Kamehameha School in 2003 Vigorously Re-Affirms Racially Exclusionary Admissions Policy; Lawsuits Against Admissions Policy Filed by John Goemans and Eric Grant

Copyright 2002 - 2003 (c) Kenneth R. Conklin, Ph.D. All Rights Reserved

In 2003 Kamehameha Schools once again chose the segregationist path. Responding to strong pressures from alumni and from Hawaiian sovereignty activists, the schools publicly stated that henceforth the racially exclusionary admissions policy would be vigorously defended. The admissions policy is to admit every academically qualified ethnic Hawaiian before admitting any non-ethnic-Hawaiian.

(1) An aggressive race-based outreach program was established to ensure that there would be more than enough qualified ethnic Hawaiian applicants so there would not be any vacancies left over for non-Hawaiians.

(2) School officials refused a demand from an attorney to admit a well-qualified non-Hawaiian child who had applied to the campus on Maui; and the attorney filed a lawsuit on June 25, 2003.

(3) An article by reporter Bob Jones, published in “Midweek” newspaper on July 16, 2003, relies on confidential sources to reveal details of behind-the-scenes maneuvering that resulted in the admission of non-Hawaiian Kalani Rosell to the entering 8th grade class in 2002. In a followup article two weeks later Bob Jones describes a 1968 Supreme Court decision in which a tax-exempt charitable trust operating a school under an 1831 will was prohibited from continuing its 137-year-old policy of admitting only poor male orphans who were WHITE.

(4) A second lawsuit against Kamehameha School’s admissions policy filed in August, resulted in a Temporary Restraining Order on August 20, 2003 forcing Kamehameha School to immediately admit one white boy to the 7th grade at the main campus in Honolulu.

(5) On September 7, 2003 about 5,000 to 8,000 people wearing red shirts, mostly ethnic Hawaiians, marched in Waikiki to protest the lawsuits against Kamehameha School and also to protest the Arakaki2 lawsuit. On September 29, Kamehameha School filed a motion for summary judgment in both lawsuits asking that they be dismissed. The motions were accompanied by amicus statements from political and community leaders (many of whom have no native blood) supporting Kamehameha School’s racially exclusionary admissions policy.

(6) A series of red-shirt marches and rallies was held Sunday November 16 through Tuesday November 18, 2003, to protest the Arakaki 2 lawsuit and the two Kamehameha School lawsuits. It was a clear attempt to intimidate federal judges and the general public.

(7) Statement by Kamehameha Schools Trustees published in the Honolulu Advertiser, Honolulu Star-Bulletin, and The Maui News, all on Sunday, November 16, 2003 (it takes a powerful organization to get the three largest-circulation Sunday newspapers to publish the same article simultaneously!); and very short rebuttal from plaintiffs attorneys published only in the Advertiser.

(8) The Honolulu Advertiser published an article Monday November 17 2003 discussing the issue of admissions standards at Kamehameha School. Much of the article focused on internal debates over whether children should be required to pass stringent academic tests to become part of an elite student body, vs. whether the school should seek a broad cross-section of the ethnic Hawaiian population including low academic abilities as well as children with special needs. This article was published on the day of a major court battle over whether the school should be forced to desegregate; and so the article included a brief outline of the history of the admission of non-ethnic-Hawaiians to the school. This excerpt focuses on that issue.

(9) Two separate lawsuits against Kamehameha Schools’ racially exclusionary admissions policy were scheduled for hearing on Monday and Tuesday, November 17 and 18, 2003. In the Monday case, Judge Kay ruled from the bench, following oral arguments, that the school’s admissions policy is permissible because Kamehameha is a private school not receiving government funding and because the school provides affirmative action to help a poor, downtrodden race. In the case scheduled for Tuesday, Judge Ezra heard oral arguments and decided to postpone his decision for two weeks so he could consider the points raised during oral argument in his own courtroom. Here are four newspaper articles and one editorial, describing the events of Monday and Tuesday; followed by the entire ruling made by Judge Kay on Monday (a longer, more detailed ruling will be issued later).

(10) On Thursday December 4, 2003 Judge Ezra approved a settlement of the lawsuit involving Brayden Mohica-Cummings. Terms of the settlement had been described in the newspapers since the previous Wednesday (day before Thanksgiving); and red-shirt radicals opposed the settlement. Kamehameha Schools agreed to let the 7th grade boy remain at Kamehameha School through 12th grade graduation, in return for the lawsuit being dropped. (The other admissions lawsuit dismissed by Judge Kay will go forward to the Ninth Circuit Court on appeal.) Here are 4 newspaper articles anticipating the settlement and then reporting it, and discussing the issue of hanai (adoption). Then an opinion piece opposing the trustees’ decision to settle. Then interesting editorials from both the Advertiser and Star-Bulletin.


(1) An aggressive race-based outreach program was established to ensure that there would be more than enough qualified ethnic Hawaiian applicants so there would not be any vacancies left over for non-Hawaiians.

The Honolulu Advertiser, May 27, 2003


Kamehameha Schools to enroll Hawaiians only

By Timothy Hurley, Advertiser Maui County Bureau

Averting a repeat of last year's admissions controversy, Kamehameha Schools said it is not offering enrollment to any non-Hawaiians for the next school year.

The just-concluded admissions season featured a recruitment campaign designed to attract more Native Hawaiian applicants for Kamehameha's Neighbor Island campuses as they expand their enrollment. The campaign was launched in response to the furor that erupted when a non-Hawaiian eighth-grader was admitted to the Maui campus last fall. Critics accused Kamehameha of not doing enough to encourage Native Hawaiian applicants.

The application deadline for the 2003-04 school year was Oct. 15, and final admission decisions were made this month. School officials said they were successful in meeting — and surpassing — a goal of taking in at least two applicants for each space at the Maui and Big Island campuses.

More than 963 applications were received to fill 232 vacancies at the Maui campus in Pukalani. Last year there were 493 applicants for 272 openings. At the Big Island campus in Kea'au, roughly 815 applications were received to fill 184 openings. Last year there were 641 applicants for 340 spaces.

Kamehameha Schools spokesman Kekoa Paulsen said all of the applicants invited to enroll at the campuses for the 2003-04 school year were admitted under the institution's policy of giving preference to children of Hawaiian ancestry, to the extent permitted by law.

Office of Hawaiian Affairs Trustee Boyd Mossman, a Kamehameha alumnus and retired Maui judge, said he was happy to hear that Hawaiians were given more opportunities for admission this year. He said Kamehameha should continue to press for more applications at least until the upper grades are filled.

During the recruiting campaign, Kamehameha Schools ran newspaper and radio ads and held community meetings in an effort to draw more applicants. Kamehameha also adopted interim changes to Maui and Big Island admissions procedures. The $25 application fee was waived, and a requirement to meet minimum test scores was suspended. Also, no applicants were eliminated through screening until after the preliminary evaluation. The non-Hawaiian eighth-grader was enrolled at the Maui campus [in 2002] only after the list of qualified Native Hawaiian students was exhausted, officials had said.

Whether the interim measures will continue is uncertain. Paulsen said the Kamehameha staff is evaluating the admissions policy and the trustees are expected to look at the issue in the coming months.

Kamehameha Schools, a multibillion-dollar charitable trust formerly known as Bishop Estate, was founded in 1887 by the will of Bernice Pauahi Bishop, the great-granddaughter and last direct royal descendant of Kamehameha the Great.

Annual tuition at Kamehameha Schools is $1,093 for grades kindergarten to six and $1,518 for grades seven through 12 — well below the fees at other private schools.


(2) School officials refused a demand from an attorney to admit a well-qualified non-Hawaiian child who had applied to the campus on Maui; and the attorney filed a federal lawsuit on June 25, 2003. Two newspaper articles and an editorial are provided.


Honolulu Star-Bulletin, Friday, June 27, 2003

Kamehameha trustees bank on preferences being upheld
The trust retains a mainland law firm to defend its entry policy

By Rick Daysog

Kamehameha Schools' officials expressed confidence yesterday that the courts will uphold its admission policy, which gives preference to children of native Hawaiian ancestry. Responding to a lawsuit seeking to overturn its admission policy, the $6 billion trust issued a statement saying it planned to vigorously defend its decades-old policy.

Although the trust declined to discuss its legal strategy, people familiar with the estate said that it recently hired a high-powered mainland law firm in anticipation of legal challenges. The estate also retained a politically connected local public relations firm to help with issues specific to the lawsuit, they said.

"Kamehameha Schools will continue to uphold Princess Pauahi's mission to provide educational opportunities for Hawaiians," Colleen Wong, the estate's acting chief executive, said in a press release. "We can assure our stakeholders that defending this lawsuit will not have an impact on the Kamehameha Schools' operations or its educational programs."

The lawsuit was filed Wednesday in U.S. District Court on behalf of an unnamed non-Hawaiian student who alleges that his civil rights were violated when the school denied him admission due to race. The suit is being handled by Sacramento, Calif., lawyer Eric Grant, a constitutional law expert, and local attorney John Goemans, who successfully challenged the Hawaiian-only voting for the Office of Hawaiian Affairs elections before the U.S. Supreme Court three years ago in the landmark Rice vs. Cayetano case.

Unlike the Rice case, which is based on groundbreaking constitutional arguments, Goemans said his current lawsuit is based on civil rights laws where the case law is clearer. He likened the new lawsuit to a job discrimination case.

According to Goemans, the student applied for admission into Kamehameha Schools' middle school in 2002 and 2003 and was placed on the wait list for qualified students. But his application was denied after he told the school that none of his grandparents had Hawaiian blood.

"This is purely and simply about private discrimination in education," Goemans said. "All you have to do is establish that the applicant is not on an equal footing with an applicant of other races and that there is an insurmountable racial barrier."

Jan Dill, president of Na Pua a Ke Alii Pauahi, which is a 900-member Kamehameha Schools alumni and parent organization, said that Goemans' lawsuit turns the civil rights law on its head. Such laws were designed to address racial discrimination problems and disadvantaged minorities such as Hawaiians, he said. "It's a wonderland. All of the sudden, black is white and white is black, and the Mad Hatter is loose," said Dill.

Founded in 1884 by the will of Princess Bernice Pauahi Bishop, the Kamehameha Schools is one of the nation's richest charities and educates nearly 5,000 children of native Hawaiian ancestry each year. Over the years, the school's admission policy of giving preference to Hawaiian students has been upheld by the Internal Revenue Service but has not been challenged in court.

Last year, for the first time in about four decades, the estate admitted a student with no Hawaiian blood. After a subsequent uproar in the Hawaiian community, the trustees agreed to re-evaluate the admission policy and later reaffirmed their Hawaiians-only preference system.

Edward Blum, senior fellow at the Center for Equal Opportunity of Sterling, Va., said the nation's courts have consistently ruled against raced-based admission policies since 1978 with the landmark University of California Regents vs. Bakke case. In that case the U.S. Supreme Court struck down the UC-Davis law school's admission program's policy of reserving a fixed number of spots to minority students.

