Clarabal v. Dep't of Educ. of State

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Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
13-AUG-2019
07:51 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
CHELSA-MARIE KEALOHALANI CLARABAL, individually and as next
friend of C.M.K.C. and C.M.M.C., minors,
Plaintiff-Appellant,
vs.
DEPARTMENT OF EDUCATION OF THE STATE OF HAWAI‘I; BOARD OF
EDUCATION OF THE STATE OF HAWAI‘I; CHRISTINA M. KISHIMOTO, in her
official capacity as Superintendent of the Department of
Education; CATHERINE PAYNE, in her official capacity as Chairman
of the Board of Education; BRIAN J. DELIMA; DAMIEN BARCARSE;
MAGGIE COX; NOLAN KAWANO; CHRISTINE NAMAU‘U; DWIGHT TAKENO;
KENNETH UEMURA; AND BRUCE VOSS, in their official capacities as
members of the Board of Education; HAWAI‘I TEACHER STANDARDS
BOARD, Defendants-Appellees.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CIV. NO. 14-1-2214)
AUGUST 13, 2019
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
CONCURRING IN THE JUDGMENT AND NAKAYAMA, J., CONCURRING AND
DISSENTING
OPINION OF THE COURT BY POLLACK, J.
“The language of a people is an inextricable part of
the identity of that people. Therefore, a revitalization of a
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suppressed language goes hand in hand with a revitalization of a
suppressed cultural and political identity.” Shari Nakata,
Language Suppression, Revitalization, and Native Hawaiian
Identity, 2 Chap. Diversity & Soc. Just. F. 14, 15 (2017).
Historically, the Hawaiian language played a
fundamental role in all aspects of Native Hawaiian society. It
was utilized not only for practical communication in daily life,
but also to express and preserve creation and genealogical
chants, prayers, histories, narratives, proverbs, nā mele,1 and
other knowledge that connected Native Hawaiians with each other
and their ancestors through a shared cultural identity. This
common link was nearly severed as a result of Western
colonialism, which sought to impose English as the exclusive
medium of communication as part of a larger effort to forcefully
assimilate the Hawaiian people. Central to this process was the
banning of the use of the Hawaiian language in schools--an
extremely effective tactic that had driven the language to the
brink of extinction by the latter half of the twentieth century.
It was at this critical time that a series of
amendments aimed at revitalizing the Hawaiian language was made
to the Hawai‘i Constitution, including a provision obligating the
1
“Mele” is a Hawaiian word that may be translated as a “[s]ong,
anthem, [] chant of any kind[,] poem, [or] poetry.” Mele, Hawaiian
Dictionary: Revised and Enlarged Edition (Mary Kawena Pukui & Samuel H.
Elbert eds., 1986).
2
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State to provide for a Hawaiian education program in public
schools consisting of language, culture, and history.
Thereafter, a grassroots effort led the State to establish a
number of Hawaiian immersion public schools in which Hawaiian is
the standard language of instruction. The children who attend
these schools become fluent in the Hawaiian language, and the
program has resulted in great progress toward reversing the
decline in the number of Hawaiian language speakers.
Today, there are Hawaiian immersion schools on five of
the major Hawaiian Islands, but no such program exists on the
island of Lāna‘i. This case arises from a suit by a mother
living on Lāna‘i on behalf of herself and her two school-age
daughters. The mother argues that the provision of the Hawai‘i
Constitution obligating the State to provide for a Hawaiian
education program in public schools requires the State to
provide her daughters with access to a public Hawaiian immersion
education.
On review, we hold that the Hawaiian education
provision was intended to require the State to institute a
program that is reasonably calculated to revive the Hawaiian
language. Because the uncontroverted evidence in the record
demonstrates that providing reasonable access to Hawaiian
immersion education is currently essential to reviving the
Hawaiian language, it is a necessary component of any program
3
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that is reasonably calculated to achieve that goal. The State
is therefore constitutionally required to make all reasonable
efforts to provide access to Hawaiian immersion education. We
remand for a determination of whether it has done so.
I. BACKGROUND AND PROCEDURAL HISTORY
A. The History of ‘Ōlelo Hawai‘i and Hawaiian Language Education
1. Early Developments
‘Ōlelo Hawai‘i, the Hawaiian language, has long been
used by the indigenous inhabitants of the Hawaiian Islands to
communicate and pass down the customs and traditions that
underlie their culture. Paul F. Nahoa Lucas, E Ola Mau Kākou I
Ka ‘Ōlelo Makuahine: Hawaiian Language Policy and the Courts, 34
Haw. J. Hist. 1, 1 (2000). A “poetic, expressive language”
consisting of over 25,000 words, it is considered by linguists
to “belong[] to the family of Austronesian (Malayo-Polynesian)
languages.” Id. The makeup of ‘ōlelo Hawai‘i is reflective of
the history and cultural priorities of the people who speak it;
for example, the language includes approximately 130 words for
types of rain, 160 words for types of wind, and 133 words for
house.2 Id. at 2; Mary Kawena Pukui & Samuel H. Elbert, New
2
Another example of this diversity of subtle meaning may be found
in the recent naming of a black hole 54 million light-years from earth.
After an image of the extrastellar body was in-part created through the use
of two Hawai‘i-based telescopes, astronomers named the black hole “Powehi,” a
word taken from a Native Hawaiian creation chant that means “the adorned
fathomless dark creation” or “embellished dark source of unending creation.”
(continued . . .)
4
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Pocket Hawaiian Dictionary 225 (1992). ‘Ōlelo Hawai‘i also
utilizes and incorporates figurative meaning “to an extent
unknown in English.”3 Lucas, supra, at 2 (quoting Albert J.
Schütz, The Voices of Eden: A History of Hawaiian Language
Studies 209-10 (1994)). Further, the spoken word aided in the
formation and perpetuation of a shared Hawaiian identity. In
the words of Kiowa novelist, poet, and essayist N. Scott
Momaday,
Oral tradition is the other side of the miracle of
language. As important as books are--as important as
writing is, there is yet another, a fourth dimension of
language which is just as important, and which, indeed, is
older and more nearly universal than writing: the oral
tradition, that is, the telling of stories, the recitation
of epic poems, the singing of songs, the making of prayers,
the chanting of magic and mystery, the exertion of the
human voice upon the unknown—in short, the spoken word. In
the history of the world nothing has been more powerful
than that ancient and irresistible tradition vox humana.
N. Scott Momaday, Man Made of Words 81 (1997).
In 1795, the Kingdom of Hawai‘i was established, and
King Kamehameha I completed the unification of the islands under
his rule in 1810. Native Hawaiian Law: A Treatise 10 (Melody
Kapilialoha MacKenzie et al. eds., 2015). Thereafter, Western
missionaries traveled to the kingdom intending to educate the
(. . . continued)
Timothy Hurley, Black Hole Named Powehi, Star Advertiser, Apr. 11, 2019, at
B1.
3
Many words and expressions in ‘ōlelo Hawai‘i have “kauna,” which
are hidden layers of meanings in addition to their literal definition. See
The Pacific Islands: Environment & Society 168 (Moshe Rapaport ed., 1999).
5
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local populace about Christianity. Ka‘ano‘i Walk, Comment,
“Officially” What? The Legal Rights and Implications of ‘Ōlelo
Hawai‘i, 30 U. Haw. L. Rev. 243, 244 (2007). The missionaries
set about standardizing a written form of oral ‘ōlelo Hawai‘i in
order to provide more effective instruction and facilitate the
dissemination of their lessons among the islands’ inhabitants.
Lucas, supra, at 2. In 1822, they published the Pī ‘ā pā, the
first written primer on the Hawaiian language. Id.
The Hawaiian people quickly mastered the written word.
Newspapers were published in ‘ōlelo Hawai‘i as early as 1834,4 and
nearly three-quarters of the adult Hawaiian population were
literate in their native language by 1853.5 Id.
‘Ōlelo Hawai‘i came to coexist in many contexts with
English, which was often employed “[o]f necessity . . . to
record transactions of the government in its various branches,
because the very ideas and principles adopted by the government
[came] from countries where the English language [was] in use.”
4
The two earliest Hawaiian language newspapers were Ka Lama Hawaii
and Ke Kumu Hawaii. Joan Hori, Hamilton Library, Univ. of Hawaii at Mānoa,
Background and Historical Significance of Ka Nupepa Kuokoa 1 (2001),
https://libweb.hawaii.edu/digicoll/nupepa_kuokoa/
kuokoa_htm/Kuokoa_Essay.pdf [https://perma.cc/4EPY-88DA]. The Hawaiian
newspaper Ka Nupepa Kuokoa had a sixty-six year publication history that
began in 1861 and continued to 1927. Id. at 4.
5
Other sources report literacy rates as high as ninety-one to
ninety-five percent by 1834. See Ka‘ano‘i Walk, King Liholiho Led the
Hawaiians’ Amazing Rise to Literacy in the 1820s, Kamehameha Schools
Ka‘iwakīlouimoku Hawaiian Cultural Center (Feb. 2014),
https://apps.ksbe.edu/kaiwakiloumoku/node/606 [https://perma.cc/K2G9-R9W3].
