OPINION OF THE COURT BY POLLACK, J.

Sharla A. Manley, Camille Kaimalie Kalama, Honolulu, David Kaulia Kopper, for petitioner

Kimberly Tsumoto Guidry, Honolulu, Kaliko‘onalani Fernandes, For respondent

McKENNA, POLLACK, AND WILSON, JJ., WITH RECKTENWALD, C.J., CONCURRING IN THE JUDGMENT AND NAKAYAMA, J., CONCURRING AND DISSENTING

OPINION OF THE COURT BY POLLACK, J.

"The language of a people is an inextricable part of the identity of that people. Therefore, a revitalization of a suppressed language goes hand in hand with a revitalization of a suppressed cultural and political identity." Shari Nakata, Language Suppression, Revitalization, and Native Hawaiian Identity, 2 Chap. Diversity & Soc. Just. F. 14, 15 (2017).

Historically, the Hawaiian language played a fundamental role in all aspects of Native Hawaiian society. It was utilized not only for practical communication in daily life, but also to express and preserve creation and genealogical chants, prayers, histories, narratives, proverbs, na mele, and other knowledge that connected Native Hawaiians with each other and their ancestors through a shared cultural identity. This common link was nearly severed as a result of Western colonialism, which sought to impose English as the exclusive medium of communication as part of a larger effort to forcefully assimilate the Hawaiian people. Central to this process was the banning of the use of the Hawaiian language in schools--an extremely effective tactic that had driven the language to the brink of extinction by the latter half of the twentieth century.

It was at this critical time that a series of amendments aimed at revitalizing the Hawaiian language was made to the Hawai‘i Constitution, including a provision obligating the State to provide for a Hawaiian education program in public schools consisting of language, culture, and history. Thereafter, a grassroots effort led the State to establish a number of Hawaiian immersion public schools in which Hawaiian is the standard language of instruction. The children who attend these schools become fluent in the Hawaiian language, and the program has resulted in great progress toward reversing the decline in the number of Hawaiian language speakers.

Today, there are Hawaiian immersion schools on five of the major Hawaiian Islands, but no such program exists on the island of Lana‘i. This case arises from a suit by a mother living on Lana‘i on behalf of herself and her two school-age daughters. The mother argues that the provision of the Hawai‘i Constitution obligating the State to provide for a Hawaiian education program in public schools requires the State to provide her daughters with access to a public Hawaiian immersion education.

On review, we hold that the Hawaiian education provision was intended to require the State to institute a program that is reasonably calculated to revive the Hawaiian language. Because the uncontroverted evidence in the record demonstrates that providing reasonable access to Hawaiian immersion education is currently essential to reviving the Hawaiian language, it is a necessary component of any program that is reasonably calculated to achieve that goal. The State is therefore constitutionally required to make all reasonable efforts to provide access to Hawaiian immersion education. We remand for a determination of whether it has done so.

I. BACKGROUND AND PROCEDURAL HISTORY

A. The History of ‘Olelo Hawai‘i and Hawaiian Language Education

1. Early Developments

‘Olelo Hawai‘i, the Hawaiian language, has long been used by the indigenous inhabitants of the Hawaiian Islands to communicate and pass down the customs and traditions that underlie their culture. Paul F. Nahoa Lucas, E Ola Mau Kakou I Ka ‘Olelo Makuahine: Hawaiian Language Policy and the Courts, 34 Haw. J. Hist. 1, 1 (2000). A "poetic, expressive language" consisting of over 25,000 words, it is considered by linguists to "belong[ ] to the family of Austronesian (Malayo-Polynesian) languages." Id. The makeup of ‘olelo Hawai‘i is reflective of the history and cultural priorities of the people who speak it; for example, the language includes approximately 130 words for types of rain, 160 words for types of wind, and 133 words for house. Id. at 2; Mary Kawena Pukui & Samuel H. Elbert, New Pocket Hawaiian Dictionary 225 (1992). ‘Olelo Hawai‘i also utilizes and incorporates figurative meaning "to an extent unknown in English." Lucas, supra, at 2 (quoting Albert J. Schütz, The Voices of Eden: A History of Hawaiian Language Studies 209-10 (1994)). Further, the spoken word aided in the formation and perpetuation of a shared Hawaiian identity. In the words of Kiowa novelist, poet, and essayist N. Scott Momaday,

Oral tradition is the other side of the miracle of language. As important as books are--as important as writing is, there is yet another, a fourth dimension of language which is just as important, and which, indeed, is older and more nearly universal than writing: the oral tradition, that is, the telling of stories, the recitation of epic poems, the singing of songs, the making of prayers, the chanting of magic and mystery, the exertion of the human voice upon the unknown—in short, the spoken word. In the history of the world nothing has been more powerful than that ancient and irresistible tradition vox humana.

N. Scott Momaday, Man Made of Words 81 (1997).

In 1795, the Kingdom of Hawai‘i was established, and King Kamehameha I completed the unification of the islands under his rule in 1810. Native Hawaiian Law: A Treatise 10 (Melody Kapilialoha MacKenzie et al. eds., 2015). Thereafter, Western missionaries traveled to the kingdom intending to educate the local populace about Christianity. Ka‘ano‘i Walk, Comment, "Officially" What? The Legal Rights and Implications of ‘Olelo Hawai‘i, 30 U. Haw. L. Rev. 243, 244 (2007). The missionaries set about standardizing a written form of oral ‘olelo Hawai‘i in order to provide more effective instruction and facilitate the dissemination of their lessons among the islands’ inhabitants. Lucas, supra, at 2. In 1822, they published the Pi ‘a pa, the first written primer on the Hawaiian language. Id.

The Hawaiian people quickly mastered the written word. Newspapers were published in ‘olelo Hawai‘i as early as 1834, and nearly three-quarters of the adult Hawaiian population were literate in their native language by 1853. Id.

‘Olelo Hawai‘i came to coexist in many contexts with English, which was often employed "[o]f necessity ... to record transactions of the government in its various branches, because the very ideas and principles adopted by the government [came] from countries where the English language [was] in use." In re Ross, 8 Haw. 478, 480 (Haw. Kingdom 1892). The two languages were generally viewed as interchangeable for official business, and the "use of the Hawaiian language in any instance" was "perfectly regular and legal." Id. Indeed, beginning in 1846, the Hawaiian legislature declared that all laws enacted would be published in both English and ‘olelo Hawai‘i. Lucas, supra, at 3 (citing Act of Apr. 27, 1846, ch. 1, art. 1, sec. 5). Early decisions by this court "reaffirmed the supremacy of Hawai‘i’s indigenous language as the governing law of the Islands," by holding that it was the ‘olelo Hawai‘i version of a statute that was controlling in the event of a conflict between the two publications. Lucas, supra, at 3 (citing Metcalf v. Kahai, 1 Haw. 225, 226 (Haw. Kingdom 1856) ; Hardy v. Ruggles, 1 Haw. 255, 259 (Haw. Kingdom 1856) ).

It is thus unsurprising that when King Kamehameha III first established Hawai‘i’s centralized public education system in 1841, the curriculum was primarily delivered through the medium of the Hawaiian language. Haw. State Dep’t of Educ., History of Hawaiian Education. Foreign political and economic influence led to the founding of competing English-standard schools over the next half century. Lucas, supra, at 4-8. However, Hawaiian language schooling remained widely available when in 1893 a group of "American and European sugar planters, descendants of missionaries, and financiers" conspired with the United States Minister to cause the invasion of United States armed forces, ultimately "depos[ing] the Hawaiian monarchy and proclaim[ing] the establishment of a Provisional Government." Pub. L. No. 103–150, 107 Stat. 1510 (1993).

2. Post-Overthrow Suppression

Three years after the overthrow, the newly formed Republic of Hawai‘i enacted legislation officially declaring that "[t]he English language shall be the medium and basis of instruction in all public and private schools .... Any schools that shall not conform to the provisions of this section shall not be recognized by the Department." Lucas, supra, at 8 (quoting Act of June 8, 1896, ch. 57, sec. 30 (codified in 1897 Haw. Comp. Laws at sec. 123)). Contemporary sources suggest that the law was specifically intended to eradicate knowledge of ‘olelo Hawai‘i in future generations. See id. The number of Hawaiian-medium schools dropped precipitously as a result of the legislation; 150 such institutions existed in 1880, and none remained by 1902. Id. at 9. Simultaneously, Hawaiian children and teachers were disciplined for speaking ‘olelo Hawai‘i in public school, with teachers in some instances even being dispatched to Hawaiian-speaking homes to reprimand parents for employing the language to speak to their children. Id.

The law was largely successful at achieving its apparently intended effect. Although the government instituted by the overthrow was replaced when Hawai‘i was annexed by the United States and again when the islands achieved statehood, ‘olelo Hawai‘i newspapers, church services, and other cultural touchstones all but disappeared as native-speaking communities continued to dwindle. Id. at 9-10. Minor efforts to reintroduce ‘olelo Hawai‘i into the public school curriculum as a supplemental foreign language course did little to arrest its decline. Id. At its lowest point, there were as few as fifty native speakers of the language under the age of 18. Native Hawaiian Law, supra, at 1274. ‘Olelo Hawai‘i was thus in danger of becoming a dead language when, in the 1970s, civil and indigenous rights movements across the nation coincided with a period of renewed interest in Native Hawaiian culture that became known as the Hawaiian Renaissance. Id.; Courtenay W. Daum & Eric Ishiwata, From the Myth of Formal Equality to the Politics of Social Justice: Race and the Legal Attack on Native Entitlements, 44 Law & Soc’y Rev. 843, 860–61 (2010). During this period, a traditional Hawaiian proverb became popularized among advocates for the revitalization of ‘olelo Hawai‘i: "E ola mau ka ‘olelo Hawai‘i," which has been translated as "the Hawaiian language must live on."

