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The Honolulu Advertiser
Posted on: Tuesday, June 20, 2006

School's policy rehearing today

By Ken Kobayashi
Advertiser Courts Writer

SAN FRANCISCO — For at least an hour this morning, a federal appeals court panel of 15 judges is expected to grill lawyers on whether Kamehameha Schools' admission policy of giving preference to applicants with Hawaiian blood violates federal civil rights laws.

The "en banc" panel of the U.S. 9th Circuit Court of Appeals headquartered here is giving 30 minutes to each side to argue the case, although the court is known to extend the hearing if the judges' questions go past the allotted time.

At the end, the judges traditionally adjourn without indicating when they will render the decision. Legal observers say it could take months.

A three-member panel of the court ruled 2-1 in August that the school's policy amounts to an "absolute" ban to non-Native Hawaiian students, in violation of the civil rights law.

By agreeing to rehear the case with the larger panel, the appeals court withdrew that 2-1 ruling.

For Kamehameha Schools, the policy is essential to the mission of the school that was established in 1887 under the will of Princess Bernice Pauahi Bishop, the last direct descendant of King Kamehameha I.

But to Sacramento lawyer Eric Grant, whose clients are challenging the policy, the school's practice has resulted in a segregated school that shouldn't be exempt under the civil rights laws.

Grant will argue on behalf of an unnamed non-Native Hawaiian teenager and his mother who filed a federal lawsuit three years ago challenging the school's policy.

Grant will be accompanied by John Goemans, the Honolulu lawyer who also was an attorney for Big Island rancher Harold "Freddy" Rice, the plaintiff in the U. S. Supreme Court's 2000 decision that the Office of Hawaiian Affairs elections that bar non-Native Hawaiian voters violate the U.S. Constitution.

The teenager and his mother will not be at the hearing, Grant said, but the two are committed to seeing their case to the end, even if it means turning to the Supreme Court.

"We started this three years ago (when their lawsuit was filed)," Grant said. "We've gone through thick and thin, and we're going to finish it."

Kathleen Sullivan, former Stanford Law School dean, has been hired to argue the case for the school.

Kamehameha Schools Chief Executive Officer Dee Jay Mailer of and school trustees are expected to attend the hearing, along with spokeswoman Ann Botticelli and several members of the school's legal team.

Botticelli said the school isn't planning any major activities in connection with today's hearing, although people have asked how they can help. She said they tell supporters Princess Bishop Pauahi Bishop who established Kamehameha Schools under her will would have prayed. "A lot of people are doing that," Botticelli said.

Kamehameha Schools, one of the wealthiest charitable trusts in the country with assets worth $6 billion, is considered by supporters the last institution that belongs to Native Hawaiians.

The 2-1 appeals court decision in August led to an estimated 20,000 participating in rallies in support of the school in what some say was an unprecedented showing of unity among Native Hawaiians.

A wide range of individuals and groups have filed court papers declaring their support for the policy. They include Gov. Linda Lingle, Hawai'i's congressional delegation, Honolulu Mayor Mufi Hannemann, the Hawai'i Business Roundtable and various Native Hawaiian organizations.

"That's the last thing Hawaiians truly have," said Vicky Holt Takamine, a Hawaiian advocate and supporter of the school's admission policy. "If Kamehameha Schools falls, everything else falls like a domino effect."

Both Kamehameha Schools and Grant have said if they lose, they intend to ask the U.S. Supreme Court to review the decision.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.