Kamehameha Schools considers settlement
By David Waite
Advertiser Courts Writer
Kamehameha Schools is considering a court settlement that would allow a 12-year-old non-Hawaiian boy from Kaua'i to remain at the Kapalama campus until he graduates, if his lawyers drop their lawsuit challenging the school's Hawaiians-preferred admissions policy.
Advertiser library photo
Late last evening, trustee Nainoa Thompson said the trustees had received a proposal for a settlement, but "have not reviewed this yet, and have not deliberated on it. And there is no decision."
Kamehameha had accepted Brayden Mohica-Cummings, then rescinded the offer after discovering he had no Hawaiian blood.
Speaking for chairwoman Connie Lau, who is in the Philippines, Thompson said trustees would meet again tomorrow morning.
He would not disclose the contents of the proposed settlement.
"We are here to protect this trust and the legacy, vision and wishes of our extraordinary benefactor," Thompson said. "And fundamentally, we are here to take care of our children."
He said the trustees "are clear" their decision is not just to protect the will and trust of Princess Bernice Pauahi Bishop, but "to preserve the right of the trustees to make the decision about who they admit to the school."
The school's lead local attorney, Crystal Rose, also confirmed a pending settlement offer.
If the trustees vote to approve the settlement, it could be presented to U.S. District Judge David Ezra as early as tomorrow.
The lawsuit was filed on behalf of Brayden Mohica-Cummings. On Aug. 20, Ezra ordered Kamehameha Schools to admit him, at least temporarily, until Ezra could address claims by the boy's lawyers that the Hawaiians-preferred admissions policy violated federal civil rights law.
People familiar with the proposed settlement, who asked not to be identified because of the confidential nature of the discussions, said settlement talks began after school trustees left Ezra's courtroom Nov. 18 uncertain as to how he would rule.
The day before, U.S. District Court Judge Alan Kay had ruled in support of the admissions policy. He rejected a challenge brought by an unnamed Big Island boy, saying decisions based on race are permissible in certain limited situations.
But at the Nov. 18 proceedings, Ezra began by saying he did not intend to rule from the bench, as Kay had done.
And while Kay had asked more pointed questions of Mohica-Cummings' lawyer, Eric Grant, than of Kamehameha Schools attorney Kathleen Sullivan, Ezra did just the opposite.
The trustees, who had left the Kay hearing with a clear victory, left the hearing before Ezra without a decision in their favor and seemingly far less confident of one.
A settlement makes sense strategically, according to people familiar with the case.
It negates the possibility that Ezra might rule against the school or uphold the policy in a way less supportive than Kay.
By settling the lawsuit, Grant and co-counsel John Goemans could only appeal Kay's ruling, which is narrowly constructed and largely incorporates many of the defense arguments.
It was likely the boy's attorneys would have asked for court orders to allow him to stay at Kamehameha during appeals to the U.S. 9th Circuit Court of Appeals and possibly the U.S. Supreme Court, a lengthy process that would allow him nearly to finish high school at Kamehameha anyway.
Mohica-Cummings' mother, Kalena Santos, would have to hire a local attorney for a hearing in probate court, where it would be argued the settlement is in the boy's best interest. The proposed settlement calls for Santos to be awarded $900 to hire an attorney for the probate hearing.
The Kamehameha Schools was created under the terms of the 1884 will of Princess Bernice Pauahi Bishop. The private school enrolls about 4,800 students of Hawaiian and part-Hawaiian ancestry in its on-campus programs.
Ezra's ruling in August that Mohica-Cummings should be allowed into the school outraged many who claimed Santos was being rewarded for falsely claiming her son was part-Hawaiian.
The ruling also was criticized by those who said admitting Mohica-Cummings would deny a spot to a truly qualified Hawaiian or part-Hawaiian student.
But Ezra made it clear he was ordering the school to admit
Mohica-Cummings only because Kamehameha had accepted the boy, then rescinded the offer after discovering he had no Hawaiian blood, three weeks after public school had begun on Kaua'i.
Advertiser staff writers Vicki Viotti and Beverly Creamer contributed to this report.
Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030.
