, and the three finalists openly lobbied for support.

Corbett Kalama, a First Hawaiian Bank vice president who was Probate Judge Colleen Hirai's excellent choice for the position, was questioned about trustee pay at a meeting with Kamehameha Schools alumni and indicated that he thought the current compensation was quite adequate.

Bill Coleman of Salary.com told Advertiser reporter Rick Daysog that the Probate Court's salary committee made a mistake when it compared Kamehameha Schools trustee pay to the directors of for-profit corporations.

A better comparison, he said, would have been large tax-exempt organizations with similar assets such as the Ford Foundation and Robert Wood Johnson Foundation, where board members receive $21,500 to $46,500 a year.

Salary increases of this magnitude are especially ill-timed in the current sour economy; University of Hawai'i regents were skewered in some quarters for giving UH President David McClain a 5.5 percent raise.

If the court doesn't reject the recommendations of its salary panel, the trustees should step up and decline the raises as they did in 2004.

David Shapiro, a veteran Hawai'i journalist, can be reached by e-mail at dave@volcanicash.net. His columns are archived at www.volcanicash.net. Read his daily blog at http://volcanicash.honadvblogs.com.
Reach David Shapiro at dave@volcanicash.net.



Honolulu Star-Bulletin, Wednesday, August 6, 2008
Breaking News, 2:47 PM HST

Kamehameha Schools faces another challenge to admissions
School officials, meanwhile, are suing the plaintiff in an earlier case

Star-Bulletin Staff Associated Press

Sacramento attorney Eric Grant and Honolulu attorney David Rosen have filed another lawsuit challenging Kamehameha Schools' admissions policy which gives preference to native Hawaiians.

The lawsuit was filed today in federal district court on behalf of four children and their families who seek an end to the admissions policy, according to the attorneys.

The lawsuit is essentially identical to another lawsuit filed in 2003 on behalf of a non-native Hawaiian student identified only as John Doe. That case was settled last year. According to former attorney John Goemans, the child and his mother agreed to a $7 million payment to drop the lawsuit after a panel of the 9th Circuit Court of Appeals upheld the schools' admissions policy.

In a news release, Grant said he hopes to take the new case to the U.S. Supreme Court.

"The purpose of today's action is to obtain a definitive ruling from the Supreme Court that the Trustees' racially exclusionary admissions policy violates our nation's civil rights laws. Our clients believe, and we agree with them, that such a ruling will have a significant impact in reversing unfortunate trends toward discrimination and even segregation in Hawaii," Grant said.

Kekoa Paulsen, a spokesman for Kamehameha Schools, said the school officials have been expecting the lawsuit. "We are certainly prepared to defend our policy."

"We operate entirely as a private organization and our mission is to correct imbalances that were created years ago," Paulsen said. "We'd rather not be in court. We'd rather be doing what we need to do. We'd rather not have the distraction of having to argue this thing again and just go on with doing our business."

Earlier today, Kamehameha Schools officials announced they were suing the plaintiff in the earlier "John Doe" case, claiming that the student violated a confidentiality agreement when his attorney, Goemans, revealed the amount of the settlement in February.

The unidentified white boy had sued the schools over his failed attempts to gain admission even though he isn't native Hawaiian. The settlement was reached in May 2007 as the case was pending before the U.S. Supreme Court. Previous legal challenges in lower courts to the school's admission policy had failed.

Goemans has said he believed the settlement amount was important public information about a charitable institution given tax-exempt status by the Internal Revenue Service.

The schools' lawsuit against John Doe seeks an unspecified amount of monetary damages. Grant had no comment on the schools' lawsuit.


Honolulu Advertiser, Wednesday, August 6, 2008
Breaking News, Updated at 2:41 p.m.

Kamehameha Schools sued again over admissions policy

PDF: Kamehameha Schools sues John Doe for Breach of Confidentiality

** Note from website editor Ken Conklin: Pdf files of both the desegregation complaint and the complaint for damages for breach of confidentiality are provided by this website, at the end of this newspaper article. Note that the Advertiser offered only a pdf file of the Kamehameha complaint for breach of confidentiality, but did not offer the desegregation complaint by Grant and Rosen against Kamehameha Schools. This once again illustrates the Advertiser's strong bias in favor of the well-entrenched apartheid regime in Hawaii.

A lawsuit filed today against Kamehameha Schools is once again challenging its admissions policy that favors Native Hawaiian children.

The lawsuit, filed on behalf of four children and their families "seeks an end to the 'Native Hawaiians only' admissions policy," of the schools, a statement by lawyers for the children said.

Attorneys Eric Grant of California and David B. Rosen of Honolulu said the federal District Court lawsuit filed today "is essentially identical to the earlier lawsuit filed on behalf of 'John Doe,'" which the schools settled last year.

In the statement, Grant, one of the attorneys who earlier represented John Doe, said: "The purpose of today's action is to obtain a definitive ruling from the Supreme Court that the trustees' racially exclusionary admissions policy violates our nation's civil rights laws.

"Our clients believe, and we agree with them, that such a ruling will have a significant impact in reversing unfortunate trends towards discrimination and even segregation in Hawai'i."

Meanwhile, in a separate action, Kamehameha Schools today sued John Doe, the non-Hawaiian student who challenged the school's Hawaiians-first admission policy.

In a complaint filed in state Circuit Court in Hilo, the $9.1 billion trust alleged that agents for the anonymous student disclosed the details of a confidential settlement to the local media.

"Confidentiality was a material term of the settlement agreement reached between John and Jane Doe and Kamehameha Schools in May 2007," said Colleen Wong, the Schools' vice president for legal affairs. "The confidentiality provision included the attorneys for both parties, and each party agreed to be held liable for breaches of confidentiality committed by their legal counsel," Wong said.

The Advertiser reported in February that the trust paid $7 million to settle the federal court lawsuit seeking to overturn its century-old admissions policy.

Today's lawsuit seeks unspecified damages.


From: "Eric Grant"
To: "'David B. Rosen, Esq.'"



Contact: Eric Grant, Esq.
- or -
David B. Rosen, Esq.

Honolulu, Hawaii; August 6, 2008: Attorneys Eric Grant and David B. Rosen today filed suit in federal district court against Kamehameha Schools/Bishop Estate on behalf of four children and their families who seek an end to the "Native Hawaiians only" admissions policy maintained by the Estate's Trustees. The present lawsuit is essentially identical to the earlier lawsuit filed on behalf of "John Doe," which the Trustees settled last year in order to prevent the legality of their admissions policy from being considered by the United States Supreme Court.