6
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In re Ross, 8 Haw. 478, 480 (Haw. Kingdom 1892). The two
languages were generally viewed as interchangeable for official
business, and the “use of the Hawaiian language in any instance”
was “perfectly regular and legal.” Id. Indeed, beginning in
1846, the Hawaiian legislature declared that all laws enacted
would be published in both English and ‘ōlelo Hawai‘i. Lucas,
supra, at 3 (citing Act of Apr. 27, 1846, ch. 1, art. 1, sec.
5). Early decisions by this court “reaffirmed the supremacy of
Hawai‘i’s indigenous language as the governing law of the
Islands,” by holding that it was the ‘ōlelo Hawai‘i version of a
statute that was controlling in the event of a conflict between
the two publications. Lucas, supra, at 3 (citing Metcalf v.
Kahai, 1 Haw. 225, 226 (Haw. Kingdom 1856); Hardy v. Ruggles, 1
Haw. 255, 259 (Haw. Kingdom 1856)).6
It is thus unsurprising that when King Kamehameha III
first established Hawai‘i’s centralized public education system
in 1841, the curriculum was primarily delivered through the
medium of the Hawaiian language. Haw. State Dep’t of Educ.,
6
Advocates of establishing English as Hawai‘i’s primary language
successfully lobbied the Hawaiian legislature to overturn these decisions,
and in 1859 a new law was enacted declaring that the English version of a
statute “shall be held binding” in the event of a “radical and irreconcilable
difference” between the two versions. Lucas, supra, at 4 (citing Haw. Civil
Code of 1859, sec. 1493) (emphasis omitted).
7
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History of Hawaiian Education.7 Foreign political and economic
influence led to the founding of competing English-standard
schools over the next half century. Lucas, supra, at 4-8.
However, Hawaiian language schooling remained widely available
when in 1893 a group of “American and European sugar planters,
descendants of missionaries, and financiers” conspired with the
United States Minister to cause the invasion of United States
armed forces, ultimately “depos[ing] the Hawaiian monarchy and
proclaim[ing] the establishment of a Provisional Government.”
Pub. L. No. 103–150, 107 Stat. 1510 (1993).
2. Post-Overthrow Suppression
Three years after the overthrow, the newly formed
Republic of Hawai‘i enacted legislation officially declaring that
“[t]he English language shall be the medium and basis of
instruction in all public and private schools . . . . Any
schools that shall not conform to the provisions of this section
shall not be recognized by the Department.” Lucas, supra, at 8
(quoting Act of June 8, 1896, ch. 57, sec. 30 (codified in 1897
Haw. Comp. Laws at sec. 123)). Contemporary sources suggest
that the law was specifically intended to eradicate knowledge of
‘ōlelo Hawai‘i in future generations. See id. The number of
7
https://www.hawaiipublicschools.org/TeachingAndLearning/
StudentLearning/HawaiianEducation/Pages/History-of-the-Hawaiian-Education-
program.aspx [https://perma.cc/69PK-X4TB].
8
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Hawaiian-medium schools dropped precipitously as a result of the
legislation; 150 such institutions existed in 1880, and none
remained by 1902. Id. at 9. Simultaneously, Hawaiian children
and teachers were disciplined for speaking ‘ōlelo Hawai‘i in
public school, with teachers in some instances even being
dispatched to Hawaiian-speaking homes to reprimand parents for
employing the language to speak to their children. Id.
The law was largely successful at achieving its
apparently intended effect. Although the government instituted
by the overthrow was replaced when Hawai‘i was annexed by the
United States and again when the islands achieved statehood,
‘ōlelo Hawai‘i newspapers, church services, and other cultural
touchstones all but disappeared as native-speaking communities
continued to dwindle. Id. at 9-10. Minor efforts to
reintroduce ‘ōlelo Hawai‘i into the public school curriculum as a
supplemental foreign language course did little to arrest its
decline. Id. At its lowest point, there were as few as fifty
native speakers of the language under the age of 18. Native
Hawaiian Law, supra, at 1274. ‘Ōlelo Hawai‘i was thus in danger
of becoming a dead language when, in the 1970s, civil and
indigenous rights movements across the nation coincided with a
period of renewed interest in Native Hawaiian culture that
became known as the Hawaiian Renaissance. Id.; Courtenay W.
Daum & Eric Ishiwata, From the Myth of Formal Equality to the
9
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Politics of Social Justice: Race and the Legal Attack on Native
Entitlements, 44 Law & Soc’y Rev. 843, 860–61 (2010). During
this period, a traditional Hawaiian proverb became popularized
among advocates for the revitalization of ‘ōlelo Hawai‘i: “E ola
mau ka ‘ōlelo Hawai‘i,” which has been translated as “the
Hawaiian language must live on.”8
3. The 1978 Constitutional Convention
It was against the backdrop of the Hawaiian
Renaissance that Hawai‘i convened its 1978 Constitutional
Convention. The records of the convention are replete with the
delegates’ expressions of remorse that they had not learned more
about Native Hawaiian cultural heritage during their upbringing,
as well as their fear that such information would soon be lost
as community elders died without passing on their knowledge.
See, e.g., II Proceedings of the Constitutional Convention of
Hawai‘i of 1978, at 427-30 (1980) (II Proceedings). The
convention adopted a number of measures aimed at embracing and
revitalizing the Native Hawaiian culture, including a proposal
containing several provisions specifically addressing ‘ōlelo
Hawai‘i.
8
C. Kanoelani Nāone, ‘O Ka ‘Āina, Ka ‘Ōlelo, A Me Ke Kaiāulu, 5
Hūlili: Multidisc. Res. on Hawaiian Well-Being 315, 322 (2008),
https://www.ksbe.edu/_assets/spi/hulili/hulili_vol_5/O_ka_aina_ka_olelo_a_me_
ke_kaiaulu.pdf [https://perma.cc/2TS2-MWC6]. Other translations include “the
Hawaiian language lives on,” or “long live the Hawaiian language.” Id.
10
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First, seeking to “overcome certain insults of the
past where the speaking of Hawaiian was forbidden in the public
school system, and of [the day] where Hawaiian [was] listed as a
foreign language in the language department at the University of
Hawaii,” the framing delegates adopted an amendment giving ‘ōlelo
Hawai‘i formal recognition as one of the State’s official
languages.9 Comm. of the Whole Rep. No. 12 in I Proceedings of
the Constitutional Convention of Hawai‘i of 1978, at 1016 (1980)
(I Proceedings). Second, the delegates sought to remedy the
lack of opportunity to learn about Hawaiian language and culture
through an amendment requiring the State to “provide for a
comprehensive Hawaiian education program consisting of language,
culture[,] and history as part of the regular curriculum of the
public schools.” Stand. Comm. Rep. No. 57 in I Proceedings, at
637. Specifically, the delegates stated that they intended this
latter provision to, inter alia, “revive the Hawaiian language,
which is essential to the preservation and perpetuation of
Hawaiian culture.” Id. The measure was combined with a
proposal for a broader mandate that the State “promote the study
of Hawaiian culture, history and language,” and together they
were adopted as a single amendment. I Proceedings, at 273-74.
9
Today, the University of Hawai‘i system classifies its Hawaiian
language courses as part of its Hawaiian Studies department. See generally
Hawaiinuiākea School of Hawaiian Knowledge, https://manoa.hawaii.edu/hshk/
[https://perma.cc/5AFN-WJ8U].
11
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Both the official language and the Hawaiian studies
and education provisions were ratified by the electorate, and
today they are respectively codified as article XV, section 410
and article X, section 411 of the Hawai‘i Constitution.
4. Hawaiian Immersion Education
During the early 1980s, a group of Hawaiian language
teachers formed ‘Aha Pūnana Leo, Inc. (‘Aha Pūnana Leo), a non-
profit organization dedicated to the revival of ‘ōlelo Hawai‘i.
‘Aha Pūnana Leo, Inc., A Timeline of Revitalization.12 Seeking to
replicate the success of a similar program instituted by the
Māori of New Zealand, ‘Aha Pūnana Leo founded a number of “Kula
Kaiapuni Hawai‘i” preschools throughout the state. Id. As in
the school system established by King Kamehameha III,
instruction in the preschools was delivered entirely in ‘ōlelo
Hawai‘i. Id. The goal of these “language nests” was to instill
10
Article XV, section 4 provides as follows: “English and Hawaiian
shall be the official languages of Hawaii, except that Hawaiian shall be
required for public acts and transactions only as provided by law.”
11
Article X, section 4 provides as follows:
The State shall promote the study of Hawaiian culture,
history and language.
The State shall provide for a Hawaiian education program
consisting of language, culture and history in the public
schools. The use of community expertise shall be
encouraged as a suitable and essential means in furtherance
of the Hawaiian education program.
12
https://www.ahapunanaleo.org/en/index.php?/about/
a_timeline_of_revitalization/ [https://perma.cc/8D2P-Q7WV].