Blum cited this week's ruling by the high court that upheld the University of Michigan law school's affirmative action program but struck down race-based admission policies at one of the university's main undergraduate schools. "The lesson that we learned in Michigan is identical to lessons we've learned over the past 40 years: namely that race-exclusive programs are never considered constitutional," Blum said.



The Honolulu Advertiser, Friday, June 27, 2003

Kamehameha plans 'vigorous' defense

By Mike Gordon and David Waite

Kamehameha Schools officials said yesterday they will fight a lawsuit that challenges its renewed Hawaiians-only admissions policy.

But John Goemans, one of the lawyers who filed the lawsuit Wednesday in federal court on behalf of an unidentified non-Hawaiian student, said that the issues are straightforward and he believes the matter can be resolved without going to trial.

The lawsuit, filed with the aid of attorney Eric Grant of Sacramento, Calif., argues that federal civil-rights laws prohibit private schools from denying admission on the basis of race and that Kamehameha Schools' admissions policy is racially discriminatory on its face.

Goemans, who cited similar grounds in filing a lawsuit in 1997 on behalf of Big Island rancher Harold "Freddy" Rice and then withdrew it because of a lack of money to pursue the matter, said he will ask for a court ruling in favor of his client without the case going to trial.

School officials, however, said they are standing by the Hawaiians-only policy. "Although we have yet to see a copy of the complaint, Kamehameha Schools believes that its admissions policy is consistent with applicable law," said Constance Lau of Kamehameha Schools' board of trustees. "We intend to vigorously defend our policy of giving preference to applicants of Hawaiian ancestry, and we are confident that we will prevail."

Three years ago Goemans and other lawyers represented Rice's challenge of Hawaiians-only voting for trustees of the state's Office of Hawaiian Affairs. In that issue, the U.S. Supreme Court ruled that "Native Hawaiian" is a racial and not a political or tribal status.

Kamehameha Schools generated howls of protest from alumni and Native Hawaiian activists last year when it admitted a non-Hawaiian eighth-grader to the Maui campus. Critics accused Kamehameha of not doing enough to encourage Native Hawaiian applicants. This year Kamehameha returned to its Hawaiians-only policy. In the just-concluded admissions season, Kamehameha Schools' recruitment campaign was designed to attract more Native Hawaiian applicants for the Neighbor Island campuses as they expand their enrollment.

Goemans said that because of concerns about possible retaliation by Kamehameha students, their parents and the public, the lawsuit filed on Wednesday does not identify the boy and his mother.

Goemans said the student "applied two times" and was "found to be qualified," most recently for the 2003-04 school year, and was put on a waiting list both times.

The boy has never formally applied for admission, but when he does, he will have to show he has some amount of Hawaiian blood and it would be an "insurmountable hurdle," Goemans said. "I don't know that the school knows who he is or that he is not at least part-Hawaiian," Goemans said. He added, "This has nothing to do with sovereignty, there is no compelling government interest, it has nothing to do with the Akaka bill (to recognize Hawaiians as an indigenous people) — it is only about race-based discrimination."



The Honolulu Star-Bulletin, EDITORIAL, Friday, June 27, 2003

Hawaiian recognition needed to thwart suit

A lawsuit alleges that Kamehameha Schools' policy of admitting only Hawaiians violates a civil rights law against racial discrimination.

LEGISLATION providing federal recognition of Hawaiian sovereignty has been made more imperative by a lawsuit challenging the Kamehameha Schools' Hawaiians-only admissions policy. Unless the legislation authored by Senator Akaka is enacted, the lawsuit could result in dismantlement of the schools as envisioned by Princess Bernice Pauahi Bishop. Hawaii's congressional delegation should work to overcome opposition tactics that have stalled the bill.

The Akaka bill was approved by the Senate Committee on Indian Affairs on May 14, but Sen. Jon Kyl, R-Ariz., who opposes the bill, has put an indefinite hold on it, preventing the bill's advancement to the Senate floor. Under the Senate's peculiar rules, a single senator can block a bill's consideration by the full Senate unless 60 members vote to force it to the floor. If Kyl refuses to drop his hold, Senators Akaka and Inouye should work to assemble enough senators to allow a vote.

The lawsuit alleging racial discrimination was filed in federal court by Big Island attorney John Goemans and Eric Grant, a Sacramento, Calif., lawyer. Goemans was the attorney for Harold "Freddy" Rice, whose lawsuit led to the U.S. Supreme Court ruling in 2000 that the Hawaiians-only restriction in the voting for trustees of the Office of Hawaiian Affairs was unconstitutional racial discrimination.

Constance Lau, chairwoman of the Kamehameha Schools Board of Trustees, said they "intend to vigorously defend our policy of giving preference to applicants of Hawaiian ancestry, and we are confident that we will prevail." Her confidence is unwarranted.

The high court's ruling in Rice vs. Cayetano clearly said that selection of Hawaiians is based on race, since they lack the tribal status afforded to American Indians and Alaska natives. In other cases, the court has ruled that the 1964 Civil Rights Act prohibits discrimination against any race -- not just African Americans, whom it was primarily intended to protect -- by a private school, regardless of whether the school receives federal funds. Together, those rulings provide formidable legal artillery for Goemans and Grant.

Another lawsuit pending in federal court alleges racial discrimination by OHA and the Department of Hawaiian Home Lands. A hearing on the state's motion to dismiss that suit is scheduled for September.

[Note from website editor Ken Conklin: This editorial is far off the mark in suggesting that passing the Akaka bill would rescue the Kamehameha Schools admissions policy. Kamehameha School is a tax exempt charitable trust under the laws of the United States and the State of Hawai’i. It is not a tribal school. If “Native Hawaiians” are given federal recognition as an Indian tribe, the schools’ racially exclusionary admissions policy would still be unconstitutional under both federal and state law, unless the schools could somehow dissolve their current status under state and federal law and reconstitute themselves as a new entity under whatever laws the tribal council might establish. It is not at all clear whether the schools’ trustees or the tribal council would choose to do that; and also unclear whether the tribal council might choose to impose taxes on the “private” schools under its jurisdiction.]


(3) An article by reporter Bob Jones, published in “Midweek” newspaper on July 16, 2003, relies on confidential sources to reveal details of behind-the-scenes maneuvering that resulted in the admission of non-Hawaiian Kalani Rosell to the entering 8th grade class in 2002. In a followup article two weeks later Bob Jones describes a 1968 Supreme Court decision in which a tax-exempt charitable trust operating a school under an 1831 will was prohibited from continuing its 137-year-old policy of admitting only poor male orphans who were WHITE.

How Kamehameha Admitted A Haole

By Bob Jones
MIDWEEK Vol. 19, No. 50
July 16, 2003, pp. 8 and 51.

You thought the 1997 “Broken Trust” essay and subsequent ouster of all the Bishop Estate trustees except Oswald Stender ended the internal fighting at Kamehameha Schools?

Not by a long shot. It’s back, just as bitter and the newest trustees have stepped into a legal minefield that could take their legs off and alter the school forever. They’ve in effect invited a federal lawsuit and might cause the somnambular Probate Court and Special Master to wake up and notice that something’s very wrong. And then there’s the Internal Revenue Service.

And when some activist members of the Kamehameha Schools family get to the end of this column they should be pounding on trustees’ doors and demanding explanations.

School spokesman Kekoa Paulson says “Kamehameha Schools' admissions policy and procedures were followed throughout the 2002 process. Both the attorney general's office and the court appointed master have been briefed on the questions that have been raised about the situation in Maui last year, and neither of them have voiced concern over how the policy had been applied.”

I wonder if they had these facts.

My story goes back to November of 2001 and April-May of 2002 when K.S. candidates for admission were being screened and interviewed and selected. That was an unusual time of low applications for the new Maui campus and, so, low openings — the latter set by the school based on the expectation of how many would apply.

According to well-sourced information, notes and personal recollections I gathered last week, the trustees and some administration officials at the schools manipulated the vacancies in 8th grade in order to admit the first non-Hawaiian student since some haole-faculty kids were let in more than 40 years ago. Then the trustees decided to keep silent about that shattering decision and did — until there was a news leak from Maui campus officials in July 2002.

Faced with a Hawaiian community uproar, the trustees met in an emergency session with advisory board members and decided to say they had only admitted non-Hawaiian Kalani Rossel because there were no more qualified Hawaiians. Material and personal recollections I gathered show that was an untrue statement. There were two qualified Hawaiian girls on the list of qualified applicants, vying for one remaining 8th-grade vacancy that April.

But the vacancy was on the boys’ side. The school does split the vacancies by gender but does not require total gender equity. So the one boys’-side vacancy was awarded to one of the Hawaiian girls. That left the preference-qualified girl and non-preference-qualified Rossel unaccepted. Both had exceeded the test-score cut-off.

That should have been the end of it under KS policy in effect in 2002; sorry, but our admissions are now closed. That no-fudging policy had been adopted to end the old days when “red dots” put by certain applicants’ names meant they were friends of friends of the old trustees and that room should be created for them. The Probate Court had ordered fair, transparent admissions implemented by school officials, not the trustees.

In apparent disregard of that mandate, the meeting’s notes show, the trustees with the blessing of then chief legal officer Colleen Wong (now the schools’ interim chief executive officer) created two new vacancies and admitted the other Hawaiian girl and the non-Hawaiian Rossel.

Then after fixing the process in order to admit him, they agreed to say nothing publicly about Rossel, whose parents say they marked right on the initial application that he was not Hawaiian. The trustees claim they had planned to make an announcement of admitting the first non-Hawaiian later in the year. A source in the admissions process tells me that despite my doubts, that’s true. They wanted to wait until Rossel was in, it was an irreversible, done deal, and then they’d take the heat but could say there’s was nothing they could do about it. They’d also keep claiming it was only because of no qualified Hawaiian applicants and hope the community bitching would go away.

According to material provided, an internal audit confirmed that trustees previously deviated from Hawaiian preference during admissions with a non-Hawaiian student who subsequently withdrew before the school year began. It was the first effort to slip in a non-Hawaiian. Everyone kept quiet on that, too, and it didn’t cause a problem because of the student’s eventual withdrawal.

It’s rather amazing that the trustees could ever have thought such an explosive decision as the Rossel case could be kept secret. Did they think that since this new student’s first name was Kalani nobody would question his ethnicity and it would be a non-issue? Surely they knew there was high risk of a leak.

But why would the trustees do anything so stupidly risky and guaranteed to make many Hawaiians go ballistic without some advance discussion and community preparation?

The trustees have tended to play a very cagey game of balancing between the Princess Pauahi Bishop’s will (as interpreted by her haole husband after her death to favor Hawaiian-blood children) and the lurking problem of a federal-tax-exempt trust potentially being cited as racist. They said after this started blowing up last year that “we feel we could not change the admissions policy from one of preference to one of exclusion. We must stand by the decision, despite the pain it has caused. We do regret the way the decision was communicated, and we have apologized for that. The process of evaluating individual applicants is confidential and must be kept private in order to protect the integrity of the trust and the privacy of applicants.”

