Constitution of Hawaii — Article 10

ARTICLE X

 

EDUCATION

 

Note

 

  This article was renumbered from Article IX to be Article X by Const Con 1978 and election Nov 7, 1978.  The former Article X now appears as Article XI.

 

PUBLIC EDUCATION

 

     Section 1.  The State shall provide for the establishment, support and control of a statewide system of public schools free from sectarian control, a state university, public libraries and such other educational institutions as may be deemed desirable, including physical facilities therefor.  There shall be no discrimination in public educational institutions because of race, religion, sex or ancestry; nor shall public funds be appropriated for the support or benefit of any sectarian or nonsectarian private educational institution, except that proceeds of special purpose revenue bonds authorized or issued under section 12 of Article VII may be appropriated to finance or assist:

     1.  Not-for-profit corporations that provide early childhood education and care facilities serving the general public; and

     2.  Not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges and universities. [Ren and am Const Con 1978 and election Nov 7, 1978; am L 1994, c 280, §4 (HB 2692-94) and election Nov 8, 1994; am HB 2848 (2002) and election Nov 5, 2002]

 

Note

 

  Regarding proposed constitutional amendment to this section by SB 2922, L 2018, the Hawaii supreme court declared the ballot question invalid on October 19, 2018, SCPW-18-0000733.

 

Cross References

 

  Admission Act provisions, see §5(f).

  Department of education, see §26-12.

 

Attorney General Opinions

 

  Policy regarding use of buses during release-time religious instruction not prohibited.  Att. Gen. Op. 66-24.

  Appropriation of public funds for transporting both private and public school children is not invalid.  Att. Gen. Op. 67-13.  See also Att. Gen. Op. 58-59.

  The Church College of Hawaii is a private educational institution and cannot receive an appropriation of public funds.  Att. Gen Op. 67-13.

  Appropriation of public funds to provide insurance for JPOs at nonpublic schools is precluded.  Att. Gen. Op. 73-15.

  Department of education may use appropriated funds to contract with private language schools to provide language skills as alternative to enrolling in DOE language courses.  Att. Gen. Op. 77-2.

  A publicly-funded school voucher program would violate this section.  Att. Gen. Op. 03-1.

 

Case Notes

 

  Mentioned, concerning provision prohibiting use of public funds to aid sectarian schools.  403 U.S. 602, 647.

  "Support or benefit" construed; provision prohibits appropriations to provide bus transportation subsidies to nonpublic school students.  51 H. 1, 449 P.2d 130.

  First sentence encompasses the selection and location of public schools and university sites.  56 H. 582, 545 P.2d 684.

 

 

BOARD OF EDUCATION

 

     Section 2.  There shall be a board of education.  The governor shall nominate and, by and with the advice and consent of the senate, appoint the members of the board of education, as provided by law. [Am HB 4 (1963) and election Nov 3, 1964; ren and am Const Con 1978 and election Nov 7, 1978; am HB 2688 (1988) and election Nov 8, 1988; am HB 2376 (2010) and election Nov 2, 2010]

 

Cross References

 

  Board of education, see §§302A-121 to 302A-127.

  Election provisions, see chapter 13.

  Statutory provisions, see §26-12.

 

Attorney General Opinions

 

  Legislature may require public officers to resign before running for board of education.  Att. Gen. Op. 75-22.

 

Case Notes

 

  Act proposing alternative constitutional amendments concerning changes in school governance directed amendment to state constitution in violation of article XVII, §3.  73 H. 536, 836 P.2d 1066.

 

 

POWER OF THE BOARD OF EDUCATION

 

     Section 3.  The board of education shall have the power, as provided by law, to formulate statewide educational policy and appoint the superintendent of education as the chief executive officer of the public school system. [Am HB 421 (1964) and election Nov 3, 1964; ren and am Const Con 1978 and election Nov 7, 1978; am L 1994, c 272, §15 (HB 3657-94) and election Nov 8, 1994]

 

Cross References

 

  Statutory provisions, see §26-12 and chapter 302A.

 

Attorney General Opinions

 

  Board has authority to formulate policy, so long as policy does not contravene any legislative act; board may set school lunch prices and parking rates.  Att. Gen. Op. 73-14.

  Superintendent cannot be hired for period beyond term of office of members who hire him.  Att. Gen. Op. 75-20.

 

Law Journals and Reviews

 

  The Privacy Rights of Public School Students.  32 UH L. Rev. 305 (2010).

 

Case Notes

 

  Board has broad discretionary powers and did not require specific legislative authorization to establish sex education program.  52 H. 436, 478 P.2d 314.

  Formulation of policy and control over schools rest with board.  59 H. 388, 583 P.2d 313.