12
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fluency in ‘ōlelo Hawai‘i in a new generation at an age when
children are most receptive to acquiring language skills. See
id.
Simultaneously, the organization lobbied the Hawai‘i
legislature to grant formal status to the new Kula Kaiapuni
Hawai‘i preschools and to amend the successor to the 1896
English-only law in order to permit the use of ‘ōlelo Hawai‘i as
a medium of instruction in public schools. Id. The group’s
initial efforts were unsuccessful, and upon entering
kindergarten many of the preschools’ first graduates were placed
in limited English proficiency programs designed to accommodate
immigrant children. Id. This led to a boycott and other direct
activism, and in 1986, ‘Aha Pūnana Leo successfully convinced the
legislature to remove legal barriers to the preschools’
operation. See 1986 Haw. Sess. Laws Act 79, § 1 at 104. The
committee reports for the measure indicate the legislature found
“support for the exemption in Article X, Section 4 of the State
Constitution, which states that the State shall promote the
study of Hawaiian culture, history and language, and in Article
XV, Section 4 of the State Constitution, which prescribes
Hawaiian and English as the official languages of the State.”
H. Stand. Comm. Rep. No. 745-86, in 1986 House Journal, at 1359.
The reports further expressed in no uncertain terms the
legislature’s view that Hawaiian immersion education should be
13
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allowed to grow: “As the survival of a culture is linked to the
survival of its language, restricting the establishment of
Hawaiian language programs is cultural and linguistic genocide.”
S. Stand. Comm. Rep. No. 411-86, in 1986 Senate Journal, at 955.
During the same legislative session, ‘Aha Pūnana Leo
successfully lobbied the legislature to authorize the Hawai‘i
Board of Education (the Board) to undertake “special projects
using the Hawaiian language” that would be exempt from the
normal requirements of English-language instruction. See 1986
Haw. Sess. Laws Act 47, § 1 at 50-51. The following year, the
Board launched the Hawaiian Language Immersion Project, a two-
year pilot program for children who wished to continue their
education in ‘ōlelo Hawai‘i after graduating from ‘Aha Pūnana Leo
preschools. Lucas, supra, at 11. The program, which became
known as Ka Papahana Kaiapuni (“Kaiapuni Educational Program”),
was an immediate success; it was expanded to the second grade in
1988 and through the sixth grade in 1989. Id. In 1992, the
Board of Education further expanded the program through the
twelfth grade, incorporating an hour of English education every
day after fourth grade, and the first Kaiapuni Educational
Program class graduated from high school in June of 1999. Id.
Despite its success, funding for the Kaiapuni
Educational Program remained static as the program grew, causing
overall funding per student to decrease sharply. MacKenzie et
14
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al., supra, at 1276. The decline led the Office of Hawaiian
affairs to file a series of lawsuits against the Department of
Education in the mid-1990s seeking redress for the Department’s
failure to provide the Kaiapuni Educational Program with a
“proper plan, resources, and teachers trained in Hawaiian-
immersion education.” Id. The litigation concluded in May 2000
with a settlement in which the two agencies agreed to implement
a five-year joint funding plan. Id. at 1278. In recognition of
this agreement and in order to “provide[] official legislative
support to the Department’s commitment to Hawaiian language
immersion programs,” the Hawai‘i legislature in 2004 enacted a
bill formally codifying a series of provisions governing the
Kaiapuni Educational Program’s operations. S. Stand. Comm. Rep.
No. 3144, in 2004 Senate Journal, at 1567; 2004 Haw. Sess. Laws
Act 133, §§ 1-5 at 577-78. Among other things, the law
authorized the superintendent of education to provide either
facilities for Hawaiian immersion education or transportation to
the nearest schooling site at which Hawaiian immersion education
is provided when fifteen or more qualified students in a school
district wish to enroll in the Kaiapuni Educational Program.
HRS § 302H-4 (2007).
In 2014 and 2015, the Board enacted and began to
implement several new policies concerning Hawaiian education,
including one overarching policy intended to govern the Kaiapuni
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Educational Program. According to this policy, the goal of the
Kaiapuni Educational Program is, inter alia, “[t]o provide
parents and student[s] a Hawaiian bicultural and bilingual
education based upon a rigorous Hawaiian content and context
curriculum.” Haw. State Bd. of Educ., Policy 2105: Ka Papahana
Kaiapuni (2014).13 The policy further states that “[e]very
student within the State of Hawai‘i’s public school system should
have reasonable access to the Kaiapuni Educational Program.”
Id. An Office of Hawaiian Education was formed within the
Department of Education to administer the new policies, which
the Department’s website states are intended to help “the
Department meet its obligations to . . . the Hawai‘i State
Constitution (Article X, Section 4 and Article XV, Section 4).”
Haw. State Dep’t of Educ., Hawaiian Education.14
The Kaiapuni Educational Program has continued to
grow, and as of February 2016, Hawaiian immersion options
existed at twenty-one sites throughout the state--fifteen under
the Board’s direct management and six at charter schools.15
13
https://boe.hawaii.gov/policies/2100series/Pages/2105.aspx
[https://perma.cc/97V8-7C69].
14
https://www.hawaiipublicschools.org/TeachingAndLearning/
StudentLearning/HawaiianEducation/Pages/home.aspx [https://perma.cc/4QXK-
TURU] (last visited June 3, 2019).
15
Based on the Hawai‘i State Department of Education website, it
appears that two additional Board-administered immersion sites have opened
since the filing of this case, bringing the total number of immersion sites
in the state to twenty-three. See Haw. State Dep’t of Educ., Hawaiian
(continued . . .)
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Consequently, parents and children who wish to undertake
schooling through the medium of ‘ōlelo Hawai‘i may seek
enrollment in a K-12 immersion program on five of the major
Hawaiian Islands: O‘ahu, Maui, Hawai‘i Island, Moloka‘i, and
Kaua‘i.
5. Hawaiian Immersion and Public Education on Lāna‘i
Public school students on the island of Lāna‘i are
required to take courses related to Hawaiian history and culture
over the course of their education, including “Pre-Contact
Hawai‘i History” in fourth-grade, “History of the Hawaiian
Kingdom” in seventh-grade, and “Modern Hawaiian History” in high
school. A Hawaiian language summer program has also been
offered in recent years. However, there is currently no
Kaiapuni Educational Program on Lāna‘i.
In December 2013, a community meeting was held in the
cafeteria of Lāna‘i High and Elementary School (Lāna‘i School),
the island’s sole public school, to discuss implementing a
Hawaiian language immersion program. The meeting generated
considerable community interest and was attended by over a
hundred people. A Hawaiian immersion stakeholders’ group was
(. . . continued)
Language Immersion Program, https://www.hawaiipublicschools.org/
TeachingAndLearning/StudentLearning/HawaiianEducation/Pages/translation.aspx
[https://perma.cc/NZ6M-KKAQ].
17
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formed, and the group proceeded to engage with the school
principal in the months following the meeting regarding the
development of a Kaiapuni Educational Program on the island.
During these exchanges, the principal agreed to commit
resources and a teacher position to the creation of an immersion
program while allowing the stakeholders’ group to plan its
structure, including the initial grade levels to be covered and
the immersion model to be adopted. The stakeholders’ group
originally made plans to establish one kindergarten and first-
grade immersion class, but in February 2014 the group responded
to strong continued interest from the community by expanding its
request to include an additional second- and third-grade class.
The principal expressed tentative support for the expanded
proposal, pledging to seriously consider dedicating a second
teacher position to the program.
For two-weeks in April 2014, a Lāna‘i immersion teacher
position was advertised internally with the Department of
Education via the Teacher Assignment and Transfer Program. The
only applicant during this period was the president of the
stakeholders’ group, an immersion teacher living on Maui who had
strong family ties to Lāna‘i and had for several years
administered a Hawaiian language summer program on the island.
In early May 2014, however, the applicant informed the principal
by phone that she would be declining the position.
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The school’s subsequent efforts to recruit outside the
Department were also unsuccessful; although the principal worked
with the community to identify a number of possible teachers,
each of the candidates either lacked the necessary skills and
credentials to administer an immersion program or proved to be
unwilling to relocate to Lāna‘i. Because an immersion program
did not commence as planned, the principal hired Simon Tajiri,
the former program manager of the Lāna‘i Cultural and Heritage
Center, as a long-term substitute teacher to provide
supplemental lessons on Hawaiian language, culture, and history
to elementary school students. As of February 2016, recruitment
efforts for a full-time immersion teacher remained ongoing.
According to the school principal, recruiting teachers
to Lāna‘i is difficult due to the island’s location; many
teachers are not interested in moving to a geographically
isolated area with limited access to housing, childcare, and
other conveniences. The principal also asserts that the school
is limited in the incentives it can offer--teacher’s salaries
are set by the collective bargaining agreement between the Board
and the Hawaii State Teachers Association, as is statutorily
required, and the school does not have the discretion to
increase these amounts to attract new teachers. Although the
collective bargaining agreement does provide for an additional
pay differential for teachers employed at hard-to-staff schools,
19
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this amount was limited to $1,500 per year of employment at the
time of the events in this case.16
B. The Present Case
1. The Clarabals’ Move to Lāna‘i
Prior to August 2013, Chelsa-Marie Kealohalani
Clarabal moved to Lāna‘i with her husband and children, including
her two young school-age daughters. In or around August 2013,
the two Clarabal daughters respectively enrolled in second-grade
and kindergarten at Lāna‘i School.
