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The Honolulu Advertiser

Posted at 11:58 a.m., Wednesday, August 20, 2003

Judge tells Kamehameha to admit non-Hawaiian

By David Waite
Advertiser Staff Writer

For the first time ever, a federal judge today issued a court order directing Kamehameha Schools to admit a non-Hawaiian student.

U.S. District Judge David Ezra faulted the school for not rescinding its offer of admission to a 13-year-old Kaua'i boy until three weeks after public school had started on Kaua'i.

Ezra said the potential harm to the boy, Brayden Mohica-Cummings of Kapa'a, resulting from Kamehameha Schools’ last-minute decision to rescind its acceptance of the boy, far outweighs any injury the school might suffer from being forced to enroll the boy.

Ezra emphasized that he was not passing judgment on Kamehameha Schools’ preference toward admitting students of Hawaiian ancestry.

"I am not today deciding that Kamehameha Schools admissions policy is illegal or that it violates (federal) statutes or the Constitution," Ezra said.

That issue is "squarely in front of" federal Judge Alan Kay, Ezra said. A court hearing that may decide the issue is set for Nov. 18.

Ezra said the order he issued today was only to correct an emergency situation.

He said Mohica-Cummings participated in a Kamehameha Schools program last summer, which also gave admissions preference to Hawaiians and was subsequently invited by the school to apply for admission to the seventh grade.

The boy’s mother helped him fill out an application to the school and left unanswered some questions aimed at establishing his Hawaiian heritage, Ezra said. But he said he did not agree with an argument put forth by Kamehameha Schools lawyer David Schulmeister that the boy’s mother was trying to deliberately mislead school officials about her son’s racial background.

When an admissions worker called the boy’s mother, Kalena Santos, in July to ask questions about the form attesting to the boy’s Hawaiian heritage, Santos readily admitted that her hanai or informal adoptive father was Hawaiian.

If Santos was bent on deceiving the school she would have lied about her and her son’s racial background or refused to answer the questions, Ezra said. And even though there is now a question about the accuracy of the birth certificates issued by the state of Hawai'i to Santos and her son, the certificates are deemed official records and include "Hawaiian" under the race heading, Ezra said.

He ordered Kamehameha to admit Brayden Mohica-Cummings as a student, to give him full standing, not to discriminate against him and to allow him to remain a student at the school until a further order from the court.

As Ezra was announcing his decision and it became clear he was ruling in the boy’s favor, Brayden Mohica-Cummings tucked his chin down against his chest and turned to his mother and smiled broadly.

The decision by Ezra on whether to issue a restraining order forcing the schools to admit Mohica-Cummings will be the latest chapter in the emotional issue involving the charitable trust created by the 1884 will of Princess Bernice Pauahi Bishop. The multibillion-dollar trust, Hawai'i’s largest private landowner, operates Kamehameha Schools on Kapalama Heights and two other campuses for students of Hawaiian or part-Hawaiian ancestry.

When asked yesterday if he were concerned about the backlash that might result from a court order directing Kamehameha Schools to accept Mohica-Cummings, his lawyer, Eric Grant, described him as "a plucky kid."

"Certainly, this is not an ideal situation for him," Grant said. "But Brayden wants to attend Kamehameha and he’s looking forward to playing football with his friends from Kapa'a" who will also being attending Kamehameha, Grant said.

Kamehameha attorney David Schulmeister said that the ruling, though disappointing, was a very narrow decision.

"I think the judge made it clear that it was only because of the special circumstances here, and it doesn’t speak to the ultimate decision on the school policy," he said. "I think we will get a fair hearing on the policy."

Kamehameha’s middle school begins sessions tomorrow. School headmaster Michael Chun said today that he had met with faculty to assure that boy’s transition to the school is positive.

The courtroom reaction after the ruling was hushed, as teary-eyed trustees, school alumni and other Native Hawaiians embraced and left quietly.

One was not so quiet once she reached the courthouse steps. Lilikala Kame'eleihiwa, director of the Center for Hawaiian Studies at the University of Hawai'i, said the decision was unfair to Native Hawaiian children who still want to be admitted.

"There are 48,000 Hawaiian children in the public system who would love to have that spot," she said. "They should be taken care of first."

Kame'eleihiwa also dismissed the argument that status as a hanai child equates with being able to trace a Native Hawaiian ancestry.

"In the Hawaiian system, everyone knows their genealogy, whether they’re hanai or not," she said. "If (Santos) doesn’t know who she is, shame on her.

"If this person felt that she was raised as a Hawaiian, this is not a Hawaiian way to behave."

Advertiser staff writer Vicki Viotti contributed to this report.