Clarabal v. Dep't of Educ. of State, SCAP-16-0000475
| Decision Date | 13 August 2019 |
| Docket Number | SCAP-16-0000475 |
| Citation | 446 P.3d 986 |
| Parties | Chelsa-Marie Kealohalani CLARABAL, individually and as next friend of C.M.K.C. and C.M.M.C., minors, Plaintiff-Appellant, v. 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. |
| Court | Hawaii Supreme Court |
Sharla A. Manley, Camille Kaimalie Kalama, Honolulu, David Kaulia Kopper, for petitioner
Kimberly Tsumoto Guidry, Honolulu, Kaliko‘onalani Fernandes, For respondent
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.
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 (). 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. 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., 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).
Three years after the overthrow, the newly formed Republic of Hawai‘i enacted legislation officially declaring that Lucas, supra, at 8 (). 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...
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