Although Clarabal is Native Hawaiian and states that
her great grandmother was fluent in ‘ōlelo Hawai‘i, her
grandmother was discouraged from speaking the language or
teaching it to her children, and English is therefore the
primary language spoken in the Clarabal family home. Because
Clarabal viewed it as fundamental to her cultural identity that
her daughters learn their ancestors’ language, the two daughters
had been enrolled in the Kaiapuni Educational Program at Pā‘ia
Elementary School on the island of Maui prior to moving to
Lāna‘i. Consequently, both daughters were able to read and write
16
The differential was increased to $3,000 per year of employment
on July 1, 2015. Also, HRS § 302A-630 (2007), which was amended by the 2004
Kaiapuni Educational Program legislation, authorizes the Department of
Education to provide “additional benefits” to “[t]eachers in Hawaiian
language medium education whose responsibilities are greater or unique and
require additional language skills.”
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only in ‘ōlelo Hawai‘i when they began attending Lāna‘i School at
the beginning of the 2013-14 school year.
The daughters faced difficulties at Lāna‘i School as a
result of this language barrier, and Clarabal unsuccessfully
requested that the school assign an educational assistant to
assist one of her daughters after she was reprimanded for
responding to a written assignment in ‘ōlelo Hawai‘i.17 Clarabal
began attending some of the meetings between the school
principal and the stakeholders’ group regarding the creation of
a Hawaiian immersion program, and in late April 2014 she was
informed that her younger daughter had been accepted into the
school’s first immersion class, which would be held the
following school year. When the 2014-15 school year began,
however, no Hawaiian immersion class commenced. Instead, the
daughters were respectively assigned to first- and third-grade
classrooms for which no permanent teachers were provided, with
the vice-principal and various substitute teachers instead
teaching the classes on a temporary basis.
17
Additionally, one of Clarabal’s daughters was made to repeat a
grade upon transferring to Lāna‘i School. The record is unclear as to whether
this was the result of difficulties arising from the transition from Hawaiian
immersion education to English standard schooling.
21
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2. Circuit Court Proceedings
On October 24, 2014, Clarabal filed a complaint in
Circuit Court for the First Circuit18 (circuit court) on behalf
of herself and her daughters against the Hawai‘i Department of
Education, the Board, and the members of the Board in their
official capacities (collectively, “the State”).19 In her prayer
for relief, Clarabal sought a declaration that the failure to
provide a Hawaiian immersion program and a stable teacher
workforce on Lāna‘i violated her children’s rights under the
Hawai‘i Constitution, as well as an order compelling the State to
develop a plan to implement a Kaiapuni Educational Program and
ensure consistent staffing at Lāna‘i School. Specifically,
Clarabal alleged in Count 2 of her complaint that by failing to
establish a Hawaiian immersion program on Lāna‘i that her
daughters could attend, the State had breached the duty to
provide a Hawaiian education program in public schools imposed
by article X, section 4 of the Hawai‘i Constitution.20
18
The Honorable Virginia L. Crandall presided.
19
During the pendency of this proceeding, many of the original
defendants were succeeded in their official capacity by new office holders.
Thus, pursuant to Hawai‘i Rules of Appellate Procedure Rule 43(c)(1) (2010),
the new office holders have been substituted as parties to this case.
20
Clarabal also alleged in her complaint that the State’s failure
to address the teacher shortage and provide instruction in ‘ōlelo Hawai‘i
violated the State’s obligation to provide a statewide system of public
schools under article X, section 1 of the Hawai‘i Constitution, as well as the
same provision’s prohibition on discrimination in public education; [ROA v.1
19:33] that the speaking of ‘ōlelo Hawai‘i is a traditional and customary
(continued . . .)
22
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On February 26, 2016, the State filed two motions for
partial summary judgment collectively covering all counts in
Clarabal’s complaints. On March 17, 2016, Clarabal filed a
cross-motion for partial summary judgment on all counts
requesting that the court declare as a matter of law that the
State has a duty and obligation to provide access to a Hawaiian
language immersion program to her daughters.
With respect to Count 2, the State argued that article
X, section 4 does not on its face establish an individually
enforceable right to Hawaiian immersion education. This reading
is confirmed by excerpts from the records of the 1978
Constitutional Convention, the State contended, which suggest
the provision was intended to preserve and perpetuate Hawaiian
culture by ensuring Hawaiian history, culture, and language are
integrated into the “regular curriculum” of public schools that
is typically taught in English. (Citing Stand. Comm. Rep. No.
57 in I Proceedings, at 637-38.) The State further argued that
(. . . continued)
Native Hawaiian right secured by article XII, section 7 of the Hawai‘i
Constitution, and that the State’s failure to provide a Lāna‘i-based immersion
program or to account for the costs of an immersion education when allocating
funding violated the State’s duty to protect such rights; [ROA v.1 19:35-36]
that her children have a fundamental right to an adequate public school
education protected by the due process clause of article I, section 5 of the
Hawai‘i Constitution, and the State deprived them of this right by failing to
maintain a stable teacher workforce at Lāna‘i School; and that the high
teacher turnover rate also violates article I, section 5’s equal protection
clause due to its disparate negative impact on children living on Lāna‘i.
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the text and history of article XV, section 4 of the Hawai‘i
Constitution, which establishes Hawaiian as an official language
of the state, make clear that the delegates intended the State
to have discretion to consider the budget and other constraints
when determining which official services would be offered in
‘ōlelo Hawai‘i. (Citing Stan. Comm. Rep. No. 57 in I
Proceedings, at 638.)
The State maintained that the standard Hawaiian
history classes as well as the supplemental Hawaiian instruction
by Tajiri are sufficient to spark students’ interests and
inspire them to take Hawaiian language electives, and that the
classes and instruction thus contribute to the revival of ‘ōlelo
Hawai‘i as the convention delegates intended. The classes
therefore meet the State’s article X, section 4 obligation to
provide a Hawaiian education program in public schools, the
State concluded.
In her opposition to the State’s motions and in her
motion for partial summary judgment, Clarabal contended that the
convention history indicates the delegates intended article X,
section 4 to require that the State provide a “comprehensive
Hawaiian education program” sufficient to revive the Hawaiian
language. (Citing, inter alia, Comm. of the Whole Rep. No. 11
in I Proceedings, at 274; Stand. Comm. Rep. No. 39 in I
Proceedings, at 586, 590; Stand. Comm. Rep. No. 57 in I
24
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Proceedings, at 637.) Attached to Clarabal’s motion for partial
summary judgment were a number of exhibits detailing the
opinions of academics specializing in linguistics and Hawaiian
studies regarding the importance of Hawaiian immersion
education.
These exhibits included a declaration by William
O’Grady, a Professor of Linguistics of the University of Hawai‘i
at Manoa who specializes in language revitalization. The
declaration stated that the United Nations Educational,
Scientific and Cultural Organization currently classifies ‘ōlelo
Hawai‘i as a severely endangered language, meaning that immediate
remedial action is needed to prevent its extinction. Professor
O’Grady further opined that relying on school-based language
immersion programs in which children have the opportunity to
hear and use the language for several hours a day is “the only
realistic course of action” to revive the language. He stated
that research on bilingualism indicates that children should
receive at least twenty-five to thirty percent of their language
input in the second language to achieve fluency. The “modest
program of instruction” currently offered at Lāna‘i School is not
sufficient to reach this benchmark, Professor O’Grady concluded,
and the chances of the children enrolled there achieving fluency
through the current program are “negligible.”
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Clarabal attached an additional deposition of
Professor O’Grady to her reply brief in which he reiterated the
necessity of Hawaiian immersion education for reviving ‘ōlelo
Hawai‘i. Professor O’Grady stated that “[t]he only hope of
saving [‘ōlelo Hawai‘i], preserving it, perpetuating it is to
introduce it in the school,” and that the level of instruction
required is “not 1 or 2 or 3 hours a week. It’s got to be full-
fledged exposure, the sort you get in an immersion program.” He
estimated that four to four-and-a-half hours a day of Hawaiian
language input in school is necessary for a child to become
reasonably fluent in ‘ōlelo Hawai‘i. He further elaborated that
offering an immersion program is “the least we can do to try to
revitalize language” and that while other measures can
supplement an immersion program, they could not replace it. The
immersion program is not “the gold standard” for language
revitalization, Professor O’Grady concluded, but rather “the
minimum standard.” Specifically addressing the supplemental
lessons offered by Tajiri at Lāna‘i school, Professor O’Grady
stated that they were not providing any movement toward
revitalization because they are “not an effective way to make
the children fluent in the Hawaiian language.”