3. The 1978 Constitutional Convention

It was against the backdrop of the Hawaiian Renaissance that Hawai‘i convened its 1978 Constitutional Convention. The records of the convention are replete with the delegates’ expressions of remorse that they had not learned more about Native Hawaiian cultural heritage during their upbringing, as well as their fear that such information would soon be lost as community elders died without passing on their knowledge. See, e.g., II Proceedings of the Constitutional Convention of Hawai‘i of 1978, at 427-30 (1980) (II Proceedings). The convention adopted a number of measures aimed at embracing and revitalizing the Native Hawaiian culture, including a proposal containing several provisions specifically addressing ‘olelo Hawai‘i. First, seeking to "overcome certain insults of the past where the speaking of Hawaiian was forbidden in the public school system, and of [the day] where Hawaiian [was] listed as a foreign language in the language department at the University of Hawaii," the framing delegates adopted an amendment giving ‘olelo Hawai‘i formal recognition as one of the State’s official languages. Comm. of the Whole Rep. No. 12 in I Proceedings of the Constitutional Convention of Hawai‘i of 1978, at 1016 (1980) (I Proceedings). Second, the delegates sought to remedy the lack of opportunity to learn about Hawaiian language and culture through an amendment requiring the State to "provide for a comprehensive Hawaiian education program consisting of language, culture[,] and history as part of the regular curriculum of the public schools." Stand. Comm. Rep. No. 57 in I Proceedings, at 637. Specifically, the delegates stated that they intended this latter provision to, inter alia, "revive the Hawaiian language, which is essential to the preservation and perpetuation of Hawaiian culture." Id. The measure was combined with a proposal for a broader mandate that the State "promote the study of Hawaiian culture, history and language," and together they were adopted as a single amendment. I Proceedings, at 273-74.

Both the official language and the Hawaiian studies and education provisions were ratified by the electorate, and today they are respectively codified as article XV, section 4 and article X, section 4 of the Hawai‘i Constitution.

4. Hawaiian Immersion Education

During the early 1980s, a group of Hawaiian language teachers formed ‘Aha Punana Leo, Inc. (‘Aha Punana Leo), a non-profit organization dedicated to the revival of ‘olelo Hawai‘i. ‘Aha Punana Leo, Inc., A Timeline of Revitalization. Seeking to replicate the success of a similar program instituted by the Maori of New Zealand, ‘Aha Punana Leo founded a number of "Kula Kaiapuni Hawai‘i" preschools throughout the state. Id. As in the school system established by King Kamehameha III, instruction in the preschools was delivered entirely in ‘olelo Hawai‘i. Id. The goal of these "language nests" was to instill fluency in ‘olelo Hawai‘i in a new generation at an age when children are most receptive to acquiring language skills. See id.

Simultaneously, the organization lobbied the Hawai‘i legislature to grant formal status to the new Kula Kaiapuni Hawai‘i preschools and to amend the successor to the 1896 English-only law in order to permit the use of ‘olelo Hawai‘i as a medium of instruction in public schools. Id. The group’s initial efforts were unsuccessful, and upon entering kindergarten many of the preschools’ first graduates were placed in limited English proficiency programs designed to accommodate immigrant children. Id. This led to a boycott and other direct activism, and in 1986, ‘Aha Punana Leo successfully convinced the legislature to remove legal barriers to the preschools’ operation. See 1986 Haw. Sess. Laws Act 79, § 1 at 104. The committee reports for the measure indicate the legislature found "support for the exemption in Article X, Section 4 of the State Constitution, which states that the State shall promote the study of Hawaiian culture, history and language, and in Article XV, Section 4 of the State Constitution, which prescribes Hawaiian and English as the official languages of the State." H. Stand. Comm. Rep. No. 745-86, in 1986 House Journal, at 1359. The reports further expressed in no uncertain terms the legislature’s view that Hawaiian immersion education should be allowed to grow: "As the survival of a culture is linked to the survival of its language, restricting the establishment of Hawaiian language programs is cultural and linguistic genocide." S. Stand. Comm. Rep. No. 411-86, in 1986 Senate Journal, at 955.

During the same legislative session, ‘Aha Punana Leo successfully lobbied the legislature to authorize the Hawai‘i Board of Education (the Board) to undertake "special projects using the Hawaiian language" that would be exempt from the normal requirements of English-language instruction. See 1986 Haw. Sess. Laws Act 47, § 1 at 50-51. The following year, the Board launched the Hawaiian Language Immersion Project, a two-year pilot program for children who wished to continue their education in ‘olelo Hawai‘i after graduating from ‘Aha Punana Leo preschools. Lucas, supra, at 11. The program, which became known as Ka Papahana Kaiapuni ("Kaiapuni Educational Program"), was an immediate success; it was expanded to the second grade in 1988 and through the sixth grade in 1989. Id. In 1992, the Board of Education further expanded the program through the twelfth grade, incorporating an hour of English education every day after fourth grade, and the first Kaiapuni Educational Program class graduated from high school in June of 1999. Id.

Despite its success, funding for the Kaiapuni Educational Program remained static as the program grew, causing overall funding per student to decrease sharply. MacKenzie et al., supra, at 1276. The decline led the Office of Hawaiian affairs to file a series of lawsuits against the Department of Education in the mid-1990s seeking redress for the Department’s failure to provide the Kaiapuni Educational Program with a "proper plan, resources, and teachers trained in Hawaiian-immersion education." Id. The litigation concluded in May 2000 with a settlement in which the two agencies agreed to implement a five-year joint funding plan. Id. at 1278. In recognition of this agreement and in order to "provide[ ] official legislative support to the Department’s commitment to Hawaiian language immersion programs," the Hawai‘i legislature in 2004 enacted a bill formally codifying a series of provisions governing the Kaiapuni Educational Program’s operations. S. Stand. Comm. Rep. No. 3144, in 2004 Senate Journal, at 1567; 2004 Haw. Sess. Laws Act 133, §§ 1-5 at 577-78. Among other things, the law authorized the superintendent of education to provide either facilities for Hawaiian immersion education or transportation to the nearest schooling site at which Hawaiian immersion education is provided when fifteen or more qualified students in a school district wish to enroll in the Kaiapuni Educational Program. HRS § 302H-4 (2007).

In 2014 and 2015, the Board enacted and began to implement several new policies concerning Hawaiian education, including one overarching policy intended to govern the Kaiapuni Educational Program. According to this policy, the goal of the Kaiapuni Educational Program is, inter alia, "[t]o provide parents and student[s] a Hawaiian bicultural and bilingual education based upon a rigorous Hawaiian content and context curriculum." Haw. State Bd. of Educ., Policy 2105: Ka Papahana Kaiapuni (2014). The policy further states that "[e]very student within the State of Hawai‘i’s public school system should have reasonable access to the Kaiapuni Educational Program." Id. An Office of Hawaiian Education was formed within the Department of Education to administer the new policies, which the Department’s website states are intended to help "the Department meet its obligations to ... the Hawai‘i State Constitution (Article X, Section 4 and Article XV, Section 4 )." Haw. State Dep’t of Educ., Hawaiian Education.

The Kaiapuni Educational Program has continued to grow, and as of February 2016, Hawaiian immersion options existed at twenty-one sites throughout the state--fifteen under the Board’s direct management and six at charter schools. Consequently, parents and children who wish to undertake schooling through the medium of ‘olelo Hawai‘i may seek enrollment in a K-12 immersion program on five of the major Hawaiian Islands: O‘ahu, Maui, Hawai‘i Island, Moloka‘i, and Kaua‘i.

5. Hawaiian Immersion and Public Education on Lana‘i

Public school students on the island of Lana‘i are required to take courses related to Hawaiian history and culture over the course of their education, including "Pre-Contact Hawai‘i History" in fourth-grade, "History of the Hawaiian Kingdom" in seventh-grade, and "Modern Hawaiian History" in high school. A Hawaiian language summer program has also been offered in recent years. However, there is currently no Kaiapuni Educational Program on Lana‘i.

In December 2013, a community meeting was held in the cafeteria of Lana‘i High and Elementary School (Lana‘i School), the island’s sole public school, to discuss implementing a Hawaiian language immersion program. The meeting generated considerable community interest and was attended by over a hundred people. A Hawaiian immersion stakeholders’ group was formed, and the group proceeded to engage with the school principal in the months following the meeting regarding the development of a Kaiapuni Educational Program on the island.

During these exchanges, the principal agreed to commit resources and a teacher position to the creation of an immersion program while allowing the stakeholders’ group to plan its structure, including the initial grade levels to be covered and the immersion model to be adopted. The stakeholders’ group originally made plans to establish one kindergarten and first-grade immersion class, but in February 2014 the group responded to strong continued interest from the community by expanding its request to include an additional second- and third-grade class. The principal expressed tentative support for the expanded proposal, pledging to seriously consider dedicating a second teacher position to the program.

For two-weeks in April 2014, a Lana‘i immersion teacher position was advertised internally with the Department of Education via the Teacher Assignment and Transfer Program. The only applicant during this period was the president of the stakeholders’ group, an immersion teacher living on Maui who had strong family ties to Lana‘i and had for several years administered a Hawaiian language summer program on the island. In early May 2014, however, the applicant informed the principal by phone that she would be declining the position.

The school’s subsequent efforts to recruit outside the Department were also unsuccessful; although the principal worked with the community to identify a number of possible teachers, each of the candidates either lacked the necessary skills and credentials to administer an immersion program or proved to be unwilling to relocate to Lana‘i. Because an immersion program did not commence as planned, the principal hired Simon Tajiri, the former program manager of the Lana‘i Cultural and Heritage Center, as a long-term substitute teacher to provide supplemental lessons on Hawaiian language, culture, and history to elementary school students. As of February 2016, recruitment efforts for a full-time immersion teacher remained ongoing.

According to the school principal, recruiting teachers to Lana‘i is difficult due to the island’s location; many teachers are not interested in moving to a geographically isolated area with limited access to housing, childcare, and other conveniences. The principal also asserts that the school is limited in the incentives it can offer--teacher’s salaries are set by the collective bargaining agreement between the Board and the Hawaii State Teachers Association, as is statutorily required, and the school does not have the discretion to increase these amounts to attract new teachers. Although the collective bargaining agreement does provide for an additional pay differential for teachers employed at hard-to-staff schools, this amount was limited to $1,500 per year of employment at the time of the events in this case.

