A federal appeals court appears to have derailed a challenge to Kamehameha Schools' Hawaiians-only admission policy, but its ruling is no guarantee against similar lawsuits in the future. The only way Kamehameha can avoid the risk may be to eliminate all tuition, the vehicle of the legal argument that the schools discriminate against non-Hawaiians.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled this week that the four students who brought the lawsuit against the schools must reveal their names publicly in order to go forward with the litigation. The judges ruled that U.S. District Judge Michael Seabright had the discretion to decide whether anonymity of the plaintiffs was appropriate or not. An appeal to the U.S. Supreme Court on the side issue of anonymity, if sought, is not likely to be heard.

Attorneys for the students applying for admission said the children would face harassment and possible violence if their identities were known. However, Judge Robert R. Beezer, who wrote the appellate ruling, pointed to two non-Hawaiian children who were admitted in 2002 and 2003 “;with no reported incidents—either at school or outside the school setting.”;

A student identified publicly only as John Doe sued Kamehameha in 2003 after being barred admission. The U.S. District Court and the 9th Circuit rejected the claim of discrimination and Kamehameha settled the case for $7 million in 2007 as it was on the verge of being heard by the Supreme Court.

The claims have been that the refusal to admit non-Hawaiians to the schools violates the Civil Rights Act of 1866, which prohibits racial discrimination in contracts. On the same day in 1976, the Supreme Court ruled in separate cases that the law prohibits “;discrimination against members of any particular race”;—not just minorities—and that tuition with schools amounts to “;a contractual relationship.”;

In the 2003 lawsuit against Kamehameha, a 15-judge panel of the 9th Circuit ruled by an 8-7 vote in favor of allowing Kamehameha's admission policy, with all six Republican nominees on the panel dissenting. Republican nominees control the Supreme Court, as they did when the case was on its front steps as a settlement was reached.

Ninth Circuit Judge Alex Kozinski suggested during oral arguments in that case that Kamehameha Schools, a trust worth $9.1 billion, consider not charging tuition.

“;The schools' substantial endowment may enable them to continue operating without charging any tuition for a very long time—perhaps indefinitely,”; he remarked.

The alternative to eliminating tuition is for Kamehameha to hope that no publicly identified non-Hawaiian student comes forward with a fresh lawsuit after being denied admission. The core legal issue of racial discrimination in contracts remains.