Thursday, August 4, 2005


Next case could
force student’s

School officials have said
they will not admit "John Doe"

The 9th U.S. Circuit Court of Appeals, which overturned Kamehameha Schools' Hawaiians-only admission policy Tuesday, could decide as early as next week whether the student at the center of the discrimination case will be admitted for his senior year.

Lawyers for "John Doe" are urging the school to voluntarily admit him, but also filed a motion yesterday asking the 9th Circuit to make a separate decision compelling the school to admit the boy for the 2005-06 school year, which starts Aug. 18.

Kamehameha officials have said, meanwhile, that they would not willingly admit the student. They have vowed to fight any court order forcing them to admit him, and they plan to appeal Tuesday's ruling on the schools' century-old policy.

News of the upcoming decision comes as Kamehameha Schools board members, students and supporters are still reeling from Tuesday's ruling -- and vowing to unite against it.

Gov. Linda Lingle offered the state's assistance in the schools' appeal, possibly to the U.S. Supreme Court, and gave her full support of Kamehameha's admission policy. She also said the ruling stresses the importance of winning passage of the so-called Akaka Bill in Congress, which would recognize a legal and political relationship between native Hawaiians and the federal government.

"We certainly support them (Kamehameha Schools) in their effort to maintain their admissions policy," Lingle told reporters yesterday. "We would join in and say that this is such an important key issue to our state, we'd like it to be heard in a broader way. Whether we would participate in the next phase or not, really, it's up to Kamehameha Schools, but we want to offer all the help and support that we can."

In Tuesday's decision a three-judge 9th Circuit panel ruled 2-1 that Kamehameha's admission policy amounted to "unlawful race discrimination." The ruling, which said the private school's policy violates federal civil-rights law, reverses a Nov. 17 decision by U.S. District Judge Alan Kay that tossed out a challenge to the school's Hawaiian-preference policy.

The next step in the appeals process is for Kamehameha Schools to request a hearing by the full membership of the 9th Circuit.

The John Doe v. Kamehameha Schools lawsuit arose when an anonymous non-Hawaiian student applied to the school twice and was denied after he told the school that none of his grandparents had Hawaiian blood.

California constitutional law expert Eric Grant, one of the attorneys for John Doe, said yesterday that the 9th Circuit is poised to make a decision on the student's admission, possibly by next week, before Kamehameha returns from summer vacation.

He also said he will likely seek damages if the student is not admitted and Kamehameha fails in its appeal of the admissions ruling.

"I think the school would be better advised to voluntarily permit John Doe to enter the 12th year, just on the basis of a balancing of the hardship," added John Goemans, a Honolulu attorney for the student who successfully challenged the Hawaiians-only voting for the Office of Hawaiian Affairs in the landmark Rice v. Cayetano case in 2000. "It's extremely important to that individual that he be able to matriculate at Kamehameha Schools."

Kamehameha Chief Executive Officer Dee Jay Mailer has said that the institution has no order from the courts to admit the unnamed student and so will not.

She could not be reached for comment last night, but told reporters earlier this week that if Kamehameha Schools does lose its fight against the boy, "we will treat John Doe as we treat all our students."

Grant, meanwhile, said there are no immediate plans to reveal the identity of John Doe, especially given "some of the vehemence of the reaction" to the decision. "I can't say if and when it will happen," he said.

There are 5,000 students enrolled on three Kamehameha campuses, including Keaau on the Big Island, Maui and its flagship campus in Kapalama Heights. Mailer said Tuesday's ruling does not affect students already enrolled at the schools.

But it could affect efforts to get Congress to approve the Akaka Bill.

Lingle said she will "use this ruling to point out to our supporters in the Senate why the Akaka Bill is so important." She also said she is making preliminary plans to head back to Washington, D.C., next month to lobby again for the bill.

Lingle spent three days in Washington last month trying to win support for the Akaka Bill when it appeared that the Senate would debate and vote on the bill, which is formally called the Native Hawaiian Government Reorganization Act of 2005.

The bill stalled after majority Republicans raised concerns and prevented it from coming to the Senate floor. Its next hurdle comes Sept. 6, when the Senate is scheduled to vote on a move to force debate, followed by a vote by the full Senate.

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