Court order due today in Kamehameha suit
By David Waite
Advertiser Courts Writer
Federal Judge David Ezra is expected to decide this morning whether to issue the first-ever court order requiring Kamehameha Schools to at least temporarily admit a non-Hawaiian student when classes open tomorrow.
Photos by Gregory Yamamoto • The Honolulu Advertiser
A lawyer for Kaua'i resident Kalena Santos and her 13-year-old son, Brayden Mohica-Cummings, claims that the school's admissions policy giving preferential consideration to Native Hawaiians is illegal because it discriminates against non-Hawaiians.
Brayden Mohica-Cummings' invitation to attend Kamehameha Schools was rescinded.
David Schulmeister, who represented Kamehameha Schools, said the admissions policy does not violate federal civil rights law.
But attorney David Schulmeister, who represented Kamehameha Schools at yesterday's hearing, said the admissions policy does not violate federal civil rights law and amounts to an equal opportunity program for Hawaiians.
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.
Another lawsuit, filed in June by an anonymous student, also challenges the admissions policy of Kamehameha Schools. A hearing before U.S. District Judge Alan Kay, set for Nov. 18, may decide the issue.
At yesterday's hearing, Eric Grant, representing Santos and her son, outlined the procedure that he said they followed in trying to enroll the boy.
Grant said the boy took part in a weeklong Kamehameha Schools Exploration program last summer and received a letter from the school about two weeks later inviting him to apply for admission to the seventh grade.
Grant said Santos and her son filled out the application and submitted it, listing Melvin Cummings as Santos' father and noting that he was of Hawaiian ancestry. Grant said that Cummings is actually Santos' "hanai" parent — adoptive by informal means —but that "in her heart," Cummings is Santos' father in every sense of the word.
"She lived in his house, he married her mother, he was her father," Grant said.
He said Santos left a couple of spaces blank on the application form when it came to the racial background of herself and the boy's biological father.
When a Kamehameha Schools admissions worker called Santos on July 8, Santos explained that the claim of her son's being part-Hawaiian was based on her hanai father's racial lineage, Grant said.
Gregory Yamamoto • The Honolulu Advertiser
He said Santos was not deliberately trying to mislead the school into believing that her son is part-Hawaiian, but was doing her best to supply information that the admissions form was seeking.
Brayden Mohica-Cummings, 13, his mother, Kalena Santos, and attorney Eric Grant hope to prevail over Kamehameha policy. Santos says her hanai father had Hawaiian blood so her son is of Hawaiian lineage.
But Schulmeister said the school gave Santos until Aug. 8 to substantiate that the boy is part-Hawaiian and then granted an additional extension. He said he received a phone call from Grant on Aug. 11 telling him he was representing the boy and his mother in a discrimination lawsuit against the school.
Grant said the Hawaiian ancestry issue is not relevant because the admissions policy favoring Hawaiians is discriminatory. But Schulmeister said the school has never tried to hide the fact it has a stated "preference" for admitting children who are at least part-Hawaiian.
Ezra took issue with the stated admissions policy, asking Schulmeister specifically what the school meant by giving preference to Hawaiians. The judge asked: "How are Native Hawaiians, Caucasian Americans, Japanese Americans and Korean Americans to know what that means?"
Ezra said that as a federal judge who has handled Hawaiian rights cases, and as a law school professor at the University of Hawai'i and a student of Hawaiian law, he has some feel as to what the term "hanai" means. "Native Hawaiians believe a hanai child to be truly their own," Ezra said.
While there can be unique cultural circumstances in Hawai'i, "it does not mean that the Constitution does not apply," Ezra said.
He referred to a ruling of his that had to do with the state's allowing only Hawaiians to vote for candidates running for the Office of Hawaiian Affairs. Ezra ruled in favor of Hawaiians-only involvement in the elections, only to have the U.S. Supreme Court overturn his decision.
He said he still believes that his ruling on the OHA issue was correct but will abide by the Supreme Court decision unless it is revisited and overturned some day.
Whether Kamehameha Schools is justified in turning away otherwise qualified applicants on the basis of race — even when Hawai'i's unique circumstances come into play — is the key question that must be resolved, Ezra said.
He likened the situation to a group coming to Hawai'i and deciding to open a school just for Caucasians after concluding Caucasians are a minority when considering all other racial groups.
"The result would be volatile and justifiably so," Ezra said. "Kamehameha Schools is doing the same thing by excluding everyone but Hawaiians. But it may be the case that ... the uniqueness of Hawai'i makes this permissible."
If Ezra grants a request for the temporary restraining order and preliminary injunction sought by Grant, Mohica-Cummings would be allowed to attend Kamehameha Schools until the federal court decides whether the school's admission policy is discriminatory.
Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030.