Mr. Grant, one of the attorneys who earlier represented John Doe, explained: "The purpose of today's action is to obtain a definitive ruling from the Supreme Court that the Trustees' racially exclusionary admissions policy violates our Nation's civil rights laws. Our clients believe, and we agree with them, that such a ruling will have a significant impact in reversing unfortunate trends towards discrimination and even segregation in Hawaii."

The students and their families who bring this lawsuit are representative of Hawaii. They are kama'ina, multi-ethnic, and of varying economic means. They reside across the State, and they are Hawaiian in every sense save the merely genetic, i.e., the birthplace of their ancient ancestors. The plaintiffs seek no special treatment -- only equal treatment, namely, the right to be considered for admission without regard to race or ancestry.

Mr. Rosen, a solo practitioner in Honolulu, added: "We are confident that most Hawaiians are justifiably proud of their unique, multi-ethnic, local heritage. We are also confident that most Hawaiians are equally proud of the rights and freedoms that we all share as citizens of the United States of America, among them the right to be free from racial and ethnic discrimination. It is in furtherance of this basic right that we join our clients in beginning the journey back to the United States Supreme Court."

An Adobe PDF version of the plaintiffs' complaint may be downloaded from Mr. Grant's website:











Kamehameha Schools Trustee Message, Wednesday, August 06 2008 @ 02:02 PM

KS sues John Doe for Breach of Contract; Receives demand letter threatening new lawsuit from Eric Grant

Aloha mai kākou,

This afternoon we filed a lawsuit in the Third Circuit Court of the State of Hawai'i against John and Jane Doe for breach of confidentiality in the settlement agreement reached in May 2007 in Doe vs. Kamehameha Schools, the lawsuit challenging our admissions preference policy.

Kamehameha Schools is seeking an unspecified amount of monetary damages based on comments made to the Honolulu Advertiser by one of the Does’ attorneys, John Goemans, in February of this year. Under the terms of the agreement, the Does agreed to be held liable for any breaches of confidentiality by their legal counsel. This includes Goemans, who was one of the attorneys of record throughout the four-year-long litigation.

After Goemans’ disclosure, Eric Grant filed a complaint and the Does filed cross claims in the U.S. District Court in Sacramento, California. Grant asked the court to declare that he has no liability to Kamehameha Schools or the Does for breach of the settlement agreement; the Does sought to enjoin Kamehameha Schools from disclosing their identities. We have filed a motion in Sacramento to dismiss both claims based on lack of jurisdiction.

In a separate and unrelated action, Kamehameha Schools has received a demand letter from Eric Grant and Honolulu attorney David Rosen on behalf of four unnamed applicants who claim they were denied admission to our campus programs under our admissions preference policy. In the letter, Grant and Rosen declared their intent to file suit against Kamehameha Schools if we refuse to admit their unnamed potential plaintiffs. Clearly, we cannot comply. We have no idea if any of the students qualified for admission, or even applied to our campus programs.

We expect a new lawsuit to be filed at any time.

In their demand letter, Grant and Rosen assert the same argument Grant used in the Doe vs. Kamehameha Schools lawsuit: that our preference policy violates section 1981 of the Civil Rights Act of 1866, which was enacted to protect newly freed slaves from discrimination in contracts.

It is deeply disturbing to see a Civil Rights law enacted to protect an oppressed population used to undermine Pauahi’s desire to restore the vitality and health of her people, who were dispossessed in their own homeland. The stories of Pauahi tell of her love for Hawai'i, and her husband Charles Reed Bishop spoke eloquently of the urgent sense of kuleana that led her to bequeath her private estate to provide for the education of her children, just as we will someday leave what we have to ours. These attorneys and their plaintiffs attack more than Kamehameha Schools and our mission; it is an attack on our history, our heritage and the values of Hawai'i, held by so many here and around the world.

We enter into this battle from a position of strength, well-prepared to defend our admissions policy and with legal precedent at the 9th Circuit Court level on our side.

In Doe vs. Kamehameha Schools, both the U.S. District Court in Honolulu and the 9th Circuit En Banc Court of Appeals in San Francisco upheld the legality of our policy. Both courts recognized our unique history and the importance of our mission, which is to improve the capability and well-being of native Hawaiians through education. The appeals court also acknowledged that Congress has recognized a special trust relationship with native Hawaiians as the indigenous people of these islands who were stripped of their sovereignty by the illegal overthrow of the Hawaiian monarchy. The court found that Congress did not intend for section 1981 to bar educational programs provided by KS to native Hawaiians to remedy severe educational imbalances.

By resolving Doe vs. Kamehameha, we established the U.S. 9th Circuit En Banc Court of Appeals ruling as binding precedent in all courts in the 9th Circuit. Eric Grant and David Rosen have a steep uphill battle ahead of them.

As the intended beneficiaries of Pauahi’s legacy, each of you is a powerful ambassador against the cultural insensitivity and ignorance of history that motivates these ongoing legal challenges. You can explain Pauahi’s vision for our people better than anyone, for she was motivated by the stories of your `ohana. We urge you to tell your story to as many people who will listen, in whichever forum you feel is most comfortable.

Many of our collaborators, Hawaiian and non-Hawaiian, already speak compellingly of the importance of the work performed at Kamehameha, and we take heart in the outpouring of support from all who know that our policy is pono. We will stand steadfast as we continue to extend the reach of this legacy to as many of Pauahi’s intended beneficiaries as we can.

Imua Kamehameha

Board of Trustees:
Nainoa Thompson, Chair
Robert Kihune
Douglas Ing
Diane Plotts
Corbett Kalama

Chief Executive Officer
Dee Jay Mailer


Honolulu Advertiser, Thursday, August 7, 2008

Kamehameha Schools again being sued over admissions bias
Meanwhile, school sues previous plaintiffs over disclosure of settlement

By Jim Dooley and Gordon Y.K. Pang
Advertiser Staff Writers

A new federal court lawsuit challenging Kamehameha Schools' controversial admissions policy that favors students of Native Hawaiian ancestry was filed yesterday on behalf of four unnamed students who allege they were denied entry because of their ethnicity.

The action came just after the school filed a separate suit on the Big Island to recover some of the $7 million paid last year to settle a similar challenge by a non-Hawaiian student.

The latest suit against the school was filed by local attorney David Rosen and Sacramento lawyer Eric Grant.

Grant earlier represented a Big Island youth, identified in court papers only as John Doe, who filed a similar claim against the school's admission policy in 2003, but agreed to drop the suit last year after pursuing it all the way to the U.S. Supreme Court.

