The Maui News and The Associated Press
Thursday, February 23, 2006
HONOLULU – The Kamehameha Schools admissions policy is being given another chance before the 9th Circuit Court of Appeals, with the federal court announcing on Wednesday the full court will allow an "en banc" review by all 15 judges.
The court's announcement invalidates a ruling issued by a three-judge panel on Aug. 2 last year that found the Kamehameha admissions policy giving preference to students of Hawaiian ancestry violates federal anti-discrimination laws.
The 2-1 decision of an appeal on behalf of a non-Hawaiian student who was denied admission in 2003 set off a round of public protests in the islands from Kamehameha Schools alumni and supporters.
Kamehameha Schools had asked for the "en banc" hearing, in which all of the sitting judges review the case, as an alternative to appealing to the U.S. Supreme Court on the school's 118-year-old admissions policy.
Robert Kihune, the school's head trustee, said without the review, Kamehameha would have had to take the case to the U.S. Supreme Court.
"Last year's panel decision would have required Kamehameha to offer its programs to children who do not need them,'' he said. "I'd like to see this be short and we win.''
John Goemans, a Big Island attorney representing the unidentified teenager, said the review officially prevents the student from enrolling at Kamehameha. He said the boy is finishing his senior year at a public school.
"It is a shame because of the interest of the student,'' Goemans told The Associated Press in a telephone interview. "There's no question that Kamehameha schools has an illegal, unconstitutional, racial admissions policy.''
Eric Grant, a Sacramento, Calif., attorney who also represents the teen, predicted another victory.
"We certainly wish they had denied the hearing, instead of granting it,'' Grant said. "But we think we'll prevail in front of 15 judges, just like we prevailed in front of three judges. The law hasn't changed, the facts haven't changed.''
The lawsuit asks for unspecified monetary damages and for an injunction barring the school from enforcing its policy.
But Michael Chun, headmaster at the school's main Kapalama campus on Oahu, said the court decision gives him confidence in the school's case.
"They must have seen things in our petition for a rehearing that legitimize our request,'' he said.
Officials defend the admissions requirement as a tool to address social and economic disadvantages Hawaiians have endured since the 1893 U.S.-backed overthrow of the Hawaiian monarchy.
The full court is expected within two weeks to schedule a date for a hearing of the case, said state Attorney General Mark Bennett, who has helped the school present its case and filed briefs urging the review.
Gov. Linda Lingle said she remained hopeful that the wealthy private school would prevail.
"Courts ought to be instruments of justice, not injustice,'' she said.
Maui state Sen. J. Kalani English, an alumnus of the school, said the "en banc" review will ensure a comprehensive review of all of the issues in the case.
"It is a mistake for the court to place a narrow construction on the Kamehameha Schools admissions policy. I am confident that the appeals judges will recognize the importance of protecting the schools' unique legacy," he said.
Kamehameha Schools was established under the 1883 will of Princess Bernice Pauahi Bishop, and its three campuses are partly funded by a trust now worth $6.2 billion. More than 5,000 students are enrolled in elementary to high school classes on Oahu, Maui and the Big Island.
Non-Hawaiians may be admitted if there are openings after all eligible Hawaiians have been offered admission. While the policy allows admission of a non-Hawaiian student – as occurred at the Maui campus in 2002 – many advocates for the school insist that it should admit only students of Hawaiian ancestry.
After the non-Hawaiian student was admitted to the Pukalani campus in August 2002, statewide protests prompted the board of trustees to revise the "ground rules" of its admissions policies to ease the process for students of Hawaiian ancestry, including waivers of an application fee.
On Maui, several supporters of the school's policy said they are hopeful that the full appeals court will uphold the preference policy.
"I think it's great for us. We are able to present our arguments again to the entire appeals court," said Dancine Takahashi, Maui region president of the Kamehameha Schools Alumni Association.
"There's a great concern for all of us because it's in the will. If this is overturned, it will open the way for other things that the opponents of the Hawaiians object to, those who disapprove of what good the Kamehameha Schools have done."
Another Maui alumnus, Kelii Brown, promotions director for the Maui Visitors Bureau, said he recognizes that the policy is discriminatory.
"But I believe there are reasons for it. I believe there is a justification. It corrects the wrongs inflicted on the Hawaiian people in the past," he said. "I view this with cautious optimism, although the battle is obviously long from over.
"I think the court has made the right decision. I don't think any other issue has united Hawaiians and non-Hawaiians as this has."
Maui cultural specialist Charles Kauluwehi Maxwell Sr. took an opposing view, saying he does not believe the preference policy is discriminatory.
"I don't know how it can be discriminatory when it is based on the fact that the Native Hawaiian is still not equal in this society. The view of the princess back then is still prevalent now," he said. "We are a population suffering from the social ills that were imposed on us, and we still have not caught up with Western society.
"It's like affirmative action. There should be some affirmative action for Native Hawaiians who have not fared well in Western society."
He said it would be unfair for the U.S. government to require a change in the mandate of a private will that was written while Hawaii was still an independent nation.
"The bottom line is that the will was made 126 years ago when we were a kingdom of Hawaii. How unfair is it that the will should survive 126 years and the laws of the U.S. government can change it, change the wishes of a person who wished to care for her people," he said.
The school's assets allow it to subsidize tuition costs for its enrollment, making admissions highly prized and extremely competitive as only one in eight eligible applicants gets in.
Even with a finding by the full 9th Circuit, a final verdict on the case will take even longer since attorneys for both the schools and the teenager have said they would appeal any decision against them to the Supreme Court.
But the announcement was sending ripples of excitement through the Kamehameha community. At the Maui campus, Headmaster Rod Chamberlain said the e-mail message was received on a busy Wednesday morning, and not everyone had been informed.
"We have an accreditation visit going on. We have the CEO of Kamehameha Schools visiting with us and we all heard it at the same time. We're all delighted together," he said.
On the Net: Kamehameha Schools: www.ksbe.edu
Copyright © 2005 The Maui News.
Original article URL: http://www.mauinews.com/story.aspx?id=17268