Among the social media comments made regarding the controversy over the Thirty Meter Telescope on Mauna Kea, many chastise the state government and courts for doing nothing to protect Hawaii from rampant overdevelopment or to protect Hawaiian rights.

In my view, though, Hawaii’s courts have stood up to tremendous political pressure and insisted that the Legislature and the Executive branches uphold provisions of the State Constitution written explicitly to protect important native rights.

For several years, judges and justices were threatened with loss of retirement benefits, or politicization of the appointment process, in apparent retaliation for a high court decision that the legislature had for years breached its constitutional responsibilities to provide sufficient funds to the Department of Hawaiian Homes.

And the Hawaii Supreme Court added to its line of cases on Hawaiian rights in a decision issued on August 13. The decision came in a lawsuit filed on behalf of a mother and her two childeren on Lanai. They wanted to enroll the children in a Hawaiian immersion program. When no such program proved to be available on Lanai, the family filed suit, claiming a constitutional right to enter an immersion program.

The court was called on the interpret Article X, Section 4 of the State Constituion.

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 court had to decide whether the Department of Education was fulfilling its constitutional responsibilities.

The Supreme Court, in a split ruling, held that the Department of Education must make “all reasonable efforts” to provide students access to a Hawaiian language emersion program. It sent the case back to the Circuit Court for a review of whether the DOE had in fact made “all reasonable efforts” to provide such learning Lanai.

But while the court’s opinion is important for future educational decisions, its decision is also useful for its concise statement of the history of government suppression of the Hawaiian language, and the changes that the restoration and reinvigoration of the language can be expected to have.

This is clearly important background for understanding what is happening on Mauna Kea.

First, here is the court’s summary opinion. For the full reasoning of the court, you will have to read the full opinion.

There were three opinions filed in the case. A majority of three justices, Sabrina McKenna, Richard Pollack, and Michael Wilson signed the opinion written by Justice Pollack. Chief Justice Mark Recktenwald had a separate, concurring opinion, while Justice Paula Nakayama also filed a separate opinion, concurring in part and dissenting in part. [An earlier version of this post incorrectly said that the Chief Justice had dissented from the majority opinion.]

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, n? 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 L?na`i. This case arises from a suit by a mother living on L?na`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.

The court also included a section describing official policies that tried to enforce a prohibition on teaching or speaking Hawaiian. Again, an important and useful summary.

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.” Contemporary sources suggest that the law was specifically intended to eradicate knowledge of `olelo Hawai`i in future generations. 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. 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.

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. Minor efforts to reintroduce `olelo Hawai`i into the public school curriculum as a supplemental foreign language course did little to arrest its decline. At its lowest point, there were as few as fifty native speakers of the language under the age of 18. `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. 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.” [Footnotes and references removed for easier reading]

In the end, the court did not recognize an absolute right for any child to be offered access to an immersion program. However, it offered suggestions of the kinds of accommodations the DOE should be considering.

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.

This, and other court decisions on Hawaii rights, including those on the TMT itself, do not reflect a judicial system insensitive to or unsupportive of native rights. That’s something TMT protectors and supporters need to keep in mind.