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The Honolulu Advertiser
Posted on: Thursday, February 23, 2006

Court gives hope to Kamehameha Schools

By Ken Kobayashi and Gordon Y. K Pang
Advertiser Staff Writers


The 9th U.S. Circuit Court of Appeals in San Francisco yesterday agreed to review an August 2005 ruling by a three-judge court panel in the ongoing dispute over Kamehameha Schools' Hawaiian-preference admissions policy.

Fifteen of the 24 judges on the court will rehear the case.

The appeals court issued a two-sentence order granting a rare rehearing. In 2004, the court granted 22 of 852 requests to rehear decisions by three-member panels of the court. Yesterday's order nullifies a 2-1 decision on Aug. 2 that declared the admissions policy a violation of federal civil rights law.

Here is the process for a rehearing by the larger panel, called an "en banc" court:

  • Three-member panels of the 9th Circuit issue rulings resolving appeals from U.S. District Courts.

  • Either side in a dispute can ask that a larger panel rehear the case. The larger panel had been composed of 11 appeals judges, but the appeals court changed the number to 15 judges effective Jan. 1.

  • If any member of the appeals court asks for a vote, the appeals judges are polled. There are 28 seats on the 9th Circuit, but four vacancies, leaving the appeals court with 24 judges. Richard Clifton, the only 9th Circuit appeals judge from Hawai'i, stepped down from the case.

  • Yesterday's order said a majority of the remaining 23 judges voted to rehear the case. The reasons are not disclosed.

  • Chief Judge Mary Schroeder of the 9th Circuit automatically is on the en banc panel. The other 14 judges will be selected randomly from the other 22 judges. (Clifton will not be in the pool of 22 judges.)

  • Among the 22 are two of the three judges who issued the 2-1 decision on Aug. 2 Jay Bybee, who voted to declare the policy a violation of federal law, and Susan Graber, who dissented. Robert Beezer, who voted with Bybee, is not eligible because he is a senior appeals court judge.

  • The appeals court will soon select the en banc panel. The judges on the panel would then decide whether they want more legal arguments from the parties. The panel almost always asks for a hearing, although it is not mandatory. The hearing probably would take place in Honolulu, where the parties are, or in San Francisco, headquarters for the 9th Circuit.

  • It is not known when the en banc panel will rule, but legal observers say the decision won't be issued for months.

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    A brief recap of some key dates in the Kamehameha Schools admissions policy case:

    June 2003: On behalf of an unnamed non-Hawaiian student, identified only as John Doe, attorneys John Goemans and Eric Grant file a civil-rights lawsuit disputing Kamehameha's admissions policy.

    August 2003: A federal court orders Kamehameha Schools to enroll a non-Hawaiian boy, 12-year-old Brayden Mohica-Cummings, until a final verdict on the admissions policy is made.

    November 2003: U.S. District Judge Alan Kay decides against John Doe, ruling that Kamehameha Schools can continue its Hawaiians-preference admissions policy because of its unique and historical circumstances.

    November 2003: Trustees for Kamehameha Schools approve a settlement allowing a seventh-grade non-Hawaiian student to continue attending the private school until he graduates. In exchange, Grant and Goemans, the lawyers for Mohica-Cummings, agree to drop one of their two federal court challenges to the school's admissions policy. The two lawyers appeal Kay's John Doe ruling.

    Aug. 2, 2005: By a 2-1 vote, a panel of the 9th U.S. Circuit Court of Appeals decides in favor of John Doe, ruling that Kamehameha's admissions policy constitutes unlawful racial discrimination and throwing the 120-year-old policy into limbo. A week later, the same three judges deny a request by John Doe to be admitted in the fall, pending an appeal by the school.

    Aug. 6, 2005: About 20,000 Kamehameha students, alumni and other supporters rally on all major Hawaiian islands and the Mainland to show their support for the embattled school. At a major rally in Honolulu, thousands hear a string of fiery speeches before marching two miles to Mauna 'Ala, the Royal Mausoleum in Nu'uanu, where founder Princess Bernice Pauahi Bishop is buried.

    Feb. 22, 2006: The 9th Circuit grants Kamehameha's request for an en banc rehearing of its August 2-1 decision, essentially throwing out that decision pending a review by a larger panel of 15 judges.

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    Supporters of Kamehameha Schools are hoping for a new court ruling that will uphold its 120-year-old admissions policy that favors Hawaiians.

    The 9th U.S. Circuit Court of Appeals announced yesterday that it would rehear its ruling that the admissions policy is a violation of federal civil rights law.

    But legal observers and lawyers involved in the case believe it's risky to predict that the rarely granted rehearing of a case will result in a different decision from last year's. That decision by a three-judge panel of the appeals court said the admissions policy violates the law by absolutely barring non-Hawaiians from the school.

    The rehearing will be before an "en banc" panel of 15 of the appeals court's judges.

    Alexander Silvert, a public defender who has handled at least 30 cases before the appeals court, including one before an "en banc" panel, said he could not read into yesterday's decision whether it signals that the earlier ruling will be affirmed or set aside.

    Yesterday's decision could mean the appeals court judges who voted for a rehearing had concerns about the earlier decision or it could simply mean the case is considered important enough that the judges want the larger panel to decide the issue, he said.

