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The Honolulu Advertiser
Posted on: Wednesday, May 16, 2007

VOLCANIC ASH
Tactical retreat may enable real progress

By David Shapiro

Students, faculty and administrators march on the Kamehameha Schools' Kapalama campus Monday.

Kamehameha Schools photo

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Give Kamehameha Schools trustees and their attorneys credit for some shrewd strategic moves in their successful four-year legal battle to protect the 120-year-old school's Hawaiian-first admissions policy.

It probably cost Kamehameha Schools a bundle to settle a lawsuit by the non-Hawaiian student "John Doe" over his denied admission, and many Hawaiians surely resented paying out money intended for educating Hawaiian children to someone not of native blood.

But such concerns were surpassed by relief as the trustees avoided a possible civil rights showdown before a potentially hostile U.S. Supreme Court that could have disastrously threatened the mission of Kamehameha Schools, established in 1887 by the will of Princess Bernice Pauahi Bishop.

New challenges will certainly come, but the settlement bought time to plan for them by securing for now the admissions policy that is at the heart of what Gov. Linda Lingle called "the most important institution for preserving Hawaiian culture for future generations."

"Our legal right to offer preference to Hawaiian applicants is preserved," said trustees chairman J. Douglas Ing. "Our work to fulfill our mission and Pauahi's vision, on our campuses and in our communities, can proceed without distraction."

It was the second time that trustees wisely chose a tactical retreat to protect the long-term interests of Kamehameha Schools.

The legal battle over the admissions policy started out in 2003 as two cases — Doe v. Kamehameha and a separate lawsuit filed on behalf of Brayden Mohica-Cummings, whose initial acceptance was reversed when the school discovered he had no Hawaiian blood.

U.S. District Judge Alan Kay gave Kamehameha Schools a dream decision in the Doe case, ruling that social, cultural and economic inequities Hawaiians have faced since their monarchy was overthrown justified the school's preferential admissions.

The Mohica-Cummings case before U.S. District Judge David Ezra was more complex, involving hanai relationships, and trustees decided their best chance of prevailing in the long run was to go to appeal with Kay's ruling and not risk muddying the waters with even a partially adverse verdict by Ezra.

They allowed Mohica-Cummings to attend Kamehameha Schools in a settlement that angered many Hawaiians, who opposed giving even one non-Hawaiian a spot that would otherwise go to a Hawaiian child.

But it turned out to be a smart move; the one-time admission of a non-Hawaiian student caused no long-term ripples at Kamehameha Schools, and Kay's decision was narrowly upheld by the U.S. 9th Circuit Court of Appeals.

It was another smart move to settle with Doe rather than risk having the Supreme Court reverse the 9th Circuit. It guaranteed that the favorable lower-court ruling will stand, and anybody wishing to challenge the admissions policy in the future will have to start from scratch against a powerful legal headwind.

After the Doe v. Kamehameha settlement and U.S. District Judge Susan Mollway's dismissal last month of a civil rights lawsuit against the Office of Hawaiian Affairs, it's the first time Hawaiian assets haven't been under imminent legal threat since before the Supreme Court's 2000 Rice v. Cayetano ruling that overturned Hawaiians-only OHA elections.

On the political front, committees in both houses of Congress recently approved the Akaka bill, which is intended to head off legal challenges against Hawaiian programs by recognizing the political rights of Hawai'i's indigenous people.

The Akaka bill still faces fierce opposition from conservatives in Congress and the Bush administration, but the removal of immediate legal perils eases pressure for a quick resolution.

While the battles are far from over, the Kamehameha settlement is worth a moment of celebration for Hawaiians — and for non-Hawaiians who respect the legitimate native rights of our island hosts.

David Shapiro, a veteran Hawai'i journalist, can be reached by e-mail at dave@volcanicash.net. Read his daily blog at blogs.honoluluadvertiser.com.