Kamehameha Schools told to make exception

By David Waite and Vicki Viotti
Advertiser Staff Writers

For the first time ever, a federal judge yesterday ordered Kamehameha Schools to enroll a non-Hawaiian student and to allow the 13-year-old boy to remain at the school until the judge lifts his action.

Brayden Mohica-Cummings and his mother, Kalena Santos, flank their attorney Eric Grant outside federal court. Richard Ambo • The Honolulu Advertiser

He said his action was meant solely to provide a fair resolution to problems faced by Brayden Mohica-Cummings. The boy had been accepted for admission, but the school rescinded that acceptance Aug. 13.

The boy's classes begin today.

In announcing his action, Ezra said the potential harm to the boy if he were not now allowed to enroll would far outweigh any injury the school might suffer by being forced to accept him. The judge stressed that Mohica-Cummings' admission could be rescinded if the courts uphold the schools' policy.

"The arguments raised by Kamehameha School are, quite frankly, quite compelling to this court," the judge said. "It's quite possible that the policy is legal and his attendance this year may be the only year that he attends."

But it wasn't clear yesterday when a court ruling on the policy might be coming.

Ezra's restraining order and injunction remain in effect while the Mohica-Cummings lawsuit is pending, but no trial date was set.

But a separate lawsuit could produce a definitive ruling on the issue. A similar challenge to the schools' admission policy was filed in June this year in behalf of an unidentified youth. The senior judge of the U.S. District Court here, Alan Kay, is scheduled to hear that case Nov. 18 and could issue a ruling on the validity of the policy under federal law.

University of Hawai'i Law School professor Jon Van Dyke, who specializes in constitutional issues, said Ezra's action was so narrow in scope, dealing only with a restraining order and injunction, that it will likely not have much effect on the other cases pending before federal judges here.

But the action could serve as a "road map" in helping attorneys on either side of the other cases prepare their arguments, Van Dyke said.

John Goemans, a Big Island lawyer who represented Mohica-Cummings, agreed that Ezra's action will have little effect on the case pending before Kay. Goemans said Ezra's action yesterday applies only to the unusual set of circumstances Mohica-Cummings was facing.

After Ezra issued his order yesterday, Mohica-Cummings looked entirely cheerful. The teen said he had come to O'ahu fully prepared to attend school, as if the legal hurdle never existed.

"I feel very good that I get to go now ... I have been excited since 'Explorations,' " Mohica-Cummings said, referring to the Kamehameha summer program he attended last year.

Attorney Eric Grant, who also represented the boy and his mother, acknowledged that Ezra's action was limited and that the boy's attendance at Kamehameha could end if the courts uphold the school's admission policy.

Mohica-Cummings' mother, Kalena Santos, said that her main concern was for her son's welfare and that she had no comment on the merits of the school's overall admission policy.

Acting on the Kamehameha notice of acceptance, Santos decided not to enroll her son in Kapa'a Middle School, Goemans said. By the time Kamehameha rescinded its offer to enroll the boy, Kapa'a School had been in session for three weeks, the attorney said.

Santos said she will prepare her son for the possibility that this could be his only year at Kamehameha.

She also said she believes that he won't be targeted for reprisals. "I'm not worried about that," she said. "As Judge Ezra had stated, he would expect that he would be treated fairly."

Kamehameha attorney David Schulmeister said that the court order, though disappointing, was limited. "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."

The courtroom reaction yesterday was hushed, as teary-eyed trustees, school alumni and other Native Hawaiians embraced and left quietly. Kamehameha Schools officials said they do not plan to appeal Ezra's court order.

Attorney H. William Burgess who represents a group of people who are challenging federal "entitlement programs" for Native Hawaiians on the grounds that the programs discriminate on the basis of race against non-Hawaiians, said he did not think Ezra's order yesterday would have a direct bearing on the entitlement case. Federal Judge Susan Mollway is scheduled to hear arguments in that case Sept. 8.

Van Dyke said congressional passage of the "Akaka bill" — the proposal calling for Hawaiians to receive the same kinds of recognition given to Native American Indians — would likely support Kamehameha Schools' "Hawaiians-only" admissions policy.

"There are well over 100 congressional statutes that provide for the special status of Native Hawaiians. The Hawaiians are like other Native Americans and are entitled to that special status, and the Akaka bill would enforce that," Van Dyke said.

The bill, which is labeled after its sponsor, Sen. Daniel Akaka, D-Hawai'i, is yet to receive congressional approval.

Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030 and Vicki Viotti at vviotti@honoluluadvertiser.com or 525-8053.