B. The Present Case

1. The Clarabals’ Move to Lana‘i

Prior to August 2013, Chelsa-Marie Kealohalani Clarabal moved to Lana‘i with her husband and children, including her two young school-age daughters. In or around August 2013, the two Clarabal daughters respectively enrolled in second-grade and kindergarten at Lana‘i School.

Although Clarabal is Native Hawaiian and states that her great grandmother was fluent in ‘olelo Hawai‘i, her grandmother was discouraged from speaking the language or teaching it to her children, and English is therefore the primary language spoken in the Clarabal family home. Because Clarabal viewed it as fundamental to her cultural identity that her daughters learn their ancestors’ language, the two daughters had been enrolled in the Kaiapuni Educational Program at Pa‘ia Elementary School on the island of Maui prior to moving to Lana‘i. Consequently, both daughters were able to read and write only in ‘olelo Hawai‘i when they began attending Lana‘i School at the beginning of the 2013-14 school year.

The daughters faced difficulties at Lana‘i School as a result of this language barrier, and Clarabal unsuccessfully requested that the school assign an educational assistant to assist one of her daughters after she was reprimanded for responding to a written assignment in ‘olelo Hawai‘i. Clarabal began attending some of the meetings between the school principal and the stakeholders’ group regarding the creation of a Hawaiian immersion program, and in late April 2014 she was informed that her younger daughter had been accepted into the school’s first immersion class, which would be held the following school year. When the 2014-15 school year began, however, no Hawaiian immersion class commenced. Instead, the daughters were respectively assigned to first- and third-grade classrooms for which no permanent teachers were provided, with the vice-principal and various substitute teachers instead teaching the classes on a temporary basis.

2. Circuit Court Proceedings

On October 24, 2014, Clarabal filed a complaint in Circuit Court for the First Circuit (circuit court) on behalf of herself and her daughters against the Hawai‘i Department of Education, the Board, and the members of the Board in their official capacities (collectively, "the State"). In her prayer for relief, Clarabal sought a declaration that the failure to provide a Hawaiian immersion program and a stable teacher workforce on Lana‘i violated her children’s rights under the Hawai‘i Constitution, as well as an order compelling the State to develop a plan to implement a Kaiapuni Educational Program and ensure consistent staffing at Lana‘i School. Specifically, Clarabal alleged in Count 2 of her complaint that by failing to establish a Hawaiian immersion program on Lana‘i that her daughters could attend, the State had breached the duty to provide a Hawaiian education program in public schools imposed by article X, section 4 of the Hawai‘i Constitution.

On February 26, 2016, the State filed two motions for partial summary judgment collectively covering all counts in Clarabal’s complaints. On March 17, 2016, Clarabal filed a cross-motion for partial summary judgment on all counts requesting that the court declare as a matter of law that the State has a duty and obligation to provide access to a Hawaiian language immersion program to her daughters.

With respect to Count 2, the State argued that article X, section 4 does not on its face establish an individually enforceable right to Hawaiian immersion education. This reading is confirmed by excerpts from the records of the 1978 Constitutional Convention, the State contended, which suggest the provision was intended to preserve and perpetuate Hawaiian culture by ensuring Hawaiian history, culture, and language are integrated into the "regular curriculum" of public schools that is typically taught in English. (Citing Stand. Comm. Rep. No. 57 in I Proceedings, at 637-38.) The State further argued that the text and history of article XV, section 4 of the Hawai‘i Constitution, which establishes Hawaiian as an official language of the state, make clear that the delegates intended the State to have discretion to consider the budget and other constraints when determining which official services would be offered in ‘olelo Hawai‘i. (Citing Stan. Comm. Rep. No. 57 in I Proceedings, at 638.)

The State maintained that the standard Hawaiian history classes as well as the supplemental Hawaiian instruction by Tajiri are sufficient to spark students’ interests and inspire them to take Hawaiian language electives, and that the classes and instruction thus contribute to the revival of ‘olelo Hawai‘i as the convention delegates intended. The classes therefore meet the State’s article X, section 4 obligation to provide a Hawaiian education program in public schools, the State concluded.

In her opposition to the State’s motions and in her motion for partial summary judgment, Clarabal contended that the convention history indicates the delegates intended article X, section 4 to require that the State provide a "comprehensive Hawaiian education program" sufficient to revive the Hawaiian language. (Citing, inter alia, Comm. of the Whole Rep. No. 11 in I Proceedings, at 274; Stand. Comm. Rep. No. 39 in I Proceedings, at 586, 590; Stand. Comm. Rep. No. 57 in I Proceedings, at 637.) Attached to Clarabal’s motion for partial summary judgment were a number of exhibits detailing the opinions of academics specializing in linguistics and Hawaiian studies regarding the importance of Hawaiian immersion education.

These exhibits included a declaration by William O’Grady, a Professor of Linguistics of the University of Hawai‘i at Manoa who specializes in language revitalization. The declaration stated that the United Nations Educational, Scientific and Cultural Organization currently classifies ‘olelo Hawai‘i as a severely endangered language, meaning that immediate remedial action is needed to prevent its extinction. Professor O’Grady further opined that relying on school-based language immersion programs in which children have the opportunity to hear and use the language for several hours a day is "the only realistic course of action" to revive the language. He stated that research on bilingualism indicates that children should receive at least twenty-five to thirty percent of their language input in the second language to achieve fluency. The "modest program of instruction" currently offered at Lana‘i School is not sufficient to reach this benchmark, Professor O’Grady concluded, and the chances of the children enrolled there achieving fluency through the current program are "negligible."

Clarabal attached an additional deposition of Professor O’Grady to her reply brief in which he reiterated the necessity of Hawaiian immersion education for reviving ‘olelo Hawai‘i. Professor O’Grady stated that "[t]he only hope of saving [‘olelo Hawai‘i], preserving it, perpetuating it is to introduce it in the school," and that the level of instruction required is "not 1 or 2 or 3 hours a week. It’s got to be full-fledged exposure, the sort you get in an immersion program." He estimated that four to four-and-a-half hours a day of Hawaiian language input in school is necessary for a child to become reasonably fluent in ‘olelo Hawai‘i. He further elaborated that offering an immersion program is "the least we can do to try to revitalize language" and that while other measures can supplement an immersion program, they could not replace it. The immersion program is not "the gold standard" for language revitalization, Professor O’Grady concluded, but rather "the minimum standard." Specifically addressing the supplemental lessons offered by Tajiri at Lana‘i school, Professor O’Grady stated that they were not providing any movement toward revitalization because they are "not an effective way to make the children fluent in the Hawaiian language."

Also attached to Clarabal’s motion for partial summary judgment was a second declaration made by Stanley H. "Ki‘ope" Raymond II, a member of the Board of Directors of ‘Aha Punana Leo and an associate professor of Hawaiian Studies at University of Hawai‘i Maui College. Professor Raymond stated that a well-documented reemergence of ‘olelo Hawai‘i has occurred since the Kaiapuni Educational Program was first implemented in public schools. Professor Raymond further declared that it is well accepted within his academic field that the offering of Hawaiian immersion programs in the public school system "is absolutely necessary to ensure the preservation of ‘olelo Hawai‘i for use by future generations."

Following oral argument, the circuit court orally granted the State’s motions for partial summary judgment and denied Clarabal’s motion for partial summary judgment. With respect to Count 2, the court found that " Article X, Section 4, the Hawaiian education clause does not establish a constitutional right to an immersion program." The court ruled that the reports from the 1978 Constitutional Convention made it "clear that a comprehensive Hawaiian education program consisting of language, culture and history as part of the regular curriculum in the public schools is what is required." The education offered by the State at Lana‘i School, coupled with the State’s legitimate efforts to establish a Lana‘i-based Hawaiian immersion program, were sufficient to meet this constitutional obligation, the court found.

The circuit court’s written order and final judgment were entered on June 7, 2016. Clarabal filed a timely notice of appeal, followed by an application to this court for transfer. On January 26, 2017, this court accepted transfer.

II. STANDARD OF REVIEW

This court reviews questions of law de novo. Bank of Hawaii v. DeYoung, 92 Hawai‘i 347, 351, 992 P.2d 42, 46 (2000). This includes a trial court’s grant or denial of summary judgment. Yoneda v. Tom, 110 Hawai‘i 367, 371, 133 P.3d 796, 800 (2006). Similarly, we exercise "our own ‘independent constitutional judgment’ " when interpreting constitutional provisions. Ka Pa‘akai O Ka‘Aina v. Land Use Comm’n, State of Hawai‘i, 94 Hawai‘i 31, 41, 7 P.3d 1068, 1078 (2000) (quoting State v. Sua, 92 Hawai‘i 61, 68, 987 P.2d 959, 966 (1999) ).

III. DISCUSSION

Before this court, Clarabal argues, inter alia, that the circuit court erred in granting the State’s motion for partial summary judgment and denying her own because article X, section 4 of the Hawai‘i Constitution obligates the State to provide her daughters with access to a Hawaiian immersion program. As we have often stated, "[s]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Hawaii Cmty. Fed. Credit Union v. Keka, 94 Hawai‘i 213, 221, 11 P.3d 1, 9 (2000) (quoting Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 103, 839 P.2d 10, 22 (1992) ). In making this evaluation, we view the evidence in the light most favorable to the non-moving party. Id. (citing State ex rel. Bronster v. Yoshina, 84 Hawai‘i 179, 186, 932 P.2d 316, 323 (1997) ).

"We have long recognized that the Hawai‘i Constitution must be construed with due regard to the intent of the framers and the people adopting it, and the fundamental principle in interpreting a constitutional provision is to give effect to that intent." Hirono v. Peabody, 81 Hawai‘i 230, 232, 915 P.2d 704, 706 (1996) (quoting Convention Ctr. Auth. v. Anzai, 78 Hawai‘i 157, 167, 890 P.2d 1197, 1207 (1995) ). The starting point for determining this intent is the text of "the instrument itself." State v. Kahlbaun, 64 Haw. 197, 201, 638 P.2d 309, 314 (1981).

