Kamehameha Schools officials and supporters hailed a 9th U.S. Circuit Court of Appeals 8-7 ruling yesterday upholding the school's longstanding policy aimed at only admitting students with Hawaiian blood.

But the legal battle may not be over as lawyers for an unnamed non-Native-Hawaiian teenager who challenged the policy vowed to ask the U.S. Supreme Court to review the sharply-divided decision.

"We're absolutely elated," Kamehameha Schools chairman Robert Kihune, a retired admiral, said about the decision, which upholds what supporters say is at the heart of the school's mission to educate Native Hawaiian children.

Eric Grant, the Sacramento attorney representing the unnamed student who sought admission to the school, said they were disappointed, but "gratified" to see seven judges voting in their favor.

He said they will ask the U.S. Supreme Court to review the ruling, and a decision by the high court on whether to take the case will be issued next year.

It's unclear whether the high court, which grants only a small fraction of requests to review lower court rulings, will take the case. Four of the nine high court justices must agree for the full court to consider the appeal.

Grant is optimistic and predicts he will prevail if the Supreme Court justices review the school's admissions policy.

But Colleen Wong, the school's vice president of legal affairs, said it's "very unlikely" the high court will accept the case.

The decision by the appeals court headquartered in San Francisco produced five separate opinions displaying a lively debate among the judges on the contentious issue of whether the institution long cherished by Native Hawaiians violates federal civil rights law with its admissions policy. The opinions spanned more than 100 pages.

SWEET VICTORY

The ruling was praised by campus leaders yesterday.

After a news conference, Kamehameha Schools CEO Dee Jay Mailer, president Michael Chun and the school's trustees stepped onto the courtyard of their Kawaiha'o Plaza offices on South Street and were met by applause from dozens of school employees who had gathered.

The moment was an emotional one. The group spontaneously joined hands and sang "Sons of Hawai'i," the school's alma mater, and "I Mua Kamehameha," the school's fight song.

Kihune, a 1955 graduate, was the first to speak. "I want to keep it short before I lose it," Kihune said. "This is a wonderful day for Kamehameha Schools. This is a wonderful day for Hawaiians. This is a wonderful day for all the people of Hawai'i."

Said Mailer, a 1970 graduate: "No matter what court stands before us, we have work to do. And what the judges are telling us today is to continue our work and so let us do that. We do our work with humility, we do our work with pride, and we do our work with constant purpose, one reason: to improve the well-being of our people."

Students and faculty gathered at the Kapalama campus' Kekuhaupi'o gym, where they held a private prayer service.

The school, a $6 billion private charitable trust set up in 1888 by the will of Princess Bernice Pauahi Bishop, operates three campuses — the flagship at Kapalama Heights and others on Maui and the Big Island. Although there are about 70,000 school-aged children with Hawaiian blood, the school's enrollment is about 4,856 students.

The appeals court reversed a 2-1 decision by a 9th Circuit panel in August of last year that declared the schools' policy violated a federal civil rights law first passed in 1866 prohibiting private institutions from discriminating against newly-freed slaves on the basis of race.

The panel's original decision set off a firestorm among students, parents, alumni and others who decried the possibility of changes to the admissions policy. Rallies across the state and on the Mainland followed as supporters of the policy sought to raise public awareness of the case.

But before that court decision could be enforced, the appeals court granted a request by Kamehameha Schools that a larger, or "en banc," panel of 15 judges rehear the case because of its significance.

The 15 judges listened to legal arguments at a hearing at their San Francisco courthouse on June 20.

Although the 9th Circuit has been tagged with the label of issuing "liberal" decisions, it was far from clear from the hearing which way the court would rule, although the appeals court judges expressed admiration for what the schools were trying to do.

Appeals Court Judge Susan Graber of Portland, who wrote the dissenting opinion last year, authored the majority decision yesterday, while Jay Bybee of Las Vegas, who wrote last year's majority decision, filed the leading dissenting opinion.