Also attached to Clarabal’s motion for partial summary
judgment was a second declaration made by Stanley H. “Kī‘ope”
Raymond II, a member of the Board of Directors of ‘Aha Pūnana Leo
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and an associate professor of Hawaiian Studies at University of
Hawai‘i Maui College. Professor Raymond stated that a well-
documented reemergence of ‘ōlelo Hawai‘i has occurred since the
Kaiapuni Educational Program was first implemented in public
schools. Professor Raymond further declared that it is well
accepted within his academic field that the offering of Hawaiian
immersion programs in the public school system “is absolutely
necessary to ensure the preservation of ‘ōlelo Hawai‘i for use by
future generations.”
Following oral argument, the circuit court orally
granted the State’s motions for partial summary judgment and
denied Clarabal’s motion for partial summary judgment. With
respect to Count 2, the court found that “Article X, Section 4,
the Hawaiian education clause does not establish a
constitutional right to an immersion program.” The court ruled
that the reports from the 1978 Constitutional Convention made it
“clear that a comprehensive Hawaiian education program
consisting of language, culture and history as part of the
regular curriculum in the public schools is what is required.”
The education offered by the State at Lāna‘i School, coupled with
the State’s legitimate efforts to establish a Lāna‘i-based
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Hawaiian immersion program, were sufficient to meet this
constitutional obligation, the court found.21
The circuit court’s written order and final judgment
were entered on June 7, 2016. Clarabal filed a timely notice of
appeal, followed by an application to this court for transfer.
On January 26, 2017, this court accepted transfer.
II. STANDARD OF REVIEW
This court reviews questions of law de novo. Bank of
Hawaii v. DeYoung, 92 Hawai‘i 347, 351, 992 P.2d 42, 46 (2000).
This includes a trial court’s grant or denial of summary
judgment. Yoneda v. Tom, 110 Hawai‘i 367, 371, 133 P.3d 796, 800
(2006). Similarly, we exercise “our own ‘independent
constitutional judgment’” when interpreting constitutional
provisions. Ka Pa‘akai O Ka‘Aina v. Land Use Comm’n, State of
Hawai‘i, 94 Hawai‘i 31, 41, 7 P.3d 1068, 1078 (2000) (quoting
State v. Sua, 92 Hawai‘i 61, 68, 987 P.2d 959, 966 (1999)).
21
The court also determined that the State had met its article X,
section 1 obligation to provide for a statewide system of public schools;
that caselaw interpreting the traditional and customary rights clause of
article XII, section 7 had applied it only to prevent the State from
interfering with the exercise of certain Native Hawaiian practices on
undeveloped land, which was not at issue in this case; and that the alleged
teacher shortage on Lāna‘i did not violate equal protection or substantive due
process because there was no showing that Lāna‘i School’s use of substitute
teachers resulted in an inadequate education and various indicators of school
performance in fact indicated the State had provided an adequate education.
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III. DISCUSSION
Before this court, Clarabal argues, inter alia, that
the circuit court erred in granting the State’s motion for
partial summary judgment and denying her own because article X,
section 4 of the Hawai‘i Constitution obligates the State to
provide her daughters with access to a Hawaiian immersion
program.22 As we have often stated, “[s]ummary judgment is
appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to
judgment as a matter of law.” Hawaii Cmty. Fed. Credit Union v.
Keka, 94 Hawai‘i 213, 221, 11 P.3d 1, 9 (2000) (quoting Amfac,
Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 103, 839 P.2d
10, 22 (1992)). In making this evaluation, we view the evidence
in the light most favorable to the non-moving party. Id.
(citing State ex rel. Bronster v. Yoshina, 84 Hawai‘i 179, 186,
932 P.2d 316, 323 (1997)).
22
There is some discrepancy between the language used in Clarabal’s
motion for partial summary judgment and that employed in the filings to this
court. While below Clarabal requested a declaration that the State is
constitutionally obligated to provide her daughters with access to a Hawaiian
immersion program, the briefs on appeal request a declaration that the State
must provide reasonable access to a Hawaiian immersion program. As discussed
infra, note 34, we interpret these requested remedies to have two distinct
meanings. We review the language of Clarabal’s motion for partial summary
judgment for purposes of this appeal.
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“We have long recognized that the Hawai‘i Constitution
must be construed with due regard to the intent of the framers
and the people adopting it, and the fundamental principle in
interpreting a constitutional provision is to give effect to
that intent.” Hirono v. Peabody, 81 Hawai‘i 230, 232, 915 P.2d
704, 706 (1996) (quoting Convention Ctr. Auth. v. Anzai, 78
Hawai‘i 157, 167, 890 P.2d 1197, 1207 (1995)). The starting
point for determining this intent is the text of “the instrument
itself.” State v. Kahlbaun, 64 Haw. 197, 201, 638 P.2d 309, 314
(1981).
Article X, section 4 of the Hawai‘i Constitution
provides as follows:
The State shall promote the study of Hawaiian culture,
history and language.
The State shall provide for a Hawaiian education program
consisting of language, culture and history in the public
schools. The use of community expertise shall be
encouraged as a suitable and essential means in furtherance
of the Hawaiian education program.
The State contends that the provision makes no direct
mention of Hawaiian immersion education, but rather simply a
“Hawaiian education program.” Thus, the State argues, article
X, section 4 requires only that the State provide public school
students with “exposure to and some instruction in Hawaiian
language, history and culture.” The manner in which students
are exposed to Native Hawaiian studies is a non-justiciable
policy decision left to the State’s discretion, the State
30
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continues, and the courses and instruction currently offered at
Lāna‘i School are thus sufficient to fulfill the State’s
obligations.
The initial two clauses of article X, section 4 are
phrased in broad terms. The first, the Hawaiian Studies clause,
obliges the State to “promote the study of Hawaiian culture,
history and language.” A conventional dictionary defines
“promote” as “to help bring (something, such as an enterprise)
into being.”23 The second, the Hawaiian Education clause,
requires the State to “provide for a Hawaiian education program
consisting of language, culture and history in the public
schools.” “Program” is conventionally defined as “a plan or
system under which action may be taken toward a goal.”24 Thus,
the plain text of the provisions require the State to (1)
actively bring about the growth of Hawaiian culture, history,
and language studies; and (2) establish a system in public
schools that provides students an education consisting of
Hawaiian language, culture, and history. The clauses neither
spell out the methods the State must use in achieving these
ends, nor do they expressly leave this determination to the
23
Promote, Merriam–Webster, https://www.merriam-
webster.com/dictionary/promote [https://perma.cc/CN54-Z4UT].
24
Program, Merriam–Webster, https://www.merriam-
webster.com/dictionary/program [https://perma.cc/K4YV-E5XA].
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State. They are ambiguous in this regard, and “extrinsic aids
may [therefore] be examined to determine the intent of the
framers and the people adopting the proposed amendment.”
Kahlbaun, 64 Haw. at 201–02, 638 P.2d at 314.
The standing committee report by the Committee of
Hawaiian Affairs on the proposal that would eventually become
article X, section 4 contains several indications that the
framers intended the provision to require the State to implement
a Hawaiian education program in public schools that exceeds the
minimum standards argued for by the State. The report states
that the “Committee decided to adopt this amendment to the
Constitution in order to insure that there is a comprehensive
Hawaiian education program consisting of language, culture and
history as part of the regular curriculum of the public
schools.” Stand. Comm. Rep. No. 57 in I Proceedings, at 637
(emphasis added). The Committee’s use of the word comprehensive
is telling; the term is commonly defined as “covering completely
or broadly.”25 Later, the report refers to the program as an
“intensive study.” Id. at 638. It is thus clear that the
Hawaiian education program contemplated by the provision
encompasses more than minimal “exposure to and some instruction
in Hawaiian language, history and culture,” as contended by the
25
Comprehensive, Merriam–Webster, https://www.merriam-
webster.com/dictionary/comprehensive [https://perma.cc/3KMA-843D].
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State. Rather, the framers intended the clause to ensure that
students have the opportunity to study Hawaiian language,
history, and culture in an in-depth and expansive manner if they
so choose.26
Further, “a constitutional provision must be construed
. . . in the light of the circumstances under which it was
adopted and the history which preceded it.” Hawaii State AFL-
CIO v. Yoshina, 84 Hawai‘i 374, 376, 935 P.2d 89, 91 (1997)
(quoting Carter v. Gear, 16 Haw. 242, 244 (Haw. Terr. 1904));
see also Nelson v. Hawaiian Homes Comm’n, 127 Hawai‘i 185, 198,
277 P.3d 279, 292 (2012) (holding that this court must consider
“the history of the times and the state of being when the
constitutional provision was adopted” (quoting Kahlbaun, 64 Haw.
at 202, 638 P.2d at 315))). Specifically, “the object sought to
be accomplished and the evils sought to be remedied should be
26
The dissent reads much into the fact that the terms
“comprehensive” and “as part of the regular curriculum” were removed from the
original text of article X, section 4 when the Committee of Hawaiian Affairs’
proposal was combined with the Committee on Education’s proposal. The
dissent argues that this indicates the framers did not intend “to require the
State to provide a specialized, intensive Hawaiian language immersion
program” but rather wished to grant the State flexibility to implement the
program as it saw fit. Dissent at 10. The deletion of the phrases appears
to be a purely stylistic change, however. There is no mention of the
alteration in the floor debates or committee reports of the Convention.