The new suit "is essentially identical" to the John Doe case, Grant said in a news release, a factor one legal expert said could give weight to the argument the lawsuit is frivolous, citing Rule 11 of the federal Rules of Civil Procedure.

"Lawyers are not supposed to clog the courts with matters that have been adjudicated and resolved," said Jon Van Dyke, a professor at the University of Hawai'i-Manoa Richardson School of Law. Van Dyke was a paid consultant for Kamehameha Schools on the original John Doe lawsuit but not currently doing work for the institution. "The fact that they themselves say it's the identical lawsuit is just bizarre."

Meanwhile, Kamehameha graduates said they are weary of the legal assaults against the schools. "I'm tired of all this stuff," said Adrian Kamali'i, president of the Na Pua a Ke Ali'i Pauahi group of students, parents and alumni.

Kamehameha Schools and other organizations of Hawaiian ali'i set up to aid Native Hawaiians continue to serve a people still at the bottom of important socio-economic categories. "These organizations don't exist to be greedy," Kamali'i said. "They have a purpose."

Several alumni, however, said they welcomed the possibility that the issue of the admissions policy may get to the U.S. Supreme Court.

In his statement on the lawsuit, plaintiffs lawyer Grant said "The purpose of today's action is to obtain a definitive ruling from the Supreme Court that the (Kamehameha Schools) trustees' racially exclusionary admissions policy violates our nation's civil rights laws."

The trustees, in their own news release, called the lawsuit an attack not just on the schools but "on our history, our heritage and the values of Hawai'i."

They said that prevailing law, a 2005 opinion from the 9th U.S. Circuit Court of Appeals in San Francisco, upheld the legality of the school's admissions policy. "We enter into this battle from a position of strength, well prepared to defend our admissions policy with legal precedent at the 9th Circuit Court on our side," said the trustees. "Eric Grant and David Rosen have a steep uphill battle ahead of them," the written statement said.


Rosen yesterday acknowledged that legal precedent is against his clients, so far. He noted that a three-judge panel of the 9th Circuit originally found the admissions policy to be illegal, but that ruling was set aside when all of the appellate judges met "en banc" to re-examine the case and ruled in an 8-7 decision that the admissions policy is legal. "It was a very divided court," Rosen said.

However, Van Dyke said accepting the settlement meant accepting the 9th Circuit en banc ruling. "They can argue that the U.S. Supreme Court could reverse the 9th Circuit, but they certainly can't argue that the law of this circuit supports their position, and the fact that Mr. Grant himself decided to settle rather than have the U.S. Supreme Court decide the matter, I think, perhaps undercuts his argument."

Grant said via e-mail that he believes the case could be "argued and decided" by the U.S. Supreme Court in the October 2009 term, which runs to June 2010. "It is difficult to predict these things, however, and the case could easily be put over to the following term" which runs from October 2010 to June 2011, Grant said.

The trustees said yesterday that the suit was filed after they refused a demand from Grant and Rosen to admit the four students to the schools. "Clearly, we cannot comply," the trustees said. "We have no idea if any of the students qualified for admission, or even applied to our campus programs."

Grant and Rosen described the students and their families as "representative of Hawai'i." The plaintiffs "reside across the state, and they are Hawaiian in every sense save the merely genetic, i.e., the birthplace of their ancient ancestors," Rosen and Grant said.

Some schools alumni yesterday said they hope the case gets to the highest court in the land. "How else does Kamehameha stop them from coming back and bringing six guys next time?" said Jan Dill, another Na Pua board member. "We need to have legal closure." Dill echoed Kamali'i's comments about the need for a Hawaiians-only program, and especially those provided by Kamehameha and its considerable financial resources. "There are families hurting throughout our entire community that Kamehameha is willing to help, and this is all a distraction from that," Dill said.


In a second major legal development, the trustees filed their own suit on the Big Island yesterday against John and Jane Doe, the student and parent who filed the 2003 admissions lawsuit against the school.

The new suit seeks an unspecified amount of damages because John Goemans, an attorney who once represented the Does, revealed to The Advertiser in February the confidential terms of the $7 million settlement paid by the school to the Does.

The agreement specified that a party breaching the confidentiality agreement could be found liable for damages of as much as $2 million. "Under the terms of the agreement, the Does agreed to be held liable for any breaches of confidentiality by their legal counsel," the trustees said in a news release about the new suit. "This includes Goemans, who was one of the attorneys of record throughout the four-year-long litigation."

Local attorney Ken Kuniyuki, who now represents the Does, yesterday would not comment on the new lawsuit.

Goemans, reached by telephone on the Mainland, repeated his belief that Kamehameha Schools, as a tax-exempt, non-profit institution, cannot keep confidential such a settlement payment without endangering its Internal Revenue Service tax exemption.

And he said that he was not an attorney of record in the case. "I haven't been practicing law since 2000 and I was not admitted to appear before the Supreme Court" when the appeal was filed there by Grant, Goemans said. "My name was included in some places (when the case was being litigated)," Goemans said. "But that was Eric Grant's doing. He never asked me and I never agreed." Further, Goemans said that he learned the terms of the settlement from Grant before it was signed and "before there was ever a confidentiality agreement."


Regarding the new challenge to Kamehameha Schools' admissions policy filed by Grant and Rosen, Goemans said, "I'm glad. I don't think the first case should have been settled. The admissions policy is unconstitutional and they will find that out unless there's another settlement of this (new) case."

Grant would not comment on the new suit filed against John and Jane Doe.

But some school alumni applauded it. "I think it's really good (Kamehameha) starts going on the offensive instead of going on the defensive all the time," said alumnus and kumu hula Vicky Holt Takamine. "(The Does) opened the door by not abiding by the court ruling and not keeping everything quiet."

Takamine said Kamehameha should consider releasing the identity of the original John Doe. She also criticized the parents of the unnamed children who have challenged the admissions policy. "I think parents of these children are making them pawns in this," she said. "I wouldn't want my children or grandchildren put in that position."

Dill said: "I think that it's late in coming. I'm glad (the school is) doing it. They should really pursue every legal avenue to hold these people accountable."


Kamehameha Schools was established by the 1884 will of Princess Bernice Pauahi Bishop. The princess endowed the schools with thousands of acres of land, which made the institution land-rich but cash-poor for much of the first century of its existence.

But as the value of Island land increased exponentially in the latter half of the 20th century, so did the assets of the Bishop Estate, as the institution was known at the time.

Its assets are now valued at more than $9 billion, making it one of the wealthiest nonprofits in the world.

