The Kamehameha Schools of Hawaii, a multi-campus private school, have seemingly been under constant legal attack for their policy of admitting only native Hawaiian students. Native Hawaiians are defined as those having any ancestry that can be traced to the indigenous population before the first landfall of Westerners in 1778.
In 2006, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the Kamehameha Schools’ admission policy against a challenge under federal civil rights laws. But when the non-native student who had filed that suit appealed to the U.S. Supreme Court, the schools decided to settle the case, for a reported $7 million.
A suit challenging the admissions policy by other non-native students was filed in 2008, but this time, the schools objected to the plaintiffs’ attempt to remain anonymous. A federal district court ruled that prejudice to the defendants and the public’s interest in open courts outweighed any fear of potential harm to the plaintiff. The suit was dismissed, but the anonymous plaintff was given permission to appeal.
In a Tuesday decision, a three-judge panel of the 9th Circuit court upheld that decision. The panel said the lower court did not abuse its discretion in rejecting the plaintiff’s request to remain anonymous, even though other applicants who have challenged the schools’ policy have been subject to threats. (There is considerable sentiment among many native Hawaiians that the Kamehameha Schools should not be open to non-natives, the court noted.)
“We are sympathetic to the concerns of the Doe children and their parents, but we recognize the paramount importance of open courts,” said the unanimous decision in Doe v. Kamehameha Schools.
The ruling is interesting because anonymous litigation is fairly common in education, especially in areas such as special education suits over such hot-button issues as religion in public education.
The appeals court in this case said that had the lower court “found that anonymity
was appropriate, we likely would have concluded that the district court did not abuse its discretion. Or, were we permitted to make findings and weigh the factors anew, we might
have held that anonymity here was appropriate.”
But after applying the appropriate 9th Circuit precedents, the appeals court panel felt obliged to uphold the district court.
As I have noted before, I would be perfectly happy to travel to Hawaii to get to the bottom of this never-ending story, if only my editors would send me there.
A version of this news article first appeared in The School Law Blog.