In a 2-1 decision, the 9th U.S. Circuit Court of Appeals ruled that the admissions policy violates federal civil rights laws first passed in 1866 barring private institutions from discriminating on the basis of race.

The ruling generated strong reaction among Native Hawaiians and the Kamehameha Schools community in particular, and the mood ranged from anger to tears and dismay.

Kamehameha, the largest private landowner in Hawai'i, had defended its admissions practice as an affirmative action program, but the court majority held that the argument doesn't justify the policy because it places an "absolute bar" on non-Native Hawaiians from enrolling.

The ruling forces Kamehameha Schools to overhaul its Hawaiians-only preference policy, but the trustees vowed to contest the decision by asking for a larger appeals court panel to hear the case and, if necessary, filing an appeal to the U.S. Supreme Court.

"It's a monumental decision," said John Goemans, one of the lawyers representing a public school student who challenged Kamehameha's policy and is identified only as John Doe. "They're going to have to admit students regardless of race."

But Diane Plotts, chairwoman of Kamehameha's trustees, said the school's legal team is already preparing a challenge. "The fight is not over," she said. "We emphatically will continue to fight the battle."

Goemans said the student he represents now hopes to get into Kamehameha Schools this month for his senior year.

However, Dee Jay Mailer, chief executive officer for the school, said Kamehameha will not allow the student on the campus until a judge issues an order requiring him to be admitted.

"We do not have an order to admit John Doe to our campuses," said Mailer. "If we are ordered by the court to admit John Doe, then we will treat John Doe as we will treat all of our students.

"This case is not about one student called John Doe. This case is about thousands of Hawaiian students and their right to be educated under the princess's will. That is the issue today and that is the issue that we are most concerned about, and that is the issue we will fight for."

Eric Grant, a Sacramento lawyer who also represented John Doe, said he will pursue a request he filed Monday asking the appeals court for an injunction ordering the school to enroll the boy. Armed with yesterday's ruling, he said it should be an "open and shut" case.

Yesterday's ruling was the latest in a string of setbacks for Native Hawaiian interests in the last five years, one that could prove to be pivotal in the larger fight to protect Hawaiian entitlements.

"This is an incredibly unfortunate ruling by the court," Gov. Linda Lingle said in a statement. "It underscores the importance of getting the Akaka bill passed as a means to help defend existing Native Hawaiian programs that are being challenged."

The decision strikes at the very foundation of Kamehameha Schools, which was established under the 1884 will of Princess Bernice Pauahi Bishop, the last direct descendant of King Kamehameha I. Its flagship campus at Kapalama Heights and its two other campuses on Maui and the Big Island enroll more than 16,000 students annually.

ALUMNI'S REACTIONS

Leroy Akamine, a 1952 graduate and a former president of the activist student and family group Na Pua a Ke Ali'i Pauahi, said the case going forward is going to be tough and he's not hopeful it could win on appeal — or even be heard by the Supreme Court.

"We are at a disadvantage in this court system of ours," said Akamine.

"People just don't understand that as aboriginal people our rights are continuously being trampled on and this is one of the examples. They're not even recognizing us as co-equals to other native Americans."

Kamehameha Schools is operated under a trust known by the same name. The trust, the former Bishop Estate, has long been a dominant institution in Hawai'i with assets now worth $6 billion. The trust's policies and holdings have helped shape the political and community landscape for decades and its mission was widely considered necessary to address educational and socioeconomic disadvantages among Native Hawaiians.

The appeals court's majority, however, disagreed.

The majority said the appeals court was addressing for the first time in the 9th U.S. Circuit the issue of whether a private school that receives no federal funds can exclude a qualified student solely because he or she does not have Hawaiian blood.

Kamehameha Schools pointed out that the policy is not absolute because if spaces at the campuses exceed the number of qualified students with Hawaiian blood, the schools will admit non-Hawaiian students and in fact admitted one in 2003.

But the majority said the student's enrollment was more due to "accident than design" because it prompted school officials to promise that the admissions will be for Native Hawaiians only.

"Whether or not the policy is, in the abstract, an absolute bar to admission for those of non-preferred race, it certainly operates as one," the majority said.

The two appeals court judges agreed with the lawyers for the unnamed student and held that the admissions policy constitutes "unlawful race discrimination" in violation of federal civil rights laws.

The decision sets aside the 2003 ruling by U.S. District Judge Alan Kay of Honolulu, who did not find that the policy violates federal civil rights laws.