Article X, section 4 of the Hawai‘i Constitution provides as follows:

The State shall promote the study of Hawaiian culture, history and language.

The State shall provide for a Hawaiian education program consisting of language, culture and history in the public schools. The use of community expertise shall be encouraged as a suitable and essential means in furtherance of the Hawaiian education program.

The State contends that the provision makes no direct mention of Hawaiian immersion education, but rather simply a "Hawaiian education program." Thus, the State argues, article X, section 4 requires only that the State provide public school students with "exposure to and some instruction in Hawaiian language, history and culture." The manner in which students are exposed to Native Hawaiian studies is a non-justiciable policy decision left to the State’s discretion, the State continues, and the courses and instruction currently offered at Lana‘i School are thus sufficient to fulfill the State’s obligations.

The initial two clauses of article X, section 4 are phrased in broad terms. The first, the Hawaiian Studies clause, obliges the State to "promote the study of Hawaiian culture, history and language." A conventional dictionary defines "promote" as "to help bring (something, such as an enterprise) into being." The second, the Hawaiian Education clause, requires the State to "provide for a Hawaiian education program consisting of language, culture and history in the public schools." "Program" is conventionally defined as "a plan or system under which action may be taken toward a goal." Thus, the plain text of the provisions require the State to (1) actively bring about the growth of Hawaiian culture, history, and language studies; and (2) establish a system in public schools that provides students an education consisting of Hawaiian language, culture, and history. The clauses neither spell out the methods the State must use in achieving these ends, nor do they expressly leave this determination to the State. They are ambiguous in this regard, and "extrinsic aids may [therefore] be examined to determine the intent of the framers and the people adopting the proposed amendment." Kahlbaun, 64 Haw. at 201–02, 638 P.2d at 314.

The standing committee report by the Committee of Hawaiian Affairs on the proposal that would eventually become article X, section 4 contains several indications that the framers intended the provision to require the State to implement a Hawaiian education program in public schools that exceeds the minimum standards argued for by the State. The report states that the "Committee decided to adopt this amendment to the Constitution in order to insure that there is a comprehensive Hawaiian education program consisting of language, culture and history as part of the regular curriculum of the public schools." Stand. Comm. Rep. No. 57 in I Proceedings, at 637 (emphasis added). The Committee’s use of the word comprehensive is telling; the term is commonly defined as "covering completely or broadly." Later, the report refers to the program as an "intensive study." Id. at 638. It is thus clear that the Hawaiian education program contemplated by the provision encompasses more than minimal "exposure to and some instruction in Hawaiian language, history and culture," as contended by the State. Rather, the framers intended the clause to ensure that students have the opportunity to study Hawaiian language, history, and culture in an in-depth and expansive manner if they so choose.

Further, "a constitutional provision must be construed ... in the light of the circumstances under which it was adopted and the history which preceded it." Hawai‘i State AFL-CIO v. Yoshina, 84 Hawai‘i 374, 376, 935 P.2d 89, 91 (1997) (quoting Carter v. Gear, 16 Haw. 242, 244 (Haw. Terr. 1904) ); see also Nelson v. Hawaiian Homes Comm’n, 127 Hawai‘i 185, 198, 277 P.3d 279, 292 (2012) (holding that this court must consider "the history of the times and the state of being when the constitutional provision was adopted" (quoting Kahlbaun, 64 Haw. at 202, 638 P.2d at 315 ))). Specifically, "the object sought to be accomplished and the evils sought to be remedied should be kept in mind by the courts." Nelson, 127 Hawai‘i at 198, 277 P.3d at 292 (quoting Hawaii Gov’t Emps.’ Ass’n v. Cty. of Maui, 59 Haw. 65, 81, 576 P.2d 1029, 1039 (1978) ).

As discussed supra, the 1978 Constitutional Convention was convened during the Hawaiian Renaissance, a time of renewed interest in Hawaiian culture following a long period in which learning about traditional Hawaiian language and history in schools was at best shallow, sporadic, and undirected and at worst discouraged or forbidden. See II Proceedings, at 428 (statement of Del. Nozaki). The debates of the Committee of the Whole during this Convention provide clear evidence of the specific evil the delegates intended article X, section 4 to remedy; the delegates repeatedly and expressly stated that the proposal that would become article X, section 4 was designed to correct the lasting effects of the campaign of suppression that had deprived them and their families of the opportunity to become fluent in ‘olelo Hawai‘i. Delegate Kaapu related the story of his father, who grew up in a small district served by a single school in which students "were prohibited from speaking the Hawaiian language" and were "made to do detention .... pulling weeds" if they were caught. Id. at 429 (statement of Del. Kaapu). He then stated that during his own childhood, he did not have the chance to learn ‘olelo Hawai‘i, and that his own son was only then learning the language on his own from a "language book." Id. at 430. Delegate Chung similarly related that, when he took Hawaiian as a freshman at the University of Hawai‘i, his class had "eight Kamehameha graduates and none of them knew Hawaiian." Id. at 431 (statement of Del. Chung). Delegate Hale stated that he had engaged in protest so that his son could go to "the only school located in the whole State of Hawai‘i that taught Hawaiian in the fourth grade," and that even in this school his son was unable to learn more than a superficial amount of the language. Id. at 431 (statement of Del. Hale).

Ultimately, we need not speculate about the manner in which the framers sought to make amends for the historical campaign of suppression because the records of the convention are explicit as to the goals they intended the Hawaiian education program required by article X, section 4 to achieve:

This section is intended to [ ] insure the general diffusion of Hawaiian history on a wider basis, to recognize and preserve the Hawaiian culture which has contributed to, and in many ways forms the basis and foundation of, modern Hawaii, and to revive the Hawaiian language, which is essential to the preservation and perpetuation of Hawaiian culture.

Stand. Comm. Rep. No. 57 in I Proceedings, at 637 (emphases added). Article X, section 4 was thus adopted for the express purpose of, inter alia, reviving the Hawaiian language.

Taken together, the records of the 1978 Constitutional Convention make clear that the framers intended article X, section 4 to require the State to provide a Hawaiian education program in public schools that is reasonably calculated to revive and preserve ‘olelo Hawai‘i. By doing so, they hoped to rectify the ill effects of the historic suppression of the language. The State’s position--that any exposure to Hawaiian language, history, and culture is sufficient to satisfy its constitutional obligations, and that the specific manner of exposure is left to the State’s discretion--is fundamentally incompatible with the framers’ intention. Indeed, under the State’s formulation, it could do away with the Kaiapuni Educational Program entirely and instead satisfy its constitutional obligations with a program that the record demonstrates is indisputably inadequate to revive and preserve ‘olelo Hawai‘i. This is precisely the outcome the delegates adopted article X, section 4 to prevent.

The dissent disagrees with this analysis. It contends that determining the details of the Hawaiian education program mandated by article X, section 4 is a "responsibility [ ] best left to the Legislature, not the courts," and that the legislature has made such a determination by enacting HRS Chapter 302H. Dissent at 145 Hawai'i at 96–97, 98 n.5, 446 P.3d at 1013–14, 1015 n.5. As a threshold matter, any implication that HRS Chapter 302H requires that the State maintain the Kaiapuni Educational Program is contradicted by the terms of the statutes, which authorize the State to create a Hawaiian immersion program but do not mandate that it do so.

But more importantly, although the dissent is correct that the legislature may play an important role in defining the specific details of the Hawaiian education program required by article X, section 4, the delegates did not draft the provision to allow legislative enactments to alter or qualify the central requirement that the State provide a Hawaiian education program that is constitutionally adequate. This approach directly contrasts with that taken by the delegates with regard to the constitutional provision that made Hawaiian an official language of the state, which was considered and enacted at the same time as article X, section 4. That is, unlike in the Hawaiian Education clause, the framers expressly stated that "English and Hawaiian shall be the official languages of Hawaii, except that Hawaiian shall be required for public acts and transactions only as provided by law." Haw. Const. art. XV, sec. 4 (emphasis added); see also, e.g., Haw. Const. art. XI, sec. 9 ("Each person has the right to a clean and healthful environment, as defined by laws relating to environmental quality ...." (emphasis added)). Thus, the delegates did not intend that the requirements of the program would be solely defined by legislative enactments. Instead, they intended the core requirement that the State provide a constitutionally adequate Hawaiian education program to be defined by this court’s interpretation, for it is "the courts, not the legislature, [who] are the ultimate interpreters of the Constitution." In re Application of Maui Elec. Co., 141 Hawai‘i 249, 268 n. 33, 408 P.3d 1, 20 n.33 (2017) (quoting State v. Bani, 97 Hawai‘i 285, 291 n.4, 36 P.3d 1255, 1261 n.4 (2001) ). And, as stated, "we have long recognized that the Hawaii Constitution must be construed with due regard to the intent of the framers and the people adopting it, and the fundamental principle in interpreting a constitutional provision is to give effect to that intent." Sierra Club v. Dep’t of Transp. of Hawai‘i, 120 Hawai‘i 181, 196, 202 P.3d 1226, 1241 (2009) (quoting Hanabusa v. Lingle, 105 Hawai‘i 28, 31–32, 93 P.3d 670, 673–74 (2004) ).

It is true that the delegates to the 1978 Constitutional Convention lacked the benefit of subsequent academic research on the revitalization of languages, and they may not have anticipated the contours of a Hawaiian education program reasonably calculated to revive ‘olelo Hawai‘i under current circumstances. Yet, as Justice Stone of the United States Supreme Court said in a passage that has been approvingly quoted by members of this court:

[I]n determining whether a provision of the Constitution applies to a new subject matter, it is of little significance that it is one with which the framers were not familiar. For in setting up an enduring framework of government they undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those fundamental purposes which the instrument itself discloses. Hence we read its words, not as we read legislative codes which are subject to continuous revision with the changing course of events, but as the revelation of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of government. If we remember that it is a Constitution we are expounding, we cannot rightly prefer, of possible meanings of its words, that which will defeat rather than effectuate the Constitutional purpose.

