Ka Wai Ola - Office of Hawaiian Affairs, Volume 21, Number 12, 1 Kekemapa 2004 — Appeals heard in lawsuits against OHA, Kamehameha [ARTICLE+ILLUSTRATION]

Appeals heard in lawsuits against OHA, Kamehameha

Kamehameha students show support with emotional songs, hula

By Derek Ferrar Acharged atmosphere of pride and emotion prevailed at Fort Street Mall on Nov. 4, when about 200 Kamehameha Schools students gathered to sing, chant and dance hula in front of the building where federal appeals judges were hearing arguments on the legality of the schools' Hawaiian-preference admissions policy. The hearing in the Doe v. Kamehameha suit eame just three days after a similar panel of 9th U.S. Circuit Court of Appeals judges heard arguments in a case seeking the abolishment of OHA and the Department of Hawaiian Home Lands. Kamehameha Trustee Douglas Ing told the crowd after the hearing that the judges appeared impressed by the See KAMEHAMEHA on page 8

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Top: OHATrustee Dante Carpenter joins sign-wavers outside the hearing in the Arakaki case against OHA. Bottom: Kamehameha students dance outside their hearing.

KAMEHAMEHA from page 1 schools' arguments. "It was clear from their questioning and comments that they were very impressed by issues that are central to who we are," Ing said. "They seemed to recognize that Kamehameha Schools is built upon private funds from the trust set up by Princess Bernice Pauahi Bishop when Hawai'i was still a sovereign nation, and that those funds are now being used to benefit an indigenous people who are struggling as a result of social imbalances." Ing said he sensed that the

judges were "struggling to find ways within the body of civil rights and constitutional law to support this school, because they were impressed with the mission and the results of the school." The suit, filed in June 2003 on behalf of an anonymous non-Hawaiian student who was denied admission to Kamehameha, claims that the schools' admissions policy violates federal civil rights law. Courts have previously interpreted the law as forbidding both puhlie and private schools from excluding students based on race. Kamehameha's attorneys, led by Stanford Law School Dean Kathleen Sullivan, have argued that the schools' Hawaiian-preference policy is allowahle under federal law because it is aimed at correcting social inequities suffered by Hawaiians in their own homeland - a need already acknowledged by Congress in several laws. In addition, they point out that the school is a private institution that was set up by Hawaiian royalty when the Kingdom of Hawai'i was still a sovereign nation, and therefore predates the imposition of U.S. law in the islands. Last year, U.S. District Judge Alan Kay agreed with the school, ruling that its policy serves "a legitimate remedial purpose of improving Native Hawaiian's socioeconomic and educational disadvantages." The attorneys for the anonymous plaintiff, John Goemans from Hawai'i island and Eric Grant from Sacramento, appealed the case to the 9th Circuit, Both lawyers have been involved in other,

similar suits against the school. At one point during the appeal | hearing, Grant cited a case that challenged the admissions policy of an all-white school in Pennsylvania. One of the judges, Susan Graber, said she saw a

significant difference between the two cases, quipping: "There wasn't a king of Pennsylvania that I know of." Kamehameha's trustees, along with CEO Dee Jay Mailer and headmaster Dr. Miehael Chun, started the day with an early morning visit to the Mauna'ala royal mausoleum where Princess Bernice

^ Pauahi Bishop is buried, followed by prayers at Kawaiaha'o Church. Because the federal bankruptcy courtroom where the hearing was held is quite small, some attendees watched the proceeding in a separate courtroom via live video feed. Many more students, joined by a group from Hālau Lōkahi Hawaiian Charter School, chanted and danced outside. Kamehameha's director of performing arts, Randie Fong, led a group of the school's renowned choral singers in the school anthem, "I Mua Kamehameha," and other songs. "We're so glad that you're all here," Board of Trustees Chairman Nāinoa Thompson told the students. "Your mana, your spirit, really made a difference today." Thompson described the performance of the school's legal team as "awesome": "They did an incredible job of demonstrating that this is about protecting what's special about Hawai'i - for Hawaiian people, and for all people." Onee the panel issues its ruling, whieh is not expected for several months, the losing party could then request a ruling by the full 9th Circuit. Following that, the final recourse would be an appeal to the U.S. Supreme Court, whieh might or might not agree to hear the case. "The case is now in two sets of hands," said Kamehameha Trustee Ing. "The hands of these judges, and the hands of our Lord, ke Akua. We will wait for this decision, but we will continue to carry the values of Bernice Pauahi Bishop." ■

Kamehameha students Kanoe Elvenia and Cody Dietrich (above) and board Chairman Nōinoa Thompson (below) described the feeling in the courtroom as "intense." Photos: Derek Ferrar