Court cases reveal the limited deference to which the Hawaiian language is afforded by the state

ʻŌlelo Hawaiʻi is an official state language but, as two court cases are highlighting, the extent to which the State of Hawaiʻi recognizes its citizens' rights to access Hawaiian in official capacities is limited.

Will Caron

Two separate, pending court cases are revealing of the lack of any actual deference for Hawaiʻi’s indigenous language as an equal and legitimate alternative to the other official state language, English, on the part of the entity governing these islands today: the State of Hawaiʻi.

The first court case is the one involving petty misdemeanor charges brought against Hawaiian activist and Maui Community College professor Kaleikoa Kaʻeo, who led an action last year to stop a delivery of telescope equipment to the site of the Daniel K. Inouye Solar Telescope (DKIST) atop Haleakalā. This case brings up the issue of whether or not Hawaiians can use their native tongue to defend themselves in court.

Kaʻeo says that there are certain things that can only, or at least best, be said in Hawaiian when it comes to expressing a Hawaiian cultural view of the world—something that would be important in explaining the action he took to defend a sacred site from development and desecration.

But the judge in his case has granted a motion by the prosecution compelling Kaʻeo to conduct court proceedings in English. Citing a 1993 federal case Tagupa v. Odo, the judge found that the mere fact that ʻōlelo Hawaiʻi is an official state language does not compel the court to provide an interpreter.

From Hawaii Public Radio:

I do not want to be held in contempt of court. I don’t wanna be fined. I don’t want to go to jail for this. But if there’s any reason for me, Kaleikoa Kaʻeo, to go to jail, it would be to defend our right as a people to speak our language in our own homeland.

Meanwhile, another pending court case addresses a similar incongruence between the rights of Hawaiians and existing state policy, this time within the Department of Education (DOE).

The Native Hawaiian Legal Corporation (NHLC) is representing a mother and her two daughters in a case involving the right to be educated in ʻōlelo Hawaiʻi. In this case, the two daughters had attended an immersion school while they lived on Maui. The youngest was in kindergarten and the oldest was in first grade. The ʻohana moved to Lanai for the following academic school year.

When the children began attending school at Lanaʻi High and Elementary School in August 2013, they were unable to read, write or comprehend the English language. The Lanaʻi school administration recommended that the youngest repeat kindergarten. When the older daughter started school at Lanaʻi High and Elementary School, her teacher reprimanded her for responding to written assignments in the Hawaiian language. After being reprimanded, the family asked the acting school principal for an educational assistant (EA), a common tool in addressing some students’ unique learning needs that generates a tailored educational plan for the students’ success. The acting school principal instead offered to refer the older daughter to the school psychologist. Services designed to address the older daughter’s Hawaiian-language learning needs were not offered.

According to NHLC, “Besides the Hawaiian language being an official language of this state we fervently believe that [the language] and the right to ʻōlelo are imbued with significant constitutional protections. We believe, given these circumstances, that the Department of Education’s failure to staff a Hawaiian language immersion program on Lanaʻi is inexcusable.”

The State raises four arguments in its defense: That there is no fundamental right to an education under the State Constitution and Federal Constitution; that there is no individual right to an education of a certain quality under the State Constitution and Federal Constitution; that there is no right to an immersion program under the State Constitution; and that the provision of a Hawaiian immersion program is not a customary and traditional native Hawaiian right or practice.

On the other hand, the plaintiff’s claims arise from the Hawai’i Constitution as well. Article X § 4 of the Hawai’i Constitution guarantees a fundamental right to a comprehensive Hawaiian education. The plaintiff’s right to this comprehensive Hawaiian education is protected by the State’s affirmative duty to preserve and protect traditional and customary rights under Article XII § 7 of the Hawai’i Constitution. Furthermore, the plaintiffs are entitled to such protections under the equal protection clause of the Hawai’i Constitution.

NHLC will be asking the court to declare that the fundamental right to an adequate and equal education does, in fact, exist under Article X § 1 of the Hawai’i Constitution. The case will be argued before the justices of the Hawaii Supreme Court on Wednesday, February 7, 2018, at 10 a.m.