Emps.’ Ret. Sys. of Hawaii v. Ho, 44 Haw. 154, 170–71, 352 P.2d 861, 870 (1960) (opinion of Marumoto, J.) (quoting United States v. Classic, 313 U.S. 299, 316, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941) (emphases added and internal quotes omitted); cf. State v. O’Brien, 68 Haw. 38, 44, 704 P.2d 883, 887 (1985) ("[T]he mandate of the constitution must accord with the changing circumstances of modern times and the exigencies of life in a society dependent on technology such as the automobile.").

Thus, the specifics of the Hawaiian education program required by article X, section 4 have evolved through time and will continue to be refined as circumstances and the state of human knowledge about reviving and preserving language changes. What is key is that the program effectuates the constitutional purpose of article X, section 4 by being reasonably calculated to revive ‘olelo Hawai‘i.

The State and the trial court made much of the Committee of Hawaiian Affair’s statement that the instruction is to be "part of the regular curriculum of the public schools," apparently interpreting "regular" as synonymous with "ordinary" or "standard." Yet "regular" also means "recurring, attending, or functioning at fixed, uniform, or normal intervals," and further examination of the committee report indicates that it is this latter meaning that was intended. The Committee lamented that "[p]resently Hawaiian courses are part of a larger program called social studies" and, as part of this program, "the required units of Hawaiian courses cast a small shadow which is soon lost in the wave of western standards." Stand. Comm. Rep. No. 57 in I Proceedings, at 637. The Committee thus intended article X, section 4 to insure that Hawaiian studies were offered consistently throughout the course of schooling and not as special, one time units within a broader academic program. This is what was intended by the Committee’s reference to the "regular curriculum" of public schools, and the provision does not require that Hawaiian studies be conducted in the same manner as other courses.

This case comes before this court on a motion for summary judgment, and the undisputed evidence in the record demonstrates that providing reasonable access to a Hawaiian immersion program in public schools is necessary to the revival of ‘olelo Hawai‘i. As related above, William O’Grady, a linguistics professor specializing in language revitalization, stated repeatedly and emphatically in his declaration and deposition that a language immersion program in which children receive at least twenty-five to thirty percent of their language exposure in ‘olelo Hawai‘i is currently "the only realistic course of action" to revive the language and preserve it for future generations. He explained that providing reasonable access to an immersion program is not "the gold standard" for language revitalization, but rather "the minimum standard." This conclusion was echoed by Stanley H. "Ki‘ope" Raymond II, a professor of Hawaiian Studies, who stated that it is well accepted within his field that offering a Hawaiian immersion education option in the public school system "is absolutely necessary to ensure the preservation of ‘olelo Hawai‘i for use by future generations." The State offered no testimony or declarations disputing this evidence. Rather, the State argued below that exposing students to basic Hawaiian language, culture, and history through classes and instruction like those currently offered at Lana‘i School could increase student interest in the Hawaiian language and induce some student to seek out additional instruction, thereby reviving ‘olelo Hawai‘i. But this claim is unsupported by the evidence in the record. Professor O’Grady specifically rejected the contention that the instruction currently offered at Lana‘i School is "moving towards revitalization." Indeed, he stated that the lessons may in fact be detrimental to the effort by misleading parents into believing that their child will become fluent from the lessons, causing them to forego more adequate instruction.

On the record before us, there is no disputed issue of material fact that providing reasonable access to a Hawaiian immersion program is an essential component of any Hawaiian education program reasonably calculated to revive and preserve ‘olelo Hawai‘i, and it is thus required by article X, section 4. The circuit court therefore erred by granting the State’s motion for partial summary judgment with respect to Count 2 of Clarabal’s complaint.

What constitutes reasonable access is dependent on the totality of the circumstances of this case, and genuine issues of material fact exist as to whether the State has taken all reasonable measures to provide Clarabal’s daughters with access to a Hawaiian immersion program. As with all of the State’s constitutional obligations, article X, section 4 places an affirmative duty on the State to fulfil its mandate. See Mauna Kea Anaina Hou v. Bd. of Land & Nat. Res., 136 Hawai‘i 376, 402, 363 P.3d 224, 250 (2015) (Pollack, J., concurring, in which Wilson, J., joined, and McKenna, J., joined as to Part IV). The State should thus act with the goal of reviving and preserving ‘olelo Hawai‘i and the shared culture to which it is inextricably linked when determining whether it is reasonable to take additional steps to provide access to a Hawaiian immersion program. These steps might include providing greater financial or other incentives to attract immersion teachers to Lana‘i, furnishing transportation for a teacher to commute to Lana‘i, using multiple instructors to share teaching duties, partnering with community members knowledgeable in ‘olelo Hawai‘i, modifying school days or hours of instruction to accommodate the availability of a teacher, or adopting any other alternative method of providing access to a Hawaiian immersion program. Ultimately, all reasonable alternatives are to be considered to determine whether access to a Hawaiian immersion program is feasible, and the State is constitutionally obliged to take a reasonable course of action that would afford access to Clarabal’s daughters if any exists. Cf. In re Conservation Dist. Use Application HA-3568, 143 Hawai‘i 379, 414, 431 P.3d 752, 787 (2018) (Pollack, J., concurring) (requiring a showing of a lack of practicable alternatives to the use of constitutionally protected public trust conservation land).

We therefore affirm the circuit court’s denial of Clarabal’s motion for partial summary judgment, which requested a declaration that the State has a duty and obligation to provide her daughters with actual access to a Hawaiian immersion program, and remand for a determination of whether the State has taken all reasonable steps to afford Clarabal’s daughters access to Hawaiian immersion education in light of the circumstances associated with providing greater accessibility.

IV. CONCLUSION

A well known Hawaiian proverb states "I ka wa ma mua, ka wa ma hope," or, "In the past, lies the future." The spirit of this adage motivated the framers’ adoption of article X, section 4 of the Hawai‘i Constitution, which imposes on the State a duty to provide for a Hawaiian education program in public schools that is reasonably calculated to revive the Hawaiian language. Because the evidence in the record demonstrates that providing reasonable access to Hawaiian immersion education is currently essential to reviving the language, it is an essential component of any such program.

We therefore vacate in part the circuit court’s June 7, 2016 "Order: (1) Granting Defendants’ Motion for Partial Summary Judgment as to Counts 1 and 2 of the Complaint Filed February 26, 2016; (2) Granting Defendants’ Motion for Partial Summary Judgment as to Counts 3 and 4 of the Complaint filed February 26, 2016; and (3) Denying Plaintiff’s Motion for Partial Summary Judgment Filed March 17, 2016." The order is vacated insofar as it granted the State’s motion for partial summary judgment with respect to Count 2 of the complaint. The order is affirmed in all other respects. We also vacate the circuit court’s June 7, 2016 "Final Judgment Re: Order: (1) Granting Defendants’ Motion for Partial Summary Judgment as to Counts 1 and 2 of the Complaint Filed February 26, 2016; (2) Granting Defendants’ Motion for Partial Summary Judgment as to Counts 3 and 4 of the Complaint filed February 26, 2016; and (3) Denying Plaintiff’s Motion for Partial Summary Judgment Filed March 17, 2016." We remand for a determination of whether, under the circumstances, the State has taken all reasonable measures to provide access to a Hawaiian immersion program to Clarabal’s two daughters.

RECKTENWALD, C.J., CONCURRING IN THE JUDGMENT

Article X, section 4 of the Hawai‘i Constitution states that "[t]he State shall provide for a Hawaiian education program consisting of language, culture and history in the public schools." This appeal requires us to define the extent of that mandate and to determine whether the State fulfilled its obligations under article X, section 4 with respect to two children on the island of Lana‘i.

I conclude that article X, section 4 required the State to provide those students with a reasonable opportunity to become fluent in ‘olelo Hawai‘i through the public education system. Because the record does not establish as a matter of law that such an opportunity was afforded here, partial summary judgment was improperly granted to the State.

I. THE EXTENT OF THE STATE’S DUTY

This case requires us to determine whether a particular school’s Hawaiian education program meets the mandate set forth by the framers in article X, section 4.

Because constitutions derive their power and authority from the people who draft and adopt them, we have long recognized that the Hawai‘i Constitution must be construed with due regard to the intent of the framers and the people adopting it, and the fundamental principle in interpreting a constitutional provision is to give effect to that intent.

Sierra Club v. Dep’t of Transp., 120 Hawai‘i 181, 196, 202 P.3d 1226, 1241 (2009) (quoting Hanabusa v. Lingle, 105 Hawai‘i 28, 31, 93 P.3d 670, 673 (2004) ).

In order to ascertain the intent of the framers, we first look to the plain language of the provision. "The general rule is that, if the words used in a constitutional provision ... are clear and unambiguous, they are to be construed as they are written[.]" Nelson v. Hawaiian Homes Comm’n, 127 Hawai‘i 185, 197, 277 P.3d 279, 291 (2012) (quoting Spears v. Honda, 51 Haw. 1, 6, 449 P.2d 130, 134 (1968) ). "The words in a constitutional provision are "presumed to be used in their natural sense." Id. at 197-98, 277 P.3d at 291-92 (quoting Emps.’ Ret. Sys. v. Ho, 44 Haw. 154, 159, 352 P.2d 861, 864 (1960) ).

The Hawaiian education program provision is contained in article X, section 4, which states:

The State shall promote the study of Hawaiian culture, history and language.^{[ ]}

The State shall provide for a Hawaiian education program consisting of language, culture and history in the public schools. The use of community experience shall be encouraged as a suitable and essential means in furtherance of the Hawaiian education program.

The plain language of this provision provides an explicit and significant limitation on the Board of Education’s discretion over the content of the curriculum in the state’s public schools. This is the only provision in the Hawai‘i Constitution that requires public schools to teach specific subject matter, demonstrating the great import that the framers placed on the revitalization of ‘olelo Hawai‘i and the preservation of Hawaiian culture.

