Hawaiian school’s admission fight back in court
on Aug 6, 2008 at 10:13 pm
The six-year running battle over the admissions policy of a highly regarded trio of private schools in Hawaii — the Kamehameha Schools — is back in the courts, with one side specifically aiming for an ultimate test in the Supreme Court.  An earlier case, testing whether an 1866 civil rights law still bars the use of race in private school admissions, reached the Court last year, but was settled before the Justices took final action on it.
A new lawsuit, raising the same challenge, was filed Wednesday in U.S. District Court in Hawaii — with the same name (Doe v. Kamemameha Schools), but with new individuals suing (docket 08-359).  Also on Wednesday, the Schools filed a separate lawsuit in state court in Hawaii, claiming a violation of the 2007 settlement agreement because one of the attorneys involved had disclosed the confidential terms of the deal, including, the attorney said, a payment of $7 million to the youth who had sued. The Schools’ trustees are seeking return of the money, and other money damages. (The Feb. 8, 2008, Honolulu Advertiser news story revealing the settlement terms can be read here.)
The new Doe lawsuit in federal court notes that the earlier challenge to the admissions policy, preferring students of “Hawaiian ancestry,” had failed in both the District Court and in the en banc Ninth Circuit Court. The two lawsuits, it says, are “virtually identical,” but it indicates that the four youths and their parents who sued “intend by this action to have that [Ninth Circuit] ruling overturned in the Supreme Court of the United States.”
The first lawsuit against the Schools’ admission policy was filed by a youth identified only as “John Doe”, who sued in June 2003 after being denied admission four times. He is a lifelong resident of Hawaii, but is not “Native Hawaiian” in a racial sense, his challenge noted. As a minor, he was joined in the lawsuit by his mother, identified only as “Jane Doe.” The Kamehameha Schools are three kindergarten-through-twelfth-grade private schools on three of Hawaii’s islands.
A press release describing the new civil rights claim can be found here (it includes a link to the text of the complaint). A press release by Kamehameha Schools announcing its state court lawsuit over the settlement disclosure is here.  The text of the school trustees’ complaint can be found here.
The first Doe v. Kamehameha Schools case was appealed to the Supreme Court on March 1, 2007 (docket 06-1202). “John Doe” had graduated from high school, so his remaining claim was for damages only. The appeal raised questions about the continuing impact on private school race preferences of the Supreme Court’s 1976 decision in Runyon v. McCrary; the Court ruled there that the 1866 civil rights law barred race bias in admissions to private schools.
All of the briefs in the case were filed by the end of March, and the Court, according to its docket, had considered the case four times, up through May 10. The next day, the two sides filed a notice that they had agreed to settle the case.  Dismissal of the appeal, automatic in that situation, came on May 11, 2007.
As part of the settlement, the two sides agreed that the terms of the deal would not be disclosed.  In February 2008, however, a Hawaiian attorney who had been one of the lawyers for the Does, John W. Goemans, disclosed the terms to the media. (The other attorney for the Does, Eric Grant of Sacramento, no longer represents the Does; he and they have cases pending in California federal court — he disclaiming liability, and the Does seeking to keep their identities undisclosed in any litigation over the settlement.)
Attorney Grant, who filed the new lawsuit against the Schools, said on Wednesday that he would have no comment on the trustees’ lawsuit. That lawsuit names only the Does, not attorney Goemans. At the same time, however, the wording of the lawsuit blames not only the Does but “their lawyers” for “acts and omissions” leading to the disclosure of the settlement provisions.
The trustees contended that the Does received a benefit in “the payment of monies” (the amount is not detailed in the complaint) to ensure the confidentiality of the settlement by the Does “and their counsel.” The later disclosure, it said, makes “unjust” the Does’ retention of the money they were paid.
The new civil rights lawsuit is based on so-called “Section 1981,” guaranteeing all races equal rights to enter into contracts. In Runyon v. McCrary, the Supreme Court ruled that Section 1981 prohibits private, commercially operated, non-religious schools from denying admission to prospective students who were black.
The four Doe youths and their parents contend in the new complaint that they have been denied admission to the Kamehameha Schools because they are not of Hawaiian ancestry. They noted that only one student who was not of Hawaiian ancestry has ever been admitted to the Schools (that one admission was in 2002), with all other such applicants turned away because of their race. They also noted that the Ninth Circuit, while upholding the policy in an 8-to-7 en banc ruling in 2006, had said that the Schools’ admission policy “operates to admit students without any Hawaiian ancestry only after all qualified qpplicants with such ancestry have been admitted.”
The lawsuit seeks money damages, as well as a court order striking down the ancestry preference and forbidding its continuation.
