Kamehameha Schools
petitions appeals court

Attorney General Mark Bennett
also files a brief in support

Kamehameha Schools defended its "Hawaiians-only" admissions policy yesterday, saying it has "a legitimate remedial reason for a preference" under historic civil rights legislation.

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

In a petition asking the 9th Circuit of Appeals to reconsider its decision striking down the policy, Kamehameha attorneys argue that the ruling "is unprecedented: It is the first in our nation's history to invalidate a remedial education policy by a private school for the benefit of any minority group, much less an indigenous people."

"There is no dispute that the admissions policy remedies severe ongoing harms to native Hawaiians, and no dispute that Congress has itself enacted a host of explicit preferences for native Hawaiians to remedy those same harms," Kamehameha's petition states.

On Aug. 2, the 9th Circuit in San Francisco overturned the admissions policy in a 2-to-1 decision, saying that it creates an "absolute bar to the admission for non-Hawaiians" and therefore -- under the majority judges' interpretation of civil rights law from the Civil War and the emancipation of the slaves -- "unnecessarily trammels" their rights.

As such, the majority argued, it was not a legitimate affirmative action plan and violates anti-discrimination laws.

Kamehameha is seeking a rehearing "en banc" hoping a larger panel of judges will overturn the decision. If a majority of 24 appeals court judges (there are four vacancies on that court) approve the request, a panel of 11 judges would review the case and hold a hearing.

En banc hearings are rarely granted. In 2004, for example, the 9th Circuit received 842 requests for such hearings. The judges decided to vote on only 47 and, ultimately, granted 22 rehearings.

Kamehameha said yesterday that the court has until Sept. 13 "to call for a vote or to request an opinion from the original three-judge panel on whether to rehear the case."

Meanwhile, Kamehameha is enforcing its admissions 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.

Despite the legalistic odds, some local legal experts were optimistic yesterday.

"I think the chances of being reheard are good," said Jon Van Dyke, a constitutional law expert and Kamehameha supporter.

"It's a huge decision," he said. "And it's a decision the court should get right and it should be decided by the whole court."

Also yesterday, state Attorney General Mark Bennett filed a friend of the court brief calling the 9th Circuit's ruling, "fundamentally flawed."

Like Kamehameha, Bennett also urged the 9th Circuit to reconsider the case because it presents "a question of exceptional importance" that could be precedent-setting nationally.

"I continue to believe that the 9th Circuit decision was wrong and I hope that an en banc hearing (by the full court) will be granted," Bennett said yesterday.

According to the friend of the court brief, the state urges the rehearing "because the panel effects a radical disruption of the educational landscape of Hawaii that is fundamentally at odds with long-standing state policy, the public interest and the survival of Hawaii's native people."

"The panel decision strikes at the heart of Hawaii society and threatens an institution that has done more to remedy the wrongs committed against native Hawaiians than perhaps any other private entity," the brief continues.

Kamehameha was established under the 1884 will of Princess Bernice Pauahi Bishop, who left her wealth of royal Hawaiian lands to support the school because, according to historic documents, she believed that education was the only way for native Hawaiians to deal with the modern world.

The state's friend of the court brief sets out arguments supporting the legal concept that the "panel decision strikes at the heart of Hawaii society and threatens an institution that has done more to remedy the wrongs committed against native Hawaiians than perhaps any other private entity."

In line with that argument, Federal Court Judge Alan C. Kay upheld the school's admissions policy in 2003, ruling it did not violate civil rights law because of its remedial function.

Kay wrote that the policy "serves a legitimate remedial purpose by addressing the socioeconomic and educational disadvantages facing native Hawaiians, producing native Hawaiian leadership for community involvement and revitalizing native Hawaiian culture, thereby remedying current manifest imbalances resulting from the influx of Western civilization."

It was his decision that was overturned this month.

The state's brief further argues that the preference policy is not "racial" under the laws chosen to argue the case.

Arguing that the policy has a necessary remedial effect in line with what Congress intended when it allowed affirmative action policies, the state's brief said "Kamehameha's educational preference for native Hawaiians substantially rehabilitates and helps to ensure the survival of, the native people of these islands, a vital goal shared by many critical state programs" such as the Office of Hawaiian Affairs and the Department of Hawaiian Home Lands.

Under case law, the state's brief argues, the preference policy is "not racial" and that the panel "erred in concluding that Kamehameha's policy creates an absolute bar."

"It is a perversion of Civil Rights Acts to use them as an instrument of further injustice, which would be the clear result were the panel decision to stand," the state's brief states.