February 22, 2006 - Ninth Circuit Grants Rare Re-Hearing To Kamehameha Schools!

Aloha kakou,

What a terrific week it has been for Native Hawaiians with the Court Order from the Ninth Circuit granting Kamehameha Schools' petition for en banc review in John Doe vs. Kamehameha Schools.

The significance of this Court Order
Out of 853 petitions for rehearing in 2005, the Ninth Circuit only agreed to vote on 39, and ultimately granted only 21. That's fewer than 2.5% of Petitions. It feels to me like a massive oceanliner has just been turned around (or at least brought to a standstill) -- all praise to Ke Akua for this enormous blessing -- and for this opportunity for the voice of kanaka maoli to be reheard in this crucial litigation. While the ruling has not been reversed (yet!), it has been set aside for now, until the larger panel of judges can hear the case. In the meantime, the August 2 ruling cannot be cited as legal precedent. Kamehameha Schools will have another chance to present its strong arguments for upholding its admissions policy as essential to fulfilling Princess Pauahi's wishes for the restoration of Hawaii's aboriginal people through education - funded by an entirely private trust, and established prior to the overthrow of the Hawaiian Kingdom.

Our Voice Was Heard - Mahalo from Trustee Kihune
KS Trustee Robert Kihune, in a statement to the media, said this week: "...in addition to 12 amicus, or friend of the court, briefs filed on behalf of 44 individuals and organizations, there were thousands of supporters in Hawai'i and on the mainland who spoke out against the August ruling. 'We just want to thank the thousands of supporters who came came out, because their voices were heard by the 9th Circuit and helped make this happen. Thank you for stepping up to the plate."

The Actual Wording of the Court Order
It was short and sweet: February 22, 2006 - "Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court."

Kamehameha Schools' Communications Director Ann Botticelli stated, "This means that a panel of 15 judges will rehear our case, and decide whether or not to affirm Judge Alan Kay's decision to uphold our preference policy. The 2-1 panel ruling striking our policy has been set aside. The Chief Judge of the 9th Circuit Court of Appeals, Mary Schroeder, will preside over our en banc panel. The remainder of the panel will be decided by random drawing very shortly. The judges on the panel will decide whether to schedule a hearing for oral arguments and whether to additional briefs will be submitted. We should know the date and circumstances of the rehearing in the next few days."

The Battle Isnt' Pau
In other words, stay tuned! This fight isn't over, but a huge hurdle has just been negotiated. We must continue to lökahi and pule fervently until this unfortunate litigation is decided in favor of Princess Pauahi's precious legacy.

In the meantime, all thanks to Ke Akua for this wonderful makana to Native Hawaiians this week.

Extending the blessings of 'Iesu over you this day,

Noelani (Loo) Jai, KS '83
alohajai@socal.rr.com