Today, Kamehameha Schools occupies a central role in Hawai'i society, in part because of its financial clout and in part because of its mission to educate children of Hawaiian ancestry.

Last year, 5,354 students were enrolled in the trust's K-12 programs at the flagship campus on Kapalama Heights on O'ahu and at newer facilities on the Big Island and Maui.

Another 30,000 children and adults were served through various Kamehameha Schools preschool and community outreach programs and support of 14 charter schools.

The schools maintain that the admissions policy only "favors" children of Hawaiian ancestry. Non-Hawaiian children will be considered for admission if there are not enough applicants of Hawaiian ancestry to fill classrooms, the institution has said.

There are about 70,000 school-age children of Native Hawaiian ancestry in the Islands.


Honolulu Star-Bulletin, August 7, 2008


4 challenge racial preference
An attorney for the plaintiffs believes this case could wind up in the U.S. Supreme Court

By Craig Gima

Kamehameha Schools is facing another challenge to its admissions policy favoring native Hawaiians with a lawsuit filed in federal court yesterday that could eventually be decided by the U.S. Supreme Court.

The lawsuit was filed on behalf of four unidentified children and their families under the Civil Rights Act and seeks a "definitive ruling" that the "racially exclusionary admissions policy violates our nation's civil rights laws," according to a news release from Sacramento, Calif., attorney Eric Grant and Honolulu attorney David Rosen, who filed the lawsuit.

Kamehameha Schools spokesman Kekoa Paulsen said the school had been expecting the lawsuit and is "prepared to defend our policy." "We operate entirely as a private organization, and our mission is to correct imbalances that were created years ago," Paulsen said. "We'd rather not be in court. We'd rather be doing what we need to do. We'd rather not have the distraction of having to argue this thing again and just go on with doing our business."

The lawsuit alleges that the four children, identified only as Jacob Doe, Jane Doe, Karl Doe and Lisa Doe, would have been admitted to a Kamehameha Schools campus this fall if they were of native Hawaiian ancestry.

The plaintiffs are seeking a judgment that the policy is "illegal and unenforceable," injunctions against implementing the policy for the upcoming school year, damages and attorneys fees.

The lawsuit is similar to a 2003 court case that was settled before it could reach the Supreme Court. In that case, John Doe v. Kamehameha Schools, a panel of the 9th U.S. Circuit Court of Appeals ruled 8-7 in favor of Kamehameha Schools in December 2006.

The court found that the preference policy does not violate federal civil rights laws and has a legitimate purpose of addressing economic and educational imbalances suffered by native Hawaiians.

Rosen said he expects the case to work its way back to the 9th Circuit, where it can be appealed to the U.S. Supreme Court. That process could take about two years, he said.

Paulsen said Kamehameha Schools has the 9th Circuit decision on its side, which also recognized that Congress has a special political relationship with native Hawaiians. "They have a pretty steep hill to climb to prove otherwise," Paulsen said.

Grant filed the John Doe lawsuit and, when it was settled, said he was disappointed it did not go to the Supreme Court. Rosen began soliciting potential clients for a new lawsuit shortly after the settlement in May 2007.

The four plaintiffs and their families were described as "representative of Hawaii" and "multi-ethnic, and of varying economic means" in a news release. "The plaintiffs seek no special treatment -- only equal treatment, namely, the right to be considered for admission without regard to race or ancestry," the news release continued.

Jan Dill, a board member of Na Pua A Ke Ali'i Pauahi, an organization of Kamehameha Schools alumni, parents and students, said he trusts the schools' trustees to defend the policy and hopes it will finally be resolved. "It (the lawsuit) is like poking at a healing wound in the community. It creates bitterness. It creates misunderstanding and we need to move forward," he said. "I think that's what the ohana wants. They want closure already."

Kamehameha Schools was founded by the 1883 will of Princess Bernice Pauahi Bishop and operates schools on Oahu, Maui and the Big Island and other educational programs. The three campuses enroll about 5,000 students and are subsidized by a $9 billion-plus trust. Only one in eight applicants is accepted into the schools.


Honolulu Star-Bulletin, August 7, 2008

Big Island lawsuit focuses on settlement’s disclosure

By Craig Gima

Kamehameha Schools is suing an unidentified non-Hawaiian student and his mother for disclosing a confidential settlement reached last year in a 2003 lawsuit challenging the schools' admission policy.

The schools' lawsuit filed yesterday in state court on the Big Island is "separate and unrelated" to another lawsuit filed in federal court that also challenges the admissions policy, according to a message from the Kamehameha Schools trustees and Chief Executive Officer Dee Jay Mailer.

In February former attorney John Goemans revealed that the school paid $7 million to settle the 2003 case after a panel of the 9th U.S. Circuit Court of Appeals ruled in favor of Kamehameha Schools.

Goemans said yesterday that he was not the attorney for the plaintiffs -- identified only as John and Jane Doe -- at the time of the settlement and was not bound by the confidentiality agreement.

Goemans said he learned of the settlement amount from attorney Eric Grant before the settlement was agreed to. "It wasn't a breach of the confidentiality agreement because there was not a confidentiality agreement at that time," Goemans said.

Kamehameha Schools attorney Paul Alston said court documents show Goemans did represent the plaintiffs.

"His effort to try to weasel out of his role is baseless," Alston said.

Goemans also argues that because Kamehameha Schools is a tax-exempt organization, it must disclose the settlement and cannot enter into secret agreements.

Alston said the school complied with federal disclosure requirements and does not have to specifically disclose the settlement amount.

Kamehameha Schools is seeking attorneys' fees and other costs that it spent to respond to the disclosure, plus other damages. "The disclosure of the amount caused some significant disruption and caused KS (Kamehameha Schools) to devote time and energy from other useful things to try and respond to the story," Alston said.


Honolulu Star-Bulletin, August 8, 2008
3 Letters to editor

** Ken Conklin's comment: Note the similarities of these three letters to each other, and the similarity to the arguments asserted in Mississippi and Alabama in the 1960s defending their segregated schools -- there are other good schools these kids could attend (separate but equal); everyone knows the rules for admission so why do these troublemakers try to violate the rules; private schools should not have to admit people the owners don't want; etc.

Why go through this mess again?

Regarding your Aug. 7 story "Kamehameha Schools again being sued over admissions bias": Suing the school yet another time is a waste for both the defendants and the school.

The Kamehameha Schools already experienced a similar lawsuit a few years back. Why should they repeat a similar case when the previous had been already settled? The courts will only dig up old and familiar documents. What do these four students and their attorneys think will happen? The Kamehameha Schools are already following the law to an extent.

