A non-Native Hawaiian senior won't be able to enroll immediately at Kamehameha Schools and may never get a chance to attend the private school.

Sacramento, Calif., lawyer Eric Grant, who represents the unnamed youth, asked the 9th U.S. Circuit Court of Appeals to order the school to accept the teenager this fall.

The decision is clearly a setback for the student, who is about to enter his senior year in a public high school. Classes for seniors start on Kamehameha's Maui campus on Thursday and on the school's Kapalama and Big Island campuses Aug. 18. The next step of the legal process could last more than a year.

Grant said he and his client were still considering their next move, which may include asking the court to immediately send the case back to the federal District Court, which originally heard the case. Grant said he remains confident he can get a ruling this month.

"One way or the other, we will have an answer," he said. "We think the answer will be in our favor."

Supporters of the admissions policy hailed yesterday's development. One said it relieves the youth from being placed in "a very uncomfortable position." Grant, however, said the boy still wants to attend Kamehameha Schools.

The request to enroll the student this fall was filed in the wake of the court's 2-1 decision last week declaring that the school's admissions policies amounted to a total ban on non-Native Hawaiian applicants and constituted unlawful racial discrimination.

That same three-judge panel who issued the ruling last week rejected the request to admit the student.

The panel said Grant could refile the request, but only after the appeals court process is completed and the case is returned to senior U.S. District Judge Alan Kay in Honolulu. The appeals court is headquartered in San Francisco.

The appeals court's split decision last week created an uproar at Kamehameha Schools and among its supporters, who believe the admissions policy is at the heart of the $6 billion institution created by the 1884 will of Princess Bernice Pauahi Bishop.

SIGH OF RELIEF

The appeals panel majority rejected the school's argument that the policy was protected as an affirmative action program aimed at dealing with socio-economic and educational disadvantages among Native Hawaiians. On Saturday, an estimated 20,000 people rallied, attended prayer services and marched on several islands in support of the school.

Under federal court rules, the appeals court process could take several weeks, assuming Kamehameha Schools' request for a larger panel to review the case is denied outright.

However, if the request for a rehearing "en banc" — by 11 9th Circuit appeals judges — is granted, it could take a year or longer before a final decision is rendered, which would be after the youth is scheduled to graduate.

Ann Botticelli, Kamehameha's vice president of community relations and communications, said it's "appropriate" the appeals court has left the matter with the district judge here.

Marion Joy, vice president of Na Pua a ke Ali'i Pauahi, an organization of stakeholders, alumni, parents and students of Kamehameha Schools, said she "breathed some relief" at the latest court ruling.

"They have taken him (the unnamed student) out of a very uncomfortable position at this point which we don't wish any child to have to undergo," said Joy, a 1961 graduate of the school.

"There are larger issues that need to be addressed in terms of ways to work on restoring justice. I don't think it's a good position to even place a minor in with this wave of emotions besetting the community. I cannot fathom any parent willing to place a child in the midst of such controversy and enraged emotions."

Steve Reelitz, president of the school's O'ahu Alumni Association, called yesterday's decision "great news."

"I just think every win in our corner is positive," said Reelitz, who also works for Kamehameha Schools' Ke Ali'i Pauahi foundation. "Every little piece of affirmation is a good thing. It gives hope and helps us to continue on in this fight."

Peter Kama, who serves on several Native Hawaiian boards, said he was "very happy" about the decision. He said he knew the school was preparing to take care of the student if he were allowed to attend — "he'd be treated just like any other student" — but he said this decision is better for the boy.

"It's not the child's problem," said Kama, a 1953 Kamehameha graduate and one of the founders of a group that advocates for Hawaiian Homelands applicants. "It's a problem between the legal beagles and the school administration. Children should never be dragged into this."

Despite the rallies and march-es, Grant said, his client and the child's mother still want him to attend the school.

The student is identified only as "John Doe" in court papers. He has been trying to get into Kamehameha Schools since he was a freshman, his lawyers have said.

"We talked about this more than two years ago," Grant said. "We talked about (how) there would be opposition and there would be difficulty. And both the mother and, to his credit, the student himself realize this is an important issue.

"It's important not just for him and his family, but other people in Hawai'i, other people in their situation, other people who want to be treated without regard to race and ancestry."

Yesterday's one-sentence decision by the panel did not elaborate on the reasons, but it affirmed the general rule that the enforcement of the appeals court decision is left to the trial or district judge after the appeals process is completed.

"That makes perfect sense," Grant said. "District courts do these kinds of things regularly."

WAITING PERIOD

The ruling means Kamehameha Schools does not have to respond by this week to Grant's request for the court order, which he had argued was necessary because the challenge to the appeals court decision likely would be pending for a "significant period of time."

The school's lawyers must now prepare request for a hearing by 11 appeals court judges. Under federal court rules, they have until later this month to file the request, which will automatically postpone the enforcement of the panel's decision. If any one of the appeals court's 28 judges believes the matter should be put to a vote, the judges will be given the opportunity to decide whether to grant the rehearing.

If a majority votes for a rehearing, 11 judges from the 9th Circuit would be randomly selected to review the ruling and issue a decision, a process that could take longer than a year.

The earliest the case could be returned to Kay under federal rules is if none of the judges believe the matter should come up to a vote, a process that still could take several weeks.

Although en-banc hearings are rarely granted, some lawyers who support the admissions policy say the school has a good chance of getting a rehearing in view of the split 2-1 vote and the significance of the case as it affects private educational institutions.

But lawyers also say there's no way to predict the outcome of the 11-member panel's vote, since no one knows at this point which judges will be selected to rehear the case.