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Appeals court’s
queries leave
trustee hopeful
The panel of three judges
delves into the school's history
and its source of funds
A Kamehameha Schools trustee said he has a "gut feeling" that a federal appeals court is looking for ways to uphold the school's century-old Hawaiian-preference admissions policy.
Kamehameha Schools trustee Douglas Ing said questions by the three-judge 9th U.S. Circuit Court of Appeals panel yesterday were being asked in a way to "help them reach a decision that can support us."
"They were looking for ways within that body of civil rights and constitutional law to support us, and they asked questions along those lines. ... It's just my gut feeling about the way the questions went," said Ing, an attorney.
"What you could sense very clearly from the judges was that emotionally they really liked Kamehameha Schools."
Yesterday, the panel -- judges Robert Beezer, Jay Bybee and Susan Graber -- heard arguments to an appeal filed by an unnamed, non-Hawaiian student who sued to overturn the school's admission policy.
That suit was dismissed last year by U.S. District Judge Alan Kay, who ruled that the policy served "a legitimate remedial purpose of improving native Hawaiians' socioeconomic and educational disadvantages."
The student's lawyer, Eric Grant of Sacramento, Calif., argued that the policy amounts to "racial exclusion," which is prohibited under federal civil-rights laws.
Attorneys for the school have argued that the Hawaiian-preference policy is permissible under federal laws because it involves a private institution that receives no federal funding whose admissions policy aims to fix social, economic and educational inequalities suffered by Hawaiians.
During yesterday's hour-long hearing, the panel asked myriad questions regarding civil-rights law, the political standing of native Hawaiians and the estate's status as a nonprofit trust founded by Hawaiian royalty.
Senior Judge Beezer questioned whether private organizations, such as the Kamehameha Schools, must follow the same strict civil-rights standards required of public entities.
Graber, the presiding judge, asked whether the Kamehameha Schools' admissions policy should be given "special attention" since the lands that were bequeathed to the school under the 1884 will of Bernice Pauahi Bishop originated from a sovereign entity.
Grant argued that the origins of the funds don't matter and cited a case involving a challenge to the admission policy of an all-white school in Pennsylvania.
Graber said she saw a difference between the two schools, saying, "There wasn't a king of Pennsylvania that I know of."
The estate's attorney, Stanford Law School Professor Kathleen Sullivan, said it's "odious" to compare Kamehameha Schools' Hawaiian-preference policy to a whites-only admission policy.
Sullivan said the school's admissions policy, which was recognized by Congress in legislation like the National Hawaiian Education Act of 2002, aims to address the "near-annihilation of the Hawaiian people."
Its remedies are for a people whose language was banned and whose culture was "nearly abolished," she said.
The 9th Circuit is not expected to rule on the appeal for several months, and the losing party can ask the full 9th Circuit to review the appeal. From there, the case could go to the U.S. Supreme Court.
Yesterday's hearing, which was held at the U.S. Bankruptcy Court downtown, was attended by the school's Chief Executive Officer Dee Jay Mailer, headmaster Michael Chun and all five members of its board of trustees.
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