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The Honolulu Advertiser
Posted on: Saturday, November 29, 2003

Kamehameha settles Kaua'i boy's lawsuit

By David Waite and Vicki Viotti
Advertiser Staff Writers

Trustees for the Kamehameha Schools, after wrestling with concerns over opposition in the Hawaiian community, approved a settlement yesterday that will allow a seventh-grade non-Hawaiian student to continue attending the private school until he graduates.

In exchange, Eric Grant and John Goemans, the lawyers for Brayden Mohica-Cummings, have agreed to drop one of their two federal court challenges of the school's Hawaiians-preferred admissions policy.

Grant said the settlement requires the approval of U.S. District Judge David Ezra, who has set a hearing for 10:30 a.m. Thursday. School officials said because the case involves a minor, it also must be approved by the Hawai'i Probate Court.

Trustees last night acknowledged that their unanimous decision has churned up opposition from Kamehameha students, parents, alumni and other supporters. But they added that the settlement allows U.S. District Judge Alan Kay's strongly favorable ruling in the companion lawsuit to proceed to a higher court, potentially producing the best long-term protection for the admissions policy.

"We're balancing many different sets of values," Nainoa Thompson, vice chairman of the board of trustees, said of the settlement. "It's been a difficult decision, but we've made it."

"There are many in our community who are absolutely opposed to any kind of settlement," trustee Douglas Ing said. "We understand and accept that. But as fiduciaries we must take the long view." Trustee Robert Kihune added that the beneficiaries of the decision may be the "thousands of Hawaiian children still to be born."

One voice from that opposition is Kamehameha graduate Vicky Holt Takamine, president of the political action group '?lio'ulaokalani Coalition. Takamine and other coalition leaders, which organized recent marches in support of the schools' policy, met with trustees Wednesday to dissuade them from striking a deal, and again yesterday to hear their defense of the decision.

"It will crush the spirit of the Hawaiian movement for self determination," she said. "Kamehameha is the last remaining institution that is truly Hawaiian. It's been attacked time and time again. But unlike the monarchy, Kamehameha still stands."

Kamehameha Schools Trustee Nainoa Thompson, center, said the decision to settle the lawsuit was a difficult one for the trustees.

Bruce Asato • The Honolulu Advertiser

Rod Ferreira, president of I Mua, one of the school's alumni groups, said that although he understands that the decision was "legally expedient," many wanted to hear Ezra's ruling. Ferreira added that his phone has rung more than 100 times since news of the settlement proposal broke, mostly with callers opposed to the settlement.

"They're saying this is capitulation, this is caving to pressure," he said. "The calls I've received are adamant about organizing and opposing and conveying to the trustees that this is not where we want Kamehameha to go."

Grant said he and Goemans, as well as Mohica-Cummings' mother, Kalena Santos, believe that agreeing to the settlement was in the boy's best interest.

"The larger public issue (as to whether the admissions policy violates a federal anti-discrimination law) is important to a lot of people including myself, and ultimately will be settled by the courts," Grant said.

The settlement would end one court challenge to the Hawaiians-preference admissions policy of Kamehameha Schools, but opponents still plan to ask the U.S. 9th Circuit Court of Appeals to review the policy in another court case.

Grant and Goemans filed an almost identical lawsuit in June on behalf of "John Doe," an unnamed Big Island boy who claimed he would be eligible to attend Kamehameha if not for the fact that he has no Hawaiian blood.

On Nov. 17, Kay heard arguments in the Doe case and immediately issued a ruling that the Kamehameha admissions policy did not violate a federal anti-discrimination law. Grant said he will appeal.

Ezra heard arguments in the Mohica-Cummings case the following day, but began by saying he would not rule from the bench and might take up to three weeks to issue a ruling.

Crystal Rose, lead local attorney for Kamehameha, said last night that the legal team decided to settle because "we have gotten such a favorable ruling from Judge Kay, we would like to see that ruling go up on appeal."

She added that the Mohica-Cummings settlement legally cannot set a precedent because it specifies that neither side is held liable; this should preclude a flood of applications from other non-Hawaiians who want to follow Mohica-Cummings' lead, she said.

Grant said a notice of appeal will be filed with the U.S. 9th Circuit Court of Appeals in San Francisco as soon as Kay issues a formal "decision and order" in the Doe case. Grant estimated the appeal could be heard by the 9th Circuit by late summer or early fall.

Kay's ruling encompassed many of the arguments Kamehameha attorney Kathleen Sullivan made as to why the school's admissions policy does not violate federal law.

Although Kay's ruling was favorable to Kamehameha, Grant said that does not mean an uphill battle for him and Goemans at the 9th Circuit level.

As part of the settlement, each side agreed not to seek attorney fees from the other, Grant said.

Asked whether the decision to settle would leave Mohica-Cummings in a vulnerable situation, trustee Thompson said that the school's core duty is to the children.

But he also parried the suggestion that the settlement places a child at risk by saying that those who pressed Mohica-Cummings to be a plaintiff are the ones responsible.

"We don't know who they are," he said. "We do know that the child has been stuck out there by himself."

Reach David Waite at dwaite@honoluluadvertiser.com or 525-8030 and reach Vicki Viotti at vviotti@honoluluadvertiser.com or 525-8053.