Panel’s past
cases make
school suit
a tossup

A student challenges Kamehameha
Schools on its admissions rules

One of the federal judges assigned to the Kamehameha Schools admissions lawsuit defended racial preferences in a mainland public school system. Another wrote that a California laboratory school's race-based admissions betrayed a "disquieting tolerance for the use of race in government decision making."

The third member of the federal appellate court panel made national headlines earlier this year when the Bush administration released -- and later disavowed -- a 2002 memo that argued that the president could use coercive methods to interrogate suspected terrorists.

On Thursday, the three 9th Circuit U.S. Court of Appeals judges -- Robert Beezer, Jay Bybee and Susan Graber -- will begin hearing oral arguments on a legal challenge by an unnamed, non-Hawaiian student who is seeking to overturn the Kamehameha Schools' century-old admissions policy that gives preference to children of native Hawaiian ancestry.

That hearing will come after a similar 9th Circuit panel -- Graber, Bybee and Melvin Brunetti -- will hear arguments in the Arakaki vs. Lingle case, which is seeking to abolish the state Department of Hawaiian Home Lands and the Office of Hawaiian Affairs.

How the judges rule on the cases could have long-lasting impact for thousands of native Hawaiians. Some say that an adverse ruling in the Kamehameha admissions challenge could jeopardize the mission of the $6 billion charitable trust, which was founded by the 1884 will of Princess Bernice Pauahi Bishop.

The Kamehameha Schools leadership said it is optimistic that the 9th Circuit would uphold U.S. District Judge Alan Kay's November 2003 ruling that the Hawaiian-preference admissions policy serves a "legitimate" purpose of remedying past and current socio-economic ills suffered by Hawaiians as a result of Western contact.

Attorneys for the school -- Stanford Law School professor Kathleen Sullivan and local attorney Crystal Rose -- have argued that its policy is permissible because Kamehameha Schools is privately operated, receives no federal funding, and aims to address those educational and economic imbalances faced by Hawaiians.

Eric Grant, a Sacramento, Calif.-based attorney for the unnamed student, said he's confident that the 9th Circuit will overturn Kay's decision and rule that the school's "racially exclusive" admissions policy violates federal anti-discrimination law.

Grant dismissed the "doomsday" scenario envisioned by the school should its policy be overturned.

For instance, traditionally black colleges such as Morehouse College, Spellman College and Tuskegee University do not have racially exclusive admission policies but are every bit as enthusiastic in supporting African-American culture and history, Grant said.

To be sure, the panel that's deciding the Kamehameha Schools lawsuit has heard similar arguments on admission programs for publicly run schools.

In July, Graber cast the dissenting vote when a three-member 9th Circuit panel rejected the Seattle School District's use of race to assign students to popular schools.

The panel -- the 9th Circuit's first since the U.S. Supreme Court's 2003 ruling narrowly upholding affirmative action programs at the University of Michigan -- said the Seattle's public school's use of so-called racial tiebreakers to give preference to minority students violated fellow students' constitutional protection against racial discrimination.

In her dissenting opinion, Graber, a Clinton nominee, argued that the Seattle plan is constitutional and that Seattle's public school system had a compelling interest to remedy racial isolation and "de facto segregation."

"I would hold that the District has a compelling interest in structuring its assignment policies to prevent a return to the era in which Seattle's undisputedly segregated housing pattern was the exclusive determinant of school assignments to neighborhood schools," Graber wrote.

Beezer, who was nominated by Ronald Reagan, had a different take on a 9th Circuit case involving racial preferences at an experimental school run by the University of California Los Angeles' Graduate School of Education and Information Studies.

In 1999, a 9th Circuit panel upheld by a 2-1 vote the Corinne A. Seeds University Elementary School's admission policy, which takes into account an applicant's race, ethnicity, sex, family income and other factors.

The panel said the laboratory school is a "valuable asset for California's public education system" and that the school's use of race and ethnicity for research was similar to a medical school's use of Jewish patients to study Tay-Sachs disease, or blacks to study sickle-cell anemia.

In his dissenting opinion, Beezer said the ruling betrayed a "disquieting tolerance for the use of race in government decision making."

"The court's opinion betrays a disturbing tolerance for racial classifications, and a historically unjustified confidence in the ability of government to employ them for 'benign' purposes," Beezer wrote.

The potential swing vote on the panel, Bybee, is a recent appointee to the 9th Circuit.

Nominated by President Bush last year, he is a constitutional law scholar who has taught at the University of Nevada's William S. Boyd School of Law and Louisiana State University's Paul M. Hebert Law Center.

Earlier this year, Bybee attracted much media attention for a 2002 legal memo that he signed when he headed the Office of Legal Counsel, which is a Department of Justice unit that advises the White House on legal issues.

According to the New York Times, the memo concluded that interrogators could use coercive methods on terror suspects without violating federal torture laws or international treaties.

The Times said that the memo -- which narrowly defined torture as pain accompanying "death, organ failure or permanent impairment of a significant body function" -- was used to justify harsh interrogation tactics used against high-profile detainees like Khalid Shaikh Mohammad.

The Bush administration later distanced itself from the memo, saying it gave the wrong impression, the Times said.

The judges 9th Circuit Court of Appeals panelists for the Kamehameha Schools lawsuit: Who: Robert R. Beezer Title: Senior Circuit Judge Age: 76 Nominated by: Ronald Reagan (1984) Career: Private practice (1956-1984); Judge Pro Tem, Seattle Municipal Court (1962-1976) Education: University of Virginia, B.A., 1951; University of Virginia School of Law, LL.B., 1956 Who: Susan Graber Title: Circuit Judge Age: 55 Nominated by: Bill Clinton (1997) Career: Assistant Attorney General, New Mexico Bureau of Revenue, Legal Division (1972-1974); Private practice (1974-1988); Presiding Judge, Oregon Court of Appeals (1988-1990); Associate Justice, Oregon Supreme Court (1990-1998) Education: Wellesley College, B.A., 1969; Yale Law School, J.D., 1972 Who: Jay S. Bybee Title: Circuit Judge Age: 51 Nominated by: George W. Bush (2003) Career: Private practice (1981-1984); Attorney, Office of Legal Policy, Department of Justice (1984-1986); Associate Counsel to the President, The White House (1989-1991); Professor, Paul M. Hebert Law Center, Louisiana State University (1991-1998); Professor, William S. Boyd School of Law, University of Nevada (1999-2000); Assistant Attorney General, Office of Legal Counsel, Department of Justice (2001-2002) Education: Brigham Young University, B.A., 1977; Brigham Young University, J. Reuben Clark Law School, J.D., 1980.