The more likely answer is that the trustees feared a lawsuit by the Rossel family if their son was excluded in a year of very few qualified-by-test-scores Hawaiian applicants. They wanted to dodge a legal bullet and did not want to make an announcement that would arouse the wrath of many Hawaiians who feel the school should stay Hawaiian.

The operational culture established by the Probate Court after the scandal of the ’97 shake-up of trustees says that admissions were to be controlled by the new CEO, Hamilton McCubbin, and chief admissions officer Wayne Chang. But those two were overruled by the trustees and legal officer Wong. (McCubbin is under a separation agreement after his forced resignation from K.S. and does not give interviews. I was unable to reach Wayne Chang.) Both, however, are on record in written materials as having objected to the trustees’ decision to create an artificial vacancy for Rossel. Not just because of race, but because the CEO is supposed to establish vacancy numbers.

Now here’s the corker. Up through the Rossel affair, K.S. admissions used the term qualified Hawaiians. That meant cut-off test scores. But that also lowered the number of OK applicants and opened the way for non-Hawaiians to get in if Hawaiian applications were very low. So the trustees changed the rules for school year 2003. No more test scores. Just a preference for anyone with any amount of Hawaiian blood. The current website says “Hawaiian preference so far as permitted by law.” Ironically, that no-more-test-standards decision has really complicated things for the Hawaiians-only crowd. Here’s why:

A lawsuit was filed last month in Hawaii federal court on behalf of an unnamed non-Hawaiian student who says that his civil rights were violated when the school denied him admission for this school year due to race. The attorneys are Sacramento, Calif., constitutional law expert Eric Grant, and local lawyer John Goemans, who successfully challenged the Hawaiian-only voting for the Office of Hawaiian Affairs elections three years ago in the Rice vs. Cayetano case. They will argue that if there are no test-score or other standards for admission, other than having some drops of Hawaiian blood, isn’t that illegal racial exclusion?

Many law experts say you can’t be “legal” with the IRS tax-exemptions code if you admit strictly on the basis of race, which K.S. now does. That word “preference” is unlikely to save it. It would fly in the face of the latest Supreme Court decision on affirmative action and many other, older federal court decisions. The trustees have been painfully aware of this conundrum and even stopped taking ROTC money so they could say they don’t get federal money.

Grant and Goemans will argue that a tax exemption is federal money.

New shenanigans like those that brought in the IRS in ’97 over trustees’ bloated salaries could mean the end of Kamehameha Schools’ special tax status. When the feds stomped down on Bob Jones University for religious exclusion, the school had to pony up six years’ worth of back taxes. It’s been estimated that Kamehameha Schools could be assessed a billion dollars if it were to be found in past and current violation of its tax-exempt status.

Four of the trustees involved in that contentious Maui admission decision last year— chair Constance Lau, vice-chair Nainoa Thompson, Douglas Ing and Robert Kihune — are said to favor Hawaiian-only admissions. Only the fifth trustee, Diane Plotts, has been mentioned in news stories as amenable to opening the schools to everyone. My sources say she has voiced that opinion privately as well.

On top of these calamitous problems, Kamehameha Schools has the issue of the forced departure and golden parachute severance for ousted CEO Hamilton McCubbin over an alleged improper relationship with his secretary. He has denied that it was a sexual affair. McCubbin is married and also was alleged to have had an improper relationship with a woman when he was at the University of Wisconsin. He is suing the UW in federal court for defamation over that.

If you believe McCubbin’s position that he’s simply the victim of the jealousy of two former secretaries who were demoted in favor of the woman in question, then the trustees’ decision to use that matter to force him out could have been the culmination of something much bigger — McCubbin’s strained relations with a board of heavyweights not content to let a newly-named CEO run everything he wanted to run. I emphasize could have been. It’s been no campus secret that current trustee Douglas Ing and former trustee Oswald Stender thought the better-politically-connected Michael Chun should have been given the top job. Chun was demoted and subordinated to McCubbin by McCubbin when he was hired away from the University of Wisconsin to run what used to be called Bishop Estate and is now just Kamehameha Schools, with about a $6-billion corpus and ties to nearly every career politician in Hawaii.

Most of its cash is at First Hawaiian Bank, with smaller amounts at other institutions, but not American Savings Bank because trustee Connie Lau also sits on the board of directors of HEI Inc., that bank’s parent company. The competition for that money is not insignificant in a time of extremely low-interest-payout and big demand for new mortgages.

There have been complaints at K.S. that McCubbin was too publicity hungry or too egotistic. On the other hand, trustees traditionally have been campus butt-inskies and never more so than in the late ’90s when Lokelani Lindsey instituted personal micro-management. (Lindsey has been convicted in a money-laundering case and is scheduled to start serving prison time in August.)

It’s gotten so petty and personal at K.S. that the trustees had the latest Ke Alii Pauahi Foundation annual report re-printed at substantial cost (some say $50,000) in order to erase McCubbin’s name and picture, even though he was the CEO and also president of the foundation for the period covered by the report and was the one who approved the report before the alterations.

I’ve always thought Hawaiians make too much of that alamihi story — you know, about how no captured crab ever gets out of the bucket because just as one nears the top he’s pulled back by another. Hawaiians will tell you they’re notoriously bad at working together for goals. I don’t buy into that pessimistic and stereotypical outlook. But it sure seems to apply to the well-connected Hawaiians picked year after year for leadership at the Kamehameha Schools. It’s one badmouthing after another.

I like the observation of a sympathetic, long-time KS faculty member, now retired: “The problem up there is that everything they do is done to excess.”

I don’t know how much more of this the school can stand and still fully function.

Says a well-known alumnus involved in spreading word to Hawaiians of this current dispute: “The previous board was accused of a quid pro quo style. Are we witnessing an emergence of the same mind set, along with a penchant for micro-management and an organizational culture focused on personalities, with power rather than service the dominant concern and with personal integrity cast aside?”

The lackadaisical Probate Court needs to examine who is actually running admissions, the CEO as directed by that court and the IRS or the trustees? The state attorney general needs to get cracking on potential fiduciary violations if it can be shown that the trustees lied in the Rossel case, and the IRS needs to consider pulling the tax-exemption because of too many violations of the spirit of federal law on racial exclusions.

The trustees need to come clean to the Hawaiian community.

Hamilton McCubbin and former admissions chief Wayne Chang and former legal officer Colleen Wong should be subpoenaed by somebody to testify with immunity about the admissions blunder and the tug-of-war over who runs the school.

End the feints and deceits.

Some candor, please, for a change.

[Many of the items in this column come from sources not named. I'm reluctant to use anonymous sources. In this case it's essential until such time as much-to-be-hoped-for state attorney general, Probate Court or IRS investigations grant people protection by compelling their testimony. Both the publisher and the editor of Midweek know who my sources are and agree that they are competent witnesses thought to be telling the truth as they know and see it. -- Bob Jones]

E-mail Bob Jones at BanyanHouse@hula.net


The following article by Bob Jones was published in the Honolulu “Midweek” newspaper on July 30, 2003 on page 8.

(Two weeks ago, MidWeek reported on the notes and personal recollections of people involved with the Kamehameha Schools board of trustees’ decision in April of 2002 to admit a non-Hawaiian student to the Maui campus. Since that controversial event, the trustees have fallen back to a position of giving admission preference to any applicant with any amount of Hawaiian blood, without a test or grade standard. A federal court suit is challenging that as discrimination under the U.S. Civil Rights Act and a violation of the school’s tax exempt status. This is a follow-up report.)

Kamehameha Schools, its trustees and its lawyers might do well to look at the 1968 U.S. Supreme Court decision in the case of Girard College, which despite its name is actually a private high school, in north Philadelphia. (Punahou School used to be called Oahu College.)

Girard ought to smack the KS attorneys right in the face and make them reconsider where they stand. This mirror-case has not been previously discussed in Hawaii.

Stephen Girard may have been the richest man in America when he died in 1831 and willed his millions of dollars in perpetuity, with a court-monitored board of trustees, to found a marbled high school “for poor, white, male orphans." He wrote that the purpose of the will was “to help educate boys who might otherwise be lost and to prepare them for useful, productive lives.”

That was almost exactly two years before the seal was affixed to the 17 articles that comprise the last will and testament of Ke Ali`i Bernice Pauahi Bishop to establish Kamehameha Schools with her money and for what her husband said only after her death was meant for children of Hawaiian blood, not just of Hawaiian Kingdom citizenship (which would have meant mostly people of little or no Hawaiian blood.)

Nobody challenged Pauahi’s will back then. Stephen Girard’s will came under immediate attack in America by relatives who considered it excessive. The great orator Daniel Webster argued against it in the U.S. Supreme Court in 1844 and lost, and until 1968 that private high school accepted only poor, fatherless and white males.

Then along came two boys in the 1950s named Foust and Felder. They were poor, they were fatherless, but they were also black. The school turned them down and wrote their parents that “by the will of Stephen Girard we admit on the basis of a preference for Caucasians.”

A prominent black attorney active in civil rights issues and the Democratic Party, Raymond Pace Alexander, took up the Foust and Felder case, which eventually made its way to the U.S. Supreme Court. The usual arguments were made. It was a private school. It was just following the will of the benefactor. It was a charitable trust exempt from the finding that a dead person should not control events from the grave. Trustees were just following the will’s commands. It helped elevate poor, white kids.

The Supreme Court did not buy any of the arguments. It held that "when Stephen Girard deliberately and pointedly chose to involve the state in private charitable conduct of his school (as was decided at 353 U.S. 230, 77 S. Ct. 806), he ran the risk that Philadelphia might not accept the trust, or might be unable to administer it, or might subsequently be unable to act because the Federal Constitution was changed.”

I read this to be synonymous with the KS case. The Pauahi will put the conduct of the estate in the hands of our state court system and she could not possibly have forseen that we would have a Federal Civil Rights Act which prohibits even private schooling where the main basis of admission is race.

Girard’s admission policy later was also amended to let in females. Interestingly, I contacted a local graduate on the alumni list of that school in its white-boys-only days, Howard L. March of Waikiki, and he says the school is heavily black today and better than ever. It still provides free education to poor children until age 18, and if you graduate early, March says, the Girard money will send you to college through age 18. In other words, racial and sexual integration did not ruin it.

It’s interesting that in commentary on that 1968 Girard decision you hear the same woeful arguments of today ... that all is lost if a school is forced to have a diversified student body. One of those sites said in ‘68:

"O Lord, what has happened to us: behold, and look on our reproach. Our inheritance has been turned away to aliens, our houses to strangers, we are become orphans, we have no father, our mothers are as widows The crown has fallen from our head: yea, woe to us! For we have sinned" (Lamentations 5:1,2,3,16, LXX).

It might be argued in court that Kamehameha School has, in an accidental way, been diversified for years. Many of its students have just drops of Hawaiian blood. There is no blood quantum requirement.

In fact, as in the white-vs-black argument, race is a bogey. What’s a Hawaiian, a Caucasian, or a Negro? Today’s anthropologists tell us you cannot determine race, unless it’s what somebody prefers to call himself.

