Kamehameha settlement not last bias hurdle

By Vicki Viotti
Advertiser Staff Writer

The lawyer representing two non-Hawaiian boys who sued in federal court to challenge Kamehameha Schools' Hawaiian-preference admissions policy said he foresaw no hurdles to finalizing the proposed settlement of one case at a hearing this morning.

U.S. District Judge David Ezra will review the settlement dismissing the case of 12-year-old Brayden Mohica-Cummings at a hearing set for 10:30 a.m. Court approval is needed because the settlement, which allows the seventh-grader to remain at the school, involves a minor.

"The court scrutinizes settlements involving minors to ensure that their interests are being represented," said Eric Grant, the boy's lead attorney. "This settlement would be a great benefit to Brayden, so those hurdles are easily passed."

Crystal Rose, who heads the school's legal team in Hawai'i, declined comment yesterday.

Grant also said Ezra had raised a concern that the settlement not defeat the public interest in having the legal issues heard, but that concern could be met. Grant said an anticipated appeal of the second Kamehameha court case would bring the legal issues before a higher jurisdiction for review.

In that second case, filed on behalf of an unnamed non-Hawaiian boy seeking admission to Kamehameha, U.S. District Judge Alan Kay ruled in favor of the schools on Nov. 17. Grant said he would file a notice of appeal to the U.S. 9th Circuit Court of Appeals as soon as Kay issues his written order.

The Mohica-Cummings settlement, reached last week, was assisted by three financial backers who offered to pay the nonlegal costs. That cleared the way for the settlement, according to two of the backers, but it sparked an outcry from a Hawaiian group that has pledged financial retaliation against the backers.

John Goemans, the Big Island lawyer serving as the plaintiffs' local attorney on both cases, said neither he nor Grant were being paid for their legal work in the cases.

Goemans said the three backers — Campbell Estate beneficiary James Growney, former Advertiser owner Thurston Twigg-Smith and former Wallace Theatre owner Scott Wallace — also helped cover expenses in Goemans' landmark Rice v. Cayetano case, in which the U.S. Supreme Court disallowed Hawaiian-only voting in the Office of Hawaiian Affairs elections.

Growney was unavailable for comment. Twigg-Smith and Wallace yesterday said their primary interest in paying the out-of-pocket costs was to speed settlement of the Mohica-Cummings case.

The settlement, and financial support for it by local business leaders, has been unpopular with some Hawaiian groups. Kaho'onei Panoke, vice-president of 'Ilio'ulaokalani Coalition, said his group was looking into how Native Hawaiians might strike back financially.

"I am certain that we will come up with a financial plan to affect their profit margin," Panoke said.

Twigg-Smith said expenses so far amounted to "the low five figures" for both court cases. Grant declined to comment on the backers' offer or to estimate the expenses incurred.

Kamehameha's decision to settle received mixed but largely critical reaction from the community of school families and graduates known informally as the Kamehameha 'ohana.

Alumnus Roy Benham, who belongs to Kamehameha's board of advisers, said after Friday's announcement that the settlement was in the best interest of the school, which "made a mistake" in admitting Mohica-Cummings and now needs to move on.

But many others in the Hawaiian community — especially the coalition, which organized large marches in support of the schools — felt the settlement sent the wrong message, rewarding an applicant unqualified to benefit from the Kamehameha trust.

Ray Soon, Kamehameha Schools' vice president for community relations and communications, could not be reached for comment yesterday. Trustees for the schools have been meeting with the 'ohana Tuesday and yesterday on O'ahu and the Neighbor Islands to explain the decision to settle.

On Friday, the trustees said the settlement assured that any federal ruling appealed to a higher court would come before judge Kay, whom they believe strongly endorses school policy.

Theater owner Wallace said the settlement was a good decision because "the boy's interest has to be placed first." He praised Grant for being willing to contribute his legal services for Mohica-Cummings' benefit.

"There are some good lawyers in the world," he said.

Reach Vicki Viotti at vviotti@honoluluadvertiser.com or 525-8053.