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The Honolulu Advertiser
Posted on: Tuesday, November 18, 2003

Kamehameha Schools wins admissions case

 •  Ruling brings tears of joy, exultation
 •  Judge lends hope to Hawaiians

By David Waite
Advertiser Courts Writer

With a federal court victory on its admission policy fresh in hand, Kamehameha Schools will be back in court today to face an almost identical challenge to the policy that gives preference to Hawaiians.

"Victory!" shout Wayne Panoke, left, and Richard Kinney after a judge sided with Kamehameha Schools over a challenge to its Hawaiians-only admissions policy. The judge said the case involved "exceptionally unique circumstances."

Richard Ambo • The Honolulu Advertiser

U.S. District Judge Alan Kay yesterday ruled that the school's publicly stated policy of giving admissions preference to applicants who have at least some Hawaiian blood does not violate a section of federal law that prohibits racial discrimination in contractual matters.

Lawyers for two non-Hawaiian boys who want to attend Kamehameha charged that the policy is discriminatory on its face because it gives students with Hawaiian blood preference over applicants who are not Hawaiian.

The cornerstone of their argument was a civil rights law passed by Congress in 1866 to ensure newly freed slaves would not be discriminated against in business contracts.

Lawyer Eric Grant, of Sacramento, who challenged the admission policy together with local attorney John Goemans, argued that allowing Kamehameha to continue its Hawaiians-preferred policy would be akin to letting all-white schools bar the admission of nonwhite students.

What happened yesterday

• A judge upheld the admissions policy in one lawsuit, which was filed on behalf of an unnamed Big Island boy who said he would be eligible if he had Hawaiian blood.

• Arguments were heard on whether the federal government should be a defendant in a case that challenges OHA and the Department of Hawaiian Home Lands.

What happens today

• A judge will hear the case of a Kaua'i boy who was admitted by the school for the fall 2003 semester only to have the school rescind its offer after it learned he has no Hawaiian blood.

But Kathleen Sullivan, a constitutional law expert who represented Kamehameha, told Kay the admissions policy amounts to an affirmative-action plan, one designed to help offset historical inequities that have plagued Hawaiians for more than a century.

Kay sided with Sullivan, saying the school's admissions policy seeks to address cultural and socioeconomic disadvantages that have beset Hawaiians since the 1893 overthrow of the Hawaiian monarchy.

The courts have struck down "race-conscious" programs that give one ethnic group priority over another in an attempt to make up for past injustices in job opportunities or advancement practices, or in admissions to publicly financed schools.

But Kay said the Kamehameha case involved a set of "exceptionally unique circumstances."

He repeatedly stressed that the school is entirely privately financed, receives no taxpayer money and has space for only about 4,800 of the estimated 70,000 students of Hawaiian ancestry in grades K-12.

Special relationship exists

Jordan Haku'ole and his classmates at charter school Halau Lokahi stood up for native rights during a demonstration at federal court.

Richard Ambo • The Honolulu Advertiser

He found that a special trust relationship exists between the federal government and Hawaiians, and that as recently as 2002 Congress endorsed the school's efforts via the Native Hawaiian Education Act. The law calls upon Kamehameha to redouble its efforts to educate children of Hawaiian ancestry.

"The court finds that Kamehameha Schools has a legitimate remedial purpose by improving Native Hawaiians socioeconomic and educational disadvantages, producing Native Hawaiian leadership for community involvement and revitalizing Native Hawaiian culture, thereby remedying current manifest imbalances resulting from the influx of Western civilization," Kay said, reading from a written copy of his decision.

"Native Hawaiians continue to suffer from economic deprivation, low educational attainment, poor health status, substandard housing and social dislocation," Kay said. "The court further finds that the admission policy is reasonably related to its remedial purpose."

Yesterday's challenge to the admission policy involved an unnamed Big Island boy who argued he would be eligible in all respects to attend Kamehameha were it not for the fact that he is not Hawaiian.

Court challenge continues

Surrounded by Hawaiian-rights supporters, attorneys Eric Grant, left, and John Goemans left federal court yesterday after losing their challenge to Kamehameha Schools' Hawaiians-preferred policy.

Richard Ambo • The Honolulu Advertiser

The second of the two challenges, to be heard this morning by U.S. District Judge David Ezra, involves Brayden Mohica-Cummings, a Kaua'i boy who was admitted by the school for the fall 2003 semester only to have the school rescind its offer after it learned that Mohica-Cummings has no Hawaiian blood.

Ezra in August ordered Kamehameha to admit Mohica-Cummings at least temporarily until the courts had a chance to review the school's admissions policy. Ezra's decision was based, in part, on the fact that Kamehameha had led Mohica-Cummings to believe that he was accepted and that he had missed three weeks of public school before Kamehameha rescinded his acceptance.

The school said Mohica-Cummings mother, Kalena Santos, had misrepresented the boy's ethnic heritage, saying that he was part-Hawaiian.

School officials hailed yesterday's court ruling and said they are hoping for a similar ruling today by Ezra.

Goemans, meanwhile, said he expects the matter to go to the federal Ninth Circuit Court of Appeals. Goemans, who challenged Hawaiians-only voting for trustees to the state Office of Hawaiian Affairs, received adverse verdicts in federal court here and at the Ninth Circuit Court of Appeals before prevailing in the U.S. Supreme Court in February 2000.

Reach David Waite at 525-8030 or at dwaite@honoluluadvertiser.com.