As prayerful thanks were offered up yesterday for a 9th Circuit Court of Appeals ruling that upheld Kamehameha Schools' century-old admissions policy favoring Native Hawaiians, some thoughts turned to building stronger legal barriers to future challenges against that controversial policy.

One idea — advanced by a 9th Circuit judge who was on the losing side of the appeals decision — would be to abolish tuition altogether at the schools.

Such a move might help stave off some future legal challenges, legal experts said yesterday, but probably would not be enough to keep the schools out of court.

A narrow majority of a 15-member 9th U.S. Circuit Court of Appeals panel this week upheld the schools' policy of giving preference to Native Hawaiian applicants. But in a dissent, Judge Alex Kozinski suggested that the best cure for the schools may be to offer free education to its students.

Such a move, he wrote, would eliminate the contractual relationship the schools have with their students, a key issue in the civil-rights case on behalf of a non-Hawaiian who was not admitted. The idea was that longstanding law argues it is a civil-rights violation to discriminate on the basis of race in contractual agreements.

Get rid of the "contract," the theory goes, and the violation disappears.

But even if that were so, getting rid of tuition now would have no bearing on the current case, which is likely to be appealed to the U.S. Supreme Court, nor is it something the schools' legal team has thoroughly explored.

"It's not clear that waiving tuition would provide us with a complete defense," said Kamehameha Schools spokeswoman Ann Botticelli.

"It certainly isn't something that we need to consider right now because we have a majority panel supporting our decision," she said.

'FULFILLING DAY'

For Kamehameha supporters, yesterday was a time for celebrating the victory rather than worrying about shoring up legal defenses.

At 5 p.m., bells tolled at Kawaiaha'o Church, signaling the start of a special prayer service that attracted about 300 people.

"For me, it's a fulfilling day as a Kamehameha student and as a Native Hawaiian," said 16-year-old junior Lindsey Keliiaa-Fernandez.

Of the court's ruling, Keliiaa-Fernandez said, "This means so much. It's basically like a wake-up call for society and Hawaiians, just to show we can make it. It's a good Christmas present."

Everyone entering the church received a plastic bracelet with the inscription "I Mua E Na Poki'i" (go forward and drink the bitter water).

"I'm here to thank ke Akua (God) for getting Kamehameha this far in its struggle and to give us guidance through any further stumbles we might come across," said Joyce Weiscopf of 'Aina Haina, a 1966 Kamehameha graduate.

THANKS, FORGIVENESS

Brandon Bunag, 26, and his girlfriend Sarah Oda, 19, both Kamehameha graduates from Halawa, also came with a feeling of thanksgiving.

"(The ruling) was so important to what (Princess Bernice Pauahi Bishop's) will was made for, to help out Native Hawaiian children," Oda said. "This will always be something we can call our own because we've been stripped of so much."

Bunag added, "We want to praise ke akua first for shedding light on the judges to decide what was pono for our people."

Kahu Curtis Kekuna of Kawaiaha'o Church told the gathering to pray for the forgiveness of everyone.

"I'm thankful that our son (junior Kolomona Wilson-Ku) has benefited from the school," said Phil Wilson of Kane'ohe, who attended the hourlong service with his wife, Nalani.

But even as the celebrations continued, it was clear that the legal battle would go on.

Eric Grant, the Sacramento attorney representing the unnamed plaintiff, said free tuition would hardly cure the school's legal problems from his point of view. He noted that neither side focused on tuition in court because it was a nonissue.

"For this case, it doesn't have any implication because we're looking at what happened in the past," he said.

However, he said if the school had not charged tuition, his client still would have had a case because Kamehameha has tax-exempt status, which could be considered federal financial assistance.

"It is interesting to think that even if Kamehameha can solve this problem, there's another one looming on the horizon," Grant said. "Just getting around this statute doesn't necessarily take out of the universal federal civil-rights law."

While he noted that it is not a simple legal question, University of Hawai'i law professor and "Broken Trust" co-author Randy Roth said that not charging tuition could strengthen the schools' position.

AKAKA BILL CONNECTION

However, he said Kamehameha stands a better chance with passage of the federal Native Hawaiian Recognition Bill, also known as the Akaka bill, which would give Hawaiians political standing. "That cures the problem currently being litigated," he said.

Even if Congress does not pass the Akaka bill and the Supreme Court reverses the 9th Circuit ruling, Roth said, "I think there are a variety of changes that the trustees could make to the admissions policy that would result in a student body similar to the current one, or even more Hawaiian," he said.

For example, he suggested that if an interest in Hawaiian language and culture was considered along with academic testing, "it's possible that the student body would include a lot of students from Hawaiian homes who currently do not perform particularly well on application tests."

Since tuition is not the only "contractual" requirement for attending Kamehameha — for example, students need to be in good standing socially and academically — eliminating it may not entirely solve the problem, Botticelli noted.

SUBSIDIZED EDUCATION

It was unclear yesterday whether Kozinski is correct in his assessment that "the schools' substantial endowment may enable them to continue operating without charging tuition for a very long time — perhaps indefinitely."

However, what is certain is that Kamehameha subsidizes a significant percentage of every student's education, as well as offering free or reduced tuition to 40 percent of its total student body.

For example, kindergartners through sixth-graders pay $2,566 for an education worth $16,000. Likewise, those seventh grade and up receive subsidies of $12,763 to almost $23,000 depending on whether they board on campus.

And unlike other private schools like Punahou, which charges roughly $15,000 a year, Kamehameha includes fees, books and meals in its annual tuition.

Even if the school can afford to forgo its tuition income, the possibility is not yet being considered.

Reach Treena Shapiro at tshapiro@honoluluadvertiser.com and Rod Ohira at rohira@honoluluadvertiser.com.