Girard/Supreme Court is going to be a tough one for Kamehameha Schools’attorneys to knock down (if they even know about it.) And if they find some shimmy-out room it will still leave the school with a racist tint.

I know there’s some deeply-held emotion in this state about schools and programs for Hawaiians only and for respect for Pauahi’s will. That’s how most white people in Pennsylvania felt about Stephen Girard’s 1831 will. That’s how many Hawaiians still feel about Pauahi’s 1833 will.

But that was all long before today’s social issues. Neither of those generous people could have imagined today’s social or legal atmosphere. And that’s why, in American law, most wills other than strictly eleemosynary trusts such as Girard’s and Pauahi’s, are limited to the life of the named beneficiaries plus 21 years. That’s why the Campbell Estate will is expiring soon.

Girard and Pauahi had great, philanthropic visions. One was to help poor, white, orphan boys and the other was to help Hawaiian boys and girls(that subject to Pauahi’s husband’s after-death interpretation.)

But we change. That’s America’s great strength and why the Supreme Court must always re-interpret the Constituition for things our founders --- just like the will-givers Girard and Pauahi -- could never have forseen. I don’t think anyone other than the most intransigent of bigots can deny that school and workplace diversity and, yes, some forced integration, have made us better.

I hope the hard-core of KS, many being people I highly respect and personally like, will examine the Girard case and say “ours may be lost or at least hurtful for our long-term standing in our community.”

Open the school. Give admissions consideration (not points) to Hawaiian-blooded applicants who also have scored in a certain percentile in grades and tests, who impress in their essays and interviews, and then say that other qualified applicants will be considered in the interest of diversity.

It will be devastating and demoralizing within the Hawaiian community if hard-headed, go-down-shooting trustees and lawyers ignore the Girard case and lose and must accept --as that Philadelphia high school did -- an admissions policy imposed by the court.

Do the right thing yourselves.

E-mail Bob Jones at BanyanHouse@hula.net


(4) A second lawsuit against Kamehameha School’s admissions policy filed in August, resulted in a Temporary Restraining Order on August 20, 2003 forcing Kamehameha School to immediately admit one white boy to the 7th grade at the main campus in Honolulu.

On Tuesday August 19, 2003 the media in Hawai'i began reporting that an emergency hearing would be held on August 20 before U.S. District Court Chief Judge David Ezra, seeking a Temporary Restraining Order to force Kamehameha School to allow a boy with no ethnic Hawaiian ancestry to begin school immediately. That hearing was indeed held on Wednesday August 20, and the TRO was issued. The boy began attending school on Thursday August 21.

Here are the basic facts of the situation. The boy, a resident of the island of Kaua'i, attended a summer enrichment outreach program sponsored by Kamehameha School that was not racially restricted. Kamehameha School then invited the boy to apply for the 7th grade at the main campus in Honolulu where he would be a boarding student. The boy did apply, passed the testing, interviewing, and screening process, and was accepted; subject to his being able to verify ethnic Hawaiian ancestry. In the boy's application materials his mother had stated that her father was Native Hawaiian. As it turned out, the boy's mother was adopted and raised by her Native Hawaiian foster father, but was not biologically descended from him. Some spaces in the application documents had been left blank, so it was apparently ambiguous whether the boy actually had biological ancestors who were Native Hawaiian. (Some in the ethnic Hawaiian community claim that the mother lied on the application or was intentionally vague, but Judge Ezra stated publicly that was not true.) Based on the acceptance letter from Kamehameha School, the boy and his family decided not to enroll him in the public schools on Kaua'i, where school started three weeks before Kamehameha. They instead made plans for Kamehameha, including plane tickets etc. The boy was assigned a dorm room and other facilities. But then, at the last minute (perhaps as late as Saturday August 16) Kamehameha School rescinded its invitation and told the boy he could not attend because he could not prove Hawaiian ancestry. In giving his decision on Wednesday Judge Ezra made it very clear that he was not ruling on the merits of the issue whether the racially exclusionary admissions policy is constitutionally permissible; instead, he was merely ruling on the very narrow issue that the boy would be irreparably harmed by not being allowed to begin school at Kamehameha along with the other students, especially since he would already be three weeks late starting public school on Kaua'i; and that the harm to the boy from not issuing the TRO would be far greater than the harm to Kamehameha School from issuing the TRO. At 6:30 Thursday morning a large group of Kamehameha School alumni, and children who might be Kamehameha students and/or family members of actual students or of rejected applicants, together with Hawaiian activists and other community members, assembled at the entrance to Kamehameha School where they peacefully but vigorously protested the boy's admission for several hours as students and teachers entered the school while TV, radio, and newspapers covered the event live and on tape. Some alumni, parents, and activists made inflammatory statements both at the protest and elsewhere, hinting at the possibility that the boy might be mistreated on campus and that such behavior would be understandable because of the strong feelings of students and family members, some of whom had friends or relatives who had been denied admission and whose "place" at the school had been "stolen" by the white boy. The U.S. Attorney for Hawai'i then spoke before the TV cameras saying that neither violence nor threats of violence would be tolerated, and would be prosecuted as hate crimes or obstructions of justice. The lawyers representing the boy and his family before Judge Ezra are the same two lawyers who represented the unnamed student at the Maui campus of Kamehameha School in the lawsuit filed on June 25, 2003 in the courtroom of U.S. District Court Judge Allen Kay (attorneys John Goemans and Eric Grant).

There were a very large number of newspaper articles, editorials, lengthy commentaries, and letters to editor published during a period of about a week. The most important items are gathered below, in chronological order. A URL and a one or two sentence description are provided for each. The URLs have been left dark, but they are valid. Simply copy and paste a URL into your browser's "go to" window in order to read the article.



Boy sues Kamehameha. Lawyers for a Kaua'i boy whose acceptance to Kamehameha Schools for the coming school year was rescinded last week after his mother failed to show that at least one of her parents was of Hawaiian ancestry will ask today for a federal court order forcing the schools to accept the student. John Goemans of the Big Island and Eric Grant of Sacramento, Calif., filed the lawsuit in U.S. District Court yesterday on behalf of Brayden Mohica-Cummings, and his mother, Kalena Santos, asking that the judge declare unconstitutional what they say is the school's "Hawaiians-only" admissions policy.



Court order due today in Kamehameha suit



Kamehameha Schools told to make exception (TRO issued)



Alumni plan protest of decision at school's gate. Kamehameha Schools trustees and officials give fellow trustee Nainoa Thompson a standing ovation after his impassioned speech about Kamehameha Schools' being the center of healing in the Hawaiian community. Robert Kihune, Diane Plotz, Doug Ing, Thompson, Constance Lau, Colleen Wong and Michael Chun.



Parents criticize entrance policy at Kamehameha



Officials warn of school violence



EDITORIAL -- Attack the act, but not boy at school



‘Ino! Ke Po‘i Mai Nei Ka Nalu. Hawaiian-language column routinely published in the Sunday Honolulu Star-Bulletin devotes this week's article to the controversy over admitting a student with no native ancestry. Synopsis: An article in 1916 in Ka Puuhonua [a Hawaiian language newspaper] addresses similar issues involving Kamehameha Schools.



COMMENTARY -- "Kamehameha Schools' policy advocates social justice" By Trustees of Kamehameha Schools



"Why Kamehameha Schools will prevail in its effort to limit enrollment to Hawaiians only" A legal, historical, and social analysis by Jon M. Van Dyke, University of Hawaii professor of law.



Native blood and custom clash. Some critics say the definition of Hawaiian should include the practice of "hanai"


(5) On September 7, 2003 a pro-apartheid "red shirt" march by 5,000 to 10,000 ethnic Hawaiians and supporters took place in Waikiki. The purpose of the march was to protest the Arakaki2 lawsuit as well as the two Kamehameha School desegregation lawsuits. Over a period of several weeks, the red-shirt march generated important published statements by the Arakaki2 plaintiffs and by the OHA trustees, as well as letters to editor debating the legitimacy of the overthrow and annexation and bemoaning the allegedly downtrodden status of ethnic Hawaiians. To see extensive material about all that, visit:

Kamehameha Schools has a website at:
On that website there is now a large webpage containing some of the Kamehameha Schools legal documents in the lawsuits, plus many photos from the red-shirt pro-apartheid march and rally of September 7, 2003, plus petitions and suggested talking points for letters to editor. The lawsuits webpage is at:


(6) A series of red-shirt marches and rallies was held Sunday November 16 through Tuesday November 18, 2003, to protest the Arakaki 2 lawsuit and the two Kamehameha School lawsuits. It was a clear attempt to intimidate federal judges and the general public. See:


(7) Statement by Kamehameha Schools Trustees published in the Honolulu Advertiser, Honolulu Star-Bulletin, and The Maui News, all on Sunday, November 16, 2003 (it takes a powerful organization to get the three largest-circulation Sunday newspapers to publish the same article simultaneously!); and very short rebuttal from plaintiffs attorneys published only in the Advertiser.

and also
and also

Public’s good will makes Kamehameha stronger
by Kamehameha Schools Board of Trustees

Tomorrow morning in U.S. District Court, we at Kamehameha Schools will defend ourselves against an attack that threatens to change our institution forever. Tomorrow morning, and again on Tuesday, our legal team will argue against two separate but similar lawsuits that seek to strike down Kamehameha's policy of giving admissions preference to Hawaiian applicants. The lawsuits were not a complete surprise; legal challenges to other Hawaiian programs made it pretty clear they would come. We knew that when the attack came the Kamehameha community would rally in defense of its school, and we were right. What we did not anticipate was how strongly the entire community would stand behind Kamehameha and vouch for its importance to our society. We are immensely appreciative of this outpouring of aloha both from the Kamehameha ohana and the community at large. Painful as these lawsuits are, they have made us ponder what Kamehameha Schools means to the Hawaiian people and all of Hawaii. We have been prompted to consider what our lives would be like without programs that are dedicated to strengthening and perpetuating the culture and values that provide the foundation for our unique and precious way of life in Hawaii. It appears that not only Hawaiians but most of our neighbors believe that Kamehameha Schools should remain true to Princess Pauahi's vision: an educational institution devoted to improving the capability and well-being of the Hawaiian people through education. More than half of the non-Hawaiian respondents in a recently published poll said they believe Kamehameha's admissions policy should remain unchanged. More than 37,000 non-Hawaiians signed petitions of support circulated by our 'Ohana Council. Non-Hawaiians joined in the march for Hawaiian justice on Sept. 7, submitted declarations on our behalf to the federal court and mailed letters of support directly to us and to newspapers around the state. This response tells us that most of the community understands and accepts that Kamehameha Schools was establish- ed with the private wealth of a Hawaiian princess for the benefit of her people. It makes it clear that many of us feel in our "gut" that it is fair and just for Kamehameha to offer educational opportunities first to Hawaiians. It demonstrates the uniqueness of Hawaii, a home to people of many different backgrounds and cultures, bound by common values that allow us to understand instinctively that what benefits the Hawaiian people benefits all of us in the long run. The attorney who brought these two lawsuits argues that overturning our admissions policy is a question of equality. To him, equality means all children, regardless of ancestry, should have equal access to Princess Pauahi's legacy. To us, equality means giving Hawaiians an equal chance to succeed in a Western society -- a society in which they had lost their land and were losing their language, their culture and their pride. Princess Pauahi established Kamehameha to meet that need in the 19th century. No one disputes that, unfortunately, that need still exists today. These lawsuits force us to look, once again, at some uncomfortable realities: that a disproportionate percentage of Hawaiians still face educational and social challenges, and that despite the size of Princess Pauahi's bequest, Kamehameha alone cannot meet the needs of all Hawaiian children. There are more than 70,000 school-aged Hawaiian children in our state, and our campuses can accommodate only 4,800. Because there are limits to our space and resources, it is crucial that we be allowed to continue providing for Hawaiians first. Our admissions policy is critical to fulfilling our mission to improve the capability and well-being of Hawaiians through education. Without that policy, we will cease to exist as we are today. To all of you who have written letters, to the 84,000 people who signed our petitions, to those who marched for justice or simply took the time to reflect on how and why Kamehameha Schools contributes to the quality of your life in Hawaii: Mahalo. We will carry your good will with us as we go to court tomorrow morning to defend our admissions policy -- not just for Hawaiians, but for all of us.

