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.”

…

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

I want to remind all of us that this revelation by attorney John Goemans is not necessarily true. And even if it is true, remember that this case was poised to be heard by an extremely conservative U.S. Supreme Court. So the trustees, in settling the case for whatever amount, were wise in delaying the consideration of this type of lawsuit by the high court.

Read the rest of the post. My personal thoughts here.

It has been an eventful week for all of us connected to Pauahi’s Legacy, with much to rejoice in, but also something that many deplore.

This time of year always reminds us of how blessed we are to have Pauahi’s legacy. It is when several hundred students on our campuses and in the Hawaiian-focused charters schools we support receive their diplomas, passionate about their heritage, well-prepared for their future and fully committed to carrying forward Pauahi’s legacy. The pride in our young graduates’ faces makes us feel proud as well. So does the easy blend of Hawaiian language and culture in our commencement ceremonies, and the knowledge that thousands of pre-school aged Hawaiians are better prepared for Kindergarten and that hundreds of college-aged Hawaiian students have the financial support they need to continue their education.

This time of year also reinforces that we have many thousands more to serve, a resolve that was only strengthened by another assault on our private legacy last week.

As you know, a private attorney cast a hook for plaintiffs in a class-action suit, and the media eagerly swallowed the bait, offering this attorney a generous amount of free publicity. We know their hope is that we will respond in kind. We will not. We have, by resolving the Doe lawsuit, solidified our protection at the Appeals Court level. Negotiation over terms of a theoretical lawsuit is unnecessary.

So our response will take place not in the form of a published Op-Ed, but in the form of this communication to Pauahi’s intended beneficiaries and those who have stood strong as supporters of our policy and our mission. We know the rightness of our cause. We know that we are not a publicly-funded “social service,” but a privately funded trust set up to provide an educational remedy for the Indigenous people of these islands. We know that by directing our resources to those Pauahi intended us to serve does not make others “second-class citizens.” On the contrary, it was the Native Hawaiians who were marginalized in their own homeland and whose resurgence into vitality and health Pauahi envisioned.

We wish we could offer this attorney – and any who share his view — a chance to visit the homeless encampments where so many of our people reside. We’d offer him a visit to the state’s prisons and crowded homesteads and to spend a day in the public schools that are failing the standards set by No Child Left Behind. Where is the equality in these places, which are so over-represented by our people?

We wish we could offer him a visit to the charter schools we support and the programs run by our private collaborators and partners. We wish he could see for himself the great strides that are being made in Hawaiian-focused charter schools – even as many of these schools operate in difficult conditions on makeshift campuses. We wish he could witness the interaction between our parents and caregivers and their kamali’i, and see for himself how these bonds will become the foundation of confidence that leads to success in school and in life. We feel certain that he will understand that by following Pauahi’s vision, her legacy is truly shared by all.

We wish we could help him see the narrowness of his vision. This is not about race. It is about restoration.

That’s our wish. Our reality is that we will not let this skirmish distract us from our mission and purpose. Let us all take every chance to educate others about our history and our mission. And when there is no chance for understanding, let us simply move forward to put what we know to be right into practice.

Me ka ha`aha`a,

J. Douglas Ing, Chair, Board of Trustees
Nainoa Thompson, Vice Chair
Diane J. Plotts, Secretary/Treasurer
Robert K.U. Kihune
Corbett A.K. Kalama
Dee Jay A. Mailer, Chief Executive Officer

If you received his e-mail (even if through a long chain of “forwards”), please send copies of each e-mail you have received containing Mr. Rosen’s e-mail to their office immediately.  They are trying to piece together a picture of exactly how far and wide his e-mail was circulated, if that is indeed true.

You do not need to file a formal complaint, and you can remain anonymous. Or you can file a formal complaint, which would involve having an investigator from their office call you to interview you over the phone regarding how many times you received his forwarded e-mail yourself.

If you decide to file a formal complaint, please provide your contact phone number when you send them the print-outs of the e-mails you received.  If you decide to remain anonymous, just send the print-outs and don’t worry if your name is on the e-mails - they will keep your information confidential.

The address you should send all print-outs of these e-mails to is as follows:

Office of Disciplinary Counsel
Attn:  Charles Hite
1132 Bishop St., Suite 300
Honolulu, HI  96813
Phone (808) 521-4591

“Personally, I’m extremely outraged,” says alumnae Wendie Burbridge, who attended Kamehameha School from kindergarten through 12th grade. She is one of many alumni who are upset about this news. “Kamehameha Schools is only supposed to serve Hawaiian and part Hawaiian children. It doesn’t say ‘all!’”

Burbridge is trying to rally support. “Please go to the Hawaii Judiciary website and there is a way to voice your concerns about the attorneys,” she is telling fellow school mates. (See below.) “If you want to protect (founder Bernice) Pauahi’s will and the future of Kamehameha Schools for our children and grandchildren, please consider voicing your opinion to the Office of Disciplinary Counsel. Take the time to email them or send them a letter. Every action we take will only help our cause in the end. If we all start to speak out about the injustices that face Kamehameha and the Hawaiian community at large, perhaps we can make others rethink suing or becoming part of this lawsuit. Perhaps it will educate others who see Kamehameha only as a cash cow that they do not have rights in which to partake. If nothing else, do not be silent about this matter. We need to fight this like we have always done, with dignity and intelligence. Let’s beat these people at their own game. Let’s not allow them to take from us or our children.”