Moreover, the committee reports accompanying article X, section 4
specifically describe the envisioned program as “comprehensive” and
“intensive.” Stand. Comm. Rep. No. 57 in I Proceedings, at 637-38. It is
this concrete documentation of the framers’ intent that guides our
interpretation of article X, section 4 and not speculation regarding the
hidden purpose of an effort by the drafters to use more concise language.
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kept in mind by the courts.” Nelson, 127 Hawai‘i at 198, 277
P.3d at 292 (quoting Hawaii Gov’t Emps.’ Ass’n v. Cty. of Maui,
59 Haw. 65, 81, 576 P.2d 1029, 1039 (1978)).
As discussed supra, the 1978 Constitutional Convention
was convened during the Hawaiian Renaissance, a time of renewed
interest in Hawaiian culture following a long period in which
learning about traditional Hawaiian language and history in
schools was at best shallow, sporadic, and undirected and at
worst discouraged or forbidden. See II Proceedings, at 428
(statement of Del. Nozaki). The debates of the Committee of the
Whole during this Convention provide clear evidence of the
specific evil the delegates intended article X, section 4 to
remedy; the delegates repeatedly and expressly stated that the
proposal that would become article X, section 4 was designed to
correct the lasting effects of the campaign of suppression that
had deprived them and their families of the opportunity to
become fluent in ‘ōlelo Hawai‘i. Delegate Kaapu related the
story of his father, who grew up in a small district served by a
single school in which students “were prohibited from speaking
the Hawaiian language” and were “made to do detention . . . .
pulling weeds” if they were caught. Id. at 429 (statement of
Del. Kaapu). He then stated that during his own childhood, he
did not have the chance to learn ‘ōlelo Hawai‘i, and that his own
son was only then learning the language on his own from a
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“language book.” Id. at 430. Delegate Chung similarly related
that, when he took Hawaiian as a freshman at the University of
Hawai‘i, his class had “eight Kamehameha graduates and none of
them knew Hawaiian.” Id. at 431 (statement of Del. Chung).
Delegate Hale stated that he had engaged in protest so that his
son could go to “the only school located in the whole State of
Hawai‘i that taught Hawaiian in the fourth grade,” and that even
in this school his son was unable to learn more than a
superficial amount of the language. Id. at 431 (statement of
Del. Hale).27
Ultimately, we need not speculate about the manner in
which the framers sought to make amends for the historical
campaign of suppression because the records of the convention
are explicit as to the goals they intended the Hawaiian
education program required by article X, section 4 to achieve:
This section is intended to [] insure the general diffusion
of Hawaiian history on a wider basis, to recognize and
27
That the delegates sought to remedy the state of affairs brought
about by the historical suppression of the Hawaiian language is further
demonstrated by the history of article XV, section 4, the clause making
Hawaiian an official language of the State of Hawai‘i, which was part of the
same proposal as article X, section 4. As related, the Committee of the
Whole report addressing the proposal states that the provision was adopted
“to overcome certain insults of the past where the speaking of Hawaiian was
forbidden in the public school system, and of today where Hawaiian is listed
as a foreign language in the language department at the University of
Hawaii.” Comm. of the Whole Rep. No. 12 in I Proceedings, at 1016. This
history may guide our interpretation of article X, section 4 because, as we
have long held, “a constitutional provision must be construed in connection
with other provisions of the instrument, and also in the light of the
circumstances under which it was adopted and the history which preceded it.”
Yoshina, 84 Hawai‘i at 376, 935 P.2d at 91 (quoting Carter, 16 Haw. at 244).
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preserve the Hawaiian culture which has contributed to, and
in many ways forms the basis and foundation of, modern
Hawaii, and to revive the Hawaiian language, which is
essential to the preservation and perpetuation of Hawaiian
culture.
Stand. Comm. Rep. No. 57 in I Proceedings, at 637 (emphases
added). Article X, section 4 was thus adopted for the express
purpose of, inter alia, reviving the Hawaiian language.28
Taken together, the records of the 1978 Constitutional
Convention make clear that the framers intended article X,
section 4 to require the State to provide a Hawaiian education
program in public schools that is reasonably calculated to
revive and preserve ‘ōlelo Hawai‘i. By doing so, they hoped to
rectify the ill effects of the historic suppression of the
language.29
28
In this context, we interpret the term “revive” to mean that the
language is actively spoken and no longer in danger of extinction. This
generally parallels the standards that Professor O’Grady stated the United
Nations Educational, Scientific, and Cultural Organization and the Endangered
Language Catalogue employ to identify “safe” languages. These identifying
characteristics include that intergenerational transmission of the language
occurs without interruption and that the number of speakers is stable or
growing.
29
The dissent implies that the language of article X, section 4 is
unambiguous, obviating the need for this court to consult extrinsic evidence
to determine the framers’ intent. Dissent at 6. The plain text of the
provision requires only that the State must provide a Hawaiian education
program consisting of language, culture, and history in public schools, the
dissent maintains. Dissent at 6. Yet the dissent states that there is a
role for courts in “evaluating the adequacy of the State’s Hawaiian Education
program” and posits that, if properly raised, “we could decide whether the
State’s current program passes constitutional muster.” Dissent at 13-14.
The dissent avoids making such an evaluation by arguing that Clarabal’s
motion for partial summary judgment requested only that the court rule on
whether the State has an obligation to provide access to a Hawaiian immersion
program. Dissent at 14. But Clarabal challenges on appeal not only the
circuit court’s denial of her own motion for partial summary judgment but
also that court’s grant of the State’s motions for partial summary judgment.
(continued . . .)
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The State’s position--that any exposure to Hawaiian
language, history, and culture is sufficient to satisfy its
constitutional obligations, and that the specific manner of
exposure is left to the State’s discretion--is fundamentally
incompatible with the framers’ intention. Indeed, under the
State’s formulation, it could do away with the Kaiapuni
Educational Program entirely and instead satisfy its
constitutional obligations with a program that the record
demonstrates is indisputably inadequate to revive and preserve
‘ōlelo Hawai‘i. This is precisely the outcome the delegates
adopted article X, section 4 to prevent.
(. . . continued)
As the dissent acknowledges, Clarabal has repeatedly made reference to the
inadequacy of the Hawaiian education program at Lāna‘i school, thus making it
necessary to consider this matter in determining whether summary judgment was
properly granted to the State on all counts. Dissent at 14.
In any event, the dissent’s acknowledgment that some standard
exists by which courts can evaluate the constitutional adequacy of the
State’s Hawaiian education program is an implicit concession that article X,
section 4 imposes unwritten requirements not enumerated in the ostensibly
clear text of the provision. Otherwise, any program that encompassed some
trace of each of the three listed components would satisfy the State’s
constitutional mandate regardless of whether it was otherwise adequate. And,
even were we to agree that article X, section 4’s broad terms support the
degree of discretion argued for by the dissent and claimed by the State, the
“settled rule” that words in a constitutional provision are presumed to be
used in their conventional sense applies “unless the context furnishes some
ground to control, qualify, or enlarge” the terms. Pray v. Judicial
Selection Comm’n of State, 75 Haw. 333, 342, 861 P.2d 723, 727 (1993)
(quoting Cobb v. State, 68 Haw. 564, 565, 722 P.2d 1032, 1033 (1986)). Given
the historical context in which article X, section 4 was enacted, there is
ample evidence that the framers did not intend that the constitutional
provision would be satisfied by any exposure of school children to Hawaiian
language, history, and culture, no matter how minimal.
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The dissent disagrees with this analysis. It contends
that determining the details of the Hawaiian education program
mandated by article X, section 4 is a “responsibility [] best
left to the Legislature, not the courts,” and that the
legislature has made such a determination by enacting HRS
Chapter 302H. Dissent at 11, 14 n.5. As a threshold matter,
any implication that HRS Chapter 302H requires that the State
maintain the Kaiapuni Educational Program is contradicted by the
terms of the statutes, which authorize the State to create a
Hawaiian immersion program but do not mandate that it do so.30
But more importantly, although the dissent is correct
that the legislature may play an important role in defining the
specific details of the Hawaiian education program required by
article X, section 4, the delegates did not draft the provision
to allow legislative enactments to alter or qualify the central
requirement that the State provide a Hawaiian education program
that is constitutionally adequate. This approach directly
30
See HRS § 302H-1 (2007) (“The Hawaiian language medium education
program may be established as a complete educational program or schooling
experience provided to students in the medium of the Hawaiian language.”
(emphasis added)); HRS § 302H-3 (2007) (“The department of education may
create a separate office of Hawaiian language medium education for the
direction and control of the program.” (emphasis added)); HRS § 302H-4 (“When
fifteen or more qualified children in any one departmental school district
wish to enroll in the Hawaiian language medium education program, the
superintendent of education may provide facilities for a Hawaiian language
medium education program or provide transportation to the nearest schooling
site providing the program, including a charter school site or laboratory
school site.” (emphasis added)).
