Ruling gives
Kamehameha time

The 9th U.S. Circuit refuses
to force the school to admit a
non-Hawaiian student right away

A federal appeals court denied a request yesterday to compel Kamehameha Schools to admit a non-Hawaiian 12th-grader this year, pending his challenge to the school's Hawaiians-only admissions policy.

- APPEALS COURT RULING - John Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate (PDF, 208K)

Eric Grant, a Sacramento, Calif., attorney representing the unidentified student known as "John Doe" in the case Doe v. Kamehameha, filed a motion last week asking the 9th U.S. Circuit Court of Appeals to admit John Doe to the school while the case is being appealed.

"We sincerely hoped the court would voluntarily agree to let him in while this is being appealed, which is a lengthy process. It's no skin off their teeth, but it's a very serious matter for him," said John Goemans, a Big Island attorney who is working with Grant.

While yesterday's decision has direct consequences for the education of John Doe, who would also like to be eligible for Kamehameha's scholarships for college and graduate school that cap at $10,000 a year, the decision could also affect the far larger issues of constitutionality of the admission policy.

In a one-sentence ruling, the 9th Circuit said, "The motion for injunction pending appeal is denied without prejudice to renewal following any proceeding that may be conducted by the district court subsequent to the issuance of the mandate."

Kamehameha spokesman Kekoa Paulsen said: "It's gratifying that the court recognizes that this question or case has not been resolved and that the court is not jumping to any conclusions. This case has never been about a single child, but has been about protecting a policy that has been in place for 117 years. And it's about protecting the rights of thousands of Hawaiian children to come."

Last Tuesday, the 9th Circuit, in a 2-1 vote, overturned the Hawaiians-only admission policy that had been upheld in a lower federal court in Hawaii, saying that it violated federal anti-discrimination laws. The school presented, on narrow affirmative action grounds, an argument that many legal scholars say does not apply to the bigger issues that could dismantle other programs specifically benefiting native Hawaiians.

Meanwhile, the school has vowed to appeal the ruling, either through a rehearing process at the 9th Circuit level called an "en banc" hearing or by going directly to the U.S. Supreme Court.

Since the appeal put the court's ruling on hold, John Doe's attorney, Grant, requested the injunction, asking the court to compel the school to admit Doe for his senior year.

Last week, Grant also asked the trustees to accept a voluntary agreement to take the student. On Wednesday the trustees voted unanimously to deny Doe's admittance. And yesterday, the appeals court did the same.

"We would have preferred for the 9th to outright order he be admitted, but we understand that it is normal practice for these motions to be heard in district court (the lower federal court in Hawaii in this case presided over by Judge Alan Kay)."

Hawaii Attorney General Mark Bennett, who along with the Lingle administration has supported many Hawaiian programs, said he was not surprised by the decision.

"It was expected procedurally," said Bennett, explaining that the appeals court is looking forward to the rulings of the en banc hearing and considers such motions made on the specific behalf of John Doe as the jurisdiction of Kay and the federal district court in Hawaii.

Kamehameha is expected to file a request, perhaps as early as this week, for an en banc hearing with the 9th Circuit. If a majority of the 28 judges sitting on that court votes in favor of Kamehameha's request, then a panel of 11 judges rather than the original three will review the case and hold hearings.

Such en banc hearings are rarely granted, say legal experts. The school could also appeal to the U.S. Supreme Court.

Bennett said yesterday that the Lingle administration, on behalf of the state, plans to swiftly file a "friend of the court" brief urging the court to hold an en banc hearing.

Roy Benham, an active Kamehameha alumnus who graduated in 1941, said, "The ruling is good for the child and good for the school. The child shouldn't change schools at senior year."

Several other native Hawaiians agreed with Benham that granting Doe entrance at senior year was a disservice to him.

Lilikala Kame'eleihiwa, a professor at the Center for Hawaiian Studies at the University of Hawaii-Manoa, said: "It's a wonderful decision. If Grant had prevailed and for John Doe to come in as a senior would have been unfair to him. What about prerequisites like two years of Hawaiian language? He would have to stay another year."

But apart from the decision's meaning for Doe, Kame'eleihiwa said "all Hawaiians will feel vindication with this decision. There are many schools for John Does to go to and so few that are welcoming to Hawaiians."

Kame'eleihiwa said: "There are DOE schools (state Department of Education public schools) where they can't pronounce our names and make fun of the names. That's not welcoming and it's institutionalized racism. Kamehameha and the Hawaiian charter schools are the only places many Hawaiian children feel they belong."

She added, "So many Hawaiians want that experience of Kamehameha and education that they feel outrage the court would force open the door for others when so many Hawaiians still need it."

"Give us 20 years of taking care of our children, then we will take care of everybody else," she said.