Kamehameha Schools will have a strong chance of convincing the 9th U.S. Circuit Court of Appeals to convene a larger panel of judges to rehear the case that resulted in the 2-1 decision this week striking down the school's admissions policy, some legal observers believe.

Although such rehearings are rare, they say the significance of the case and the dissenting opinion that suggests the issue is not so clear cut indicate the appeals judges would give greater consideration to the school's request for the rehearing.

But whether Kamehameha Schools will prevail is anybody's guess.

"It's still a bit of a crapshoot in the 9th Circuit," University of Hawai'i law professor Jon Van Dyke said.

Unless the 2-1 decision is overturned, lawyers who challenged the policy on behalf of a non-Native Hawaiian student contend the school can no longer bar applicants simply because they have no Hawaiian blood.

Eric Grant, a Sacramento lawyer who represents the youth, offered to negotiate an agreement that would allow the high school senior to attend Kamehameha classes when they start this month.

But the school's trustees firmly believe in its admissions policy and yesterday rejected the offer, said Ann Botticelli, Kamehameha's vice president of community relations and communications.

Instead, the school will file the request for what's known as an "en banc" hearing that would automatically stay the enforcement of this week's decision for what could be months or more than a year, she said.

That would essentially mean that the school would not have to accept the student until possibly after his senior year is completed because the court process could take that long or longer.

But Grant yesterday said if his offer was rejected, he would pursue seeking an injunction ordering the school to enroll the student as soon as possible. He conceded that a decision might not be made until after school starts this month.

Classes start next Thursday for the Maui campus and Aug. 17 for freshmen and Aug. 18 for the rest of the students at the flagship Kapalama campus and at the Big Island campus.

Gerry Rosen, a clerk with the 9th U.S. Circuit Court of Appeals headquartered in San Francisco, said about three or four requests for "en banc" reviews are filed each week and only about one every five months is granted.

According to Rosen and lawyers familiar with the appeals process, the request for the rehearing automatically puts on hold the appeals court's 2-1 ruling.

If one of the 28 judges on the appeals court agrees it should have a chance to be heard, then the request will be circulated among the judges. If a majority of those voting agree, then 11 appeals judges would be named to the "en banc" panel. This week's 2-1 decision would be withdrawn.

The 11 judges would then review the papers filed in the case and would hold a hearing before issuing a ruling, which could come down more than a year from now.

The appeals court's Web site indicates about 15 cases that have been heard "en banc" are pending, but Rosen said they are among thousands of pending cases. "It's very rare," he said.

Grant said he will oppose a rehearing. "We're pleased with the existing result," he said.

Not all legal observers believe the appeals court judges will grant the rehearing.

H. William Burgess, the lawyer representing taxpayers challenging the constitutionality of the Office of Hawaiian Affairs in a federal court case, guessed that the request will probably be turned down. "It's a solid decision (issued this week) and not unexpected," he said. Of the chances that the request will be accepted, "I'd say it's not a slam dunk."

But lawyers, including Van Dyke, who support Kamehameha's admissions policy, believe there's a good chance.

"Although en banc review is typically granted in a small percentage of cases, the fact that this is a very high-profile case with a lot of potential repercussions and the fact that there was a dissent combine to make it a good chance that the 9th Circuit will have an en banc review," said Honolulu attorney James Bickerton.

"I think in this case the chances are very good," said Honolulu lawyer Eric Seitz, who called the majority's ruling a "terrible decision."

But because no one knows who will be selected to sit on the rehearing panel, most legal observers say it's too difficult to predict the outcome.

It's easier to predict in other circuits in which all the appeals judges sit on the rehearings, but because the 9th Circuit, the largest in the country, has so many judges, fewer than half rehear the case.

Although the appeals court has a reputation as a liberal circuit, Van Dyke said recent appointees with conservative reputations may have shifted the balance.

Among them is Jay Bybee, who wrote the majority opinion in the Kamehameha Schools case.

Since he's a relatively new member on the court, "some of the other judges might view his views as not the ultimate perspective one might have on the issues," said Van Dyke, who is defending the Office of Hawaiian Affairs against the taxpayers' lawsuit.