Hawaii’s constitution requires that the state Department of Education make “reasonable efforts” to provide students access to Hawaiian language immersion education, the Hawaii Supreme Court ruled on Tuesday.

The 49-page majority decision vacated a June 2016 order from the First Circuit Court that granted the DOE partial judgment in a case brought by a Lanai mother on behalf of her two school-age daughters.

“The question is not whether Olelo Hawaii can be taught using techniques other than Hawaiian immersion education,” wrote Justice Richard Pollack for the majority. “It is whether a Hawaiian education program that does not include reasonable access to Hawaiian immersion education can result in the revitalization of Olelo Hawaii. The uncontroverted evidence in the record indicates it cannot.”

Hawaii Supreme Court Associate Justice Richard Pollack raises questions to SHOPO attorney during Hawaii State Supreme Court case involving Civil Beat's request to the HPD for records relating to disciplinary suspensions between 2003 and 2012. HPD is seeking an order requiring HPD to disclose the disciplanary suspension records. 18 june 2015. photograph Cory Lum/Civil Beat
Hawaii Supreme Court Associate Justice Richard Pollack, center, wrote the majority opinion. There was also a concurring opinion and a partial dissent. Cory Lum/Civil Beat

The decision hinges on a series of amendments made to the state constitution during the 1978 Constitutional Convention that formally recognized Olelo Hawaii as one of the state’s official languages and required the DOE to “provide for a comprehensive Hawaiian education program consisting of language, culture and history as part of the regular curriculum of the public schools.”

Those amendments were ushered in during a movement in the 1970s that sought to revive the Hawaiian language when it was on the brink of fading away.

Chelsa-Marie Kealohalani Clarabal, a Native Hawaiian mom living on Lanai, sued the DOE and Board of Education in 2014 on behalf of her children. She alleged the DOE and BOE violated the state constitution by failing to provide her daughters — then in kindergarten and second-grade at Lanai High and Elementary — access to Hawaiian immersion education.

Although the school — the only public school on the island — offered courses relating to Hawaiian history and culture, it could not offer a Hawaiian language immersion program due to the difficulty of recruiting teachers in the area, according to the ruling.

A long-term substitute had to provide “supplemental lessons” in Hawaiian language and culture to elementary-age students in place of a full-time language immersion teacher, according to the ruling.

In the 2014-15 school year, Clarabal’s daughters, by then in first and third grades, were assigned to classrooms that were taught by a rotating roster of substitutes and they still had no access to a Hawaiian immersion class.

In response to the lawsuit, the DOE argued that Hawaiian history classes and supplemental language instruction were enough to help revive the Hawaiian language and thus fulfilled its obligation to provide for a Hawaiian education program, per the 1978 amendments.

The lower court judge agreed, saying there is no constitutional mandate to offer a Hawaiian language immersion program to fulfill this broader obligation.

But Tuesday’s Supreme Court majority said the framers’ intent during the 1978 Constitutional Convention was to spark an effort within the state DOE to “rectify the ill effects of the historic suppression of the language” and ensure students could study the language and culture “in an in-depth and expansive manner if they so choose.”

The ruling said it could not be discerned whether the state had “taken all reasonable measures to provide Clarabal’s daughters with access to a Hawaiian immersion program.” Tuesday’s ruling sends the case back to the lower court to make a determination as to whether such efforts were made.

Such measures, the majority said, could include financial incentives to attract teachers to Lanai, relying on community partners who are knowledgable in Hawaiian language or modifying school days or hours of instruction to provide this kind of access.

Pollack was joined in his opinion by Justices Sabrina McKenna and Michael Wilson. Chief Justice Mark Recktenwald issued a concurring opinion.

In a partial dissent, Justice Paula Nakayama argued it wasn’t clear the framers of those 1978 amendments believed it was constitutionally required that the state provide a Hawaiian immersion program and expressed she was “wary of a court dictating the methods that the state must employ to satisfy broad constitutional mandates.”

There are currently 17 DOE-operated Hawaiian language immersion programs and six such programs operating at charter schools on Oahu, Maui, Hawaii Island, Molokai and Kauai.

Board of Education policies drafted in 2014 and 2015 relay that every student within the public school system should have “reasonable access” to a Hawaiian education program.

The Office of Hawaiian Education was established within the DOE in February 2015 to administer those new policies.

The DOE did not immediately respond to a request for comment on the ruling late Tuesday.

Clarabal was represented by attorneys from the Native Hawaiian Legal Corp. They could not immediately be reached for comment.

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