Arguments before a group of federal appeals court judges in San Francisco on Tuesday could decide the fate of what supporters say is the heart of the only institution that truly belongs to Native Hawaiians.

At stake is the legality of the Kamehameha Schools policy of giving preferential admission to applicants with Hawaiian blood. The school maintains its practice is justified to address the social, economic and educational disadvantages facing Native Hawaiians.

A lawyer challenging the policy on behalf of an unnamed non-Native Hawaiian teenager, however, believes the practice violates federal civil rights laws.

The rejection of the admissions policy by a three-judge panel of the 9th U.S. Circuit of Appeals last August sent shock waves that spurred an estimated 20,000 Kamehameha students and supporters to rally in support of the school's 119-year-old policy. The school successfully petitioned to have the case heard by a panel consisting of a greater number of judges.

The hearing isn't expected to result in an immediate decision. The appeals judges traditionally will take the case under advisement without indicating when they will render their decision. Legal observers say it could take months.

The 15-judge panel that will hear arguments Tuesday includes nine who were appointed by Democratic presidents and six by Republican presidents.

The court's chief judge, Mary Schroeder, automatically gets to sit on the panel. The other 14 are selected randomly from a pool of other active judges on the 28-seat appeals court. Richard Clifton, Hawai'i's only judge on the court, was not in the pool.

Nine, including Schroeder, were appointed to the lifetime terms by Presidents Carter and Clinton. The other six were appointed by Presidents Reagan, George H.W. Bush and George W. Bush.

HARD TO PREDICT

Experts say it is problematic to predict a court decision based on the political affiliation of the president who selected the judges. But the appeals court's initial decision in the case — by a three-member panel — showed the judges appointed by Republican presidents ruled that the policy violated federal laws. The dissent was by a Clinton appointee.

Judge Jay Bybee, who was appointed by President George W. Bush and who wrote the panel's majority opinion rejecting the policy, will be among those hearing oral arguments, as is Judge Susan Graber, the Clinton appointee.

Eric Grant, a Sacramento lawyer who represents the unnamed teenager and his mother, said the court panel reflects the diversity of the judges, but he was struck by the fact that Bybee and Graber will be sitting.

He suggested the two will probably advocate their previous positions. "I start with one vote and Kamehameha starts with one," Grant said.

But he said he believes his clients will prevail.

Kathleen Sullivan, former Stanford Law School dean hired to represent the schools, was not available for comment. Schools' spokeswoman Ann Botticelli declined to comment on what the panel's make up might suggest about the outcome.

"We'll just go in with our very strong arguments," she said.

LIBERAL REPUTATION

The 9th U.S. Circuit Court of Appeals has a reputation as a liberal court with about two-thirds of the active judges appointed by Democratic presidents.

Kamehameha Schools' position generally would draw support from liberals who view affirmative action as a way to enable minorities to overcome adversities. Conservatives, meanwhile, tend to see such programs as unnecessary or unfairly advancing one group at the expense of others.

Alexander Silvert, first assistant federal pubic defender in Honolulu, pointed out that judges don't necessarily rule the way one might expect.

"When a judge takes a bench, there historically has been an evolution where some of these judges who were expected to be very conservative, or expected to be very liberal, have actually — some people would say — matured, and don't vote along those ideological lines at all," Silvert said.

Tuesday's proceedings will be yet another milestone in the three-year-old roller coaster case that began with the filing of the lawsuit by a teenager — identified only as John Doe — seeking to enroll at the school. Both sides have indicated if they lose, they will ask the U.S. Supreme Court to review the appellate court decision.

Kamehameha Schools, Hawai'i's largest private landowner and one of the wealthiest charitable trusts in the country with assets worth about $6 billion, was established in 1887 under the will of Princess Bernice Pauahi Bishop.

Botticelli said Bishop's vision was to provide education for Native Hawaiians so they could compete in society, but with Hawaiians still facing issues of poverty, drugs and crime, the school still needs to give preference to Native Hawaiian applicants.

There are only 5,400 seats on Kamehameha's three campuses, while there are 75,000 school-age children with Hawaiian blood.

"The (admissions) policy is critical to the mission," Botticelli said.

But to Grant the issue boils down to whether civil rights and anti-segregation laws apply to the institution.

Kamehameha Schools' legal position essentially is: "Hawai'i is different, Hawai'i is special, the regular rules don't apply," he said.

"If Hawaiians get a pass because of their history, I don't think it will be very long before some other group says, 'What about us? If you think it was bad for Hawaiians, let us tell you how bad it was for us,' " Grant said.

TWISTING PATH

In 2003, Senior U.S. District Judge Alan Kay agreed with Kamehameha Schools' legal arguments and upheld the school's policy in view of the unique circumstances of the school and Native Hawaiians. He threw out the suit.

But in August of last year, the majority of a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that the policy amounted to an "absolute bar" to non-Native Hawaiians in violation the federal civil rights law.

Senior appeals Judge Robert Beezer, who was appointed by Reagan, joined Bybee in the ruling.

In dissent, Graber said Congress did not intend that the civil rights law would bar programs to remedy "educational deficits" facing Native Hawaiians.

In February, the appeals court granted Kamehameha Schools' request for a rehearing before the larger panel and withdrew the earlier 2-1 decision.

Grant's client had been seeking a court order to force Kamehameha to enroll the boy who recently graduated from a public high school "with a very good record," the lawyer said.

Even though the initial panel voted 2-1 in his favor, the court did not issue the order because of Kamehameha Schools' request for the rehearing.

Grant said the case is not moot because still pending is the request for money damages from Kamehameha Schools, although the amount has yet to be calculated.

The thrust of his arguments before the court will be that Kamehameha Schools "operates a racially segregated school that violates the civil rights laws of the United States of America and there's no justification for applying any different rules for Kamehameha in particular or Hawai'i in general," he said.

He said even with the 9th U.S. Circuit's so-called "liberal" reputation, the panel will recognize that even if the judges sympathize with Kamehameha Schools' position, "the law requires them to rule in my favor."

Kamehameha Schools will argue that the challenge to the admissions policy should be rejected.

"We believe Judge Kay was correct in finding that our policy is legally justified as a means to remedy past wrongs and current injustices in the Hawaiian community resulting from Western contact," Botticelli said.

"We have a unique history as a private trust established to remedy special economic hardships that persist today."

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.