Clarabal Oral Arguments

Hawaiʻi Supreme Court Oral Arguments: Clarabal v. Department of Education (2018)

I ka ʻōlelo no ke ola, i ka ʻōlelo no ka make
In language there is life, in language there is death.*

By Avis Kuuipoleialoha Poai, Director of Student Outreach

For twenty-seven eighth grade immersion students from Ānuenue, entering the Hawaiʻi Supreme Court to observe oral arguments in Clarabal v. Department of Education, constituted for many, their first real encounter with the legal system (to read more about this huakaʻi, click here). This case was important to them because it centered on ʻŌlelo Hawaiʻi, a critically endangered language, and the right to an immersion education. In an ironic start to the case, the clerk who called and introduced the case, stumbled over the proper pronunciation of Hawaiian names.** Many in the gallery shifted their gaze uncomfortably, as it perfectly framed the issue and exposed the current dispossessed state of our native language.

Since 1987, Hawaiian language immersion has become a part of the public school system and is available on every island except for Lānaʻi. There are at least 21 public Hawaiian language immersion programs state-wide.

Plaintiffs-Appellants Kamele and Mālie Clarabal attended Pāʻia Elementary Schoolʻs Hawaiian language immersion program. Kamele had completed the first grade and Mālie had completed kindergarten. They transferred from the immersion program at Pāʻia Elementary School to Lānaʻi High and Elementary School. At the time, neither could read or write in English. When both girls started school in Lānaʻi, Mālie was asked to repeat kindergarten, and Kamele’s teacher reprimanded her for responding to written assignments in the Hawaiian language. Kamele and her mother asked the acting school principal for an educational assistant. The acting school principal instead offered the assistance of the school psychologist. No services were offered or provided to address her Hawaiian-language learning needs.

In this case, it is alleged by the Plantiffs-Appellants, that the Defendants-Appellees Department of Education, the Board of Education, the Superintendent, and the Hawaiʻi Teacher Standards Board (“the State”) failed to ensure that ʻŌlelo Hawaiʻi is preserved and protected on the island of Lāna’i. The mother, Plaintiff-Appellant Chelsa-Marie Kealohalani Clarabal, seeks reasonable access to equal education in a Hawaiian language immersion program.

In support of this position, Plaintiffs-Appellants argued as follows:

  • The plain language of Article X section 4 of the Hawaiʻi Constitution gives rise to a mandatory duty to provide Hawaiian language education.
  • The framers of the Hawaiʻi Constitution intended to impose a mandate on the state to provide a public school program that would revive the Hawaiian language.
  • Under Article XII, section 7, Defendants-Appellees have a duty to preserve and protect the practice of communicating in ʻŌlelo Hawaiʻi in the public schools.
  • The practice of communicating In ʻŌlelo Hawaiʻi is a traditional and customary right.
  • Plaintiffs-Appellants have been deprived of equal protection under the law.
  • There is a fundamental right to an adequate and equal education under Article X, section 1 of the Hawaiʻi Constitution.

During oral arguments, which lasted over an hour, the attorneys on both sides had an opportunity to expound upon their clients’ positions. For example, the attorney for Plaintiffs-Appellants, Sharla Manley, provided further insight into the level of instruction that was being provided at Lānaʻi school:

Manley: The school had at that point implemented a piecemeal level of instruction . . . at Lānaʻi school, and what was offered was less than fifty minutes of language, history, and culture . . . . state did not disclose how much of that was language.

Justice Wilson: Fifty minutes a week you’re referring to?

Manley: Fifty minutes a week.

Justice Pollack: Isn’t that approximately, during the constitutional convention, what they were talking about, that they were trying to rectify, I mean there is all this discussion about piecemeal and some of the delegates talking about . . . they wanted their children to learn more than just words, but to be able to actually speak Hawaiian?

Manley: Exactly, Justice Pollack. That is the evil that that the framers meant to remedy. They condemned the approach that existed in the public schools at that time. They lamented the fact that their children were not learning Hawaiian. That they had grown to adulthood and not learned Hawaiian. And they wanted to change this for the next generation. And they saw that the place that this needed to happen was in the public schools.***

Manley criticized the inadequate nature of this level of instruction and pointed out that, “Hawaiian is a critically endangered language. It is one step away from extinction.” As such, these piecemeal measures demonstrated the State’s failure to provide children on Lānaʻi with any access to a meaningful program that is designed to revive the Hawaiian language.

Chief Justice Recktenwald asked Ms. Manley to clarify and explain the type of relief that was sought by her clients. Ms. Manley responded:

Manley: The relief we are looking for is actually quite simple, and has been done in other cases: First, and foremost, we would ask that the State to create a plan to rectify the problem on Lānaʻi, using their expertise. The second thing that we would do is ask that the state independently consider the impact of its actions on Lānaʻi as the State was ordered to do in Kapaʻakai o ka ʻĀina, when it came to issuing land use permits . . . .****

After the oral arguments, the students and kumu from Ānuenue had the opportunity to meet the Native Hawaiian Legal Corporation attorneys, and the Clarabal ʻohana. It was an emotional moment but allowed all of the students to share their support and stand in solidarity with those who continue to support the perpetuation of ʻōlelo Hawaiʻi.

E ola mau i ka ʻōlelo Hawaiʻi

* Mary K. Pukui, ʻŌlelo Noʻeau: Hawaiian Proverbs and Poetical Sayings 129, #1191 (1983).

** Oral arguments available here. The relevant portion cited may be found between: 0:00:17-0:00:56.

*** Relevant portion cited found between 0:04:25-0:05:44.

**** Relevant portion cited found between 0:08:26-0:08:45, 08:48-0:09:20.