Kamehameha Schools asked the 9th U.S. Circuit Court of Appeals yesterday to rehear the court's 2-1 decision declaring the school's policy of admitting only students with Hawaiian blood violates federal civil rights laws.

The request for a rehearing by an "en banc" or larger panel of 11 appeals court judges delays any enforcement of the decision for weeks or months — or forever, if the 2-1 ruling is overturned.

The school's lawyers, who called the decision "unprecedented," argued in their papers that the ruling 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, much less an indigenous people."

They said the correct conclusion was delivered in the dissent by 9th Circuit Appeals Judge Susan Graber, not by the majority opinion from appeals judges Jay Bybee and Robert Beezer.

John Goemans, one of the lawyers representing the unnamed non-Native Hawaiian public high school senior who challenged the policy, said statistically, the chances the request will be granted are "very slim."

While Kamehameha Schools lawyers agree, they say the novelty of the issue, the impact of the ruling and the split vote gives them a better than average chance the court will approve the request.
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The state is not a party to the case, but the state attorney general's office yesterday filed a friend-of-the-court brief supporting the rehearing. The office said the case raises an issue of "exceptional importance," a basis for the rehearing.
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The school lawyers said each space taken by a non-Native Hawaiian "deprives a Native Hawaiian student of a space in an educational program of unique cultural, historical and communal significance to the Native Hawaiian people."
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Under appeals court rules, the request will be circulated among the 24 9th Circuit judges. (Four seats are vacant). If any believe the rehearing should be put up for a vote, the judges are polled. If a majority agrees, the 2-1 decision is withdrawn and a panel of 11 judges is randomly selected to rehear the case, according to the rules.

A ruling by the larger panel could take a year or longer, legal observers have said.

School officials have vowed to take the case to the U.S. Supreme Court if necessary.