State supports Kamehameha in admissions suit

By Curtis Lum
Advertiser Staff Writer

The state attorney general is supporting the legality of Kamehameha Schools' admissions policy that gives preference to Native Hawaiian children.

Attorney General Mark Bennett filed a "friend of the court" brief yesterday in U.S. District Court in one of two lawsuits that challenge the schools' admissions policy. The case involves an unnamed non-Hawaiian boy who contends he is eligible and willing to attend Kamehameha, but cannot because he is not of Hawaiian ancestry.

Bennett said he also intends to file a similar brief in the case of a 13-year-old non-Hawaiian boy whose admission the school sought to rescind. In August, U.S. District Judge David Ezra ordered Kamehameha Schools to enroll Brayden Mohica-Cummings and to allow the boy to remain at the school until the judge lifts his action.

The cases will be heard Nov. 17 and Nov. 18 by U.S. District judges Alan Kay and Ezra.

Both lawsuits claim that the school's policy violates a federal 1866 civil rights law that was enacted to protect former slaves from discrimination in contracts. The contract into which a parent enters with a school for educating a child is covered by the same protection from discrimination, according to the suits.

But in his amicus brief, Bennett argues that Congress has enacted many programs specifically for Native Hawaiians. He said Congress would not issue such contracts if they would be deemed illegal under Section 1981, which prohibits racial contracts.

"We believe that the preferences for Native Hawaiians, which Congress itself recognizes in a variety of statutes, are political, not racial," Bennett said in the brief. "It would be ludicrous to believe that a Congress that would authorize funding for Kamehameha Schools precisely because it specifically serves Native Hawaiians would at the same time deem its Native Hawaiian admissions preference policy illegal."

John Goemans, one of two attorneys for the plaintiffs, said he was not surprised by the attorney general's actions. Gov. Linda Lingle has submitted an affidavit in support of the school.

"The state of Hawai'i has a universe of racially discriminatory programs specific for Native Hawaiians, and nothing exists in the United States that can conceivably compare with it, or did exist that can conceivably compare with what exists now in Hawai'i," Goemans said. "So I'm not surprised that state continues in its activities in support of racially discriminatory programs."

In addition to the attorney general, a friend of the court brief also has been filed in support of the policy by the 'Ohana Council for Kamehameha Schools. The group includes parents, faculty and alumni groups of Kamehameha Schools.

Reach Curtis Lum at 525-8025 or culum@honoluluadvertiser.com.