Kamehameha
gains allies

Isle congressmen and civil rights
groups file as friends of the court
in the school's appeal

Hawaii's congressional delegation and several civil rights groups filed friend-of-the-court briefs yesterday supporting Kamehameha Schools' request that a federal appeals court reconsider its ruling that struck down the school's "Hawaiians-only" admission policy.

Sens. Daniel Inouye and Daniel Akaka, along with Reps. Neil Abercrombie and Ed Case, filed a brief yesterday requesting that the 9th U.S. Circuit Court of Appeals in San Francisco grant an "en banc" review of the case, in which a non-Hawaiian student sued to be admitted to the school.

In a statement, the delegation defended the school's admission policy as a form of remedial civil rights aimed at righting the wrongs of the past through a policy giving native Hawaiians access to better education. "Congress has systematically expressed its intent and recognition that private organizations, such as Kamehameha Schools, fulfill an important role in remedying the continuing imbalances faced by native Hawaiian children, and that such actions do not violate any congressional enactments ... which prohibit discrimination based on race," the statement said.

Also yesterday, several civil rights groups in San Francisco filed a friend-of-the-court brief to "inform the court that civil rights groups with roots in communities of color see Kamehameha Schools admission policy as restorative of justice for an indigenous people whose culture, property and self-governance were nearly destroyed by 19th and 20th century colonialism."

On Aug. 2, the 9th Circuit overturned the admissions policy in a 2-to-1 decision, saying that it creates an "absolute bar to the admission for non-Hawaiians" and "unnecessarily trammels" their rights. The majority argued it was not a legitimate affirmative action plan and therefore violates anti-discrimination laws.

Kamehameha is seeking a rehearing "en banc," hoping a larger panel of judges will overturn the previous decision. If a majority of 24 appeals court judges vote in favor of the request, then a panel of 11 judges would review the case and hold a hearing. En banc hearings are rarely granted.

Under judicial rules, 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."

In addition to the Hawaii congressional delegation and the State of Hawaii, Eric Yamamoto, a professor with the William S. Richardson School of Law at the University of Hawaii, and David Forman, a Hawaii civil rights lawyer, announced the filing of a brief from the Japanese American Citizens League-Hawaii Chapter and San Francisco-based groups Equal Justice Society and Centro Legal de la Raza.

"The Kamehameha Schools' admissions policy does not imperil the civil rights of racial minorities," said Yamamoto.

Their brief contends that the 9th Circuit was incorrect in comparing Kamehameha's admission policy "to an affirmative action diversity program in private businesses. Unlike programs by other ethnic groups, a private program for indigenous peoples that uses race as a determining factor is legitimate as long as it is crafted as a 'restorative response' to the devastation of colonialism."

In citing cases that support that argument, the brief quotes a 1974 U.S. Supreme Court decision that held favoring American Indians did not conflict with the U.S. Constitution. The court said: "The Indian preference does not constitute 'racial discrimination' or even 'racial preference.'"

Last week when Kamehameha filed its petition, state Attorney General Mark Bennett filed a friend-of-the-court brief calling the 9th Circuit's earlier ruling "fundamentally flawed."