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The Honolulu Advertiser
Posted on: Monday, August 8, 2005

Kamehameha Schools weighs 'Plan B'

By ROB PEREZ
Advertiser Staff Writer

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In the hubbub over last week's court decision striking down Kamehameha Schools' race-based admissions policy, one prospect has received scant attention.

What if the institution loses its fight to maintain a preference for admitting only students with Hawaiian blood?

While the legal battle over the 9th U.S. Circuit Court of Appeals ruling could take months and possibly even a year or two to resolve, the possibility that Kamehameha could lose the fight raises a fundamental question of how the school would change.

Many say the question is premature, given the long legal haul ahead and disagreement among legal observers on whether Kamehameha will be successful in getting the decision overturned.

But as with many other aspects of this case, the "what if" scenario generates mixed views — and plenty to ponder for an institution that is Hawai'i's largest private landowner and whose reach extends well beyond its three campuses.

Some say the 9th Circuit's decision, if not reversed, would fundamentally alter the heart and soul of the school.

"This is why it's such a huge issue for them," said Patrick F. Bassett, president of the Washington, D.C.-based National Association of Independent Schools.

Others say the ruling is narrow enough to enable Kamehameha to address the court's concerns while maintaining its core mission of providing educational opportunities to enhance the well-being of Native Hawaiians.

"If you get creative, there are ways around" the court's concerns, said Honolulu lawyer James Bickerton, who considers the ruling flawed but is not involved with the case.

At Saturday's rally, Kamehameha trustee Douglas Ing sought to assure supporters that Native Hawaiians will continue to be helped regardless of the outcome of the appeal.

"We are going to fight, we are going to fight to the end, rest assured," said Ing, noting that a "Plan B" is being worked on.

"As trustees, we need to consider the unthinkable that somehow this further appeal may not be successful," Ing said. "If it is not, rest assured that we will have another policy, that we will continue efforts to reach (Pauahi's) intended beneficiaries, na pua o Hawai'i."

Ing did not elaborate on what "Plan B" might entail, but said, "Even if we're not successful at the next appellate level, there shall be no end. ... We can, and we shall, reach more and more children and provide them with educational benefits."

Kamehameha's admissions policy was struck down in a 2-1 court decision, with the two judges saying it amounted to an "absolute bar" on anyone not having Hawaiian blood and therefore violated federal civil rights laws.

Kamehameha has vowed to fight the decision to the U.S. Supreme Court if necessary, arguing that the policy is an affirmative action program that helps address socioeconomic and educational disadvantages among Native Hawaiians.

The ruling angered many of the school's supporters, who see it as yet another strike against Native Hawaiian interests.

Even if the institution were forced to change its admissions policy, some parents who have children at other schools say they would be reluctant to have their kids apply to Kamehameha, mostly out of respect for its mission.

"I think since it was established for the Hawaiian people, it should be kept for the Hawaiian people," said Big Island resident Jennifer Cook, whose son is a junior at a public high school. "I wouldn't want to breach that."

If the court decision is not reversed, the essence of the school ultimately would be changed, Bassett said. He likened a private school's mission to a three-legged stool, with one leg representing who you are, the other representing why you exist and the third representing who you serve.

"If you change any one of those legs, it's not the same school anymore," Bassett said.

Bassett said the main question is whether Kamehameha would be able to serve the Native Hawaiian community as well as it does now should the ruling stand.

Some changes could be made that likely would result in mostly Hawaiian students applying to the school, Bassett and others said. All students, for instance, could be required to take Hawaiian to fulfill a language course requirement. Currently, Kamehameha high school students can choose from several languages, including Hawaiian.

Eric Grant, the Sacramento, Calif., attorney representing the teenager who challenged the admissions policy, said talk of the court decision fundamentally changing the institution's mission amounts to hyperbole.

"It's the doomsday scenario," Grant said. "You try to tell people if you don't go my way, it's going to be doomsday."

He said the court case challenged a race-based admissions policy, not the school's mission.

Bickerton said because the ruling cited a civil rights statute that prohibits discrimination based on race, the school may be able to adopt an admissions policy based on "political classification." That might satisfy the court's concerns and still draw mainly Native Hawaiians.

One possibility: Restrict enrollment to descendants of citizens of the Kingdom of Hawai'i, he said. Up until the overthrow of the kingdom in 1893, most citizens here were Native Hawaiians, so such a policy would limit enrollment mostly to people of Hawaiian ancestry, Bickerton said.

"I don't believe the court's decision requires Kamehameha Schools to completely integrate (its enrollment) and give an equal opportunity to everybody," he said.

University of Hawai'i law professor Jon Van Dyke, who supports the school's admissions policy, said Kamehameha officials should be allowed to decide who to accept as students.

"If they want to admit non-Hawaiians, that's fine," he said. "Over the years, they have. But that should be their option."