However, the plain language of the provision does not provide clear guidance regarding the extent of the State’s duty. Where the text of a constitutional provision is ambiguous, "extrinsic aids may be examined to determine the intent of the framers and the people adopting the proposed amendment." State v. Kahlbaun, 64 Haw. 197, 201-02, 638 P.2d 309, 314 (1981). Indeed, "a constitutional provision must be construed in connection with other provisions of the instrument, and also in [ ] light of the circumstances under which it was adopted and the history which preceded it." Sierra Club, 120 Hawai‘i at 196, 202 P.3d at 1241 (quoting Hanabusa, 105 Hawai‘i at 32, 93 P.3d at 674 ). I therefore look to the history of the provision for guidance.

Article X, section 4 was adopted as a result of the 1978 Constitutional Convention. Delegates to the convention recognized that the Hawaiian people had been subject to "200 years of deliberate and inadvertent obliteration of the soul and values of a nation," and many delegates noted the shortcomings of their own cultural knowledge and their inability to pursue fluency in ‘olelo Hawai‘i as children. I Proceedings, at 274 (statement of Del. Takehara); 2 Proceedings of the Constitutional Convention of 1978 (1980) (II Proceedings), at 428 (statement of Del. Hagino ("It embarrasses me that I know very little of my own culture and the hardships that my grandparents suffered to make me what I am today.")); II Proceedings, at 429 (statement of Del. Kaapu ("[W]hen I was growing up ... I didn’t even have a chance to take the Hawaiian language because it wasn’t offered.")).

Accordingly, the framers expressed a firm commitment to counter this history through the revitalization of ‘olelo Hawai‘i and the preservation of Hawaiian culture. II Proceedings, at 430 (statement of Del. Kaapu ("I support this ... [b]ecause those who study the Constitution and find in it an indication of the importance we place upon the Hawaiian culture and language, and who gain this opportunity in the schools, will come to know the Hawaiian culture ... and they will therefore preserve it and not destroy it.")).

The framers substantiated this commitment through the contemporaneous adoption of article X, section 4 and article XV, section 4. Article XV, section 4, which establishes English and ‘olelo Hawai‘i as the official languages of the state, was adopted "to overcome certain insults of the past where the speaking of Hawaiian was forbidden in the public school system, and of today where Hawaiian is listed as a foreign language in the language department at the University of Hawai‘i." Comm. of the Whole Rep. No. 12 in I Proceedings, at 1016. And, as discussed above, article X, section 4 was adopted to mandate the institution of a Hawaiian education program in the public schools in order to "revive the Hawaiian language, which is essential to the preservation and perpetuation of Hawaiian culture." Stand. Comm. Rep. No. 57 in I Proceedings, at 637.

In contemplation of these amendments, the framers emphasized the importance of reviving ‘olelo Hawai‘i through the public education system, in order to ensure that all children in the State of Hawai‘i have exposure to Hawaiian language, culture and history. For example, Delegate Nozaki stated:

It is time to wipe out the alienation of the Hawaiian people in the schools. ... The time is right for change. ... We must start with education.

....

[L]anguage, history and culture ... are necessarily tied together. Language is essential to gain insight into the feel of the culture; through language we realize the innuendos and beauty of a culture. By studying his own ethnic history, the Hawaiian student becomes politically aware and develops into an effective citizen. By studying his own culture, he becomes socially aware and develops individual pride, identity and self-realization. ... All students will learn that there are not just differences between Hawaiians and others, but that there are many things they all have in common. Through these kinds of developments, we can look forward to a decrease in alienation in the community. And all this can be the result of providing for a comprehensive Hawaiian education program in the schools.

It is the duty and responsibility of this State to preserve all aspects of Hawaiiana in education[.]

II Proceedings, at 428 (statement of Del. Nozaki).

In addition to general exposure for all public school students, the framers expressed the intent to provide children who wish to become fluent in ‘olelo Hawai‘i with a reasonable opportunity to do so. See I Proceedings, at 274 (statement of Del. de Costa ("I want my kids to grow up and be able to speak Hawaiian.")). As Delegate Kaapu articulated, the framers viewed the inability of children throughout the state to pursue fluency in ‘olelo Hawai‘i as a great wrong that needed to be addressed:

When my father was growing up ... they were prohibited from speaking the Hawaiian language. This was not just in class, this was anywhere. If any student was caught speaking the Hawaiian language, he was made to do detention.

....

Many years later when I was growing up ... I didn’t even have a chance to take the Hawaiian language because it wasn’t offered. Courses were offered very infrequently in [ ] very few places throughout the State.

....

I was not privileged to learn the Hawaiian language because ... it was not offered in the schools I went to. ... [M]y son - who just left for [college] a few days ago ... was only learning Hawaiian as he got aboard the plane. He took his language book with him, and he’s trying to master the phrases contained therein, although at his school (a public school) he had already had seven years of Japanese and could read, write and speak it.

II Proceedings, at 429-30 (statement of Del. Kaapu).

Delegate Hale echoed Delegate Kaapu’s sentiment, explaining the difficulties she encountered in attempting to afford her children an opportunity to become fluent in ‘olelo Hawai‘i:

Keaukaha school was the only school located in the whole State of Hawaii that taught Hawaiian [language] in the fourth grade. My son went through this school in his early days and took Hawaiian from a non-Hawaiian teacher who, unfortunately, didn’t know very much herself. So I can’t say that he knows very much Hawaiian, because it was taught not by somebody who really knew Hawaiian but by a certified teacher who picked up a few words - enough to stay ahead of the students, for the next day.

....

I think it’s time - my son is grown up now and will not get the advantage of this. But perhaps my grandchildren, if and when I ever get any, will be able to take advantage. I certainly feel that it is time we taught the Hawaiian language, culture, and tradition to ... all the children in the State of Hawaii.

II Proceedings, at 431 (statement of Del. Hale).

Thus, it is clear that through the adoption of article X, section 4, the framers intended to provide each child in the public schools with a reasonable opportunity to become fluent in ‘olelo Hawai‘i.

The framers understood that the State’s Hawaiian education program would need to embody certain characteristics in order to carry out this serious undertaking. First, the framers explained that the program must be comprehensive, meaningful, and structured:

The State should provide for a comprehensive Hawaiian education program. The State must mandate the provision for Hawaiian studies for two main reasons. First, it will guarantee a meaningful program - not the piecemeal kind of program that now exists. What we have now in the schools is fragmented and not even an introduction to Hawaiian culture.

II Proceedings, at 428 (statement of Del. Nozaki).

Second, the framers explained that the program must be permanent. Delegate Villaverde related that just a year and a half prior to the constitutional convention, discontinuation of the Hawaiian education program at the University of Hawai‘i at Hilo had been threatened in order to provide for other course offerings. II Proceedings, at 432 (statement of Del. Villaverde). Mandating the institution of a Hawaiian education program in the public schools through a constitutional amendment would protect the program from similar threats of termination and shield it from the impact of shifting priorities.

Finally, the framers emphasized the importance of utilizing formally trained teachers as well as community experience, recognizing value in the "opportunity to learn by the formal method ... but also [from] experiences [that kupuna] gained as children." II Proceedings, at 432 (statement of Del. Villaverde); I Proceedings, at 274 (statement of Del. Anae (urging support of the amendment because it "mandate[s] the State to train teachers and to use community expertise")). With regard to the necessity of professional instruction, the framers noted that by mandating the Hawaiian education program through the adoption of article X, section 4, they could "be assured that [‘olelo Hawai‘i] will be taught properly." II Proceedings, at 431 (statement of Del. Hale, lamenting that her son did not have an opportunity to become fluent in ‘olelo Hawai‘i because he was not taught "by somebody who really knew Hawaiian"); II Proceedings, at 428 (statement of Del. Nozaki ("[I]f it is mandated we can be assured that it will be taught properly.")).

With regard to the necessity of utilizing community experience, the framers expressed concern that "men and women who have significant information are dying and the information they could provide is being lost forever." II Proceedings, at 427 (statement of Del. Ching). Accordingly, the framers sought to encourage the preservation of inherited knowledge and shared cultural experience by expressly enumerating the use of community experience "as a suitable and essential means in furtherance of the Hawaiian education program." Haw. Const. art. X, § 4. Indeed, one stated purpose of adopting article X, section 4 was "to provide for the employment in the public school system of persons who have knowledge of Hawaiian language, culture, and history but not necessarily the necessary formal educational achievements." Stand. Comm. Rep. No. 57 in I Proceedings, at 637.

In sum, the framers clearly articulated the purpose of instituting a Hawaiian education program in the public schools and discussed the characteristics that the program must embody in order to achieve that purpose. However, the framers did not contemplate the methods of instruction that the program would employ, nor did they require the program to take any particular form.

Therefore, the State is required to institute a Hawaiian education program in the public schools that consists of language, culture, and history, and that affords each child in the State of Hawai‘i a reasonable opportunity to become fluent in ‘olelo Hawai‘i. The program must be structured, comprehensive, and permanent. Furthermore, the program should draw upon community experience. However, the particular form of the program and the methods of instruction that it utilizes may vary over time as needs change, knowledge increases, and technology improves.

II. PARTIAL SUMMARY JUDGMENT WAS IMPROPERLY GRANTED

Applying the principles discussed above, I conclude that the circuit court did not err in denying Clarabal’s motion for partial summary judgment with respect to Count II of the complaint. However, I further conclude that the circuit court erred in granting the State’s motion for partial summary judgment with respect to Count II of the complaint.

In her motion for partial summary judgment, Clarabal sought a declaration that, "as a matter of law, [the State has] a duty to provide the plaintiff-schoolchildren with access to a Hawaiian language immersion program under Article X, Section 4 of the Hawai‘i State Constitution (Count II of the Complaint)." (Emphasis added). The record before us establishes that Hawaiian immersion education clearly would satisfy the State’s mandate under article X, section 4. However, as discussed above, the State is not required to discharge its constitutional duty through immersion, and may instead institute a program that utilizes alternative methods of instruction, provided that the program provides each student who wishes to learn ‘olelo Hawai‘i with a reasonable opportunity to become fluent in the language during the course of the student’s public education. I therefore concur that the circuit court did not err in denying Clarabal’s motion for partial summary judgment.

