Kamehameha
admission suit will not
return to lower court

The non-Hawaiian boy who has challenged Kamehameha Schools' "Hawaiians-only" admission policy has lost another legal shot at attending the private school for his senior year.

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

Late yesterday, the 9th Circuit Court of Appeals denied a motion made this week by attorneys for the unidentified student, referred to as "John Doe," asking that the case be transferred back down to the U.S. District Court in Hawaii on an emergency basis so that the boy can ask the court to force Kamehameha to admit him pending the outcome of an expected lengthy appeals process.

Last week, a 9th Circuit panel ruled 2-1 that Kamehameha's admission policy "constitutes unlawful race discrimination" under civil rights laws dating back to 1866 because it creates an "absolute bar" to admission for non-Hawaiians and "trammels" their rights.

Kamehameha is expected to file a petition Aug. 23 asking a new panel of 11 judges with the 9th Circuit to reconsider the case, known as an "en banc" hearing.

Pending the appeal, a process expected to take at least a year, the boy's attorneys have sought several ways to get him admitted immediately for his senior year. So far, they have failed.

Eric Grant, a Sacramento, Calif., attorney representing the boy, confirmed yesterday afternoon that he had a verbal acknowledgment that the court had shot down his request. However, Grant was unable to obtain a copy of the order by the court's close of business.

"We're obviously disappointed," Grant said of the denial. "We wanted John Doe to be able to start the school year with everyone else, but that's not gonna happen."

However, Grant was optimistic that Doe will attend the private school this year, possibly as early as September, because he believes Kamehameha's request for an en banc rehearing will be denied.

"The next step is the court will get Kamehameha's rehearing petition and take two to four weeks to consider it, and we expect it will be denied, at which time the case will become final and go back to the District Court in Hawaii," Grant said.

Kamehameha Schools has repeatedly said it would not admit the boy until all appeals are exhausted and a final court decision is rendered. Kamehameha could appeal the case to the U.S. Supreme Court.

Also yesterday, Kamehameha's attorneys filed a motion opposing Grant's request that the 9th Circuit hand the matter back to U.S. District Court Judge Alan Kay, who originally heard the case and found the admission policy was not a violation of anti-discrimination laws.

Soon after Kamehameha filed its opposition, its motion was made moot by the 9th Circuit decision not to send the case back to the Hawaii court. However, the school's filing does provide insight into their thinking.

Kamehameha argued that the boy's attendance at the school for his senior year is not "an emergency situation" that justifies altering the judicial process.

Kamehameha's attorneys argued that the boy is not experiencing "irreparable harm" and that the school should not be forced to accept him before a final decision because his admission would bring "prejudice, disruption and chaos" to Kamehameha Schools, "its students and its admission process."

The motion said the student "is not being denied an education; he simply has not been admitted to his school of choice." The filing said the "inability to attend a school of one's choosing does not by itself constitute irreparable harm."

In its filing, Kamehameha's lawyers were optimistic the school would be granted a rehearing with the 9th Circuit, a rare event. The filing said its petition "will not be legally frivolous," a legal reason the court can use to strike it down.

Kamehameha noted that the 9th Circuit's own decision said the case is precedent-setting and that the issue "is a significant one in our statutory civil rights law."

The filing noted it is "the first decision nationwide to invalidate a remedial race-conscious admissions policy program of a purely private educational institution" under civil rights laws dating back to the post-Civil War South.

Under such federal laws, a "remedial race-conscious program" is a kind of affirmative action aimed at righting past discriminatory wrongs against a group. Kamehameha has argued that to right wrongs against native Hawaiians, it needs an admission policy based on racial preference.