Kamehameha Schools Board of Trustees members are: Constance Lau, chairwoman; Nainoa Thompson, vice chairman; Diane Plotts; J. Douglas Keauhou Ing and Robert Kihune. Colleen Wong is acting CEO.

Historical look 'not relevant'
by Advertiser Staff

Lawyers for two young people whose lawsuits against Kamehameha Schools will be heard this week say the school's admissions policies violate federal laws against racial discrimination. The argument that the Hawaiian-preference admission policy is justified as a way to make up for past injustices to Hawaiians is simply not relevant, they argue. In court filings, attorneys Eric Grant and John Goemans argued that the court should not even be required to look at the historical experience of Hawaiians. "The motions ... do not call upon the court to address the depth of the historical and present-day suffering of Native Hawaiians," they said. "Without in any way denigrating that story, one can respectfully say that it is not relevant to the legal questions at hand." And that question, they offered, "is whether in 21st-century America, a great Hawaiian institution will be permitted to enforce a 19th-century view of race relations by categorically excluding children of non-'preferred' races ... "


(8) The Honolulu Advertiser published an article Monday November 17 2003 discussing the issue of admissions standards at Kamehameha School. Much of the article focused on internal debates over whether children should be required to pass stringent academic tests to become part of an elite student body, vs. whether the school should seek a broad cross-section of the ethnic Hawaiian population including low academic abilities as well as children with special needs. This article was published on the day of a major court battle over whether the school should be forced to desegregate; and so the article included a brief outline of the history of the admission of non-ethnic-Hawaiians to the school. This excerpt focuses on that issue.


Kamehameha standards debated

Now, 116 years since Princess Bernice Pauahi Bishop directed that her estate establish the school, Kamehameha has reached a crossroads on the admissions issue, on two distinct fronts. In federal court, hearings are set for today and tomorrow on two separate legal challenges of its policy favoring applicants of Hawaiian ancestry. In the school's administrative offices, a strategic plan being hammered out for the past few years has weighed, among other matters, not whether Hawaiians should be admitted preferentially but which ones. School administrators have not yet presented the latest phase of the plan to the trustees and declined to release any draft versions. Colleen Wong, the acting chief executive officer, said the proposal probably would be issued early next year. At the heart of the discussion is a question asked three years ago when federal authorities demanded the overhaul of school governance: Is Kamehameha fulfilling its mission to the Hawaiian people? "There is an overwhelming trend to wanting to go back to a curriculum that is equally spread among children entering kindergarten who have varying degrees of ability," Ferreira said. Charlene Hoe, director of the school's Office of Strategic Planning, said ... the school has been guided by a mission to groom future leaders, so admissions criteria must include scores on academic testing. The federal lawsuits — filed on behalf of Brayden Mohica-Cummings, a non-Hawaiian Kamehameha seventh-grader; and another, unnamed student — contend that admission is a contract between parents and the school and base their claim that the policy violates a post-Civil-War law banning racial exclusion in contracts. But the school has admitted non-Hawaiians in the past, long before the controversial 2002 case involving a student at the new Maui campus. During the school's early years, non-Hawaiians were included to create an academically competitive environment; later, admission was extended to the non-Hawaiian children of faculty members, as an incentive for recruiting teachers. (See timeline.)

A look at history of admissions

1887 — Kamehameha School for Boys opens as a legacy left by Princess Bernice Pauahi Bishop. The will itself does not specify Native Hawaiians as being the target student population, beyond a desire to include some Native Hawaiian orphans and indigents.

1888 — In his Founders Day address the following year, Charles Reed Bishop, widower of the princess, said the school is intended for capable, industrious and well-behaved youths," adding that "if Hawaiian boys of such character fail to come in, other boys will certainly take their places."

1901 — Bishop responds to the trustees request for clarification on Pauahi's intent. "Hawaiians having aboriginal blood would have preference," Bishop replied, "provided that those of suitable age, health, character and intellect would apply in numbers sufficient to make up a good school."

1930 — Trustees agree that admitting "whites" would benefit the Hawaiian students. The following year, they admit two non-Hawaiians, sparking a protest by the alumni association the following year.

1931 — Insufficient applications lead the trustees to allow school administration to accept applications from Caucasians.

1946-1962 — Non-Hawaiian children of faculty are admitted to the school. The practice is discontinued in 1962; the last of these non-Hawaiian students graduates in 1965.

1975 — The school establishes eight districts, setting quotas of students to be admitted from each.

1977-1988 — A lottery system is implemented for admission to the lower school, with a test required to select those continuing to graduation. In 1970, a quota is created for admission of orphans and indigents; the original proportion of 25 percent is later lowered to 15 percent.

1989 — A minimum required composite score on the admission test is established.

1997 — The "Broken Trust" statement by a panel of Hawaiian community elders leads to an investigation of the trustees and the admissions process.

2000 — The school institutes the strategic plan process.

2002 — A non-Hawaiian boy is admitted to the Maui campus. The Ho'oulu Hawaiian Data Center is established to develop a registry of the Hawaiian population and to certify the Hawaiian ancestry of applicants.

2003 — Two separate lawsuits challenging the Kamehameha admission policy are filed.


(9) Two separate lawsuits against Kamehameha Schools’ racially exclusionary admissions policy were scheduled for hearing on Monday and Tuesday, November 17 and 18, 2003. In the Monday case, Judge Kay ruled from the bench, following oral arguments, that the school’s admissions policy is permissible because Kamehameha is a private school not receiving government funding and because the school provides affirmative action to help a poor, downtrodden race. In the case scheduled for Tuesday, Judge Ezra heard oral arguments and decided to postpone his decision for two weeks so he could consider the points raised during oral argument in his own courtroom. Here are four newspaper articles and one editorial, describing the events of Monday and Tuesday; followed by the entire ruling made by Judge Kay on Monday (a longer, more detailed ruling will be issued later).


The Honolulu Advertiser Tuesday, November 18, 2003
Kamehameha Schools wins admissions case
By David Waite
Advertiser Courts Writer
** Excerpts

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. 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 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." 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.


The Honolulu Advertiser, Tuesday, November 18, 2003
Ruling brings tears of joy, exultation
By Vicki Viotti
** Excerpts **

Some of the loudest cheering following yesterday's ruling upholding the Kamehameha Schools' admissions policy came from people who never made the school enrollment list. Among them, two Hawaiian charter public schools, Halau Ku Mana and Halau Lokahi, which sent more than 100 students to witness the demonstrations prior to the federal court hearing before Judge Alan Kay, and the exultation after he issued his decision. The decision came after a candlelight march to the federal court and an overnight vigil to protest the legal challenge to Kamehameha's policy and other Native Hawaiian programs. There was the Western approach to celebrating. Kids sporting hair dyed Kamehameha-blue. Raucous shouts of "What do we want? JUSTICE! When do we want it? NOW!" But the children also chose an indigenous response as well. One student, Jordan Haku'ole, led a Hawaiian chant, said Lokahi teacher Hinamoana Wong. "It calls out to the Islands to fight onward," she said. "It incorporates words from Kamehameha to his warriors: 'Go forward until you grasp the lei of victory in your hand.' " "It's more important for them to be an active part of history rather than reading in a book," Wong said. "They're there to stand up for native rights. I see future leaders of the movement." A tearful Nainoa Thompson, known both as a navigator with the Polynesian Voyaging Society and as a Kamehameha trustee, said Hawaiian children have suffered under a "spiritual poverty" that has stripped them of hope. "He (Kay) ruled for all of them when he ruled for us," Thompson said. "It means there's a restoration of hope. It means our children will have dreams and will reach them." Beyond the school walls, Gov. Linda Lingle said the courts seem to be going "in a positive direction" regarding the legality of the Kamehameha policy. Lilikala Kame'eleihiwa, director of the University of Hawai'i-Manoa Center for Hawaiian Studies, was thrilled. "We won! That's my remark," she said. "And it's about time. But I really wish that these lawsuits never happened, with the angst, the worry, the fears it's caused in the Hawaiian community."


The Honolulu Advertiser EDITORIAL Tuesday, November 18, 2003 ** full text **
Kamehameha court win just start of story

Yesterday's federal court ruling upholding Kamehameha Schools' Hawaiian "preference" admission policy is far from the end of this story. Both sides anticipated appeals, no matter which way the ruling went. In fact, it is likely that this case (along with a similar one being heard today before Judge David Ezra) will eventually end up before the U.S. Supreme Court. That was the pattern in an earlier lawsuit against a Hawaiians-only voting requirement for the Office of Hawaiian Affairs. In yesterday's case, Judge Alan Kay accepted the argument of Kamehameha Schools lawyers that the preference for Hawaiians was justified because it is designed to address century-old cultural and socio-economic disadvantages facing the Hawaiian people. Authors of the lawsuit say there may be instances of disadvantages for Hawaiians, but a racially exclusive admission policy is not the way to cure those disadvantages. Kamehameha Schools is clearly determined to fight this fight as far as it goes. But while that effort goes on, there should be some planning against a day when the admission policy is thrown out. Clearly, the tone in the federal judiciary recently has been very skeptical about any race-based programs. One option would be to base admission on a relationship to citizens of Hawai'i at a time Princess Bernice Pauahi Bishop wrote her will leaving her lands and fortune to the education of young people and the betterment of poor Hawaiians. Such a policy would not bar non-Hawaiians, but a large percentage of the applications under such a condition would have some Hawaiian blood. Another idea suggested is to make Kamehameha Schools a sort of "magnet" school for those students with a particular interest in Hawaiiana, as evidenced by language ability, cultural practices and the like. Again, such a policy would tend to favor Hawaiians. And finally, the schools might consider putting even more resources into a process already under way: supporting and funding preschool and regular-school operations in communities with large proportions of Hawaiian residents. This effort leverages the estate's vast resources over greater numbers of students. Clearly, Kamehameha Schools would prefer to continue as it has, with an admission policy that favors young people with at least some Hawaiian blood. And it may be that appeals courts will agree with the idea that this is a benign and acceptable form of affirmative action, designed to offset past wrongs. But courts could go the other way. Thus it is incumbent on the schools to look at alternative ways in which its resources and expertise can be put to the worthy goal of raising up and improving the lot of the Hawaiian people.


