Court cases reveal state’s resistance to honoring Hawaiian as official language
Two separate, pending court cases reveal a lack of respect for Hawaiʻi’s indigenous language as an equal and legitimate alternative to English.
ʻŌlelo Hawaiʻi is an official state language in Hawaiʻi. However, 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.
The first court case involves 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 explaining something complex, like the cultural worldview that would lead someone to take action to defend a sacred site from development and desecration.
But the judge in Kaʻeo’s case granted a motion by the prosecution compelling Kaʻeo to conduct court proceedings in English only. 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 for Kaʻoe to speak in Hawaiian.
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. While the family was living on Maui, the two daughters had attended an immersion school (the youngest was in kindergarten and the oldest was in first grade). The ʻohana moved to Lanai for the following academic school year, however.
When the children began attending school at Lanaʻi High and Elementary School in August 2013, they were unable to participate because classes are only conducted in English. The school administration recommended that the youngest daughter repeat kindergarten. Meanwhile, the older daughter was reprimanded her responding to her written assignments in the Hawaiian language.
After the reprimand, 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. Instead, the acting school principal 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:
There is no fundamental right to an education under either the Hawaiʻi State Constitution or the U.S. Constitution.
There is no individual right to an education of a certain quality under either constitution.
There is no right to an immersion program under the state constitution.
The provision of a Hawaiian immersion program is not a customary and traditional native Hawaiian right or practice.
On the other hand, NHLC argues that the plaintiff’s claims arise from the Hawaiʻi State Constitution as well:
Article X § 4 of the Hawaiʻi Constitution guarantees the 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 State Constitution.
The plaintiffs are entitled to such protections under the equal protection clause of the Hawaiʻi State 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 Hawaiʻi State Constitution.
The case will be argued before the justices of the Hawaiʻi Supreme Court on Wednesday, February 7, 2018, at 10 a.m.
