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Clarabal v. Department of Education of State

Supreme Court of Hawaii

August 13, 2019

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.


          Sharla A. Manley Camille Kaimalie Kalama David Kaulia Kopper for petitioner

          Kimberly Tsumoto Guidry Kaliko'onalani Fernandes For respondent



          POLLACK, J.

         "The 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).

         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, na 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 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 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.

         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 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.


         A. The History of '6lelo Hawai'i and Hawaiian Language Education

         1. Early Developments

         'Olelo 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.[2] 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."[3] 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).

         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 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.

         The Hawaiian people quickly mastered the written word. Newspapers were published in 'olelo 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.

         'Olelo 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 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, 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 '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.

         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, '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 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 'olelo Hawai'i.

         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 'olelo 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.

         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 4[10]and article X, section 4[11] of the Hawai'i Constitution.

         4. Hawaiian Immersion Education

         During 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.[12] 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. 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 '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.

         During 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.

         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 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 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] 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.

         5. Hawaiian Immersion and Public Education on Lana'i

         Public 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 on Lana'i.

         In 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.

         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 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 the position.

         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 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.

         According 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 an ...

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