Suing a school for following a 120-year-old policy should not even be brought up. Students and their parents should already know the admission policies of enrolling. How difficult is that to understand? And if the students do get rejected, there are other private schools in Hawaii that they can attend.

I hope that this lawsuit will be a short and victorious fight for the Kamehameha Schools.

Sheila Gomez

Lawyers care about money, not principle

Boy, these guys don't give up! Bishop Estate is a cash cow and they are riding herd on it. Boo!

Can't these people let the Hawaiians have something of their own without all these buzzards circling overhead. It is sickening ... their transparency is so obvious ... money is at the bottom of it ... makes me sick. This is a school -- it should be concentrating on teaching its children, not constantly defending a princess' will.

Hmmm ... I just thought of something -- you don't see these attorneys trying to break policies at all-black schools/colleges ... hmmmm ... but of course, once they find one with big bucks -- watch out!

Two hundred years ago (or whatever) the Hawaiians should've been very strict on immigration laws ... kept these buggers out. But then there would have been lots of good malihini kept out ... and there are lots of good haoles ... speak up all you who know that these actions are hewa -- so not pono. Shame, shame on you legal vultures ... you don't really care about these kids -- you care only about what's in it for you. Get over yourselves and leave us alone!

Penny Kelii-Vredenburg
Waimea, Hawaii

Oahu has other worthy private schools

The Kamehameha Schools are yet again being sued for their admissions policies. How many times is this going to happen? What I don't understand is why people are suing a school (and a private one at that) for its policies, which have been in place since 1887.

In Bernice Pauahi Bishop's last will and testament, she expressed that admission to the school be determined by proof of Hawaiian ancestry, and that preference be given to those who are able to show it.

On the other side of the coin, rejected applicants are displeased because the school enjoys tax breaks from the federal government. The U.S. annexed Hawaii from its natives; a tax break is a small consolation prize.

I don't understand why, with the regulations so clearly stated, people who don't fit the requirements still apply to Kamehameha Schools. I can understand that parents want their children to attend the finest schools, Kamehameha being one of them. But there are many excellent private schools on the island. Pushy parents need to stop suing schools for their policies. This is just as silly as suing St. Louis (an all boys school) for not admitting girls.

Billy Acosta
Ewa Beach


Honolulu Star-Bulletin, Sunday August 10, 2008

Kamehameha Schools should decide how to end lawsuits for good

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

As predicted, Kamehameha Schools' settlement last year of a legal challenge to its Hawaiians-only admission policy gave it a reprieve but kept it vulnerable to other lawsuits. Such a suit has been filed by the same attorney who brought the first one to the door of the U.S. Supreme Court, forcing the schools to decide whether to follow the same path or seek a lasting solution. The new lawsuit filed by lead attorney Eric Grant of Sacramento, Calif., states that it is "virtually identical" to the one that was settled as the Supreme Court was deciding whether to hear an appeal of an 8-7 ruling by a panel of the 9th Circuit Court of Appeals that upheld the schools' admission policy. The suit says brazenly that its purpose is "to have that ruling overturned" by the high court.

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

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

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

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

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

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


Honolulu Star-Bulletin, Sunday August 10, 2008
KAUAKUKALAHALE [Weekly Hawaiian-language opinion column]

Ho'opi'i aku, ho'opi'i mai

by Kekeha Solis

Synopsis: Many suspected the Doe family to grow after the settlement. The author has a suggestion for Kamehameha Schools, before the Doe family grows even bigger.

Ho'opi'i hou 'ia ke Kula 'o Kamehameha no ka lula ho'okomo keiki. 'A'ole paha i pū'iwa iki ka no'ono'o i ka lohe 'ana i ia nūhou i ka pule nei i hala. Pēlā ka leo o nā kānaka he nui i ke kūkala 'ia 'ana ē ua uku ke Kula 'o Kamehameha he $7 miliona i mea e pau ai ka hihia o "John Doe," 'o ia ho'i, e kū laina ana ke kōlea palaualelo ma muli o ka uku wale 'ana aku o ia kula. A eia kākou ke 'ike maka aku nei i ka nui o ia 'Ohana Doe. A ke mana'o nei kou mea kākau, ua 'oi aku paha ia 'ohana i ka 'Ohana Walton o ke kïwï o ke au i hala.

No ia lula ho'okomo keiki, 'o ia ho'i, ka 'ae mua 'ana i nā keiki Hawai'i ma mua o ka 'ae 'ana i nā kōlea, he lula kūpono nō ia, 'oiai, 'o ia ka makemake o ke Ali'iwahine Pauahi. Akā i loko nō o ke kūpono, eia mai kekahi mea e no'ono'o ai, a inā he mea kū i ke kānāwai, a ke ho'okō 'ia, 'a'ole paha e ho'ā'o hou kekahi kōlea "e pō'alo i ka maka o ka Hawai'i a e lawe aku i kona pono hope loa." 'Oiai, ua ho'opi'i mai lākou lā ('Ohana Doe), he ho'opi'i aku ka hana a kākou, 'o ia ho'i, e ho'opi'i 'ia a'e ka uku kula o ke Kula 'o Kamehameha a ke $30,000 o ka makahiki a 'oi aku paha. 'O ia ka uku kula o kekahi o nā kula ho'omākaukau pipi'i loa o 'Amelika. E nïnau auane'i paha kekahi me ke 'ano 'ē o ka no'ono'o, "Pehea lā e hiki ai i nā 'ohana Hawai'i ke uku aku i ia uku kula pipi'i loa?" Eia ka nani o ka hana, 'o nā keiki Hawai'i, na ka waiwai o ke Ali'iwahine Pauahi e uku i ka uku kula no lākou.

'Eā, he mea maopopo wale, 'o ke Kula 'o Kamehameha, ua nui loa nā kānaka na'auao i puka mai ia kula mai. Eia mai kekahi mau kānaka i puka mai ua kula hanohano nei o Kapālama, 'o No'eau Warner, Isabella Aiona Abbott, April Drexel, Kimo Alama Keaulana, Naiwi Wurdeman, Manu Kaiama, Walter Ritte 'ōpio, Kapā Oliveira, Aaron Sala, Julie Kaomea, a me nā kānaka akamai he nui hou aku. A no laila, he uku kula kūpono nō paha ia pu'u nui o ke kālā, 'oiai, wahi a ka lohe, he kula ia nona nā polokalamu like 'ole e holo mua ai ke keiki ma kēia hope aku. 'O ia ihola kahi mana'o i lohe 'oukou.

