Kamehameha rejoices over ruling

A 9th Circuit panel OKs the schools' Hawaiians-only admissions policy

CALLING IT a "joyous day" for Kamehameha Schools, trustees and the school's ohana lauded yesterday's decision by a federal appeals panel upholding its century-old admissions policy giving preference to native Hawaiian students.

A 15-judge panel of the 9th U.S. Circuit Court of Appeals voted 8-7 to affirm U.S. District Judge Alan Kay's November 2003 ruling that the preference policy does not violate federal civil rights laws and has the legitimate purpose of addressing economic and educational imbalances suffered by native Hawaiians.

THE RULING: WHERE THEY STAND 9th U.S. Circuit Court of Appeals: Kamehameha Schools does not violate federal civil rights laws with its Hawaiians-preferred admissions policy. "The Schools have shown that the admissions policy, favoring students of Native Hawaiian descent, is legitimate and valid," the majority noted in the 110-page ruling. Kamehameha Schools: The preference policy serves a legitimate remedial purpose that addresses educational imbalances suffered by native Hawaiians. "Let me make this clear, as long as our admissions policy is at risk, we will do whatever is necessary to protect our right to offer preference in admissions to our native Hawaiian people," said retired Vice Adm. Robert Kihune, chairman of the five-member Board of Trustees. John Doe: Kamehameha's "racially exclusionary policy" is illegal and violates federal civil rights laws. "The closeness of the decision bodes well for eventual resolution of the case by the U.S. Supreme Court," said attorney Eric Grant, who represented John Doe. » The ruling can be found at www.ca9.uscourts.gov

"The schools have shown that the admissions policy, favoring students of native Hawaiian descent, is legitimate and valid," the majority wrote in the 110-page ruling.

Retired Navy Vice Adm. Robert Kihune, chairman of the five-member board of trustees, joined Chief Executive Officer Dee Jay Mailer and school staff yesterday in expressing elation for the court's decision.

"Today, the court reaffirmed what we've always argued: that our admissions policy, which is in keeping with the desires of our founder Princess Bernice Pauahi Bishop, is legally justified and right," he said. "It helps thousands, but harms no one."

But this is no time to sit back, he said.

"Let me make this clear, as long as our admissions policy is at risk, we will do whatever is necessary to protect our right to offer preference in admissions to our native Hawaiian people," Kihune said.

Sacramento-based attorney Eric Grant, who represented John Doe, the non-Hawaiian student who challenged the schools' preference policy, said they are obviously disappointed that the majority ruled against them, but gratified that a substantial minority agreed with their position.

"The closeness of the decision bodes well for eventual resolution of the case by the U.S. Supreme Court," he said, saying they expect to petition the high court by early next year to hear the case.

The Kamehameha Schools was established in 1887 under a charitable trust set up by Princess Bernice Pauahi Bishop to educate the children of Hawaii.

In the ruling written by Judge Susan P. Graber, the justices clearly found that a "manifest imbalance" between native Hawaiians and other ethnic groups in Hawaii exists in the schools and that this imbalance is what Kamehameha's preference policy seeks to address.

The panel also found that students who are denied admission to Kamehameha "have ample and adequate alternative educational options" and that the schools' preference policy "neither unnecessarily trammels the rights of non-native Hawaiians nor absolutely bars their advancement in the relevant community."

The panel recognized that Kamehameha was founded during a time of Hawaiian sovereignty and built on monarchy lands. For 118 years, non-Hawaiians had no expectation of being admitted.

The justices also recognized that native Hawaiians have a special political relationship with Congress and thus are subject to special deference, said Kathleen Sullivan, a former Stanford Law School dean, who argued for Kamehameha Schools.

"It boils down to it's a very unique school with a unique set of facts and where you put all five things together -- private school, remedial purpose, for indigenous people, with congressional blessing and in an educational context -- it's a permissible use of ancestry to achieve a legitimate remedial goal," Sullivan said.

John Doe has maintained from the beginning that the schools' admissions policy is a "racially exclusionary policy."

"Under any interpretation of the civil rights laws, that is illegal and has been the rule for 30 years," Grant said.

John Doe graduated from a public high school with honors last spring and is now pursuing a four-year undergraduate degree.

His mother is disappointed, but expected that the case would not be resolved until it reached the U.S. Supreme Court, Grant said. "She was very firm and quick to say, 'Do what we have to do, let's take it to the next level and pursue it as far as we can,' " he said. "We think we will prevail in the end."

Grant said the close 8-7 vote, the fact that it's an en banc decision (the case was heard by the entire court) -- which is rare -- and that the case originates from the 9th Circuit, which has a reputation for diverging from Supreme Court precedence, are indications the court will hear the case, he said.

Colleen Wong, vice president of legal services for Kamehameha Schools, said the schools will continue to review whether changes to the policy are needed.

Ceremonies will be held across the state today to celebrate the court's ruling.

Mailer, the CEO, invited the people of Hawaii to join in celebration and worship 5 p.m. tonight at Kawaiahao Church.

"We want to especially thank all those people who have stood next to us, in front of us and behind us to support our mission," which is to improve the well-being and capacity of native Hawaiians, Mailer said. "This decision allows us to move forward on that."