Thursday, August 11, 2005

School requests
petition extension

Kamehameha seeks more time
to file for a rehearing on
its admission policy

Kamehameha Schools has asked the 9th U.S. Circuit Court of Appeals for an extra week to file its petition for a rehearing as the school seeks to overturn last week's ruling that its "Hawaiians-only" admission policy is illegal.

John Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate
(PDF, 208K)
Kamehameha is preparing a petition for a rehearing "en banc," which means that if a majority of the federal court's 28 judges agree, then a panel of 11 judges will rehear the matter in a process likely to take about a year.

In a request filed yesterday, Kamehameha asked for an extension to Aug. 23 from this Tuesday to file the petition.

Last week, in a 2-1 decision, a panel of 9th Circuit judges ruled that Kamehameha's policy giving preference to applicants with Hawaiian blood violates federal anti-discrimination laws because it is "an absolute bar" to non-Hawaiians.

Kamehameha said it needed more time to write the petition because the court's 45-page decision "raises novel questions of great importance. It is the first nationwide decision to invalidate a remedial race-conscious program of a private institution" under civil rights laws dating back to 1866.

Kamehameha's lawyers argued that its admission policy is a "remedial race-conscious program" that is a kind of affirmative action aimed at righting past discriminatory wrongs against native Hawaiians. Kamehameha argued that to right those wrongs, it needs an admission policy based on racial preference.

Legal experts say that federal civil rights laws have distinguished for decades between programs designed to perpetuate racial discrimination and those aimed at alleviating the effects of past discrimination.

In the 1970s, when much of the legislation was enacted, it was addressing school desegregation and focused on African Americans. The laws found "whites-only" private academies that cropped up, particularly in the South, were racially discriminatory because they perpetuated a history of discrimination against African Americans.

On the other hand, federal laws allowed scholarship funds for African Americans. The reasoning was that the funds eliminated the financial bar to enrollment in private schools and helped alleviate the effects of discriminatory practices.

In its filing yesterday, Kamehameha told the court that the issue is "extraordinarily important to the native Hawaiian community and to the state of Hawaii because it invalidates a remedial program for native Hawaiian children that has been in place for almost 120 years."

"I don't know why Kamehameha needs more time," said Eric Grant, one of the attorneys representing "John Doe," the unidentified, non-Hawaiian 12th-grader who brought the race discrimination case against Kamehameha in 2003.

"In a normal case, I would be happy to give seven or 14 days, but in this case delay works to the irreparable harm" of the boy, said Grant, who hastily filed an objection to the motion yesterday afternoon.

Kamehameha's pending appeal puts last week's ruling overturning the admission policy on hold. Since the ruling, Grant has tried several legal maneuvers to get the boy admitted immediately to Kamehameha for his senior year before school begins next week.

Last week, he appealed directly to the Kamehameha trustees, who turned him down.

He also asked the 9th Circuit to compel the boy's enrollment, but the court refused.

Grant now has a pending motion asking the 9th Circuit to hand the matter back to the U.S. District Court in Honolulu, where the case began, so that Judge Alan Kay can consider his request to force Kamehameha to admit the boy.

"This is another roadblock," Grant said of Kamehameha's request for more time. "It's a tactic that prevents my client from attending school or even going before a judge to request admission.

"I'm tired of being in this legal no-man's land of not being able to present our request to the appropriate judge."

Kamehameha Schools

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