['O kekahi mana'o o ka mea käkau, e 'ae 'ia nä keiki Hawai'i a pau i loko o ke Kula 'o Kamehameha. E käpae 'ia ka hö'ike a me ke kükä kama'ilio no ke komo 'ana. 'O ia paha kekahi kumu e ho'opi'i 'ia nei ia "päpü ho'opakele hope loa o ka Lähui Hawai'i." E 'ölelo ana kekahi kölea, "Ua 'oi aku ka maika'i o ka hana o ka'u keiki ma ia hö'ike ma mua o kekahi o nä keiki Hawai'i i komo aku, a ua hö'ole 'ia ka'u keiki." 'A'ole na'e i nänä iki i käna hana maha'oi pono'ï.]


Honolulu Advertiser, August 14, 2008


The Native Hawaiian Education Council supports the Kamehameha Schools' use of its private trust funds to give priority to the education of students of Hawaiian ancestry.

We believe the law of the land as set forth by the 9th U.S. Circuit Court of Appeals ruling in the previous case against the Kamehameha Schools is correct — namely that this private school's admission preference for Hawaiian students does not constitute impermissible discrimination under federal law.

Education is the most effective way to empower Hawaiians and improve their lives. Imua Kamehameha for staying true to the trust's intent.

Colin Kippen
Executive director, Native Hawaiian Education Council


Honolulu Advertiser, Wednesday, October 22, 2008

Anonymity at stake in Kamehameha case
Magistrate to decide if students in admissions dispute can be named

A federal magistrate will rule on whether the non-Hawaiian students challenging the Kamehameha Schools' 121-year-old admissions policy can remain anonymous.

U.S. Magistrate Barry Kurren took the matter under advisement after holding an hourlong, closed-door hearing yesterday.

Eric Grant, the Sacramento, Calif., attorney for the four unnamed students who sued the Kamehameha Schools, declined comment yesterday. Paul Alston, attorney for the Kamehameha Schools, also had no response.

The Does — Jacob, Janet, Karl and Lisa — are seeking to overturn Kamehameha Schools' Hawaiian-preference admission policy, saying it violates federal civil rights laws.

They filed suit Aug. 6, alleging they were denied entry because of their ethnicity. Pursuing the latest lawsuit along with Grant is local attorney David Rosen.

Grant earlier represented a non-Hawaiian Big Island youth, identified in court papers only as John Doe, who filed a similar claim against the school's admissions policy in 2003, but agreed to drop the suit last year after pursuing it all the way to the U.S. Supreme Court.

As part of the settlement, Kamehameha Schools agreed to pay $7 million to John Doe but kept its admissions policy intact.

Still ongoing is a separate lawsuit filed by trustees for the schools on the Big Island against John Doe and Jane Doe, the student and parent who filed the 2003 admissions lawsuit. The trustees' suit seeks an unspecified amount of damages because John Goemans, an attorney who once represented the Does, revealed to The Advertiser in February the confidential terms of the $7 million settlement paid by the school to the Does. The agreement specified that a party breaching the confidentiality agreement could be found liable for damages of as much as $2 million.


Honolulu Star-Bulletin, Monday, October 27, 2008
Letters to the Editor

Money motivates lawsuit against schools

We note that attorney David Rosen has managed to unearth four more non-Hawaiians as candidates for a new discrimination suit against Kamehameha Schools.

Life experience teaches us that pursuit of money is a great motivator, and further that money-grubbing is particularly honed to a fine art as a lawyer's professional imperative. A certain envy of Eric Grant's settlement of $7 million in the recent John Doe case might lead an attorney to actively solicit very bright non-Hawaiian students and their families to participate in a discrimination lawsuit against the Kamehameha Schools, motivated by the inducement and expectation of several million dollars paid out to each. Could this be Rosen's gig?

We don't necessarily see that any of these potential students have any desire to attend Kamehameha; they only need seek reward for their exclusion. If this be the case, then these students will have learned a very important life lesson; their scruples are easily purchased with the devalued coin of their ethics. This realization will no doubt propel them toward legal careers.

Bob & Paulette Moore
Kamehameha Schools 1953, 1952
Pearl City


Honolulu Advertiser, October 29, 2008

Judge orders names be made public in Hawaii school suit

By Rick Daysog

The identities of four unnamed, non-Hawaiian students challenging Kamehameha Schools' admission policy must be made public in 10 days, a federal judge ruled yesterday.

In a 22-page order, U.S. Magistrate Judge Barry Kurren said the public, as in other civil rights cases, has "a strong interest in knowing who is using the courts to vindicate their rights."

"The severity of the threatened harm and the reasonableness of plaintiffs' fears do not weigh in favor of anonymity," Kurren wrote. "At most, plaintiffs are vulnerable children who have a reasonable fear of social ostracization."

Kamehameha Schools spokeswoman Ann Botticelli said the schools appreciated the ruling, saying, "Judge Kurren obviously deliberated carefully on the matter."

David Rosen, one of the attorneys representing the students, declined comment yesterday. Rosen and California attorney Eric Grant previously argued that the disclosure of the students' identities would expose them to public humiliation and retaliation.

Parents of the students — who are simply known as Jacob, Janet, Karl and Lisa Doe — have said in court papers that they may drop the lawsuit if the children are not allowed to pursue their lawsuit anonymously. The Does, who are not of Hawaiian ancestry, applied for admission to Kamehameha in the 2008-09 school year, but were rejected.

Kurren's ruling came after a 1 1/2-hour, closed-door hearing on Oct. 21. By issuing a 10-day stay to his ruling, he allowed the students and their parents to consider whether to continue pursuing the action.

The stay also allows the Does' attorneys to appeal the ruling to U.S. District Judge Michael Seabright, who is assigned to the case.

Founded by the 1884 will of Princess Bernice Pauahi Bishop, Kamehameha Schools is a charitable trust that educates children of native Hawaiian ancestry. The estate is the state's largest private landowner and is one of the nation's wealthiest trusts, with assets of more than $9 billion.


In their court filings, Rosen and Grant cited anonymous threats posted on the Internet and hostile remarks attached to the comments sections of local news stories about the admissions controversy.

Grant and Rosen have noted that the threats were serious enough to prompt U.S. Attorney Ed Kubo in 2003 to issue a warning against anyone looking to harm another non-Hawaiian student, Brayden Mohica-Cummings, who was admitted to the school under a settlement agreement.

Kurren, however, ruled that Grant and Rosen didn't provide evidence of "any threat of physical or economic harm" against the Does.