  Budget expenditures of the department of education, discussed.  70 H. 253, 768 P.2d 1279.

  Act proposing alternative constitutional amendments concerning changes in school governance directed amendment to state constitution in violation of article XVII, §3.  73 H. 536, 836 P.2d 1066.

 

 

HAWAIIAN EDUCATION PROGRAM

 

     Section 4.  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. [Add Const Con 1978 and election Nov 7, 1978]

 

Law Journals and Reviews

 

  Translation v. Tradition:  Fighting for Equal Standardized Testing ma ka `Ōlelo Hawai`i.  36 UH L. Rev. 487 (2014).

  "Language Is Never About Language":  Eliminating Language Bias in Federal Education Law to Further Indigenous Rights.  37 UH L. Rev. 381 (2015).

  Hawaiian Education in Hawai`i's Public Schools:  A Path to Reasonable Access.  46 UH L. Rev. 166 (2023).

 

 

UNIVERSITY OF HAWAII

 

     Section 5.  The University of Hawaii is hereby established as the state university and constituted a body corporate.  It shall have title to all the real and personal property now or hereafter set aside or conveyed to it, which shall be held in public trust for its purposes, to be administered and disposed of as provided by law. [Ren and am Const Con 1978 and election Nov 7, 1978]

 

Attorney General Opinions

 

  The university is a constitutionally independent corporation and is not an administrative or executive agency within the meaning of section.  Att. Gen. Op. 61-84.

  Power of legislature over property vested in the university discussed.  Att. Gen. Op. 74-5.

  Board of regents' trust duties; standard of care for investment policy.  Att. Gen. Op. 85-26.

 

Case Notes

 

  The university is agency of State.  355 F. Supp. 789.

 

 

BOARD OF REGENTS; POWERS

 

     Section 6.  There shall be a board of regents of the University of Hawaii, the members of which shall be nominated and, by and with the advice and consent of the senate, appointed by the governor from pools of qualified candidates presented to the governor by the candidate advisory council for the board of regents of the University of Hawaii, as provided by law.  At least part of the membership of the board shall represent geographic subdivisions of the State.  The board shall have the power to formulate policy, and to exercise control over the university through its executive officer, the president of the university, who shall be appointed by the board.  The board shall also have exclusive jurisdiction over the internal structure, management, and operation of the university.  This section shall not limit the power of the legislature to enact laws of statewide concern.  The legislature shall have the exclusive jurisdiction to identify laws of statewide concern. [Am HB 253 (1964) and election Nov 3, 1964; ren and am Const Con 1978 and election Nov 7, 1978; am SB 539 (2000) and election Nov 7, 2000; am SB 1256 (2005) and election Nov 7, 2006]

 

Cross References

 

  Composition of board, see §26-11.

  Regents candidate advisory council, see §304A-104.5.

 

Attorney General Opinions

 

  President need not satisfy the three-year residence requirement.  Att. Gen. Op. 61-84.

  Board may delegate to the president the authority to set student activity fees.  Att. Gen. Op. 73-16.

  Board of regents can delegate limited investment authority to external investment managers.  Att. Gen. Op. 78-1.

  Limitations on board of regents' power to set compensation of university president.  Att. Gen. Op. 85-1.

 

Case Notes

 

  Board may delegate to president the authority to make negative decisions in tenure cases.  56 H. 680, 548 P.2d 253.

  Board's mandatory retirement policy which conflicted with §§78-3 and 304-11 violated this section.  63 H. 366, 628 P.2d 1026.

  Does not preclude the university from agreeing to submit tenure or promotion disputes to arbitration or preclude an arbitrator from granting promotion or tenure.  66 H. 214, 659 P.2d 720.

  Petitioners had standing to invoke Hawaii supreme court's remedial power of mandamus where petitioners' constitutional duty, as senators who must advise and consent on governor's board of regents nominees under this section, was usurped by governor's holding over of six regents whose terms had expired, and this deprivation of the right to advise and consent on regent appointments was sufficiently personal to constitute an injury in fact.  119 H. 341, 198 P.3d 604.

  Respondent's application of the holdover provision of §304A-104(a) to the six regents whose terms had expired contravened L 2007, Act 56, §§1 and 5 and was contrary to the modified appointment process for regents prescribed by this section.  119 H. 341, 198 P.3d 604.

  The governor's nondiscretionary duty--pursuant to this section, and §§304A-104(a) and 304A-104.5(e)--to nominate and appoint members of the board of regents of the University of Hawaii, is subject to a reasonable time standard; reasonable time is judged by the totality of the circumstances; the passage of nearly ten months since the governor was presented with the regent candidate list was an unreasonable period of time for the governor to perform this constitutional and statutory duty and the governor was thus subject to mandamus.  119 H. 341, 198 P.3d 604.