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The Honolulu Advertiser
Posted on: Friday, August 12, 2005

Ruling favors Kamehameha

By Ken Kobayashi
Advertiser Courts Writer

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A non-Hawaiian high school senior lost any chance of getting admitted to Kamehameha Schools before classes start this year when the U.S. 9th Circuit Court of Appeals yesterday rejected his lawyers' second bid to get him enrolled immediately.

"We're disappointed," said Sacramento lawyer Eric Grant, one of the attorneys for the unnamed youth. "We don't know what we're going to do next."

Classes opened yesterday at Kamehameha's Maui campus and are scheduled to begin Aug. 18 for seniors at the school's flagship Kapalama campus and its Big Island campus.

The legal battle now shifts to Kamehameha's attempt to get a larger or "en banc" panel of 9th Circuit judges to overturn last week's 2-1 decision that said the school's policy of admitting only students of Hawaiian blood violates federal civil rights law.

The school had opposed any move to enroll the teenager until a review of the decision.

"The court has clearly spoken: that we have the right to continue to apply our admissions policy while we pursue our request to have our case reheard," said Colleen Wong, Kamehameha vice president for legal affairs.

The split decision by the three-member appeals court panel rocked the $6 billion private institution established by the 1884 will of Princess Bernice Pauahi Bishop. The school believes its nearly 120-year-old admissions policy addresses the socioeconomic and educational disadvantages among Native Hawaiian and falls under affirmative action protections.

But the 2-1 majority ruled that the admissions practice constitutes racial discrimination.

Based on that ruling, Grant first asked the appeals court for an injunction to order Kamehameha to admit the boy. After that was rejected, he asked the court to send the case back to the U.S. District Court so he could ask the trial judge to issue a similar order. That second request was rejected by the appeals court yesterday.

Kamehameha plans to file its request for the rehearing later this month. If the court agrees with the school and convenes an 11-member "en banc" panel, the youth may never get into Kamehameha before he graduates because it might take longer than a year for the panel to render a decision.

Grant, however, predicted that the court will deny the request for the rehearing. He said his client, a public school student, would then be able to get into Kamehameha next month and still graduate on time.

"This is a very good student with a good academic record," he said.

The appeals court rarely grants "en banc" hearings, denying nearly all requests.

The last time lawyers can recall that the 9th Circuit Court granted a such a rehearing in a Hawai'i case was seven years ago. A 9th Circuit Court panel voted 2-1 in 1998 to overturn a life sentence for convicted bank robber Bryan Kaluna, ruling that the federal three-strikes law violated his rights to due process.

About 14 months later, the larger panel disagreed with the 1998 decision and affirmed the life sentence by a 7-4 vote.

Alexander Silvert, first assistant federal public defender who represented Kaluna and opposed the en banc rehearing, said the appeals court grants reviews if the case is significant. In addition, a 2-1 split decision, which occurred in both the Kamehameha and Kaluna cases, is also favorable for granting the rehearing, he said.

He said he believes the school has an "excellent chance" of getting the review.

In papers filed with the appeals court, Kamehameha has pointed out that the decision in its case acknowledged the issue about admissions is a "significant" one regarding civil rights law. The school said the decision is "the first decision nationwide to invalidate a remedial race-conscious admissions program of a purely private educational institution" under the federal civil rights law.

The deadline for the school to file the request is Tuesday, but Kamehameha is asking for a one-week extension.