It is undisputed that the State failed to provide Clarabal’s daughters with access to a Hawaiian immersion program. However, the record reflects that the State provided Lana‘i High and Elementary School students with alternative instruction in the areas of Hawaiian language, history, and culture. The principal of Lana‘i High and Elementary School, Elton Kinoshita, described the extent of this instruction as follows:

Students at Lanai school are provided a standards-based curriculum for grades kindergarten to twelfth grade (K-12) that includes Hawaiian education courses at the elementary, intermediate, and high school levels.

In the fourth grade, students are provided a course called "Pre-Contact Hawaii History." In the seventh grade, students are taught a course entitled "History of the Hawaiian Kingdom." Students are also required to take "Modern Hawaiian History" in high school in order to graduate.

In addition, for the current school year, students in grades preschool through the fifth grade are receiving additional instruction in Hawaiian language, history and culture from Mr. Simon Tajiri, a respected member of the Lanai Community and former Program Manager of Lanai Culture & Heritage Center.

Although Mr. Tajiri does not possess the formal education required to be a regular teacher, he was hired as a long-term substitute teacher based on his fluency in the Hawaiian language and his vast knowledge of the history of Lanai, as well as his being born and raised on Lanai and his reputation within the local community.

Lanai school has had Hawaiian language summer school for the past four or five summers.

Kinoshita further provided that, as of the 2015-2016 school year, Tajiri was providing elementary and intermediate level students with instruction in Hawaiian language and culture for forty-five minutes to three hours per week, in accordance with the chart below:

Grade Level Time Preschool 50 minutes per week Kindergarten 50 minutes per week 1st grade 70 minutes per week 2nd grade 45 minutes per week 3rd grade 80 minutes per week 4th grade 75 minutes per week 5th grade 90 minutes per week 6th-8th grade 180 minutes per week

William O’Grady, a linguistics professor at the University of Hawai‘i at Manoa, opined that Tajiri’s instruction is "not an effective way to make the children fluent in the Hawaiian language," and is thus insufficient to meet the State’s duty under article X, section 4. Professor O’Grady explained:

Instruction in Hawaiian for periods of 1 to 3 hours a week can be expected to contribute only very slightly to children’s knowledge of the language. ... With the very limited exposure to Hawaiian that would come from just a few hours a week of exposure, the children’s prospects of becoming fluent in the language are negligible. Moreover, ... the chances that they will ever become fluent in Hawaiian are

very significantly reduced.^{[ ]}

(Emphasis in original).

Although the State introduced some evidence that immersion is not the only effective means of teaching ‘olelo Hawai‘i, there is no evidence in the record that Tajiri’s instruction alone was sufficient to provide Lana‘i High and Elementary School students with an opportunity to become fluent in ‘olelo Hawai‘i during the course of their education. The State has thus failed to show that it met the mandate of article X, section 4, and that it is therefore entitled to judgment as a matter of law. Accordingly, the circuit court erred in granting the State’s motion for partial summary judgment with respect to Count II of the complaint. Yoneda v. Tom, 110 Hawai‘i 367, 371, 133 P.3d 796, 800 (2006) ("[S]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.").

III. CONCLUSION

For the foregoing reasons, I respectfully concur with the Majority’s judgment vacating the circuit court’s June 7, 2016 Order insofar as it granted the State’s motion for partial summary judgment as to Count II of the complaint, and remanding the case to determine whether the State can meet the mandate of article X, section 4.

CONCURRING AND DISSENTING OPINION BY NAKAYAMA, J.

Ka Papahana Kaiapuni (Kaiapuni Educational Program), the State Department of Education's Hawaiian language immersion program, offers public school students an education in the Hawaiian language medium. Haw. State Bd. of Educ., Policy 2105: Ka Papahana Kaiapuni (2014). One of the Kaiapuni Educational Program's laudable goals is to provide "a Hawaiian bicultural and bilingual education based upon a rigorous Hawaiian content and context curriculum." Id. From its inception in 1987, the Kaiapuni Educational Program has been established at twenty-three sites across the state. Haw. State Dep't of Educ., Hawaiian Language Immersion Program. However, no Kaiapuni Educational Program currently exists on the island of Lana‘i.

In 2013, the leadership of Lana‘i High and Elementary School (Lana‘i School), the only public school on Lana‘i, made plans to begin a Hawaiian language immersion program in the 2014-15 school year. The principal of Lana‘i School pledged to commit a classroom and a teacher position to the program. Because of the high interest in the immersion program, Lana‘i School intended to start two immersion classes in the 2014-15 school year. However, because Lana‘i School could not recruit a qualified Hawaiian language immersion teacher to teach at the school, no immersion program was in place during the 2014-15 school year.

In October 2014, Clarabal, who had intended to enroll her elementary school-aged daughters in the program, filed a complaint in the Circuit Court of the First Circuit (circuit court) which alleged in Count II that the Defendants-Appellees Department of Education, Board of Education, and Hawai‘i Teacher Standards Board (the State) violated article X, section 4 of the Hawai‘i Constitution by failing to provide her children with access to a Hawaiian language immersion program on Lana‘i. Article X, section 4, the Hawaiian education provision, provides:

The State shall promote the study of Hawaiian culture, history and language.

The State shall provide for a Hawaiian education program consisting of language, culture and history in the public schools. The use of community expertise shall be encouraged as a suitable and essential means in furtherance of the Hawaiian education program.

Clarabal filed a motion for partial summary judgment on Count II, and requested that the circuit court declare, as a matter of law, that the State has a duty to provide her daughters with access to a Hawaiian language immersion program under article X, section 4. The State filed its own motion for partial summary judgment on Count II of Clarabal's complaint, contending that article X, section 4 did not constitutionally require the State to establish a Hawaiian language immersion program on Lana‘i. The circuit court granted the State's motion for partial summary judgment as to that Count, and denied Clarabal's motion for partial summary judgment.

Clarabal appealed. In vacating in part and affirming in part the circuit court's order granting partial summary judgment to the State, the Majority declines to adopt Clarabal's position that the State must provide a Hawaiian language immersion program on the island of Lana‘i. Instead, it decides that article X, section 4 of the Hawai‘i Constitution requires the State to "take all reasonable measures to provide access" to a Hawaiian language immersion program. Majority at 145 Hawai'i at 85 n.34, 446 P.3d at 1002 n.34.

The Majority takes several steps to arrive at this conclusion. First, the Majority concludes that the language of article X, section 4 is ambiguous. Majority at 145 Hawai'i at 80–81, 446 P.3d at 997–98. Because the language is ambiguous, the Majority looks to extrinsic aids to assist it in determining how to interpret the provision. Majority at 145 Hawai'i at 81, 446 P.3d at 998. These extrinsic aids, the Majority explains, clearly indicate that the framers intended article X, section 4 "to require the State to provide a Hawaiian education program ... that is reasonably calculated to revive and preserve ‘olelo Hawai‘i." Majority at 145 Hawai'i at 82, 446 P.3d at 999. The Majority then turns to declarations offered by Clarabal, which state that a language immersion program is "the only realistic course of action" to revive ‘olelo Hawai‘i. Majority at 145 Hawai'i at 85, 446 P.3d at 1002. Accordingly, the Majority now holds that the State is constitutionally obligated to "take all reasonable measures" to provide access to a Hawaiian language immersion program. Majority at 145 Hawai'i at 85 n.34, 446 P.3d at 1002 n.34.

This is undoubtedly a good policy. The State should make every effort to provide as many students as possible with access to a Hawaiian language immersion program. However, I cannot conclude that the Hawai‘i Constitution demands this requirement of the State. In my view, the Majority's holding, while measured, still imposes a new affirmative obligation on the State that neither the language of article X, section 4, nor the constitutional debates and proceedings clearly support. Therefore, while I agree with the Majority and the Concurrence that it was not improper for the circuit court to deny Clarabal's motion for summary judgment, I respectfully disagree with their decisions to vacate the circuit court's order granting summary judgment to the State on Count II of Clarabal's complaint.

Accordingly, I must respectfully concur in part and dissent in part.

I. DISCUSSION

When interpreting constitutional provisions, we must start with the text of the Constitution itself. State v. Kahlbaun, 64 Haw. 197, 201, 638 P.2d 309, 314 (1981). Article X, section 4 of the Hawai‘i Constitution provides:

The State shall promote the study of Hawaiian culture, history and language.

The State shall provide for a Hawaiian education program consisting of language, culture and history in the public schools. The use of community expertise shall be encouraged as a suitable and essential means in furtherance of the Hawaiian education program.

On a plain reading of the provision, article X, section 4 requires the State to do two things: (1) promote the study of Hawaiian culture, history and language; and (2) provide for a Hawaiian education program in the public school system consisting of Hawaiian language, Hawaiian culture, and Hawaiian history. It does not explicitly require the State to provide a Hawaiian language immersion program.

The Majority argues that the plain language of article X, section 4 is ambiguous as to how the State must achieve these ends, and therefore further investigates whether the debates, proceedings, and reports of the Constitutional Convention of 1978 can clarify what the framers envisioned in establishing a Hawaiian education program. Majority at 145 Hawai'i at 80–81, 446 P.3d at 997–98. It is true that an examination of the debates, proceedings and committee reports are useful tools to determine the intent of the framers, but "the debates, proceedings and committee reports do not have binding force on this court and its persuasive value depends upon the circumstances of each case." Kahlbaun, 64 Haw. at 204, 638 P.2d at 316.

Notwithstanding the plain language of article X, section 4, I might be persuaded that the State must provide reasonable access to Hawaiian language immersion if the debates or committee reports from the 1978 Constitutional Convention clearly indicated that such a program had been contemplated by the framers. But in my view, the debates and committee reports do not demonstrate that the framers intended Hawaiian language immersion to be a required component of the Hawaiian education program.

