An appeals court ruling yesterday that strikes down Kamehameha Schools' Hawaiian "preference" admission policy is a substantial and disappointing setback, but need not be a death blow for the school's unique mission.

While the ruling said the admissions policy is racially inadmissable, it left the door wide open for an approach that treats Hawaiians as a political, rather than racial, entity.

That, in fact, is the precise intent of the Akaka bill now before Congress.

Passage of the bill would not guarantee Kamehameha Schools could continue as before, but it would provide a powerful legal tool against challenges such as the one that succeeded before the 9th Circuit Court of Appeals yesterday.

While the legal and political wrangling continues, however, Kamehameha Schools must begin considering other approaches toward meeting its special mission of educating youngsters of Hawaiian heritage.

The philosophy behind that mission, as Judge Susan Graber noted in her dissenting opinion, is to remedy "abysmal" social and economic conditions faced by Hawaiians over the years.

Making a first-class education available at a discount rate, the theory says, will help raise generations of Hawaiians to compete fully and successfully in society.

The majority opinion contends that the school's admission policy violates civil rights law in place since 1866. That law holds that in general, exclusive racial preferences — even for recognized remedial purposes — are unlawful.

Case law established that this principle applies to private as well as public institutions. In yesterday's decision, the court said the admission policy "trammels" the rights of non-Hawaiians, a "classic" violation of the law, the opinion said.

Kamehameha Schools provide a valuable service, not just to students with Hawaiian blood, but to the larger community. It has produced generations of well-educated, productive citizens who contribute to the overall health of the Islands.

A FULL REVIEW

So, what's next?

The trustees are right to persist by asking the appeals court's 28 judges for an "en banc" review of the case, in the hope that a majority will be persuaded by Judge Graber's dissenting opinion. Graber's analysis correctly states the duty of the court is to "harmonize" civil rights law with congressional acts that underscore a distinct status for Hawaiians.

It's also reasonable that the trustees plan to appeal yesterday's decision to the U.S. Supreme Court, if necessary.

The second option, as the ruling appears to recognize, is to pursue the Akaka bill or a similar measure that shifts recognition of Hawaiians from that of a racial group to a political entity, a nationality if you will.

Indeed, the court recognized that this approach has survived the legal test in the case of Native Americans, and suggested that the same might apply to Hawaiians if they also are recognized as a political entity.

But the plain fact is that "under the statutes and case law as they exist now," the court said, no such political or trust relationship exists.

That's a powerful reason for supporters of Hawaiian rights to push for the Akaka bill now.

OTHER APPROACHES

Still, this remains unsettled political and legal terrain. Kamehameha Schools should start thinking of alternative ways of meeting its unique and valuable mission without testing civil rights laws.

Some of this is happening already. Kamehameha is actively supporting schools in neighborhoods with high concentrations of Hawaiians although non-Hawaiians also can attend.

There are other approaches, such as basing eligibility on socio-economic criteria or even cultural affinity, including an interest or background in Hawaiian culture and language.

There is much ambiguity over what Princess Bernice Pauahi Bishop intended when she set up the Kamehameha Schools in her will. As the court opinion points out, she did not say the schools should be reserved for students of Hawaiian ancestry.

At the same time, it was equally clear that the princess had the needs and aspirations of Hawaiians very much at heart. The task now is to continue to honor her desires and the important mission of the school in a way that passes constitutional, legal and practical muster.