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Judges cite 'Kill Haole Day'

After a court rejects anonymity for plaintiffs suing Kamehameha Schools, the dissents note racism

By Ken Kobayashi

LAST UPDATED: 1:43 p.m. HST, Nov 17, 2010


A federal appeals court ruling that rejected a challenge to the Kamehameha Schools admissions practice includes a heated debate over whether four non-Hawaiian students would be subject to racial attacks if their identities were revealed.

The 9th U.S. Circuit Court of Appeals issued a brief order last week denying a request by the four for a rehearing on the issue of whether they may anonymously pursue a lawsuit contesting the schools' preferential policy for students with Hawaiian blood.

But attached to the ruling were lengthy dissents and a defense of the decision that are rare for orders on rehearing requests.

Chief Appeals Judge Alex Kozinski and Appeals Judge Stephen Reinhardt wrote strongly worded dissents, referring to "Kill Haole Day" at Hawaii's schools and arguing the four would be endangered in a "racially charged environment."

Three other judges defended the order, pointing out that, historically, the names of juveniles in significant civil rights cases have been disclosed. The cases, they wrote, include Brayden Mohica-Cummings' 2003 lawsuit challenging the Kamehameha policy and the U.S. Supreme Court's landmark 1954 Brown v. Board of Education decision outlawing segregation.

U.S. District Judge Michael Seabright was correct when he denied the students' request to proceed anonymously, the three wrote.

Paul Alston, Kamehameha Schools' attorney, who said he was pleased but not surprised by the order, called the dissents "factually wrong and just off-based."

David Rosen, lawyer for the four, said he found it interesting that the two dissenting judges felt so strongly.

"Obviously, we agree with them," he said.

Rosen said it is likely they will appeal.

If the Supreme Court declines to review the decision, last week's order signals the end of the only pending court challenge to the admissions policy.

The four filed their lawsuit after a similar suit by an unidentified, non-Hawaiian student and his mother settled with Kamehameha Schools for $7 million in 2007 just before the high court was to decide whether to hear the case.

In that case the 9th Circuit had ruled 8-7 that the schools' policy did not violate the Civil Rights Act.

Kamehameha Schools did not oppose the student's remaining anonymous, but objected when the four also sought anonymity. U.S. Magistrate Barry Kurren and later, Seabright, ruled that the four did not establish that they would be imperiled.

Earlier this year, a three-judge panel of the 9th Circuit upheld the rulings, expressing sympathy with the students and parents but asserting that the Hawaii judges were within their discretion in finding the students' fears "unreasonable."

Lawyers for the four asked for a larger "en banc" panel of 11 appeals judges to rehear the case. The order last week denied that request.

In dissent, Kozinski quoted anonymous online remarks saying the students "would have to watch their backs for the rest of their lives." If similar threats were made against him or his family, he would call U.S. marshals, he wrote.

"No litigant should fear for his safety, or that of his family, as a condition of seeking justice," he wrote.

Kozinski agreed with Reinhardt, who wrote a separate dissent that described Hawaii has a "racially charged environment."

"In recent years, Hawaii has endured a spate of anti-Caucasian violence," he wrote. "The last day in Hawaiian schools, for example, has long been known as 'Kill Haole Day,' with white students - 'haoles' - targeted for harassment and physical abuse."

Alston said Kurren and Seabright found that the angry remarks did not have credibility or substance.

The dissenters, Alston said, "should have given credence to the assessments made by judges in the community instead of blowing up the snippets that were taken out of context."

Appeals Judges Robert Beezer, Susan Graber and Raymond Fisher, who wrote the earlier decision denying the four from proceeding anonymously, defended last week's order.

"Consider, for instance, that in the past students have used their real names when challenging Kamehameha's admissions processes," their opinion said. "Not only that, those students have since prevailed and enrolled in the school, with no incidents whatsoever, either in class or in public."

They also cited the four's own statements that they did not fear "possible retaliation and ostracism" at the schools if they were admitted.

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