At a press conference at Kamehameha's headquarters at Kawaiaha'o Plaza, Plotts said trustees had "hoped against hope" that the appeals court would agree with Kay's decision. She said Kay "rendered a very learned opinion that our policy is legally justified because we are a private institution which exists to correct the harms of the past."

Plotts said the trustees were heartened by the dissenting opinion of Appeals Judge Susan P. Graber.

"Judge Graber argued that many statutes enacted by Congress provide exclusive remedial preferences for Native Hawaiians and demonstrates their support of our policy," she said.

The state government wasn't involved in the case, but Attorney General Mark Bennett said yesterday that his office is ready to join in and defend the admissions policy with a friend-of-the-court brief if the court rules permit it and Kamehameha Schools approves the support.

"I think it's legally wrong," Bennett said about the majority decision.

Plotts said the school will ask for a larger panel of the 9th U.S. Circuit to hear the case.

"There are 28 members of the 9th Circuit Court of Appeals," she said.

"We believe that when we appeal the case on an en banc review, that we will draw a good chance of having a panel that will agree with Judge Graber and support our right for preferences."

She added: "And if we have to, we will go beyond that all the way to the Supreme Court. We are prepared to go as far as is necessary to defend our preference policy."

'WHITE MEN'S POLICY'

"Those courts were not set up to protect the rights of Native Hawaiians," said Vicky Holt Takamine, president of the 'Ilio'ulaokalani Coalition, which called on school supporters to gather at the South Street courtyard. "The courts were not set up to protect the rights of indigenous people. The courts were set up to protect the white men who wrote that constitution — and it is a white men's policy."

Several of those gathered said the decision was yet another step toward disenfranchising Native Hawaiians.

Lilikala Kame'eleihiwa, former director of Hawaiian studies at the University of Hawai'i-Manoa, asked non-Hawaiians to come to the aid of Native Hawaiians. "The good non-Hawaiians would never try to steal from us by applying to Kamehameha Schools for anything because they know that we have children who need to have that money to go to school and for education," she said.

Her voice rising angrily, Kame'eleihiwa said that if American courts will not give justice to Hawaiians, then American troops don't belong here.

"So that's the tradeoff," she said. "No justice from America? Good. Then, America, get out!"
Tricia Kehaulani Watson, a recent Richardson School of Law graduate, said she does not want to look back at the day of the ruling as a bad day.

"I'm hopeful that this will be the wake-up call that Native Hawaiians need," she said. "I hope that all the Native Hawaiians that don't march, that don't come, that don't stand up will say today that unless we do something, the colonizers will come. They will continue to take from us, they will continue to steal from us. And they will continue to do this until there is nothing left.

"In five years, we want to look back and say this is the day we stand up and say, 'We've had enough.' "

'IT'S ABOUT OUR ROOTS'

Representatives with the Office of Hawaiian Affairs, which is also facing a legal challenge, threw its support behind Kamehameha Schools. "It's not about race, it's about our roots," said OHA board Chairwoman Haunani Apoliona. "If you tell a Hawaiian to go home, Hawai'i is their home, they have nowhere else to go."

Richard "Dick" Rowland, who has raised objections to the Akaka bill and all Hawaiians-only programs, applauded the decision.

"It's very good for individual liberty and individual autonomy," Rowland said. "As Martin Luther King so famously put it, he looked forward to the day that his children would be judged by the content of their character rather than the color of their skin. All the decision says is that the color of their skin or ancestry should not be of any importance at all and actually what should be of importance is the content of their character as individuals."

Grant, the Sacramento lawyer who also represented the student, said the suit was never meant to be an attack on the school or Native Hawaiian culture or tradition.

He said plaintiffs concede that the school can have a variety of criteria for admission, including an interest and appreciation in Hawaiian history and culture.

"Our goal was never to make it a haole school or to have only a few Native Hawaiians (enrolled there)," he said. "I think Hawai'i has a very rich diversity of races and ethnicity. I fully assume the school will continue to have that diversity. There will have to be some good-faith efforts to put this into effect."

He said the boy and his family remain anonymous because of the controversy surrounding the admission of non-Native Hawaiian students, but the name would likely have to be disclosed once the student is enrolled.

Because they prevailed in the civil rights case, the boy's lawyers are now entitled under federal law to attorney fees and costs to be paid by the school. Goemans estimated that would be in six figures.