Honolulu Star-Bulletin
Headline story, Tuesday, November 18, 2003
Federal judge upholds Hawaiians-only school
The court rules that Kamehameha Schools' admission policy serves a legitimate purpose
By Rick Daysog and Debra Barayuga
** Excerpts that add content beyond the above articles **

"I think Thanksgiving came early for native Hawaiians and all of the people of Hawaii," Kamehameha trustee Robert Kihune said outside the court as a crowd of about 150 Hawaiians and their supporters celebrated. Eric Grant, an attorney for the unidentified student, said he was disappointed by Kay's ruling but plans to file an appeal with the 9th U.S. Circuit Court of Appeals early next year. The decision represents the first major courtroom victory in more than three years for advocates of native Hawaiian rights and entitlements, who have been reeling from the U.S. Supreme Court's February 2000 Rice vs. Cayetano ruling, which abolished the Hawaiians-only voting for Office of Hawaiian Affairs elections. Founded by the 1884 will of Princess Bernice Pauahi Bishop, the Kamehameha Schools is a $6 billion, nonprofit charitable trust that educates more than 4,800 native Hawaiian children each year. Plaintiff's attorney Grant said he believes that Kay will be reversed by the 9th Circuit because the judge's interpretation of federal civil rights laws was overly broad. He said that Kay's ruling does not "mean anything" for the lawsuit he filed on behalf of Mohica-Cummings. During yesterday's two-hour hearing, Grant argued that the Kamehameha admission policy is segregationist and is legal under federal civil rights statutes only if it aims to remedy underrepresentation of Hawaiians within the Kamehameha Schools' student body. "The discrimination in this case is intentional, and they do it openly. ... The defendant's rationale would allow segregated neighborhoods and segregative covenants," Grant said. "This is a categorical racial exclusion. This is segregation." Kamehameha attorney Kathleen Sullivan, who is the Stanford University Law School's dean, argued that the admission policy is justified because it seeks to remedy past injustices, produces racially diverse leadership in the local community and helps to preserve native Hawaiian culture and identity. According to Sullivan, Congress has repeatedly endorsed Kamehameha's efforts to educate children of native Hawaiian ancestry, most recently in the Native Hawaiian Education Act of 2003. Sullivan disagreed with Grant's narrow interpretation of civil rights laws, saying courts have allowed remedial programs such as Kamehameha's admission policy as long as they attempt to address social imbalances such as those suffered by Hawaiians. "If you were born native Hawaiian, you are more likely to be born in poverty. ... If you were born native Hawaiian, you are less likely to be a manager and are more likely to be a laborer," Sullivan said. "What Kamehameha Schools tries to do is bring redress and hope."


The Honolulu Advertiser, Breaking News, Posted at 12:12 p.m., Tuesday, November 18, 2003 ** full text**
Kamehameha ruling expected in 2 weeks
By Vicki Viotti

Kamehameha Schools and the 12-year-old non-Hawaiian boy who wants to remain enrolled there will have to wait at least two weeks before a second federal judge decides whether the school’s mission of helping Hawaiians is enough to justify giving them preference in admissions. U.S. District Judge David Ezra today told attorneys for the schools and for the boy, Brayden Mohica-Cummings, that he wanted time to consider the arguments made today so that he could rule independently of yesterday’s decision favoring the schools’ admissions policy in a similar case. Both sides also must wait for the court to decide whether Mohica-Cummings, a Kaua'i seventh-grader temporarily admitted to Kamehameha, can remain there pending appeals of the decision. In another case yesterday, U.S. District Judge Alan Kay ruled that Kamehameha was not in violation of federal law by giving preference to Hawaiians. That case was brought by an unnamed Big Island student. At issue in both cases is the standard for judging the policy against a civil rights law that bars racial discrimination in contracts. Spokespersons for both sides said later they found no omen in Ezra’s decision not to hand down an immediate decision. "I’m pleased in the sense that Judge Ezra is obviously taking great care in this case," said Eric Grant, lead counsel for Mohica-Cummings, who remained at school today and was represented in court by his mother, Kalena Santos. "That’s all a lawyer can hope for." "We were glad we were able to make our arguments," said Kamehameha lawyer Crystal Rose. The schools’ legal team in the courtroom was led by Kathleen Sullivan, a constitutional law expert. The decision will come down to which argument Ezra accepts. Sullivan argued the school has more leeway in using a preferential policy because it is a private institution receiving no government funds. 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 said later that Ezra seemed to place a greater emphasis than Kay did in examining the recent Supreme Court decision restricting affirmative action at the University of Michigan, asking 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 did 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. Ezra complimented both attorneys after the hour-long hearing concluded, explaining that the need to consider their arguments precluded ruling from the bench, as Kay did yesterday. "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 yesterday. "We knew that we would be in this for the long term," said Constance Lau, who chairs the school’s board of trustees. "We remain steadfast and committed to our mission." Grant and Santos, who also appeared before cameras, were targets of some derogatory remarks from the crowd, shouts that he should "go back to California." "That was unfortunate," said trustee J. Douglas Ing when the trustees emerged. 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.


Honolulu Star-Bulletin, Tuesday, November 18, 2003

Text of Judge Alan Kay's decision in Doe vs. Kamehameha Schools

Doe vs. Kamehameha Schools etal. Civ. No. 03-00316

Nov. 17, 2003 Court Ruling

Counsel have very ably presented their respective positions. The Court feels the parties are entitled to a ruling at this time notwithstanding the condition of my voice.

The Court appreciates that both sides have very strong emotional feelings about this case, and yet the court is confident that both sides respect that the Court must decide this case strictly in accordance with the law.

The Court emphasizes that this case involves exceptionally unique circumstances. As the Ninth Circuit stated in the Burgert decision, “the Bishop Trust is a charitable testamentary Trust established by the last direct descendant of King Kamehameha I, Princess Bernice Pauahi Bishop, who left her property in trust for a school dedicated to the education and upbringing of Native Hawaiians.”

Plaintiff now challenges Kamehameha Schools admission policy under §1981 as being racially discriminatory. The Court notes that Plaintiff does not dispute any of the facts submitted by Kamehameha Schools. Both parties agree that disposition by summary judgment is appropriate.

At the outset, it is important to note that Kamehameha Schools is a private school and receives no federal funding. No taxpayer money is involved.

From a historic perspective, it should be remembered that the Kamehameha Schools was established by Princess Pauahi before Hawaii became a part of the United States, and that the admissions policy provides preference for Native Hawaiians, the indigenous people of Hawaii.

In her Will, Pauahi established a trust for the Kamehameha Schools, directing, among other things, that the Trustees “devote a portion of each year’s income to the support and education of orphans, and others in indigent circumstances, giving the preference to Hawaiians of pure or part aboriginal blood,” and also giving “unto my trustees full power to make all such rules and regulations as they may deem necessary for the government of said schools and to regulate the admission of pupils.” Thus it is clear that Pauahi left to her trustees the discretion “to regulate the admission of pupils.”

Charles R. Bishop, who was the chairman of the original board of trustees and who was Pauahi’s husband of some 30 years, explained that it was her intent to give a preference to students of Hawaiian ancestry. Bishop explained his wife’s intentions in his speech on the first Founder’s Day in December 1888, concluding that “in order that her own people might have the opportunity for fitting themselves with such competition ... these schools were provided for, in which Hawaiians have the preference.” The Court finds that statement represents the core of the schools’ mission. In a subsequent letter of February 11, 1897, Bishop further explained that “there is nothing in the Will of Mrs. Bishop excluding white boys or girls from the schools, but it is understood by the Trustees that only those having Native blood are to be admitted at present ... ” And in a letter of February 20, 1901, Mr. Bishop stated: “. . . the preference to Hawaiians of pure or part aboriginal blood applies only to education of orphans and others in indigent circumstances; but it was intended and expected that Hawaiians having aboriginal blood would have a preference . . . Education of the Natives was the first, but not the exclusive and perpetual purpose of the Founder of the School.” He went on to say “those of other races were not barred or excluded” and concluded that “it was wise to prepare for and admit Natives only and I do not think that a time has yet come when it is better to depart from that rule.” Thus it is evident that the intent of Princess Pauahi, as explained through her husband Charles Bishop, was the preference be given to Native Hawaiians for admittance to the Kamehameha Schools in order that through proper education they might be competitive with new comers in maintaining their socioeconomic status, culture, and participate in the governance of their communities. It is further evident that this preference was not perpetual nor an absolute bar to admittance of other races to the Kamehameha Schools, but only for so long as it took the schools to fulfill its responsibility in attaining the goal of educating Native Hawaiians to overcome the manifest imbalance in socioeconomic and educational disadvantages, and non-Native Hawaiians would be admitted when the goal was attained or at such earlier date when the schools has the capacity to also admit non-Native Hawaiians. In sum, it was the vision of Princess Pauahi to save her people through education.

Kamehameha Schools reviews its admission policy on a periodic basis to ensure its consistency with its mission and objectives in attaining these goals. Kamehameha has most recently made such review in 2002. As enunciated by Trustee Chairman (Douglas) Ing, the admission policy will remain in effect as long as the needs exceed the schools’ ability to provide educational opportunities. Today the Kamehameha Schools has only approximately 4,800 spaces in the campus programs while there are approximately 70,000 Native Hawaiian children enrolled in grades K-12 throughout Hawaii. Thus while the school has made great strides over the years in expanding its capacity to provide an education for thousands of children in Hawaii, it still is unable to enroll all Native Hawaiian children who seek admittance and accordingly has not yet reached that stage where it can also admit non-Native Hawaiian children; although currently the student body represents virtually every race, albeit with each student having some Hawaiian blood.

Former Governor of the State of Hawaii George R. Ariyoshi has stated in his Declaration that: “I look forward to the fruits of Kamehameha Schools’ efforts when it educates and develops so many good Hawaiian role models that future generations of Hawaiian children need not be reminded of failures but are inspired by successes. I look forward to the day when Kamehameha admissions policy is no longer needed, when Native Hawaiians are at the top of every educational and socioeconomic class. But that day is not today.”

The Supreme Court ruled in the Patterson decision that claims of racial discrimination under §1981 are subject to the same scheme of proof as applicable to Title VII cases. The Title VII framework consists of a two-step test that first looks to whether the use of race is supported by legitimate justification and then considers whether the use of race is reasonably related to that justification. The Court further notes that courts have held that the Title VII standard is not a fixed and rigid formula but rather a flexible one.

