Court is urged
not to reconsider
Attorneys for a teenage boy challenging Kamehameha Schools' "Hawaiians-only" admission policy urged the 9th U.S. Circuit Court of Appeals yesterday to deny a rehearing of the case "en banc," or before a larger panel of judges.
"The distinctive facts are that KSBE (Kamehameha Schools/Bishop Estate) ... concedes that it discriminates in admissions on the basis of race -- categorically denying children who lack native Hawaiian ancestry -- and has done so for almost 120 years," wrote plaintiff attorneys Eric Grant, John W. Goemans and Michael Stokes Paulsen.
"It is perfectly plain that an absolute racial bar is sufficient to establish a violation under settle decisions of the U.S. Supreme Court and this Circuit."
On Aug. 2 the 9th Circuit in San Francisco overturned Kamehameha's admission policy in a 2-1 decision, saying it creates an "absolute bar to the admission for non-Hawaiians" and therefore "unnecessarily trammels" their rights.
But in a petition for an en banc rehearing filed Aug. 24, Kamehameha Schools argued its admission policy has "a legitimate remedial reason for a preference" under historic civil rights legislation. "There is no dispute that the admissions policy remedies severe ongoing harms to native Hawaiians," lawyers for the institution wrote, "and no dispute that Congress has itself enacted a host of explicit preferences for native Hawaiians."
In yesterday's response to the school's petition, lawyers for the plaintiff said the en banc hearing was unnecessary.
"KSBE asserts ... that this appeal involves a 'question of exceptional importance to this Circuit.' While the plaintiff agrees that the case is important, the legal principles involved are not exceptional. The panel simply applied established principles of law to a new and distinctive set of facts."
A majority of 24 appeals court judges must approve the request, and a panel of 11 judges would review the case and hold a hearing. In 2004 the 9th Circuit received 842 requests for such hearings but decided to vote on only 47, and ultimately granted 22 rehearings.
In the meantime, Kamehameha is enforcing its admission policy, which means that John Doe, the unidentified student who brought the case in June 2003 and is in his senior year, is attending school elsewhere.