CHELSA-MARIE KEALOHALANI CLARABAL, individually and as next friend of C.M.K.C. and C.M.M.C., minors, Plaintiff-Appellant,
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.
FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-16-0000475;
CIV. NO. 14-1-2214)
A. Manley Camille Kaimalie Kalama David Kaulia Kopper for
Kimberly Tsumoto Guidry Kaliko'onalani Fernandes For
McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J.,
CONCURRING IN THE JUDGMENT AND NAKAYAMA, J., CONCURRING AND
language of a people is an inextricable part of the identity
of that people. Therefore, a revitalization of a 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).
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, na mele,
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
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 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
there are Hawaiian immersion schools on five of the major
Hawaiian Islands, but no such program exists on the island of
Lana'i. This case arises from a suit by a mother living
on Lana'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.
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
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.
BACKGROUND AND PROCEDURAL HISTORY
The History of '6lelo Hawai'i and Hawaiian Language
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 Kakou I Ka
'Olelo 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 '6lelo 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. Id. at
2; Mary Kawena Pukui & Samuel H. Elbert, New Pocket
Hawaiian Dictionary 225 (1992) . 'Olelo Hawai'i
also utilizes and incorporates figurative meaning "to an
extent unknown in English." Lucas, supra, at 2
(quoting Albert J. Schtltz, 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).
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 local populace about Christianity.
Ka'ano'i Walk, Comment, "Officially" What?
The Legal Rights and Implications of 'Olelo Hawai'i,
30 U. Haw. L. Rev. 243, 244 (2007) . The missionaries set
about standardizing a written form of oral 'olelo
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 Pi 'a pa, the first
written primer on the Hawaiian language. Id.
Hawaiian people quickly mastered the written word. Newspapers
were published in 'olelo Hawai'i as early as 1834,
nearly three-quarters of the adult Hawaiian population were
literate in their native language by 1853. Id.
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." 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
'olelo 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 'olelo
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. 22 5, 22 6 (Haw. Kingdom 1856); Hardy v.
Ruggles, 1 Haw. 255, 259 (Haw. Kingdom
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, History of Hawaiian
Education. 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).
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 'olelo Hawai'i in
future generations. See id. The number of
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
'olelo 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.
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,
'olelo 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 'olelo 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. 'Olelo 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 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 'olelo Hawai'i:
"E ola mau ka 'olelo Hawai'i," which has
been translated as "the Hawaiian language must live
The 1978 Constitutional Convention
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 'olelo Hawai'i.
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 'olelo Hawai'i formal recognition as one of
the State's official languages. 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.
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
4and article X, section 4 of the
Hawaiian Immersion Education
the early 1980s, a group of Hawaiian language teachers formed
'Aha Punana Leo, Inc. ('Aha Punana Leo), a nonprofit
organization dedicated to the revival of '6lelo
Hawai'i. 'Aha Punana Leo, Inc., A Timeline of
Revitalization. Seeking to replicate the success of a
similar program instituted by the Maori of New Zealand,
'Aha Punana 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 '6lelo Hawai'i. Id. The goal of
these "language nests" was to instill fluency in
'olelo Hawai'i in a new generation at an age when
children are most receptive to acquiring language skills.
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 'olelo 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 Punana 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 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.
the same legislative session, 'Aha Punana 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 '6lelo Hawai'i after graduating from
'Aha Punana 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.
its success, funding for the Kaiapuni Educational Program
remained static as the program grew, causing overall funding
per student to decrease sharply. MacKenzie et 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).
and 2015, the Board enacted and began to implement several
new policies concerning Hawaiian education, including one
overarching policy intended to govern the Kaiapuni
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)
. 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,
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. Consequently, parents and children who
wish to undertake schooling through the medium of '6lelo
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.
Hawaiian Immersion and Public Education on
school students on the island of Lana'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
December 2013, a community meeting was held in the cafeteria
of Lana'i High and Elementary School (Lana'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 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.
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.
two-weeks in April 2014, a Lana'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 Lana'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
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 Lana'i. Because an
immersion program did not commence as planned, the principal
hired Simon Tajiri, the former program manager of the
Lana'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.
to the school principal, recruiting teachers to Lana'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