DEMOCRATIC LEANINGS

An Advertiser review of the way the judges voted shows that the eight in the majority were appointed by Democratic presidents Jimmy Carter and Bill Clinton.

The eight are Graber, chief appeals judge Mary Schroeder of Phoenix, Harry Pregerson of Los Angeles, Stephen Reinhardt of Los Angeles, William Fletcher of San Francisco, Richard Paez of Pasadena, Marsha Berzon of San Francisco and Johnnie Rawlinson of Las Vegas.

Six of the seven dissenters were appointed by Republican presidents Ronald Reagan, George H.W. Bush and George W. Bush.

Those six are Bybee, Alex Kozinski of Pasadena, Diarmuid O'Scannlain of Portland, Pamela Ann Rymer of Pasadena, Andrew Kleinfeld of Fairbanks and Consuelo Callahan of Sacramento.

Richard Tallman of Seattle was the only appeals judge appointed by a Democratic president (Clinton) to dissent.

Among the opinions, Kozinski made one suggestion on how Kamehameha Schools could avoid falling under the federal civil rights law. At the hearing in June, Kozinski was one of the more vocal judges.

"What's so great about having a school where everybody you meet is just like you?" he asked at one point.

Yesterday, he suggested that the school would not fall under the civil rights law prohibiting discrimination in contracts if it didn't charge tuition.

Tuition is $1,748 a year, with the school already subsidizing much of the $20,000 annually for each student, according to Graber's decision, in which she outlines the historical background of Kamehameha Schools and the current plight of Native Hawaiians. In addition, 65 percent of the students receive financial aid to help with the tuition, she wrote.

FIGHT NOT OVER

In a telephone interview yesterday, Grant said the only issue left for his client — if the high court takes the case — would be the amount of damages for the school's refusal to admit him based on his race, since he has already graduated from a public high school here this year.

The lawyer said his client is now attending his first semester in college, but that he and his mother want to continue pursuing the litigation based on principle.

"Both the student and his mother don't want other families to go through what they went through," Grant said.

He agreed that the high court only takes a small percentage of cases, but said he thinks it likely will take the appeal because of the close decision by the en banc panel as well as two other cases now before it involving allegations of discrimination in Seattle and Kentucky schools.

Under the timetable set by the high court, a decision on whether it will hear the appeal could be announced sometime in May or June, when the issue of school discrimination will be "on their minds," he said.

Grant also predicts he will prevail before the high court in view of its previous rulings, including the landmark 2000 Rice v. Cayetano decision in which the court ruled 7-2 in striking down a requirement that voters for trustees of the Office of Hawaiian Affairs have Hawaiian blood.

"There's nothing certain in life except death and taxes, but I like my chances better in the Supreme Court than in the 9th Circuit," he said.

BROADER ISSUE?

Wong said Kamehameha Schools will be given a chance to file briefs explaining why the high court should refuse to hear the case.

She said the justices won't be looking at the closeness of the vote, but rather the substance of the decision, which deals with the circumstances of Kamehameha Schools, a private trust providing remedial educational opportunities for Native Hawaiians.

"This decision is extremely narrow and it has unique circumstances," she said. "It really doesn't have national importance and that's the type of things they're looking at."

She said the Seattle and Kentucky cases are distinguishable because those two cases deal with public schools, while the Kamehameha Schools campuses are private.

"We stand ready and are fully prepared to defend against" a request for the high court to hear an appeal of yesterday's ruling, she said.

But Grant said the Kamehameha case is of "exceptional importance," a point he said Kamehameha Schools lawyers made in urging that a larger appeals court panel review the 2-1 decision last year.

Wong said the high court takes 80 cases, or about 1 percent, of the 8,000 requests to review court decisions. Grant said that if cases involving appeals from indigents, such as prisoners, are excluded, the high court grants about 2 1/2 percent to 3 percent of the requests.

Neither lawyer had figures on what percentage of requests from en banc rulings are approved by the high court.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.