Ka Wai Ola - Office of Hawaiian Affairs, Volume 23, Number 7, 1 July 2006 — Appeals court rehears Kamehameha case [ARTICLE+ILLUSTRATION]

Appeals court rehears Kamehameha case

By Sterling Kini Wnng Publicatinns Editnr Apanel of 15 judges from the 9th U.S. Circuit Court of Appeals is expected to deliberate for the next few months over whether Kamehameha Schools' Hawaiian-preference admissions policy violates federal civil rights laws, after oral arguments in the case were presented to the appeals court at its offices in San Francisco on lune 20. This was the second time the case was heard by the appeals court. In August 2005, a threejudge appeals court panel ruled 21 that Kamehameha's admission's policy was in fact "unlawful race discrimination." However, the school requested a larger panel of 15 judges to rehear the case, and, in a rare move, the court agreed. The case originates from a

2003 lawsuit filed on behalf of an unnamed student who was denied admission into Kamehameha Schools because he's not Native Hawaiian. The 1884 will of Princess Bernice Pauahi Bishop established Kamehameha Schools as a trust to educate orphaned and indigent children, with Native Hawaiians receiving preference. Today the trust is worth about $6 hillion. Eric Grant, the student's attorney, has said that Kamehameha's admissions policy violates federal civil rights laws because it operates as an "absolute bar" to non-Hawaiians applying to the school. Courts have previously interpreted the law as prohibiting both puhlie and private schools from excluding students based on race. His anonymous client was hoping that a favorable ruling in

the case would allow him to be admitted into the school, but he has since graduated from a puhlie high school and is now seeking unspecified monetary damages. Former Stanford Law School head Kathleen Sullivan, the lead attorney representing Kamehameha, has 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. During the hearing in lune, judges grilled both Sullivan and Grant, with their questions ranging from whether Native Hawaiians have a federal polkieal status that would permit Kamehameha's admissions policy to whether certain civil rights laws apply to nonconunercial, charitable trusts. Several of the judges spoke of the difficulties in dealing with the legal issues raised in the suit, and at least one judge seems to have wanted to sidestep ruling on the

heart of the case. Appeals Iudge Andrew Kleinfeld, like several other judges, focused on the U.S. Supreme Court's 1976 ruling in Runyon v. McCrary, in whieh it said that private schools are prohibited from denying admission to students because they are African Americans. "Is there any way to avoid reaching the merits in this

case: standing, rightness, mootness?" Kleinfeld asked Sullivan. "Kamehameha is a wonderful school and Runyan is the law of the land. It's a tough eall." Sullivan and Grant both agreed that there was no way around ruling on the central issue of case. The court isn't expected to issue a ruling for several months.