    "It's not necessarily the case that simply because the court (ordered the rehearing by the larger panel), it's going to reverse the three-judge panel," Silvert said. "To venture a guess would be impossible."

    Still, the development is considered significant for the school and a possible prelude to the appeals court declaring that the admissions policy is valid. And for the unnamed non-Hawaiian student who challenged the policy in an attempt to enter the school before he graduates from high school this year, the decision was a setback and disappointment.

    "We are pleased to be able to present our arguments to a larger court panel," said Robert Kihune, chairman of the Kamehameha board of trustees. "It signals that the appeals court agrees that this lawsuit raises unique issues of exceptional importance to Native Hawaiians."

    Eric Grant, the Sacramento attorney who represents the youth, expressed confidence he would still prevail, but acknowledged the rehearing helps the school.

    "They had lost, and now they could win," Grant said.

    He said he knew the chances for his client enrolling at Kamehameha dwindled with each passing week. Now it's clear the student won't be able to attend the school because a ruling by the larger panel isn't expected for months until after the teenager graduates from a public high school, Grant said.


    Yesterday's ruling nullifies the 2-1 decision issued Aug. 2 that set off an uproar among Kamehameha Schools supporters, who held rallies and marches to protest what they believed was another attack on Hawaiians. The $6 billion charitable trust that operates the school was set up by the 1884 will of Princess Bernice Pauahi Bishop. It runs the flagship campus at Kapalama Heights and two other campuses on the Big Island and Maui.

    The school's lawyers argued that the unique circumstances of the school justified its admissions policy to address the social, economic and educational disadvantages of Hawaiians as compared with other ethnic groups. But Grant argued that the refusal to admit non-Hawaiian students was discriminatory and a violation of federal law.

    The majority in the 2-1 decision agreed with Grant.

    The school asked for the rehearing, which essentially halted enforcement of the 2-1 decision that would have allowed Grant's client to enroll at Kamehameha.

    A wide range of individuals and groups filed legal briefs endorsing the rehearing request. They included the four members of Hawai'i's congressional delegation, state Attorney General Mark Bennett, Mayor Mufi Hannemann, the Hawai'i Business Roundtable, the Hawai'i Civil Rights Commission, the Japanese American Citizens League and groups representing Kamehameha parents, teachers, faculty and alumni.


    Kihune, chairman of the Kamehameha trustees, called yesterday a great day for Kamehameha, Hawaiians and the state. He wouldn't, however, say the ruling was a sign of the school's success before the larger panel.

    "I'd like to be optimistic but we've got to be cautious about this because we just don't know how this thing is going," he said. "It's great that we've got some fresh eyes looking at the case now."

    Pono Shim, president of the Association of Teachers and Parents at Kamehameha Schools, said he hopes that the judges will understand that the preference policy is about helping those who are disadvantaged.

    "There is so much need that has to be addressed and (the aid) is not coming from anyplace else except Kamehameha," Shim said. "It is vital that we continue on the mission that Pauahi started."

    But Ken Conklin, a former teacher and longtime critic of Hawaiians-only programs, said programs that are racially exclusionary should be eliminated. He pointed to federal court rulings in recent years against Hawaiians-only funding or programs. Also, efforts to pass the Akaka bill, the first step toward establishing a Native Hawaiian government, have stalled in Congress.

    "It's a wall of apartheid and it needs to be dismantled," Conklin said. "Either we dismantle it with a bulldozer or we dismantle it one brick at a time. And (Kamehameha) is one of the largest bricks in the wall."

    Jan Dill, a board member with the Kamehameha support group Na Pua a Ke Ali'i Pauahi, said Hawaiians and their supporters, who are discouraged by some rulings in the fight to keep Hawaiian entitlements alive, should be buoyed by yesterday's decision for a rehearing.

    "I think anybody would recognize that there's been a less-than-positive support for indigenous rights," Dill said. "This is something we will have to struggle to achieve."

    Jon Van Dyke, a University of Hawai'i law professor who worked on the school's rehearing request, called the decision a "wonderful and exciting development."

    He said the ruling means a number of judges thought the case deserved more consideration. "It certainly opens up the possibility that they will reach a different result," he said. "But, of course, you can't guarantee that."

    Van Dyke said that in its case the school will try to further develop the historical context that led to the formation of the school to emphasize why the 2-1 majority erred in relying on an 1866 law designed to prohibit contracts that discriminate against blacks.


    Although the U.S. Supreme Court has ruled that the law applies to private schools, its decision dealt with an all-white school excluding black students, he said. Van Dyke said they will argue it shouldn't apply to Kamehameha, which is aimed at helping native people.

    Grant also said one can't read anything in yesterday's development as favoring one side or the other.

    The lawyers did not know about the 9th Circuit's en banc track record in whether it tends to overturn, modify or uphold earlier three-judge rulings.

    Grant guessed that the larger panels probably slightly favor at least modifying the earlier ruling because the judges wouldn't have voted for a rehearing if they were satisfied with the prior decision.

    But he said he's prepared to file more legal arguments and reargue the case. "We still have the facts on our side; we still have the law on our side," he said. "We still think we'll win."

    Both sides have indicated that if they lose at the 9th Circuit, they would ask the U.S. Supreme Court to review the decision.

    Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.