Ka Wai Ola - Office of Hawaiian Affairs, Volume 24, Number 1, 1 January 2007 — I MUA KAMEHAMEHA! [ARTICLE+ILLUSTRATION]

I MUA KAMEHAMEHA!

Supporters are 'overjoyed' as appeals court narrowly upholds school's admission policy

By Sterling Kini Weng Publicatiūns Editur On Dec. 5, a 9th U.S. Circuit Court of Appeals panel of 15 judges upheld Kamehameha Schools' Hawaiian-preference admission policy, ruling that the schools'

mission of remedial education for Native Hawaiians does not violate federal civil rights laws. The long-anticipated ruling, whieh overturns a previous decision issued by a three-judge panel of the same appellate court, was met by Kamehameha officials and supporters with cheers and determination to continue defending the school's admission policy. "We're overjoyed," said Kamehameha Chief Executive Officer Dee Iay Mailer, after staff broke out in singing and hugs following a press conferenee on the day the ruling was announced. "We've been waiting for this magical moment, and some of us are still trying to understand that it's here. We're elated, and, in the same breath, we know that we have a tremendous amount of work still to do because we know that the plaintiffs will not just let this be." Retired Navy Vice Adm. Robert Kihune, ehainnan of Kamehamaha's board, echoed Mailer's sense of measured enthusiasm, noting that there may be more legal battles down the road. "As long as our policy is at risk," he said, "we will do whatever it takes to preserve our right to offer preference [in admissions] to our Native Hawaiian people."

Eric Grant, the attorney representing an unnamed student who was denied admission into Kamehameha because he is not Hawaiian, told the Honolulu Star-

BuIIetin that while he and his client are disappointed by the ruling, they plan to appeal the case to the Supreme Court early next year. Citing the 8-7 decision by the appellate court, Grant said, "The closeness of the decision bodes well for eventual resolution of the case by the U.S. Supreme Court." However, Mailer and other school officials said that because the Supreme Court hears such a small number of cases, it's unlikely they will agree to review the appeal. Meanwhile, students and faculty at Kamehameha's three campuses, alumni and members ofschool's 'ohanacelebratedthe ruling at several events, including an assembly at Kekūhaupi'o Gym on the school's Kapālama Campus and a service at Kawaiaha'o Church. The 1884 will of Princess Bernice Pauahi Bishop, the great-granddaughter of Kamehameha I, established Kamehameha Schools to educate indigent and orphaned children, with a preference given to Native Hawaiian children. Today, the school's trust tops $7 hillion and provides for the educational needs of more than 6,500 students at its Maui, Hawai 'i

Island and O'ahu eampuses, as well as its 31 preschools statewide. Grant originally filed the lawsuit against the school's admission policy in 2003, alleging that the policy violates federal civil rights law because it operates as an "absolute bar" to non-Hawaiians applying to the school. Courts have previously interpreted the law as forbidding both puhlie and private schools from excluding students based on race. Grant's client, identified only as "lohn Doe" because he was a minor, 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. After the federal District Court in Hawai'i ruled in the school's favor, Grant and his client appealed the case and received a favorable decision from a three-judge panel of the 9th Circuit appeals court in August 2005, when the panel ruled 2-1 that Kamehameha's admission's policy was in fact "unlawful race discrimination." However, the school requested that a larger panel of 15 judges rehear the case, and, in a rare move, the court agreed.

In one of the six opinions composing the more than 100page decision by the expanded panel, Iudge Susan R Graber, writing for the majority, said that Kamehameha's admission policy is legal because it seeks to improve the educational standing of Native Hawaiians, who as a group fall "at the bottom of the spectrum in almost all areas of educational progress and success." In addition, she noted that Congress has passed legislation, specifically the federal Native Hawaiian Education Act, to assist the educational needs of Native Hawaiians. She wrote: "These steadfast congressional policies favoring remedial measures for Native Hawaiians - and specifically remedial educational measures, some of them even mentioning the Schools and the Bishop Trust approvingly by name - inform our analysis of the validity of the Kamehameha Schools' admissions policy under [federal civil rights law]. It would be ineongruous to conclude that while Congress was repeatedly enacting remedial measures aimed exclusively at Native Hawaiians, at the same time Congress would reject such Native Hawaiian preferences under [the same civil rights law]."

In his concurrent opinion, 9th Circuit Judge William Fletcher added thatt the school's admission policy is permissible because Native Hawaiians are a poliīieal classification and have a special relationship with Congress similar to that of Native Americans and Alaska Natives. Supporters of Native Hawaiian federal recognition have long said that passage of the Akaka Bill or a similar pieee of legislation that would formalize the special relationship Fletcher was referencing would bolster the defense of Kamehameha's admission policy. However, 9th Circuit Court Judge Jay S. Bybee, in his dissenting opinion, criticized the majority for their interpretation of the law and pointed out that while Congress had the opportunity to officially extend federal recognition to Native Hawaiians, it did not do so. "The majority exempts an organization with nohle goals that seeks to remedy a significant problem in a coimnunity t hat is in great need," Bybee wrote, "but it ean do so only because the majority departs from clear principles and established precedent." E3

NŪ HOU • NEWS

| Left: Kamehameha Schools CE0 Dee Jay Mailer hugs ū supporter ofter the announcement of the appeals court verdict. I Above: Students carry ū portrait of Princess Pauahi at ū 2005 march in support of the school - Photos: KW0 staff