Judge postpones ruling in second Kamehameha case

By Vicki Viotti
Advertiser Staff Writer

Two whirlwind days of federal court hearings on twin cases challenging the Kamehameha Schools admission policy have stirred emotions but left only one thing certain: Legal teams will start work almost immediately on appealing the matter before a higher court.

U.S. District Judge Alan Kay ruled from the bench on Monday.

U.S. District Judge David Ezra will issue a written ruling in two to three weeks.

But yesterday, U.S. District Judge David Ezra postponed a decision in a nearly identical case involving Brayden Mohica-Cummings, a non-Hawaiian boy from Kaua'i temporarily admitted to the school. Ezra said he will issue a written ruling in two to three weeks.

Courtroom observers were not surprised by Ezra's postponement — taking legal issues "under advisement" for a later decision is common practice — and were more startled by Kay's decision to rule from the bench.

Kay's decision was greeted Monday with jubilation from many in the Hawaiian community, who see Kamehameha Schools as a gift from the legacy of the overthrown monarchy and thus as part of Native Hawaiian claims. Ezra's decision in August to admit Mohica-Cummings temporarily, pending his ruling, had sparked a flurry of protests and rallies among those supporting the school policy.

Eric Grant, lead attorney for both boys seeking admission, said Kay's instant ruling at least speeds up the process of appealing the case to the U.S. 9th Circuit Court of Appeals in San Francisco.

Grant, who returned to California yesterday, said he plans to file a notice of appeal as soon as Kay issues his final written judgment, probably within a few days. Grant added that, regardless of Ezra's decision, the appeals court is likely to consider both cases jointly.

Both cases claim that the admissions policy violates a civil rights law that bars racial discrimination in contracts. Grant said the focus of the appeal will be to convince the higher court that a strict standard be used in judging the policy against that law.

Kathleen Sullivan, a constitutional expert who led Kamehameha's legal team in the courtroom, argued the school has more leeway in using a preferential policy because it is a private institution receiving no government money.

Grant argued that the 1866 civil rights law on which his case is based makes no distinction between private and public entities in its prohibition of racial discrimination.

Grant later said Ezra seemed to place a greater emphasis than did Kay on examining the recent Supreme Court decision restricting affirmative action at the University of Michigan. Ezra asked Sullivan to spell out what made the Kamehameha case different.

Sullivan restated the schools' position that the university is a public institution and is held to a higher standard; that the university does not have the same "remedial" mission as Kamehameha, which seeks to bring Hawaiians onto a level playing field; and that Michigan lacked the lengthy record of support from Congress in passing laws that permit programs and benefits exclusive to Native Hawaiians.

Neither side interpreted Ezra's postponement as a bad omen.

"I'm pleased in the sense that Judge Ezra is obviously taking great care in this case," Grant said immediately after the hearing. "That's all a lawyer can hope for."

Attorney Eric Grant and Kalena Santos, followed by attorney John Goemans, passed Vicky Holt-Takamine and other Hawaiian activists outside the federal courthouse yesterday. Santos is the mother of Brayden Mohica-Cummings, a non-Hawaiian student who has been temporarily admitted to Kamehameha. Bruce Asato • The Honolulu Advertiser

"We were glad we were able to make our arguments," said Kamehameha lawyer Crystal Rose.

Ezra complimented both sides after the hour-long hearing concluded, explaining that the need to consider their arguments precluded ruling from the bench.

"I appreciate that ruling from the bench can be gratifying," he said to the packed courtroom. "But sometimes instant gratification can end up less than gratifying down the road."

After the hearing, the trustees gathered to thank supporters, who turned out to cheer again, though in somewhat smaller numbers than on Monday.

"We knew that we would be in this for the long term," said Constance Lau, who chairs the schools' board of trustees. "We remain steadfast and committed to our mission."

Grant and Santos, who also appeared before cameras, were targets of shouting from the crowd, including that Grant should "go back to California."

"That was unfortunate," trustee J. Douglas Ing said when the trustees emerged.

Grant said he would ask the courts, at both the district and circuit levels, to let Mohica-Cummings remain at Kamehameha pending the appeal.

Rose said the school would honor the decision of the court regarding Mohica-Cummings' status pending appeals. "We work in the best interest of the students, and that includes Brayden," she said.

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