Non-native Hawaiian student admitted on Maui campus is evidence that admissions policy is not an absolute bar

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Student's entrance not due to suit, Kamehameha says. The admission of a non-Hawaiian shows its policy is flexible, a school official says.

By Ken Kobayashi
POSTED: 01:30 a.m. HST, Jul 25, 2010

Lawyers for four non-Hawaiian students challenging the Kamehameha Schools admissions policy are still pressing their case before a federal appeals court, but Kamehameha officials say the lawsuit had nothing to do with their recent announcement that a student without Hawaiian blood will be admitted this year.

Ann Botticelli, Kamehameha vice president for community relations and communications, said the school was adhering to its policy of giving preference to native Hawaiians. The non-Hawaiian student was among applicants waiting for openings in grades 10, 11 and 12 at the Kapalama Heights, Big Island and Maui campuses, she said.

The student's admission involved an "unusual situation where we had more vacancies than applicants," she said.

Botticelli, however, said the student's admission was "consistent" with the admissions policy that has been upheld in court.

"It does demonstrate that our policy is not an 'absolute bar' to non-Hawaiians seeking admission," she said.

The point is important because some federal judges believe the policy violates federal civil rights laws against race discrimination because it's tantamount to an "absolute" ban on non-Hawaiian applicants.

But other federal judges who have outvoted them say the policy is justified because it addresses long-recognized social and economic disadvantages for native Hawaiians.

David Rosen, a lawyer for the students who are pressing their case before the U.S. 9th Circuit Court of Appeals, said he didn't want to speculate about the effect of the non-Hawaiian student's enrollment, but said, "I don't see how it would affect the case one way or the other."

Kamehameha's admissions practices have long been controversial. Native Hawaiians and their supporters believe the admissions policy is at the heart of the multibillion-dollar estate, while critics say the practice is a violation of civil rights laws.

The pending court case was filed in the wake of a $7 million settlement of a lawsuit by an unnamed non-Hawaiian student known only as John Doe. The settlement was reached in 2007 just before the U.S. Supreme Court was to decide whether to hear the teenager's challenge.
It avoided a decision by the high court that, if it had ruled against the school, would have been a devastating blow to the admissions practices, but the settlement did not preclude future lawsuits.

The following year, the four non-Hawaiian students filed a similar civil rights challenge, but Kamehameha objected to the students pressing their case anonymously. In the first lawsuit, the schools did not object.

The students' lawyers contended their clients feared for their safety if their identities were disclosed, but federal judges here denied their request to proceed anonymously.

The attorneys took their case to the appeals court, which wrestled with the school's admissions practices when it granted a rare "en banc" hearing in 2006 in the earlier case.

The issue this time did not deal with admissions, but a three-judge panel still considered it significant.

"Few tenets of the United States justice system rank above the conflicting principles presented in this case: the transparency and openness of this nation's court proceedings and the ability of private individuals to seek redress in the courts without fear for their safety," Robert Beezer, a senior appeals judge, wrote in the opening of the unanimous opinion.

Beezer wrote that the court was "sympathetic" to the concerns of the four students and their parents, but also recognized the "paramount importance of open courts."

He wrote that the appeals judges might have ruled in favor of the students if they were the trial judge, but that they would not overrule the findings because the trial court "did not abuse its discretion."

This time, it's the challengers to the admissions policy who are asking for a larger "en banc" rehearing.

The court rarely grants rehearings and it's even rarer that the judges overturn the panels' rulings, especially when the decisions are unanimous.

But Rosen and Sacramento lawyer Eric Grant filed their request March 23. Kamehameha filed its opposition May 5.

The appeals court will grant the request only by a majority vote of its 25 members. Judge Richard Clifton from Hawaii has taken himself out of any involvement in the case.
The vote would be triggered if at least one of the judges requests the balloting.

It's unclear when a decision on the rehearing will be made. But the passage of time since the final papers were filed May 5 suggests that at least some of the judges might be considering asking for a vote.