Botticelli, the Kamehameha Schools spokeswoman, added that the trust's leadership "would never take any action that puts a child in danger." "We would never engage in or condone any racial threats or actions, and we know our community wouldn't either," she said.

Adrian Kamali'i, a 2000 Kamehameha Schools graduate and president of the student-parent group Na Pua a Ke Ali'i Pauahi, said Kurren's ruling "levels the playing field."

Allowing the students and parents to pursue the lawsuit anonymously takes away any accountability and hides from the public "who is doing what and why," added Jan Dill, a 1961 graduate. "I think it's tremendous that the judge has demanded transparency in a process that affects thousand of native Hawaiian children," Dill said. "People who take actions like this should stand up and take responsibility rather that hide behind confidentiality."


Attorneys for the trust — Paul Alston and former Stanford University Law School Dean Kathleen Sullivan — said anonymity has allowed the students' lawyers to portray their clients in a sympathetic light, but gave the trust no means to say whether that portrayal is accurate.

They also noted that in the previous lawsuit challenging the school's admission policy, Grant's co-counsel John Goemans abused his client's anonymity by leaking the details of a confidential settlement.

In that suit, a separate John Doe sought to overturn the trust's Hawaiian-preference admission policy. The policy was upheld by the full 9th U.S. Circuit Court of Appeals and was headed to U.S. Supreme Court before it was settled.

The trust was able to save its admissions policy but ended up paying the student $7 million.

Beadie Dawson, a native Hawaiian attorney and former lawyer for Na Pua, said that given the stakes involved, she expects the Does to appeal Kurren's decision. "They are looking for another damages settlement, a free hand-out," she said. "Giving them anonymity encourages others to file what I consider to be frivolous lawsuits."


Honolulu Star-Bulletin, October 29, 2008

Kamehameha Schools' critics told to give IDs

By Nelson Daranciang

The four students and their parents who filed the latest lawsuit challenging Kamehameha Schools' Hawaiian preference admission policy must reveal their identities, a federal magistrate judge ruled yesterday.

However, Magistrate Judge Barry Kurren, in a written order filed in U.S. District Court, stayed enforcement of his order 10 days to give the students and their parents time to decide whether they will continue to pursue the lawsuit.

Parents of each of the students said in written declarations submitted to the court that if they are faced with the choice between revealing their children's identities to the public or pulling out of the lawsuit, they would almost certainly choose to pull out.

The lawsuit filed Aug. 6 identifies the students as Lisa Doe, Karl Doe, Jacob Doe and his sister Janet Doe. It identifies James and Joyce Doe as the parents of Jacob and Janet Doe, Kirk and Kate Doe, the parents of Karl Doe and Laura Doe, the mother of Lisa Doe.

In the previous lawsuit, both sides agreed to keep the name of plaintiff John Doe anonymous. That case ended in an out-of-court settlement after the U.S. District Court in Hawaii and the 9th U.S. Circuit Court of Appeals ruled in favor of the policy but before the U.S. Supreme Court issued its opinion.

However, in the current lawsuit, defendants Kamehameha Schools and the trustees of the Bernice Pauahi Bishop Estate oppose keeping the names of the plaintiffs anonymous. They said they need the names of the students to check on their claims that they applied for admission, were found to be qualified, but were not accepted because they were not of Hawaiian ancestry.

In his order, Kurren said, "Plaintiffs' use of fictitious names runs afoul of the public's common law right of access to judicial proceedings." If the "plaintiffs seek the protections and benefits of litigating their action, they must do so openly," he said.

Kamehameha Schools spokeswoman Ann Botticelli said, "Judge Kurren deliberated thoroughly and carefully and we appreciate his decision."

David Rosen, the Hawaii lawyer for the Doe plaintiffs, said yesterday he was not able to comment on Kurren's order because he had not seen it.


Honolulu Star-Bulletin, October 30, 2008
Corky's cartoon
Original URL for cartoon


Honolulu Star-Bulletin, November 13, 2008

By Star-Bulletin staff

Unnamed plaintiffs appeal order

The four students and their parents challenging Kamehameha Schools' Hawaiian preference admission policy are appealing a federal magistrate judge's order to reveal their identities or drop their lawsuit. The students and their parents filed their lawsuit Aug. 6 under pseudonyms to conceal their true identities.

Federal Magistrate Judge Barry Kurren ordered the plaintiffs on Oct. 28 to reveal their identities. However, Kurren stayed enforcement of his order for 10 days to give the students and their parents time to decide whether they will continue to pursue the lawsuit.

In papers filed in U.S. District Court yesterday, the plaintiffs, through their lawyers Eric Grant and David Rosen, say the public and private reactions to the order "demonstrate convincingly that plaintiffs' fear of harm if their identities are revealed to the public is reasonable," and that the harm outweighs any prejudice to Kamehameha Schools and the public's interest in knowing the plaintiffs' identities.

They are asking Kurren to reconsider his order denying their request to pursue their lawsuit anonymously.


Hawaii Tribune-Herald (Hilo), Saturday December 6, 2008

More legal wrangling over Kamehameha Schools' admissions policy

by John Burnett

A Honolulu attorney representing Kamehameha Schools in a lawsuit against a Big Island teenager who received a $7 million out-of-court settlement from the educational trust says a related case in a California federal court may be moving to U.S. District Court in Honolulu.

Paul Alston, who filed the suit in August in Hilo Circuit Court against the teen, identified as "John Doe," and his mother, "Jane Doe," said that a California federal judge has ruled that the related case, Grant v. Kamehameha Schools/Bernice Pauahi Bishop Estate, be moved to U.S. District Court in Honolulu.

The Does, who are Caucasian, sued Kamehameha Schools in 2003 because the boy's admission application was rejected. Their suit alleged that Kamehameha's "Hawaiians first" admissions policy violated his civil rights.

The policy, however, was upheld by the U.S. District Court and the 9th U.S. Circuit Court of Appeals before the settlement came in May 2007. The U.S. Supreme Court had not yet decided whether to hear the case when the settlement was reached.

Grant, a Sacramento attorney who negotiated the settlement for the Does, is seeking a declaratory judgment that he is not liable to defendant Kamehameha Schools because John Goemans, a former Big Island attorney who brought the Does' case to Grant, allegedly told the Honolulu Advertiser the monetary terms of the deal in February, a breach of confidentiality provisions in the settlement agreement.

"(Grant's) suit will be moved back to Hawaii, where it belongs," Alston told the Tribune-Herald on Thursday. "A judge has entered an order and we're waiting for a clerk to do (the paperwork). "That case should start over here around Christmastime and from there, we're going to figure out how we're going to proceed."

