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The Honolulu Advertiser
Posted on: Wednesday, December 3, 2003

Trustees were wise to settle

By David Shapiro

As difficult as it is for Hawaiians to swallow, Kamehameha Schools trustees did the right thing by settling a lawsuit that allows a non-Hawaiian 7th-grader to attend Kamehameha until he graduates.

The school argued in federal court that Brayden Mohica-Cummings was accepted only on the basis of his mother's false representation that he was of Hawaiian ancestry.

But as a practical matter, even if U.S. District Judge David Ezra ruled in Kamehameha's favor, he may well have allowed the student to remain enrolled until his appeals ran out several years from now.

By settling, trustees lost little and avoided the risk of an adverse ruling by Ezra on the larger question of whether Kamehameha's Hawaiians-only admissions policy is legal under U.S. civil rights law.

The circumstances of the Mohica-Cummings case are unique and set no precedent on the bigger issue.

Trustees can now defend their enrollment policy armed with a highly favorable ruling by U.S. District Judge Alan Kay in a separate case that Kamehameha's admissions based on Hawaiian genealogy are legally permissible.

Kay ruled that Kamehameha Schools is "exceptionally unique" and that its Hawaiian-only admissions legitimately address social, cultural and economic inequities Hawaiians have faced since their monarchy was overthrown.

There's no saying how Ezra, who still must approve the settlement, would have ruled, but he's not bound to see the law the same as Kay and displayed some skepticism in questioning attorneys.

Why take the chance? Even a partially adverse Ezra ruling would have muddied the school's position as this vitally important case moves through the appeals process, possibly as high as the U.S. Supreme Court.

Native Hawaiians have a right to be incensed by the lawsuits challenging the admissions policy of Kamehameha Schools.

It's quite distasteful that two white lawyers are using an 1866 civil rights law intended to protect freed black slaves in business contracts to suppress the rights of Hawaiians, another dispossessed minority, to preserve their culture.

It's a case of the "haves" using a law to protect the "have-nots" against them, and the sense that this is not right goes beyond the Hawaiian community.

More than 80,000 people —Hawaiians and non-Hawaiians — signed a petition supporting Kamehameha Schools for Hawaiians only as one means of redressing historical injustices against Hawaiians.

Kamehameha is doing reasonably well in fulfilling the purpose set by the Hawaiian princess who financed the trust, and limiting the private school's enrollment to Hawaiians really isn't doing anybody else any harm.

Attempts to take the school away from Hawaiians give the impression of a greedy power grab to make the rich richer and the poor poorer.

While emotions among Hawaiians understandably run high, they need to keep focused on the ultimate goal if they're going to succeed in protecting the mission of Kamehameha Schools.

Hawaiian critics of the trustees' decision to settle with Mohica-Cummings focus on the injustice of one Hawaiian child being denied entry to Kamehameha because of the spot taken by a non-Hawaiian student under false pretenses.

But they also need to think about the tens of thousands of Hawaiian students who will be denied entry in the future if the school loses its case and must open its enrollment to all comers.

Programs and institutions that serve native Hawaiians are under attack from every direction, and the only chance Hawaiians have to prevail is to fight back with shrewd acumen as well as emotion.

A big part of fighting smart is to accept occasional strategic retreats to gain better position to win the bigger battle. That's what the trustees did.

David Shapiro can be reached at dave@volcanicash.net.