“It’s sad and it’s outrageous that people continue to try and attack a private trust that was established for the benefit of the Hawaiian people,” the article quoted Kamehameha Schools spokeswoman Ann Botticelli as saying.

Rosen says in his email that there will “absolutely no cost to the Plaintiffs,” which makes one wonder who is paying for the enormous legal bills that such a lawsuit would entail? And what are the interests of the bill-payers in this matter?

UPDATE: The Advertiser article says that Rosen said “he hasn’t received any outside funding but said he’s willing to accept future financial support to cover costs.”

The same article also paraphrases Office of Hawaiian Affairs Trustee Walter Heen who “said he believes that last week’s John Doe settlement is promoting the belief among lawyers such as Rosen that Kamehameha Schools is a ‘big cash cow’ that can be milked for legal fees and big out-of-court settlements.”

May 18, 2007

Dear [name redacted],

David Rosen has asked our help with finding plaintiffs for his lawsuit. His request below explains it fully. If you are interested, call him.

If you know anyone else who might be interested, please forward this to them.

Warm regards,

Richard O. Rowland, President
Grassroot Institute of Hawaii

—–Original Message—–
From: RosenLaw
Sent: Tuesday, May 15, 2007 9:59 AM
To: H.W. Burgess; Richard Rowland
Subject: Request for Plaintiffs

Bill and Dick:

As we discussed, I am attempting to put together a group of plaintiffs to bring an action challenging Kamehameha Schools’ race-based admissions policy. The lawsuit will be identical to the John Doe lawsuit that was recently settled. I hope to have a group of at least 10-20 plaintiffs prior to filing the lawsuit.

The new lawsuit will be brought as a John and Jane Doe action and the identity of all of the plaintiffs will be kept extremely confidential; identities will be disclosed only to the presiding judge and possibly opposing counsel subject to a protective order. Interested plaintiffs and/or their parents may contact me directly. I will not disclose their identity to anyone without their prior consent. There will be absolutely no cost to the Plaintiffs.

To be a plaintiff, a party must either be or have a school aged child (i.e., 4-16 years old), must live in Hawaii, and must have the intent to attend the Kamehameha Schools if accepted. It may also be necessary to apply for admission to Kamehameha Schools, although this need not have been already done.

Thank you for your assistance.

David B. Rosen, Esq.
Law Office of David B. Rosen, a law corporation

UPDATE: HawaiiChannel.com, KITV4’s website, followed up their previous story with a report that the state bar received complaints about the Rosen email. “Professional ethics codes prohibit attorneys from soliciting clients through e-mail,” mentions the article. Also see the Honolulu Star-Bulletin and The Honolulu Advertiser articles.

… to suggest that the case is Runyon Redux, or that Cooper v. Aaron is an apt analogy, is simply disingenuous, in that it quite deliberately elides substantial differences in the facts and contexts of the cases, and it ignores the dramatically different rationale for the race-conscious practice in the current Kamahemeha case.

Those infamous earlier cases such as Cooper and Runyon dealt with schools that viewed and treated African Americans as racially inferior, and that discriminated against African-American students as a means of effecting racial segregation throughout the public life of the American South.

Whatever one thinks of the particular legal issue in Kamehameha, the facts in that case are a far cry from Jim Crow or from the private race-segregation that followed in its wake in cases such as Runyon.

“This settlement protects our right to offer admissions preference to Native Hawaiians,” declared J. Douglas Ing, chairman of the Board of Trustees. “The Circuit Court ruling stands – our legal right to offer preference to Hawaiian applicants is preserved. Our work to fulfill our mission and Pauahi’s vision, on our campuses and in our communities, can proceed without distraction.”

“The settlement also preserves Judge William Fletcher’s concurring opinion that Native Hawaiians have political status as an Indigenous people,” continued Ing. “Preserving this opinion is important, because it recognizes the Federal Government’s obligation to the Native people of Hawaii and provides judicial support for programs that serve to promote and improve the well-being of the Hawaiian people.”

The unidentified plaintiff, known as “John Doe,” sued Kamehameha Schools in June 2003. He has since graduated from high school and is currently attending college, according to his attorney, Eric Grant.

A 15-judge appeals court panel upheld Kamehameha’s admissions policy on December 5, 2006, affirming a 2003 decision by Federal District Court Judge Alan Kay. The appeals panel ruled 8-7 that Kamehameha has a legal right to offer admissions preference to Native Hawaiian applicants as a way to remedy past harms and current imbalances suffered by the Indigenous people of Hawaii as a result of Western contact. The panel majority also found that Congress has recognized it has a special trust relationship with Native Hawaiians by enacting more than 85 statutes to fund programs designed to improve Hawaiian well being.

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

Kamehameha Schools is a private, educational, charitable trust founded and endowed by the legacy of Bernice Pauahi Bishop. Kamehameha Schools operates a statewide educational system enrolling more than 6,700 students of Hawaiian ancestry at K-12 campuses on O‘ahu, Maui and Hawai‘i and 30 preschool sites statewide. Thousands of additional Hawaiian learners are served each year through a range of other Kamehameha Schools’ outreach programs, community collaborations and financial aid opportunities in Hawai‘i and across the continental United States. Through such community collaborations, whole communities are served by this legacy, Hawaiians and others alike, so that the entire State of Hawai‘i benefits.

“If the case is accepted, it would be the first time the justices would have the matter on their docket. If they decide against taking the case, it would mean that a ruling by the 9th Circuit Court of Appeals in favor of the admissions policy would stand. If the high court takes up the case, it could set the stage for one of the most significant court actions in years involving native Hawaiians.”