Professional Documents
Culture Documents
Electronically Filed
Supreme Court
SCAP-16-0000475
13-AUG-2019
07:51 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
vs.
SCAP-16-0000475
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).
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education.
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1. Early Developments
the history and cultural priorities of the people who speak it;
types of rain, 160 words for types of wind, and 133 words for
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 . . .)
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Momaday,
(. . . 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).
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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).
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2. Post-Overthrow Suppression
7
https://www.hawaiipublicschools.org/TeachingAndLearning/
StudentLearning/HawaiianEducation/Pages/History-of-the-Hawaiian-Education-
program.aspx [https://perma.cc/69PK-X4TB].
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Daum & Eric Ishiwata, From the Myth of Formal Equality to the
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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.
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proposal for a broader mandate that the State “promote the study
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teachers formed ‘Aha Pūnana Leo, Inc. (‘Aha Pūnana Leo), a non-
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:
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id.
operation. See 1986 Haw. Sess. Laws Act 79, § 1 at 104. The
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Haw. Sess. Laws Act 47, § 1 at 50-51. The following year, the
1988 and through the sixth grade in 1989. Id. In 1992, the
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No. 3144, in 2004 Senate Journal, at 1567; 2004 Haw. Sess. Laws
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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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Kaua‘i.
(. . . continued)
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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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informed that her younger daughter had been accepted into the
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.
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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 . . .)
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(. . . continued)
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of the state, make clear that the delegates intended the State
Proceedings, at 638.)
State concluded.
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education.
hear and use the language for several hours a day is “the only
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future generations.”
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judgment. Yoneda v. Tom, 110 Hawai‘i 367, 371, 133 P.3d 796, 800
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
Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 103, 839 P.2d
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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Hawai‘i 157, 167, 890 P.2d 1197, 1207 (1995)). The starting
itself.” State v. Kahlbaun, 64 Haw. 197, 201, 638 P.2d 309, 314
(1981).
provides as follows:
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obligations.
spell out the methods the State must use in achieving these
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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so choose.26
adopted and the history which preceded it.” Hawaii State AFL-
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
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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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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Hawai‘i that taught Hawaiian in the fourth grade,” and that even
Del. Hale).27
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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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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(. . . continued)
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any implication that HRS Chapter 302H requires that the State
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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of the state, which was considered and enacted at the same time
added); see also, e.g., Haw. Const. art. XI, sec. 9 (“Each
(emphasis added)).
Application of Maui Elec. Co., 141 Hawai‘i 249, 268 n. 33, 408
291 n.4, 36 P.3d 1255, 1261 n.4 (2001)). And, as stated, “we
construed with due regard to the intent of the framers and the
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Hawai‘i 181, 196, 202 P.3d 1226, 1241 (2009) (quoting Hanabusa v.
Emps.’ Ret. Sys. of Hawaii v. Ho, 44 Haw. 154, 170–71, 352 P.2d
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as the automobile.”).
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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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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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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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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instruction.
(. . . continued)
(continued . . .)
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Clarabal’s complaint.39
Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 402,
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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Dist. Use Application HA-3568, 143 Hawai‘i 379, 414, 431 P.3d
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IV. CONCLUSION
ka wā ma hope,” or, “In the past, lies the future.”40 The spirit
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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Counts 3 and 4 of the Complaint filed February 26, 2016; and (3)
49