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contrasts with that taken by the delegates with regard to the
constitutional provision that made Hawaiian an official language
of the state, which was considered and enacted at the same time
as article X, section 4. That is, unlike in the Hawaiian
Education clause, the framers expressly stated that “English and
Hawaiian shall be the official languages of Hawaii, except that
Hawaiian shall be required for public acts and transactions only
as provided by law.” Haw. Const. art. XV, sec. 4 (emphasis
added); see also, e.g., Haw. Const. art. XI, sec. 9 (“Each
person has the right to a clean and healthful environment, as
defined by laws relating to environmental quality . . . .”
(emphasis added)).
Thus, the delegates did not intend that the
requirements of the program would be solely defined by
legislative enactments. Instead, they intended the core
requirement that the State provide a constitutionally adequate
Hawaiian education program to be defined by this court’s
interpretation, for it is “the courts, not the legislature,
[who] are the ultimate interpreters of the Constitution.” In re
Application of Maui Elec. Co., 141 Hawai‘i 249, 268 n. 33, 408
P.3d 1, 20 n.33 (2017) (quoting State v. Bani, 97 Hawai‘i 285,
291 n.4, 36 P.3d 1255, 1261 n.4 (2001)). And, as stated, “we
have long recognized that the Hawaii Constitution must be
construed with due regard to the intent of the framers and the
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people adopting it, and the fundamental principle in
interpreting a constitutional provision is to give effect to
that intent.” Sierra Club v. Dep’t of Transp. of Hawai‘i, 120
Hawai‘i 181, 196, 202 P.3d 1226, 1241 (2009) (quoting Hanabusa v.
Lingle, 105 Hawai‘i 28, 31–32, 93 P.3d 670, 673–74 (2004)).
It is true that the delegates to the 1978
Constitutional Convention lacked the benefit of subsequent
academic research on the revitalization of languages, and they
may not have anticipated the contours of a Hawaiian education
program reasonably calculated to revive ‘ōlelo Hawai‘i under
current circumstances. Yet, as Justice Stone of the United
States Supreme Court said in a passage that has been approvingly
quoted by members of this court:
[I]n determining whether a provision of the Constitution
applies to a new subject matter, it is of little
significance that it is one with which the framers were not
familiar. For in setting up an enduring framework of
government they undertook to carry out for the indefinite
future and in all the vicissitudes of the changing affairs
of men, those fundamental purposes which the instrument
itself discloses. Hence we read its words, not as we read
legislative codes which are subject to continuous revision
with the changing course of events, but as the revelation
of the great purposes which were intended to be achieved by
the Constitution as a continuing instrument of government.
If we remember that it is a Constitution we are expounding,
we cannot rightly prefer, of possible meanings of its
words, that which will defeat rather than effectuate the
Constitutional purpose.
Emps.’ Ret. Sys. of Hawaii v. Ho, 44 Haw. 154, 170–71, 352 P.2d
861, 870 (1960) (opinion of Marumoto, J.) (quoting United States
v. Classic, 313 U.S. 229, 316 (1941) (emphases added and
internal quotes omitted); cf. State v. O’Brien, 68 Haw. 38, 44,
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704 P.2d 883, 887 (1985) (“[T]he mandate of the constitution
must accord with the changing circumstances of modern times and
the exigencies of life in a society dependent on technology such
as the automobile.”).
Thus, the specifics of the Hawaiian education program
required by article X, section 4 have evolved through time and
will continue to be refined as circumstances and the state of
human knowledge about reviving and preserving language changes.
What is key is that the program effectuates the constitutional
purpose of article X, section 4 by being reasonably calculated
to revive ‘ōlelo Hawai‘i.31
The State and the trial court made much of the
Committee of Hawaiian Affair’s statement that the instruction is
to be “part of the regular curriculum of the public schools,”
apparently interpreting “regular” as synonymous with “ordinary”
31
The dissent’s repeated assertion that “the framers [did not]
intend[] Hawaiian language immersion to be a required component of the
Hawaiian Education program” is therefore ultimately irrelevant to the outcome
of this case. Dissent at 6-7, 10-11; cf. McCleary v. State, 269 P.3d 227,
251 (2012) (“While the [State] has long recognized these offerings as central
to the basic education program, they are not etched in constitutional stone
as part of the definition of ‘education.’ The [State] has an obligation to
review the basic education program as the needs of students and the demands
of society evolve. From time to time, the [State] will need to evaluate
whether new offerings must be included in the basic education program.
Likewise, the importance of certain programs or offerings may prove less
compelling over time.”). As in McCleary, the State has a constitutional
obligation to routinely review the details of the Hawaiian education program
to ensure it is compliant with the mandates of article X, section 4 as
society evolves, enacting such changes as may be needed for the program to be
reasonably calculated to revive the Hawaiian language under circumstances as
they then exist.
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or “standard.” Yet “regular” also means “recurring, attending,
or functioning at fixed, uniform, or normal intervals,” and
further examination of the committee report indicates that it is
this latter meaning that was intended.32 The Committee lamented
that “[p]resently Hawaiian courses are part of a larger program
called social studies” and, as part of this program, “the
required units of Hawaiian courses cast a small shadow which is
soon lost in the wave of western standards.” Stand. Comm. Rep.
No. 57 in I Proceedings, at 637. The Committee thus intended
article X, section 4 to insure that Hawaiian studies were
offered consistently throughout the course of schooling and not
as special, one time units within a broader academic program.
This is what was intended by the Committee’s reference to the
“regular curriculum” of public schools, and the provision does
not require that Hawaiian studies be conducted in the same
manner as other courses.33
This case comes before this court on a motion for
summary judgment, and the undisputed evidence in the record
32
Regular, Merriam–Webster, https://www.merriam-
webster.com/dictionary/regular [https://perma.cc/U2C5-6VKR].
33
Indeed, under the State’s formulation, the Kaiapuni Educational
Program would not be a valid method of satisfying the State’s article X,
section 4 obligations, as it is a nonstandard method of instruction. This is
contrary to the State’s acknowledgment that a Hawaiian immersion program
“represents another means by which the State could introduce intensive
instruction in Hawaiian language, history, and culture into the classroom[,]
[b]ut it is not the only or exclusive means of satisfying Article X, Section
4’s mandate.”
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demonstrates that providing reasonable access to a Hawaiian
immersion program in public schools is necessary to the revival
of ‘ōlelo Hawai‘i.34 As related above, William O’Grady, a
linguistics professor specializing in language revitalization,
stated repeatedly and emphatically in his declaration and
deposition that a language immersion program in which children
receive at least twenty-five to thirty percent of their language
exposure in ‘ōlelo Hawai‘i is currently “the only realistic
course of action” to revive the language and preserve it for
future generations.35 He explained that providing reasonable
access to an immersion program is not “the gold standard” for
language revitalization, but rather “the minimum standard.”
This conclusion was echoed by Stanley H. “Kī‘ope” Raymond II, a
professor of Hawaiian Studies, who stated that it is well
accepted within his field that offering a Hawaiian immersion
34
We use the phrase “reasonable access,” which is employed by the
Board in its policy governing the Kaiapuni Educational Program, to mean that
the State must take all reasonable measures to provide access. What
constitutes reasonable access to a Hawaiian immersion program may vary based
on the circumstances, but the State must consider any reasonable alternative
and provide access if such an alternative exists.
35
Professor O’Grady stated that one reason immersion education is
currently the only realistic option for reviving ‘ōlelo Hawai‘i is that the
language is no longer being learned by children in the home through
intergenerational transmission and no ideal “language pill” exists. A time
may come where intergenerational transfer of ‘ōlelo Hawai‘i is restored or a
more effective instructional technique is discovered and reasonable access to
Hawaiian immersion education is no longer essential to the revival and
preservation of the language. As stated, what article X, section 4 requires
is not specifically Hawaiian immersion education, but rather a Hawaiian
education program reasonably calculated to revive and preserve ‘ōlelo Hawai‘i.
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education option in the public school system “is absolutely
necessary to ensure the preservation of ‘ōlelo Hawai‘i for use by
future generations.” The State offered no testimony or
declarations disputing this evidence.36
Rather, the State argued below that exposing students
to basic Hawaiian language, culture, and history through classes
and instruction like those currently offered at Lāna‘i School
could increase student interest in the Hawaiian language and
induce some student to seek out additional instruction, thereby
reviving ‘ōlelo Hawai‘i.37 But this claim is unsupported by the
36
The State points to the declaration of the Director of the Office
of Hawaiian Education stating that the “Hawaiian language can be taught
through the medium of English the same way other foreign languages are
taught.” As an initial matter, the delegates to the 1978 Constitutional
Convention specifically stated when making ‘ōlelo Hawai‘i an official language
of the State that they were seeking to overcome the “insult” of ‘ōlelo Hawai‘i
being regarded as a foreign language in schools, and the language should
receive due consideration for its special connection to the Hawaiian Islands
even when taught through standard English instruction. See supra note 27.