The constitutional debates and proceedings certainly reveal impassioned testimony from many delegates lamenting the history of state-sponsored suppression of the Hawaiian language and their inability to speak ‘olelo Hawai‘i. See II Proceedings of the Constitutional Convention of Hawai‘i of 1978 (II Proceedings), at 429-31 (1980) (statement of Del. Kaapu ("[My father] related to me the story of how at school they were prohibited from speaking the Hawaiian language. This was not just in class, this was anywhere.")); (statement of Del. Hale ("My son went through [school] in his early days and took Hawaiian from a non-Hawaiian teacher who, unfortunately, didn't know very much herself.")).

But providing for a more rigorous study of the Hawaiian language, while foremost on some delegates' minds, was not the only deficiency that the delegates wished to remedy in establishing a Hawaiian education program.¹ Other delegates expressed a desire that Hawaiian culture and Hawaiian history be more thoroughly taught in the public schools. See II Proceedings, at 428-29 (statement of Del. Nozaki ("What we have now in the schools is fragmented and not even an introduction to Hawaiian culture - that's how sketchy it is.")); (statement of Del. Sterling ("The main thrust of this section is toward things of value - the sophisticated, proven culture that sustained thousands and thousands of people in a very healthy manner prior to contact with Western civilization.")).

Moreover, delegates expressed that the Hawaiian education program in the public school system be available to every student. See II Proceedings, at 429-431 (statement of Del. Hale ("I certainly feel that it is time we taught the Hawaiian language, culture and tradition to all the people and all the children in the State of Hawaii.")); (statement of Del. Nozaki ("All students will learn that there are not just differences between Hawaiians and others, but there are many things they all have in common.")). Accordingly, the Committee on Hawaiian Affairs' Standing Committee Report No. 57 stated that the Hawaiian education program should have three broad goals: to "insure the general diffusion of Hawaiian history on a wider basis, to recognize and preserve the Hawaiian culture ... and to revive the Hawaiian language[.]" Stand. Comm. Rep. No. 57 in I Proceedings of the Constitutional Convention of Hawai‘i of 1978 (I Proceedings), at 637 (1980).

We have stated that in construing constitutional provisions, "the words are presumed to be used in their natural sense unless the context furnishes some ground to control, qualify, or enlarge them." Hawai‘i State AFL-CIO v. Yoshina, 84 Hawai‘i 374, 376, 935 P.2d 89, 91 (1997) (emphasis added). Here, when interpreting the phrase "revive the Hawaiian language," the Majority must take into account the specific context with which the framers used that phrase: to provide a Hawaiian education program capable of being implemented in every public school and made available to every public school student.² The specialized requirements of a Hawaiian language immersion program indicate that it cannot be implemented in every public school.

Moreover, the phrases "comprehensive" and "as part of the regular curriculum," on which the Majority relies to interpret the contours of the Hawaiian education provision, were removed from the proposed provision on the floor of the Convention. The provision which was ultimately adopted reads, with additions underlined and deleted provisions bracketed:

The State shall promote the study of Hawaiian culture, history, and language.

The State shall provide for a [comprehensive] Hawaiian education program, consisting of language, culture and history, [as part of the regular curriculum of] in the public schools. The use of community expertise shall be encouraged as a suitable and essential means in furtherance of the Hawaiian [language, culture and history] education program.

Convention Journal in I Proceedings, at 273.³ The removal of the words "comprehensive" and "as part of the regular curriculum" from article X, section 4 indicate to me that on the convention floor, delegates expressed a desire to place fewer requirements on the State in developing a Hawaiian education program, as long as it consisted of Hawaiian language, culture and history. It also suggests to me that the framers did not intend article X, section 4 to require the State to provide a specialized, intensive Hawaiian language immersion program to public school students. Contra Majority at 145 Hawai'i at 81, 446 P.3d at 998.

Under these circumstances, I cannot conclude that the framers of article X, section 4 intended to require the State to provide a Hawaiian language immersion program. The Majority recognizes this possibility, but notes that the framers "may not have anticipated the contours of a Hawaiian education program reasonably calculated to revive ‘olelo Hawai‘i under current circumstances." Majority at 145 Hawai'i at 84, 446 P.3d at 1001. Based upon declarations submitted by Clarabal, the Majority concludes that Hawaiian language immersion is currently the only realistic way to revive the Hawaiian language. Majority at 145 Hawai'i at 85, 446 P.3d at 1002.

I am wary of a court dictating the methods that the State must employ to satisfy broad constitutional mandates. Instead, if there is a need to determine "the specifics of the Hawaiian education program required by article X, section 4," or "the contours of a Hawaiian education program reasonably calculated to revive ‘olelo Hawai‘i under current circumstances," Majority at 145 Hawai'i at 84–85, 446 P.3d at 1001–02, I believe that responsibility is best left to the Legislature, not the courts.

It is the responsibility of the courts to interpret the Hawai‘i Constitution. Nelson v. Hawaiian Homes Comm'n, 127 Hawai‘i 185, 197, 277 P.3d 279, 291 (2012). However, where the framers broadly described the State's obligation to provide a Hawaiian education program and did not specify the means with which to fulfill that obligation, any decision to offer a specific, specialized education program to meet that mandate becomes a question of policy and not a question of constitutional interpretation. See McCleary v. State, 173 Wash.2d 477, 269 P.3d 227, 247 (2012) ("[W]hile the judiciary has the duty to construe and interpret the word ‘education’ by providing broad constitutional guidelines, the Legislature is obligated to give specific substantive content to the word and to the program it deems necessary to provide that [education]."). Therefore, the Legislature is best equipped to determine how to specifically implement article X, section 4's Hawaiian education requirement. As the Washington Supreme Court stated in McCleary, "[t]he legislature's ‘uniquely constituted fact-finding and opinion gathering processes’ provide the best forum for addressing the difficult policy questions inherent in forming the details of an education system." Id. (emphasis added).

This is not to say that the courts have no role in evaluating the adequacy of the State's Hawaiian education program. If a party is unsatisfied with a school's current program, it may file a complaint in court explaining how the current program is inadequate and request the appropriate relief. It would then be proper for a court to determine whether the State's current program fulfills its article X, section 4 mandate. This is the general practice when courts in other jurisdictions have evaluated the adequacy of their state's public education program. See McCleary, 269 P.3d at 257 ("By the Legislature's own terms, it has not met its duty to make ample provision for ‘basic education.’ "); Conn. Coalition for Justice v. Rell, 295 Conn. 240, 990 A.2d 206, 222 (2010) ("In the present case, ... the complaint clearly requests a declaration of a constitutional violation, with the precise remedy being left to the [State] defendants in the first instance."); Campaign for Fiscal Equity, Inc. v. State, 86 N.Y.2d 307, 631 N.Y.S.2d 565, 655 N.E.2d 661, 667 (1995) ("[P]laintiffs allege and specify gross educational inadequacies that, if proven, could support a conclusion that the State's public school financing system effectively fails to provide for a minimally adequate educational opportunity.").

Here, the State has implemented a Hawaiian education program which it believes satisfies its constitutional duty under article X, section 4.⁴ Students, parents, and other stakeholders may disagree. If properly raised, we could decide whether the State's current Hawaiian education program at Lana‘i School passes constitutional muster. But this is not the issue raised in this appeal. In this case, Clarabal did not specifically ask the circuit court to review the adequacy of the State's Hawaiian education program at Lana‘i School. While Clarabal made several allusions to the inadequacy of the Hawaiian education program at Lana‘i School, her motion for partial summary judgment specifically prayed that the circuit court declare, as a matter of law, that the State "have a duty to provide the [Clarabal children] with access to a Hawaiian language immersion program" under article X, section 4. Therefore, the pertinent issue in this appeal is whether the State must provide the Clarabal children with access to a Hawaiian language immersion program under article X, section 4, of the Hawai‘i Constitution. On this specific issue, I conclude that it does not.⁵

II. CONCLUSION

Delegates to the Constitutional Convention of 1978 sought to enshrine in the Hawai‘i Constitution a right to a Hawaiian education consisting of culture, history and language for all public school students. As the Majority recounts, this provision was adopted in response to the distressing history of state-sponsored Hawaiian language suppression, the dismal Hawaiian Studies program that had been offered in the public schools, and the desire to convey to Hawaii's children a lasting appreciation of "the Hawaiian culture, the Hawaiian feeling, the Hawaiian spirit and our land." II Proceedings, at 427-31; Majority at 145 Hawai'i at 73–74, 446 P.3d at 990–91. Accordingly, the Hawai‘i Constitution requires the State to "promote the study of Hawaiian culture, history and language," and "provide for a Hawaiian education program consisting of language, culture and history in the public schools." Haw. Const. art. X, sec. 4.

The State has implemented a Hawaiian education program which consists of culture, history and language, and has established a Hawaiian language immersion program which provides "a bilingual education based upon a rigorous Hawaiian content and context curriculum." Haw. State Bd. of Educ., Policy 2105: Ka Papahana Kaiapuni. The Kaiapuni Educational Program plays an invaluable role in educating young leaders who will perpetuate Hawaiian language, culture and history. In accordance with the Board of Education's own policy, "[e]very student within the [State's] public school system should have reasonable access to the Kaiapuni Educational Program," and the State should utilize every available tool to make this possible.

Whether the State is required by the Hawai‘i Constitution to provide access to a Hawaiian language immersion program, however, is the issue raised in this appeal. In my view, we must use caution when expanding the State's affirmative constitutional duties to be sure that the duty is rooted in the language of a constitutional provision or clearly contemplated by the framers. Here, the plain language of article X, section 4 and the history surrounding its adoption do not suggest to me that the State is constitutionally required to provide access to a Hawaiian language immersion program.

I would therefore affirm the circuit court's order granting summary judgment to the State on Count II of Clarabal's complaint. I respectfully concur in part and dissent in part.