No trial date has been set for the state lawsuit, which Goemans said "is still in its very early stages."

If the Hilo case goes to trial, it will be heard by Circuit Judge Greg Nakamura. According to the suit filed by Alston, the Does are defendants because "under the terms of the agreement, signatories were made liable for any actions of their attorneys which violate the confidentiality provision of the settlement agreement."

Kamehameha Schools is a $9.1 billion trust established in 1883 by the will of Princess Bernice Pauahi Bishop. The nonprofit trust dedicated to educating Hawaiian children is one of the nation's largest charities, and the state's largest private landowner with more than 360,000 acres.

Goemans, who now lives in California, has his own dispute with the Does, and is seeking $1.75 million for his services. Goemans said in August that he disclosed the settlement amount because he considers it important public information about a charitable institution given tax-exempt status by the Internal Revenue Service. He added that he did not sign the confidentiality agreement and was not a party to it.

Grant received 40 percent of the settlement, or $2.8 million, after filing suit to collect against the Does last year in federal court in Sacramento.

Grant and Honolulu attorney David Rosen filed another civil suit in August in U.S. District Court in Honolulu. The plaintiffs in that case, Jacob Doe v. Kamehameha Schools, are four anonymous non-Hawaiian students and their parents, who also allege that Kamehameha's admissions policy denied them of their civil rights.

On Oct. 30, Federal Magistrate Barry Kurren ruled that the Jacob Doe plaintiffs had no compelling reason to sue anonymously and gave them 10 days to disclose their identities if they decided to pursue their case. After motions from both sides, the plaintiffs remain anonymous and the issue of whether they can proceed without revealing their identities remains before the court.


Honolulu Star-Bulletin, December 10, 2008

Kamehameha lawsuit in isle court

A Hawaii court will settle a dispute, first aired in a California court, over whether damages are owed Kamehameha Schools for the disclosure that it paid $7 million to an unnamed student who claims he was denied admission because he is not Hawaiian. A federal judge last month granted Kamehameha Schools' request to transfer the case to the U.S. District Court in Hawaii. The court in Hawaii received the case yesterday.

On the eve of a decision last year by the U.S. Supreme Court on whether to hear the case on appeal, Kamehameha Schools agreed to an out-of-court settlement in the 2003 lawsuit filed by the student and his mother.

Eric Grant, the student's California lawyer, then sued John Goemans, the student's Hawaii lawyer, over attorney fees from the settlement. Grant also obtained a court order prohibiting Goemans from disclosing any of the confidential details of the settlement.

But Goemans, claiming the public has a right to know how much Kamehameha Schools paid to settle the lawsuit, reported that the amount was $7 million. He also reported that Grant received 40 percent of the settlement.

Following Goemans' disclosure, Grant filed a lawsuit seeking a declaration that he is not liable for damages arising out of the breach of the confidential settlement agreement. The student and his mother filed similar lawsuits against Grant and Kamehameha Schools.


Honolulu Advertiser, Friday, December 19, 2008

Trust spent $273M on outreach
Kamehameha Schools programs aimed at keiki outside campuses

By Loren Moreno
Advertiser Education Writer

Kamehameha Schools spent about $273 million on educational outreach programs in its most recent fiscal year — up 9.2 percent from the prior year — to extend its impact on Native Hawaiian keiki beyond the walls of its three main campuses.

In addition to the increased spending, the schools also reached a greater number of Native Hawaiian children and their families — more than 38,000 in the 2007-2008 fiscal year, an increase of 7.2 percent over the previous year.

While officials point to the latest outreach data as a sign that the trust is doing more to impact the education of Hawaiian children, they admit that there is more to be done.

The data is being released today as the school celebrates Founder's Day honoring Princess Bernice Pauahi Bishop, whose will created the trust.

"Over the past year, we've worked really hard on funding programs that we know will have either a direct impact on the student themselves or a very large impact on those who teach that student," said Dee Jay Mailer, chief executive officer of Kamehameha Schools.

Over the years, some within the Native Hawaiian community have criticized the trust for not doing enough for the education of all Hawaiian children, not just those who attend its campuses. Mailer said she acknowledges the trust has to do more to reach more Hawaiian keiki.

"We want to make sure that where we have invested is working. And where it is working, we will expand," Mailer said. "There is absolutely more that we can do, but we want to do it because we know it will create the results that we're hoping for."

The trust spends up to 6 percent of its endowment on education programs each year. The endowment was worth about $9.1 billion as of June 30, 2007, up from $7.7 billion a year before.


For the past three years, schools officials say Kamehameha has partnered with dozens of community organizations, education providers and the public school system to benefit the learning of Native Hawaiian children across the state. They say the trust is spending some 70 percent more on educational outreach since it initiated its Education Strategic Plan in 2005.

One area where Kamehameha has expanded is in its partnerships with the state Department of Education to reach the thousands of Native Hawaiian children in public schools.

There are an estimated 74,000 school-age Native Hawaiian children in the public or private school system, with only about 5,400 of them attending one of the Kamehameha Schools campuses.

"The majority of our Hawaiian children are not on our campuses," said Christopher Pating, vice president of Strategic Planning and Implementation. "How do we really serve our people? It's about getting out into the community and our schools," Pating said.

Kamehameha's literacy enhancement programs are an example of the kinds of partnerships that the trust has with the public schools. The program is concentrated in 14 public schools and is serving about 2,530 students from kindergarten to third grade. An additional nine schools are expected to join the program.

"We're predominately in schools in Native Hawaiian communities and have a high percentage of students performing below grade level in literacy," Pating said.

That particular program is showing measurable results, he said.


This past year Kamehameha Schools also continued to support the public charter school movement with some $9.8 million in per-pupil funding to 16 Hawaiian-focused charters.

"We are seeing very good gains in achievement at the charter schools," said Kamehameha Schools spokeswoman Ann Botticelli.

Kamehameha has expanded the number of preschool scholarships it offers by 48 percent. The school also offers nearly $24 million in pre-school and post-high school scholarships. It is also serving more than 10,000 children through its preschools, preschool scholarships and other educational partnerships.

After several years of aggressive growth, officials now say Kamehameha will enter a four-year evaluation phase to determine which of its programs are working and are having an impact on the learning of Hawaiian keiki.

"For those programs that we believe are doing well, we would continue to fund them and expand them," Mailer said.

Following the next four years of evaluation of its partnerships and programs, Mailer said the trust will go through another phase of growth to reach more children.


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