Moreover, this misconstrues the State’s obligation under article X, section
4. The question is not whether ‘ōlelo Hawai‘i can be taught using techniques
other than Hawaiian immersion education. It is whether a Hawaiian education
program that does not include reasonable access to Hawaiian immersion
education can result in the revitalization of ‘ōlelo Hawai‘i. The
uncontroverted evidence in the record indicates it cannot. See also William
H. Wilson and Keiki Kawai‘ae‘a, I Kumu; I Lālā: “Let There Be Sources; Let
There Be Branches”, 46 J. Am. Indian Educ. 37, 38 (2007) (“Over eighty years
of teaching Hawaiian as a second/foreign language in English medium
educational structures have shown that Hawaiian cannot be revitalized in that
way. The life of a language exists in the system of structures, not in the
instruction of content.”).
37
By contrast, the concurring opinion concludes that the Hawai‘i
Constitution obligates the State to provide each student who wishes to learn
‘ōlelo Hawai‘i “with a reasonable opportunity to become fluent in the language
during the course of the student’s public education.” Concurrence at 12.
But simply providing the opportunity for students to become fluent in ‘ōlelo
Hawai‘i does not on its own satisfactorily address the underlying purpose of
article X, section 4 of the constitution--“to revive the Hawaiian language,
(continued . . .)
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evidence in the record. Professor O’Grady specifically rejected
the contention that the instruction currently offered at Lāna‘i
School is “moving towards revitalization.” Indeed, he stated
that the lessons may in fact be detrimental to the effort by
misleading parents into believing that their child will become
fluent from the lessons, causing them to forego more adequate
instruction.
On the record before us, there is no disputed issue of
material fact that providing reasonable access to a Hawaiian
immersion program is an essential component of any Hawaiian
education program reasonably calculated to revive and preserve
‘ōlelo Hawai‘i, and it is thus required by article X, section 4.38
(. . . continued)
which is essential to the preservation and perpetuation of Hawaiian culture.”
Stand. Comm. Rep. No. 57 in I Proceedings, at 637. Under the concurring
opinion’s formulation, the State might seek to provide a reasonable
opportunity to become fluent by offering students access to computer
programs, after-school instruction, traditional language classes, or various
combinations thereof. But the unrefuted expert testimony in this case
established that these measures are not alone sufficient to revive the
Hawaiian language and would thus fall short of accomplishing the framers’
intent.
38
The dissent faults our holding for mandating only that the State
undertake all reasonable efforts to provide access to an immersion program,
suggesting that such efforts may not be sufficient to revive and preserve
‘ōlelo Hawai‘i. Dissent at 9 n.2. But as Professor O’Grady stated,
“[t]here’s no specific number” of speakers that are required to revitalize
‘ōlelo Hawai‘i, and rather, “[t]he question from a linguistic perspective is
how can we produce any, or even better[,] many young people who speak the
language fluently enough to be comfortable in it and don’t simply see it as a
subject that you learn in school, but see it as a mode of communication that
can be used in all of their life activities.” He explained that reviving the
language is a “long-term” undertaking, and that the role of the education
system is to “keep[] feeding people into the system” through “ongoing efforts
. . .to produce more and more fluent speakers.” We thus do not share the
(continued . . .)
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The circuit court therefore erred by granting the State’s motion
for partial summary judgment with respect to Count 2 of
Clarabal’s complaint.39
What constitutes reasonable access is dependent on the
totality of the circumstances of this case, and genuine issues
of material fact exist as to whether the State has taken all
reasonable measures to provide Clarabal’s daughters with access
to a Hawaiian immersion program. As with all of the State’s
constitutional obligations, article X, section 4 places an
affirmative duty on the State to fulfil its mandate. See Mauna
Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 402,
363 P.3d 224, 250 (2015) (Pollack, J., concurring, in which
Wilson, J., joined, and McKenna, J., joined as to Part IV). The
State should thus act with the goal of reviving and preserving
(. . . continued)
dissent’s concern and are confident that faithful adherence to the “all
reasonable efforts” standard will be a meaningful and necessary component of
a Hawaiian education program that is reasonably calculated to revive the
Hawaiian language as the framers intended. See Stand. Comm. Rep. No. 57 in I
Proceedings, at 637.
39
We decline to reach Clarabal’s claims that other constitutional
provisions require the State to provide a Hawaiian immersion program on Lāna‘i
because we hold that any right they may grant is no greater than the
reasonable access afforded by article X, section 4. See State v. Lo, 66 Haw.
653, 657, 675 P.2d 754, 757 (1983) (“[W]e are by no means obliged ‘to pass
upon a constitutional question although properly presented by the record, if
there is also present some other ground upon which the case may be disposed
of.’” (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)
(Brandeis, J., concurring))). With respect to Clarabal’s claims related to
the alleged teacher shortage, we hold that they are moot, as the evidence
indicates that all but two full-time teacher positions were filled at the
beginning of the latest school year for which information is included in the
record. We therefore express no opinion as to the merits of these claims.
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‘ōlelo Hawai‘i and the shared culture to which it is inextricably
linked when determining whether it is reasonable to take
additional steps to provide access to a Hawaiian immersion
program. These steps might include providing greater financial
or other incentives to attract immersion teachers to Lāna‘i,
furnishing transportation for a teacher to commute to Lāna‘i,
using multiple instructors to share teaching duties, partnering
with community members knowledgeable in ‘ōlelo Hawai‘i, modifying
school days or hours of instruction to accommodate the
availability of a teacher, or adopting any other alternative
method of providing access to a Hawaiian immersion program.
Ultimately, all reasonable alternatives are to be considered to
determine whether access to a Hawaiian immersion program is
feasible, and the State is constitutionally obliged to take a
reasonable course of action that would afford access to
Clarabal’s daughters if any exists. Cf. In re Conservation
Dist. Use Application HA-3568, 143 Hawai‘i 379, 414, 431 P.3d
752, 787 (2018) (Pollack, J., concurring) (requiring a showing
of a lack of practicable alternatives to the use of
constitutionally protected public trust conservation land).
We therefore affirm the circuit court’s denial of
Clarabal’s motion for partial summary judgment, which requested
a declaration that the State has a duty and obligation to
provide her daughters with actual access to a Hawaiian immersion
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program, and remand for a determination of whether the State has
taken all reasonable steps to afford Clarabal’s daughters access
to Hawaiian immersion education in light of the circumstances
associated with providing greater accessibility.
IV. CONCLUSION
A well known Hawaiian proverb states “I ka wā ma mua,
ka wā ma hope,” or, “In the past, lies the future.”40 The spirit
of this adage motivated the framers’ adoption of article X,
section 4 of the Hawai‘i Constitution, which imposes on the State
a duty to provide for a Hawaiian education program in public
schools that is reasonably calculated to revive the Hawaiian
language. Because the evidence in the record demonstrates that
providing reasonable access to Hawaiian immersion education is
currently essential to reviving the language, it is an essential
component of any such program.
We therefore vacate in part the circuit court’s June
7, 2016 “Order: (1) Granting Defendants’ Motion for Partial
Summary Judgment as to Counts 1 and 2 of the Complaint Filed
February 26, 2016; (2) Granting Defendants’ Motion for Partial
Summary Judgment as to Counts 3 and 4 of the Complaint filed
40
Liberty Peralta, PBS Hawai‘i, Hōkūle‘a Programming (Aug. 2, 2017),
https://www.pbshawaii.org/hokulea/ [https://perma.cc/9XX2-URG2]. Literally,
“the time in front, . . . the time in back,” the phrase has also been
translated as “through the past is the future.” Natalie Kurashima, Jason
Jeremiah, & Tamara Ticktin, I Ka Wā Ma Mua: The Value of a Historical Ecology
Approach to Ecological Restoration in Hawai‘i, 71 Pac. Sci. 437, 440 (2017).
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February 26, 2016; and (3) Denying Plaintiff’s Motion for
Partial Summary Judgment Filed March 17, 2016.” The order is
vacated insofar as it granted the State’s motion for partial
summary judgment with respect to Count 2 of the complaint. The
order is affirmed in all other respects. We also vacate the
circuit court’s June 7, 2016 “Final Judgment Re: Order: (1)
Granting Defendants’ Motion for Partial Summary Judgment as to
Counts 1 and 2 of the Complaint Filed February 26, 2016; (2)
Granting Defendants’ Motion for Partial Summary Judgment as to
Counts 3 and 4 of the Complaint filed February 26, 2016; and (3)
Denying Plaintiff’s Motion for Partial Summary Judgment Filed
March 17, 2016.” We remand for a determination of whether,
under the circumstances, the State has taken all reasonable
measures to provide access to a Hawaiian immersion program to
Clarabal’s two daughters.
Sharla A. Manley /s/ Sabrina S. McKenna
Camille Kaimālie Kalama
David Kaulia Kopper /s/ Richard W. Pollack
for petitioner
/s/ Michael D. Wilson
Kimberly Tsumoto Guidry
Kaliko‘onalani Fernandes
For respondent
49