The Court reiterates that Kamehameha Schools is a private school receiving no federal funding. The Court finds that Kamehameha Schools has a legitimate justification for its admission policy and that it serves a legitimate remedial purpose by improving Native Hawaiian 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. Native Hawaiians continue to suffer from economic deprivation, low educational attainment, poor health status, sub-standard housing, and social dislocation. The Court further finds that the admission policy is reasonably related to its remedial purpose. The Court notes that the basis of the claim in this case involves a statutory challenge, rather than a constitutional challenge, that the nature of the actor is private rather than the state, and that the context in which the claim arises is in the field of education rather than employment.

Historians are divided and disagree over the events surrounding the demise of the Hawaiian Monarchy in 1893; including whether the United States minister John L. Stevens and United States Marines aided the insurrection and the extent to which Native Hawaiians participated on either side. Conflicting reports on these events were filed shortly thereafter; with the first report being made by former Congressman James Blount who had been appointed by President Cleveland to investigate the matter and who concluded that U.S. diplomatic and military representatives had wrongfully assisted in an overthrow. A second report was filed by Senator John Morgan, Chairman of the Senate Committee on Foreign Relations, who concluded that there was no wrongdoing on the part of any representatives of the United States. This Court will not address the merits of these differing views of Hawaiian history.

Nevertheless, Congress has made repeated and extensive findings in numerous laws that the Hawaiian Monarchy was unlawfully overthrown with the aid of the United States, and that the United States has a resulting special trust obligation and political relationship to Native Hawaiians as the indigenous people of Hawaii. Again, the court only recounts the 1893 events as understood by Congress. In 1993 Congress issued an acknowledgment and apology known as the Apology Resolution whereunder Congress acknowledged these wrongs and the resulting socioeconomic disadvantages of Native Hawaiians and sought a reconciliation with the Native Hawaiian people.

In 2002 Congress re-enacted the Native Hawaiian Education Act granting preferences to Native Hawaiians in the field of education. Congress made findings of Native Hawaiian socioeconomic and educational disadvantages similar to those which Kamehameha schools has identified and is likewise seeking to remedy. Indeed the House Committee on Education and Workforce, in reporting on this legislation, concluded that “unlike other indigenous populations, Native Hawaiians have a trust, established by the last Hawaiian Princess, which exists solely to educate Native Hawaiian children. The Bishop Trust is currently one of the largest charitable trusts in the world,” and “the Committee urges the trust to redouble its efforts to educate Native Hawaiian children.”

Thus Congress has acknowledged that notwithstanding its prior efforts to fulfill its special trust relationship with Native Hawaiians there is a continuing substantial need for educational assistance and that the parallel trust of Princess Pauahi establishing the Kamehameha Schools is a significant resource in meeting this need.

Section 1981 should be read in harmony with Congress’ many findings regarding the needs of Native Hawaiians and with the laws Congress has enacted giving a preference to Native Hawaiians. The educational programs funded under the Native Hawaiian Education Act have an inherently external focus to authorize and develop innovative educational programs to assist Native Hawaiians throughout our community, reflecting the needs and under-representation of Native Hawaiians outside of any specific school. Like Kamehameha Schools’ remedial plan, the laws enacted by Congress are not designed to remedy generalized societal discrimination but rather are focused on the very specific harm caused by what Congress has identified and decided was the United States’ wrongful participation in the demise of the Hawaiian Monarchy.

The Supreme Court declared in its Weber decision that “it would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice and intended to improve the lot of those who have been excluded from the American Dream for so long constituted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.” Likewise, the analysis of § 1981’s application to the Kamehameha Schools remedial affirmative action plan should be considered in consonance with Congress having determined that the United States wrongfully participated in the overthrow of the Hawaiian Monarchy and having proclaimed a policy of reconciliation with the Native Hawaiian people and enacted numerous laws for their benefit.

In sum, the Court reiterates that this case involves exceptionally unique circumstances involving a private school with remedial race-conscious admissions policy to rectify socioeconomic and educational disadvantages of indigenous Native Hawaiians resulting from what Congress has determined as U.S. participation in the overthrow of the Hawaiian Monarchy; with Congress having made legislative finding setting forth these disadvantages and seeking to remedy them, and recognizing that Kamehameha Schools admission policy and educational program are a means of attaining such remedial goal and with a House Committee Report urging Kamehameha to redouble its efforts.

The Court is mindful that these unique circumstances to some extent involve an area of unsettled law. Notably, no Court has ever addressed whether or not § 1981 permits the remedial use of race by a private school receiving no federal funding, especially one involving an educational preference for descendants of an indigenous people who have been disadvantaged by past history.

The recent decisions by the Supreme Court in Gratz and Grutter involved constitutional challenges to public schools in Michigan, with the Court looking at the internal composition of the student body; although recognizing the external goal of diverse racial civic participation and leadership in our society. The Supreme Court decision in Runyon involved an admission policy which barred all African Americans from a private school, b ut it is distinguishable because of the absence of any remedial purpose. The Rice decision involved an OHA statewide election that ran afoul of the Fifteenth Amendment and involved a state actor rather than a private actor. The McDonald decision enunciated a rule that in the employment context an employer cannot discriminate against or in favor of any race; however the Supreme Court has held in Weber and following cases that a race-based affirmative action plan is permissible where it has a legitimate justification. In view of the uncharted area of the law involved in this case, it is likely that the ultimate resolution of these issues will be made by a higher court. Nevertheless this Court is firmly convinced that the Kamehameha Schools race-conscious remedial action plan has a legitimate justification.

Because of this conviction the Court finds it unnecessary to address the question whether the admission policy also passes muster under the strict scrutiny standard.

For the foregoing reasons, the Court grants the Summary Judgment Motion of Kamehameha Schools and Denies the Summary Judgment Motion of Plaintiff. The Court will file a more detailed written order.


(10) On Thursday December 4, 2003 Judge Ezra approved a settlement of the lawsuit involving Brayden Mohica-Cummings. Terms of the settlement had been described in the newspapers since the previous Wednesday (day before Thanksgiving); and red-shirt radicals opposed the settlement. Kamehameha Schools agreed to let the 7th grade boy remain at Kamehameha School through 12th grade graduation, in return for the lawsuit being dropped. (The other admissions lawsuit dismissed by Judge Kay will go forward to the Ninth Circuit Court on appeal.) Here are 4 newspaper articles anticipating the settlement and then reporting it, and discussing the issue of hanai (adoption). Then an opinion piece opposing the trustees’ decision to settle. Then interesting editorials from both the Advertiser and Star-Bulletin.



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. Kamehameha had accepted Brayden Mohica-Cummings, then rescinded the offer after discovering he had no Hawaiian blood. 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." 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. 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. 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 Honolulu Advertiser, Saturday November 29, 2003
By David Waite and Vicki Viotti


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." One voice from that opposition is Kamehameha graduate Vicky Holt Takamine, president of the political action group 'Ilio'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." 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. 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."


Honolulu Star-Bulletin
Saturday, November 29, 2003
By Rick Daysog
** Excerpts providing added information **

The Kamehameha Schools has agreed to settle a Kauai seventh-grader's lawsuit challenging its century-old admission policy, setting off a wave of criticism in the Hawaiian community. The settlement requires the approval of U.S. District Judge David Ezra, who plans to hold a hearing on the matter Thursday. It also requires approval from the state Family Court on Kauai, where Mohica-Cummings is a subject of a custody dispute between his mother, Kalena Santos, and his father, Kenneth Mohica. The estate's trustees stressed that the settlement does not set a precedent admitting more non-Hawaiian students. They believe that the deal will give them a better chance of defending the school's admission policy before the nation's appellate courts. "This was an extremely difficult decision for the board to make," said Nainoa Thompson, vice chairman of the estate's board. "In the end we all agreed that defending our right to offer admissions preference to children of Hawaiian ancestry is paramount for everyone -- for our children, for our community and for all of Hawaii." Members of the Kamehameha Schools ohana criticized the settlement, saying it will open the floodgates to challenges by non-Hawaiians who want to attend the school. Vicky Holt-Takamine, president of the 'Ilio'ulaokalani Coalition, which organized rallies and collected signatures from more than 84,000 people opposing the lawsuit, believes the trustees failed the Hawaiian community. "To me, this is the last icon for native Hawaiians. This is another overthrow of the monarchy," said Holt-Takamine, who met with Thompson yesterday to express her misgivings. "Do I feel betrayed and used? Absolutely. ... How do you explain this to the thousands of Hawaiians who get turned down? How do you explain this to the Hawaiians who didn't get in in the past, didn't get in this year and won't get in in the future?" Momi Cazimero, a 1951 graduate of the Kamehameha Schools, said she believes the board made "an expedient decision" given that Mohica-Cummings had already been enrolled at the school through error. Leroy Akamine, a 1952 graduate and a former president of the student-parent group Na Pua a Ke Ali'i Pauahi Inc., said the settlement essentially rewards an applicant "who lied and deceived the school in a selfish attempt to gain admittance." "We're devastated and disappointed by the decision that the trustees made," Akamine said. "It's a sad day for us." But not all school supporters disagreed with the board's decision. Roy Benham, former president of the Kamehameha Schools Alumni Association's Oahu region, does not see much harm in admitting Mohica-Cummings, who was raised in a Hawaiian atmosphere. Benham noted that prior to the mid-1960s, non-Hawaiian children of faculty members attended the school. "It was the school's error, and I think that under the circumstances I would let him attend," Benham said. "If our preference policy is struck down and we can't serve Hawaiians first, thousands of our children today and in future generations will suffer," said trustee Diane Plotts.


Honolulu Advertiser, Friday, December 5, 2003
Kamehameha settlement OK'd
By Vicki Viotti and Mike Gordon

