Ka Wai Ola - Office of Hawaiian Affairs, Volume 22, Number 9, 1 Kepakemapa 2005 — Fight "far from over," school officials vow [ARTICLE+ILLUSTRATION]

Fight "far from over," school officials vow

In its 2-1 decision striking down Kamehameha Schools' admissions policy, a three-judge panel of the appeals court reversed an earlier ruling by federal Judge Alan Kay that had upheld the policy as legally justified because it serves "a legitimate remedial purpose of improving Native Hawaiians' socioeconomic and educational disadvantages." In the panel's majority opinion, Judge Jay Bybee wrote that "we ... find that the Schools' admission policy, whieh operates in practice as an absolute bar to admission for those of the non-preferred race, constitutes unlawful discrimination." However, the panel's chief judge, Susan Graber, wrote in her dissenting opinion that the many statutes enacted by Congress to provide exclusive remedial preferences for Native Hawaiians demonstrate that "Congress clearly meant to allow the private education of native Hawaiian children at the Kamehameha Schools." Kamehameha Schools officials have petitioned the full 9th Circuit for a rehearing. If a majority among 24 of the court's judges agree to initiate the process called "en banc," a panel of 11 judges will be randomly selected to review the case and issue another decision. Although such reviews are relatively rare, Kamehameha argued that the significance of the case and the fact that it was a split decision warrants reconsideration. Calling the mling "unprecedented," the school argued that it is "the first in our nation's history to invalidate a remedial educational policy by a private school for the benefit of any minority group, mueh less an indigenous people." The state of Hawai'i also filed a brief with the court in support of the school's petition for the rehearing, saying that the case raises a question of "exceptional importance." "I continue to believe that the panel decision was wrong, and I hope the rehearing will be granted," said state Attorney General Mark Bennett. "I have filed this brief because of the importance of this case to the State of Hawai'i." "This fight is far from over," vowed Kamehameha Board Chairperson Diane Plotts. "Two judges ruled against our policy, but the chief judge of the panel

dissented ... and there is a very good ehanee a different panel will agree with [her]." Added Kamehameha CEO Dee Jay Mailer: "If our petition for rehearing before the 9th Circuit is unsuccessful, we will appeal to the U.S. Supreme Court, and ask the court to order an extended stay of the mling until the appeal process is completed. ... As we fight in the courts, we will eonhnue to educate Hawaiian students through our campus programs, and we will continue to work to foster understanding and widespread practice of all things Hawaiian in order to further strengthen the Hawaiian culture." Meanwhile, the 9th Circuit appeals court has already denied two separate motions filed by the attomeys for the anonymous non-Hawaiian student who originally filed the lawsuit in 2003, seeking to get him into the school as soon as possible. The motions claimed that the length of the appeal process, whieh could take more than a year, may prevent the student, identified only as "John Doe," from attending Kamehameha at all, since he is a senior this year. Classes at Kamehameha's eampuses began in mid-August. The first motion, whieh requested the 9th Circuit Court to order Kamehameha Schools to accept the student immediately pending the appeal process, See FIGHT on page 1 9

"As we fight in the courts, we will continue to educate Hawaiian students, andwewill continueto worktofoster understanding of all things Hawaiian in order to further strengthen the Hawaiian culture," said Kamehameha CEO Dee Jay Mailer at the rally following the ruling. Photo: Derek Ferrar

Fight

Continued from page 9 was denied on Aug. 8, with the judges saying that the issue would have to be settled by the federal distriet eourt in Hawai'i onee the appeal proeess was eomplete. The next day, the attorneys took the unusual step of asking the 9th Circuit to send the case back to the district court immediately so it could rule on the boy's admission. The appeals court rejected that request on August 11. "The court has clearly spoken that we have the right to continue to apply our admissions policy while we pursue our request to have our case reheard," Kamehameha's vice president for legal affairs, Colleen Wong, told The Honolulu Advertiser. Kamehameha officials have said they will oppose any attempt to allow the boy to attend the school and are committed to defending their admissions policy. On the day of the march, Kamehameha Trustee Douglas Ing said that the trustees will also develop a "Plan B" to protect the wishes of Princess Bernice Pauahi. "Even if we are not successful at the next appellate level, there shall be no end," he said. "This trust, this school and [Pauahi's] benefits will eonhnue to flow to Hawaiians in perpetuity."