Non-Hawaiians back school in lawsuits

By Vicki Viotti
Advertiser Staff Writer

Kamehameha Schools yesterday called in some big guns in its court battle to defend its admission policy, putting the governor and assorted community leaders on the record in support of Hawaiian-preference educational programs.

Gov. Linda Lingle and former Gov. George Ariyoshi said they support Kamehameha Schools and its admissions policy. Advertiser library photos

"We want to show that we have such a broad base of community support for the policy," said Crystal Rose, Kamehameha attorney.

The filings apply to two challenges of the policy that are scheduled to be decided Nov. 17 and 18 by U. S. District judges David Ezra and Alan Kay. Both sides are asking the judges to rule in their favor immediately without sending the case to trial.

One is the case mounted for Brayden Mohica-Cummings, the non-Hawaiian boy whose admission the school sought to rescind; the other concerns an unnamed non-Hawaiian plaintiff whose admission was rejected.

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.

Kamehameha counters that the civil rights law does not bar all race-conscious programs and decisions and that leeway is given to such programs that remedy past injustices.

Rose said the affidavits, including some from Kamehameha alumni, serve as evidence that the schools provide this remedy.

"I still remember many of my teachers at Kamehameha Schools, and the essence of what they taught me: humble but assertive leadership," Micah Kane, who directs the state Department of Hawaiian Home Lands, said in his affidavit.

Some came from private-sector leaders such as Walter Dods, chairman and chief executive officer of First Hawaiian Bank, as well as government officials.

"I support Kamehameha Schools and its admissions policy of giving preference to applicants of native Hawaiian ancestry as a way to correct the result of historical injustices done to the native Hawaiian people," Lingle's affidavit said.

Ariyoshi's affidavit said critics of the policy overlook the "bigger picture," which is "the benefit to society if these individuals are part of a disadvantaged group struggling to find equal opportunities in their homeland."

Rose said the motions seek to demonstrate that Congress has long shown its commitment to remedial programs, citing the example of the Native Hawaiian Education Act.

John Goemans, one of the plaintiffs' attorneys, yesterday said every argument is extraneous except for those resolving two legal points: whether Hawaiian is a racial classification and whether Kamehameha admissions are contracts that are subject to the civil rights law. The U.S. Supreme Court decision in Rice vs. Cayetano confirmed that Hawaiian is a race and various other cases connect educational contracts with the 1866 law, Goemans said.

Rose maintained that latitude is given for remedial programs and that the Rice decision narrowly dealt with voting rights for non-Hawaiians in Office of Hawaiian Affairs elections. She also said OHA is a public institution, not a private school such as Kamehameha.

Additionally, she said, the case was a constitutional challenge and should not predict the outcome of the current cases because they invoke a federal statute instead.

Goemans said making that distinction is "a measure of desperation."

"If the Supreme Court says it's a racial group, it's a racial group for all purposes," he said.

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