A federal judge's decision yesterday to approve a settlement allowing a non-Hawaiian to continue his education at Kamehameha Schools stoked the fires of the controversial case, with the debate this time centering on the issue of the Hawaiian adoption tradition known as hanai. District Judge David Ezra ruled that the settlement is in the best interest of the plaintiff, 12-year-old Brayden Mohica-Cummings, and does not interfere with the public interest because the legal review of the schools' admission policy will continue through an appeal of a similar case. However, although he acknowledged that the issue of the child's link to a Hawaiian family through hanai is not an issue in the case, Ezra delivered his opinion that "ancient Hawaiian law" would support the argument that the plaintiff's mother, Kalena Santos, is Hawaiian. Under the settlement, Kamehameha will allow Mohica-Cummings to stay in school and the boy's family will drop its legal challenge to the school's Hawaiian-preference admissions policy. The settlement required Ezra's approval. Sitting in the courtroom, Santos wiped away tears as Ezra spoke. She was adopted by a man of Hawaiian ancestry as his hanai child and, although the issue is not cited in the court case, Santos has said that was the basis for her son's school application. It was a distinction Ezra did not take lightly. Quoting from a 1958 state Supreme Court decision that in turn invoked "kingdom law," Ezra cited two kinds of Hawaiian adoption, which he called a "sacred relationship": keiki hanai and keiki ho'okama. Both were in effect when the schools' benefactor, Princess Bernice Pauahi Bishop wrote the will that provides funding for the school, Ezra said. "This was the law of the kingdom," he said, repeatedly tapping his bench with his finger. "This was the law of Hawai'i at the time Bernice Pauahi Bishop made her will. She was a brilliant woman. She understood the law." School officials later declined comment on the hanai issue. Trustee Douglas Ing said the school appreciates Ezra's approval and can now "look forward to defending the policy" through an appeal of Judge Alan Kay's Nov. 17 decision to support Kamehameha in a case involving an unnamed non-Hawaiian boy who also is challenging the admission rule. But others outside the courtroom were angered by Ezra's interpretation. "How dare he?" asked Kaho'onei Panoke, vice president of the '?lio'ulaokalani Coalition. "It does not mean that the child inherits your bloodline. His incorrect definition is very, very disrespectful. ... It tells me that he (Ezra) did not live among Native Hawaiians and if he did, he did not learn well." The group's president, Vicky Holt Takamine, added that Bishop herself was the hanai sister of Queen Lili'uokalani. "Neither of them claimed the genealogy of the other," she said. A teary-eyed Santos said outside the courtroom that Ezra's comments on her adoption "touched my heart." She also thanked Kamehameha for making her son feel welcome. As she left, however, protesters shouted angrily after her. There seems to be room for disagreement about the question of Hawaiian adoption. Pat Namaka Bacon, the Bishop Museum cultural specialist who is the hanai daughter of the late Hawaiian scholar Mary Kawena Pukui, said the term hanai means the adoption of an infant or very young child, whereas ho'okama refers to the adoption of an adult or older child no longer needing nurturing. The 83-year-old Bacon, who is of Japanese ancestry, is known as an expert in Hawaiian language. Kamehameha's policy of preferring children Hawaiian by blood, not adoption, dates at least to Bacon's childhood. Pukui asked Kamehameha to admit her hanai daughter but was told Hawaiian ancestry was required. "But she didn't carry a grudge," Bacon said. "She said, 'That's OK.' "I was raised to be nonconfrontational. If they don't want you, you don't force yourself there. You won't find happiness in an environment that doesn't want you. "I think that people want to break Pauahi's will," she added. "I think it's sad. We have a lot of Hawaiian children who need an education, and you can't let everyone in." Although Bacon supports Kamehameha's position, she added that her mother disregarded unkind remarks from some about her hanai child and treated her as flesh-and-blood. Kawaikapuokalani Hewett, a kumu hula and hanai father of three grown children, said he believes hanai relationship is equivalent to blood. "If that Hawaiian family stands up and says, 'This is my hanai daughter,' that's the beginning and the end for me," Hewett said. "If Hawaiians are not honoring our traditions, then are we Hawaiians?" Kekuni Blaisdell, a Hawaiian sovereignty activist and a Kamehameha graduate, has a biological daughter who also attended. However, he added that he did not seek admission for his Japanese-born hanai son because he is not of Hawaiian ancestry. Blaisdell said Mohica-Cummings has no hanai claim — that distinction belonged only to his mother, he said — but should be allowed to remain out of fairness. "The child was already accepted in school, and it would be harmful to take him out," he said. He's a little disturbed by all the anger the issue has generated. "I thought it was a very special case," Blaisdell said, "but I'm not going to march in the streets about it."


Honolulu Advertiser, Friday, December 5, 2003

Trustees should not have wavered

By Kealamokihana Jackson
Kealamokihana Jackson is a 1956 graduate of Kamehameha Schools and lives on Hawaiian Homestead land in Wai'anae.

Kamehameha Schools' trustees have no clue as to the meaning of pono. Like other Hawaiians, I was stunned by the trustees' legal settlement that gave away an educational opportunity for a Hawaiian child to attend Kamehameha. This public relations planned release of information: the hint, the TV news, read it in the papers — and we will talk story later — left us with a deep sense of loss, betrayal, broken promises, fractured commitments and dashed hopes. This makes two non-Hawaiian admissions engineered by the trustees, all in the name of protecting the will and the Hawaiians-only admissions policy. The trustees' legal strategy failed in the Maui admissions; it deterred nothing. Is this new legal strategy intended to encourage new challenges to the admissions policy? Trustees promised us they would fight the attacks against the Hawaiian-preference policy. Trustees told us never again on their watch will a non-Hawaiian be admitted and they would take the matter all the way to the Supreme Court. We marched with them in unity. We had faith in the trustees that they would represent the Hawaiian people in opposing any and all attackers who tried to steal or to take away opportunities for Hawaiians to get an education at Kamehameha. It would have been equally sound for the trustees to announce that an opening in admissions is not for sale and will never be offered as collateral to settle a legal claim or threat. It would have been honorable for the trustees to adopt the position that Kamehameha is unwavering in its commitment to rectifying past wrongs, dedicated to creating and improving educational opportunities for Hawaiian children to excel. It would have been consistent with all the legal arguments the school has made in defense of its preference policy if the trustees took the firm position that every educational opportunity given to a child of Hawaiian ancestry means that Kamehameha is one step closer to improving on the capability and well-being of the Hawaiian people and future generations. Even if Kamehameha wins its case in the Supreme Court, the trustees have damaged their credibility as leaders.


Honolulu Star-Bulletin, Saturday, December 6, 2003

Lawsuit settlement good strategy by schools’ trustees


A federal court judge has given approval to the agreement on a discrimination claim against the schools.

KAMEHAMEHA Schools' decision to settle a discrimination lawsuit brought by a non-Hawaiian boy strategically sheds a case that, while similar to another the institution has thus far defended successfully, risked blurring its focus and diffusing efforts to maintain its admissions policy. For Hawaiians displeased with the agreement, however, the pact salts cultural wounds, more so when the court needlessly injected an interpretation of Hawaiian adoption traditions while hinting about an outcome had the suit gone forward. Nonetheless, the resolution frees Kamehameha Schools to defend an appeal of a ruling in its favor. The settlement received U.S. District Judge David Ezra's approval this week, the final step that will allow Brayden Mohica-Cummings to attend Kamehameha through graduation. Ezra had ordered the school to admit the 12-year-old after school officials rescinded preliminary acceptance when they learned his mother's claim of required ancestry was through her informal adoption by a Hawaiian man, a practice known as hanai. Although difficult, Kamehameha's Board of Trustees made the right decision. Ezra had not yet ruled on the validity of Mohica-Cummings' discrimination charge, and prior to the settlement, Kamehameha had received a favorable ruling in another case from U.S. District Judge Alan Kay, who upheld the schools' century-old policy, turning down a challenge from an unidentified non-Hawaiian student. Kay ruled that the schools' race-conscious policy served a legitimate purpose, attempting to remedy past injustices and existing economic and educational imbalances faced by Hawaiians since the overthrow of their monarchy more than 100 years ago. The Mohica-Cummings case was clouded by his mother's contention that her adoption makes her Hawaiian and extends, then, to her son. The difficulty her lawyers would have in claiming discrimination while she maintained she is Hawaiian, along with Kay's ruling, may have prompted their willingness to settle. That aside, it was best that the trustees put the case behind them. However he decided, Ezra's ruling would have been appealed; meanwhile, the boy likely would have remained enrolled anyway. In addition, Ezra's remarks in approving the settlement appeared to indicate his willingness to accept the adoption argument, citing the Hawaii Supreme Court's granting of ancestral rights to hanai children. In light of that, trustee Douglas Ing said that the board "made the right decision, especially after hearing Judge Ezra's comments." Ezra's statements provoked some sharp reaction from Hawaiians who took issue with his interpretation of their cultural traditions. While understandable, the schools' supporters should recognize that the trustees' strategy is to consolidate efforts for the struggle ahead, to live to fight another day.


The Honolulu Advertiser, Saturday, December 6, 2003

Race, culture and legal questions highly complex

Some Hawaiians were more than a little perplexed this week when U.S. District Judge David Ezra offered up a bench lecture on the intricacies of the Hawaiian hanai system and its place in legal and social history. Ezra was presiding over a session that led to the approval of a settlement that will allow a non-Hawaiian student to continue his education at Kamehameha Schools. The settlement means the boy's family and their supporters will drop a legal challenge to Kamehameha's Hawaiian-"preference" admission policy. The boy's mother was hanai'd, or adopted, by a Hawaiian family and under "ancient Hawaiian law" that would make her Hawaiian, Ezra said. That was the mother's belief in deciding to apply her son to Kamehameha, he noted. Some Hawaiians were outraged, saying Ezra had no business telling them what hanai means or does not mean. Others said the theory makes considerable sense. This does raise interesting questions about whether "Hawaiian" is a genetic or cultural definition. The point here, however, is that even on this one issue, opinion is so emotional and divided that agreement seems almost impossible. Imagine the task of settling larger issues, such as Hawaiian entitlement programs, the Office of Hawaiian Affairs and even the Department of Hawaiian Home Lands. But settle we must. Somehow, as a society, we must work our way through this thicket of history, culture, race and law in a way that honors Hawaiians and the constitution under which we live.


The last word on the Kamehameha School controversy (for 2003) went to the Honolulu Star-Bulletin, which named Brayden Mohica Cummings and his mother, Kalena Santos, to receive the honor of being among the “ten who made a difference” in year 2003. The last word was: "I'm glad he [Judge Ezra] set the record straight," Santos said last month. "We're very proud that we are Hawaiians." Here’s the full story.

Honolulu Star-Bulletin, Tuesday, December 23, 2003

Ten who made a difference

Some fought controversial battles. Others made headlines or worked quietly behind the scenes. But all made an impact on Hawaii in 2003 and are thus recognized as the Star-Bulletin's 10 who made a difference.

Kalena Santos and Brayden Mohica-Cummings

Kauai student’s lineage at center of controversy

By Rick Daysog

Kalena Santos says that when she and her son, Brayden Mohica-Cummings, filled out his application for the Kamehameha Schools earlier this year, they were not seeking to overturn the school's century-old mission of educating children of native Hawaiian ancestry.

They just wanted to get the best education.

The Kauai seventh-grader, a non-Hawaiian, was allowed to attend Kamehameha Schools under a temporary federal court order in August after he and his mother filed a lawsuit.

The court order prompted thousands of native Hawaiians to march in protest and added fuel to the heated debate over native Hawaiian entitlements and rights.

Santos and Brayden generated additional controversy in November when they agreed to drop their lawsuit after Brayden was allowed to attend the Kamehameha Schools through the 12th grade.

For the estate, the settlement was a strategic compromise that allows it to focus on its defense of its admission policy, which is the subject of a separate lawsuit by an unnamed non-Hawaiian student.

For Brayden and his mother, the pact represents vindication. In his ruling approving the settlement last month, U.S. District Judge David Ezra commented that Santos did not "knowingly lie" on her son's application.

Santos, who was adopted by a Hawaiian man when she was a child, stated on her son's application that he was Hawaiian.

The school initially accepted Brayden, but campus administrators later rescinded the award after Santos was unable to document her son's Hawaiian lineage.

Ezra, citing a 40-year-old state Supreme Court case, said that Santos' adoption may qualify her and her son as Hawaiians and that Brayden may be eligible for admission into the Kamehameha Schools.

"I'm glad he set the record straight," Santos said last month. "We're very proud that we are Hawaiians."




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