Court will rehear school case

The challenge to Kamehameha Schools' policy will go before 15 judges of the 9th Circuit Court

A federal court that struck down Kamehameha School's "Hawaiians-only" admission policy in August issued a rare order yesterday granting the school's request to rehear the case.

The 9th Circuit Court of Appeals reviewed the August decision by a three-judge panel and said a majority of the court's judges had agreed to rehear the John Doe v. Kamehameha Schools case "en banc," which means by a larger panel of judges.

JUST THE FACTS The order: The 9th Circuit Court of Appeals agreed to rehear the John Doe v. Kamehameha Schools case by a larger panel of judges. At stake: Kamehameha Schools' 118-year-old "Hawaiians-only" admission policy. What's next: The case has yet to be scheduled. Web: www.ksbe.edu

"We are totally ecstatic," said retired Adm. Robert Kihune, chairman of the schools' board of trustees.

Kamehameha's Chief Executive officer Dee Jay Mailer said, "The preference policy is critical to our ability to fulfill our educational mission, and we are fully committed to the legal fight ahead."

The 15 judges who will hear the case have not been chosen, and the case has not been scheduled. Although the vote was not made public, the decision required that at least 12 of 23 judges who voted want the case reheard.

Kihune stressed that, pending the new hearing, the schools' 118-year-old admission policy stands.

"Basically, it means that our preference policy is intact, and that's key," he said.

John Doe, the unidentified student who brought the case in June 2003, is in his senior year attending a different school and will likely graduate before the case is reheard. His graduation, however, would not render the case moot, according to his attorneys.

In court documents, Doe said he applied twice to Kamehameha and was found academically qualified. Doe argued that he was barred from admission when he acknowledged on the required Ethnic Ancestry Survey that he was non-Hawaiian. Doe said the denial violates his rights under civil rights laws.

Kamehameha was established under the 1884 will of Princess Bernice Pauahi Bishop, who left her wealth of royal Hawaiian lands to support the building and operation of a school. The first board of trustees, exercising authority assumed from her will, determined that the school should admit only students of native Hawaiian descent.

Eric Grant, an attorney representing Doe, said, "Obviously, we would have preferred that the rehearing be denied, but we're happy to make our arguments to the en banc court and expect to prevail there as we did before the three-judge panel."

He added, "I think Kamehameha's lawyers argued well, but they lost because the law is just not on their side here."

Gov. Linda Lingle was among the schools' supporters who applauded yesterday's decision.

"The courts ought to be instruments of justice, not of injustice. I remain hopeful that Kamehameha Schools will ultimately win this case, which is of such great importance to Hawaii and our citizens, Hawaiian and non-Hawaiian alike," Lingle said in a statement.

On Aug. 2 a panel of the 9th Circuit overturned the admission policy in a 2-1 decision, saying that it "operates in practice as an absolute bar to admission for those of the non-preferred race" and as such "constitutes unlawful race discrimination in violation of 1981 (a section of civil rights law)."

The majority found the policy "unnecessarily trammels" the rights of non-Hawaiians under laws that were written after the Civil War and the emancipation of the slaves and amended during the 1960s civil rights movement.

Since the rights of others were assessed as "trammeled," the majority found the admission policy was not a legitimate affirmative-action plan and violates anti-discrimination laws.

That panel's decision overturned the 2003 decision of U.S. District Judge Alan Kay, who upheld the admission policy, ruling that it did not violate civil rights laws because it serves a remedial function aimed at righting wrongs of the past.

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."

Soon after the panel's August ruling, Kamehameha sought a hearing en banc in the hope that the chances of winning might improve before 15 judges rather than three.

Kihune said, "With this 15-judge panel -- even if the three original judges are on it -- we still have 12 new judges looking at the case, so we are cautiously optimistic about the outcome."

En banc hearings are rarely granted. In 2005 the 9th Circuit received 853 requests for such hearings. The judges decided to vote on only 39 and, ultimately, granted 21 rehearings.

Kihune noted that in addition to 12 amicus, or friend of the court, briefs filed on behalf of 44 individuals and organizations, there were thousands of supporters in Hawaii and on the mainland who spoke out against the August ruling.

"We just want to thank the thousands of supporters who came out, because their voices were heard by the 9th Circuit and helped make this happen. Thank you for stepping up to the plate," Kihune said.

In the state's amicus brief supporting the school, Attorney General Mark Bennett called the three-judge panel's decision "fundamentally flawed."

Yesterday, Bennett interpreted the majority vote of 23 judges as evidence that the appeals court recognized that "there were serious questions about the correctness of the original decision, and our hope is that this is a sign that the en banc decision will be different."

"But, of course, you can't really predict," he said.

Bennett said he looked "forward to working with the Kamehameha Schools to prepare the best possible case to present to the en banc court."

Once the 15 judges are chosen, rules regarding the form the rehearing will take will be formed. It is unclear whether the schools can change legal tactics or use other legal arguments.

Bennett said the state will try to help Kamehameha using the same argument cited in its amicus brief, "which is that this is not a differentiation based on race and also that the civil rights laws enacted well more than 100 years ago were intended to be instruments of justice, not injustice."

He said it is inconsistent with the congressional intent behind civil rights laws "that these laws would be intended to bar the Kamehameha Schools from admitting only Hawaiian students."

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