A bill focused on early childhood education transformed on Monday into a controversial proposal to limit the number of Hawaiʻi school superintendents, a move government accountability groups were concerned could represent unconstitutional “gut-and-replace” tactics.  

As of late last week, House Bill 2567 was focused on its original intent to create a special fund to invest in early learning programs. But on Monday morning, members of the Senate Education and Ways and Means Committees agreed to delete the language about early education and replace it with wording from one of Sen. Donna Kim’s bills that died earlier this year. 

The new version of the bill includes a series of reforms to top leadership in the education department, including putting an unspecified cap on the number of superintendents overseeing schools and asking the state education board to regularly evaluate the performance of complex area superintendents. 

During Monday’s hearing, the Department of the Attorney General raised concerns about the legality of the bill, pointing out that it could face challenges under a 2021 Hawaiʻi Supreme Court ruling that outlawed gut-and-replace bills. For years prior, lawmakers would insert new language into the shell of an unrelated bill to circumvent a rule that requires three readings for a bill to pass.  

Despite the misgivings of the attorney general’s office, all present members of the Senate Ways and Means and Education Committees voted in favor of the bill and raised few concerns about its constitutionality. 

Camron Hurt, director of the government accountability group Common Cause Hawaiʻi, said the move will not help the public perception that the Senate has a transparency problem.

“I think these changes are awful,” Hurt said.

The bill still needs to come to a vote before all senators two more times by April 16. If it passes through both readings, it will likely need to go through a conference committee, where House and Senate lawmakers will reconcile their differences with the bill.  

Education Bill Died, Then Came Back To Life

Kim’s original bill, which initially proposed cutting 15 superintendent positions from Hawaiʻi schools, received strong pushback from school leaders and drew the ire of the union representing principals and other school employees in February. 

More: Is Now The Time For Reforming Hawaiʻi Schools?

Lawmakers later revised Senate Bill 3334 to simply cap the number of superintendent positions in Hawaiʻi schools, but the bill died when the House Education Committee, chaired by Rep. Justin Woodson, declined to hear it.  

Once proposals die, lawmakers shouldn’t use other bills as vehicles to advance their agendas, said Judith Wong, president of the League of Women Voters of Hawaiʻi. Using gut-and-replace tactics is unconstitutional, she said, and the public needs enough time to vet and testify on legislative proposals. 

“That is completely contrary to the concept of how bills are supposed to be handled,” Wong said.

The League of Women Voters of Hawaiʻi, along with Common Cause, brought forward the gut-and-replace lawsuit in 2018.

But even before lawmakers turned to gut-and-replace tactics for House Bill 2567, the public had a limited chance to follow changes to the bill, Wong said. Kim’s committee heard the bill twice: once with its original language about investing in early learning programs and a second time with new language about capping superintendents in the education department. 

The first time the House bill was heard in Kim’s committee on March 25, she requested a waiver for the 72-hour notice Senate committees must give the public before their hearings, citing the impacts of the recent storm and statewide closures on legislative deadlines.   

When Kim’s committee first heard the bill — still in its original form to create an investment fund for early learning programs — it received no live testimony. The bill died in the same hearing as Kim noted the lack of public comment.

“There was nobody here to testify on this measure, so I’m going to recommend that we defer,” Kim said in the March hearing. 

The lack of testimony likely had to do with the lack of advanced notice on the hearing, Hurt said. Even after the storms closed the Legislature last month, he said, lawmakers in the House were able to schedule all of their bill hearings with the proper advance notice to the public. House committees are required to give the public 48 hours’ notice before their hearings.

The second time the bill appeared before Kim’s committee, it had a completely new look. 

A Win For Kim?

Even as the attorney general raised concerns about the constitutionality of House Bill 2567 on Monday, senators doubled down on their criticism of the education department and their concerns that school leadership has become too top-heavy. 

Of particular interest to lawmakers were two temporary deputy superintendent positions that Superintendent Keith Hayashi created in summer 2022. While temporary jobs are supposed to only have one-year terms under state law, the education department has repeatedly renewed the positions.  

“If that’s the case, why even ask the Legislature for positions?” Sen. Donovan Dela Cruz said during Monday’s hearing. “You can create 200, whatever you want, and then you just constantly annually appoint.” 

Hayashi said he didn’t know the positions had one-year limitations but pushed back against the proposal to cap the number of superintendents in the department, arguing that he needs the flexibility to create new positions to respond to major challenges like the Maui wildfires.

Several principals and complex area superintendents also raised concerns about the new version of House Bill 2567 in written testimony, arguing that disrupting the current leadership structure would reduce support for schools. 

The final version of House Bill 2567 that passed out of the joint Senate committee on Monday set an unspecified cap on the number of superintendents in Hawaiʻi schools but also set aside state funding for the two deputy superintendent positions that drew the greatest criticism from lawmakers.  

Even with the education department’s opposition, it’s still a politically popular move for Kim to double down on her efforts to cap leadership positions in a large department seen as top-heavy, said Colin Moore, a political scientist at the University of Hawaiʻi Mānoa. 

As the new chair of a committee overseeing both K-12 schools and higher education in the Senate, Kim has focused on more accountability for top school leaders and transparency around how the department uses its nearly $2.2 billion budget.  

“I think she can’t lose,” Moore said. 

It’s unlikely lawmakers in the House will agree to the current version of House Bill 2567, since they already chose not to hear a similar proposal last month, Moore said. Representatives are typically more responsive to the preferences and concerns of the education department, he said. 

Hurt said lawmakers still have the chance to avoid litigation around gut-and-replace tactics in conference committee, where House and Senate lawmakers address their disagreements about bills and finalize their proposals. There, they could revert House Bill 2567 to include its original language around investing in early learning programs, Hurt said. 

Until then, Hurt said, the public should call out changes to the bill and remind lawmakers that they’re tracking what happens next. 

“Our job is to be the watchful eyes, to be that watchdog, to let them know we’ve seen this,” Hurt said, “and let them know that we expect them to correct this before any type of legal challenge has to be made.” 

Civil Beat’s education reporting is supported by a grant from Chamberlin Family Philanthropy.