Kamehameha Schools asked the 9th U.S. Circuit Court of Appeals yesterday to rehear the court's 2-1 decision declaring the school's policy of admitting only students with Hawaiian blood violates federal civil rights laws.

The request for a rehearing by an "en banc" or larger panel of 11 appeals court judges delays any enforcement of the decision for weeks or months — or forever, if the 2-1 ruling is overturned.

The school's lawyers, who called the decision "unprecedented," argued in their papers that the ruling is "the first in our nation's history to invalidate a remedial educational policy by a private school for the benefit of any minority group, much less an indigenous people."

They said the correct conclusion was delivered in the dissent by 9th Circuit Appeals Judge Susan Graber, not by the majority opinion from appeals judges Jay Bybee and Robert Beezer.

John Goemans, one of the lawyers representing the unnamed non-Native Hawaiian public high school senior who challenged the policy, said statistically, the chances the request will be granted are "very slim."

While Kamehameha Schools lawyers agree, they say the novelty of the issue, the impact of the ruling and the split vote gives them a better than average chance the court will approve the request.

"We think we presented a strong case and we'll see if the court agrees," said former Stanford Law School dean Kathleen Sullivan, who was hired by the school to defend the policy.

The state is not a party to the case, but the state attorney general's office yesterday filed a friend-of-the-court brief supporting the rehearing. The office said the case raises an issue of "exceptional importance," a basis for the rehearing.

Goemans said he doesn't know if they will file papers opposing the rehearing, but said the majority was correct and the request only delays their client from attending classes that have already started at the school.

In the Aug. 2 decision, the majority ruled that the school's policy amounts to an "absolute bar" on non-Native Hawaiian students from attending the school and violates federal civil rights laws covering private institutions.

In their request, Kamehameha lawyers argued the private institution receives no federal money and gives "preference" to students of Hawaiian blood. But the school's three campuses only have 5,400 openings, a fraction of the 70,000 school-aged Native Hawaiian students, they said.

The unnamed student who complained he was denied admission based on his race "sought to jump a long queue of qualified Native Hawaiian applicants waiting to gain admission to the schools," the lawyers said.

The school lawyers said each space taken by a non-Native Hawaiian "deprives a Native Hawaiian student of a space in an educational program of unique cultural, historical and communal significance to the Native Hawaiian people."

The school also disputes that its policy is an "absolute bar."

"While campus programs are currently so scarce that they are open virtually exclusively to Native Hawaiians, it is undisputed that Kamehameha also runs other educational programs to which non-Native Hawaiians are regularly admitted," the school's lawyers said.

Attorney General Mark Bennett's legal papers supported the reasoning.

"I continue to believe the 9th Circuit panel decision was wrong, and I hope the rehearing en banc will be granted," he said in a statement.

Under appeals court rules, the request will be circulated among the 24 9th Circuit judges. (Four seats are vacant). If any believe the rehearing should be put up for a vote, the judges are polled. If a majority agrees, the 2-1 decision is withdrawn and a panel of 11 judges is randomly selected to rehear the case, according to the rules.

A ruling by the larger panel could take a year or longer, legal observers have said.

School officials have vowed to take the case to the U.S. Supreme Court if necessary.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.