Hawaii

AMENDMENT LANGUAGE

State Constitutional Provisions

·       Haw. Const. art. I, § 4: “No law shall be enacted respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances.”

·       Haw. Const. art. I, § 5: “No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of the person's civil rights or be discriminated against in the exercise thereof because of race, religion, sex or ancestry.”

Haw. Const. art. VII, § 4: "No tax shall be levied or appropriation of public money or property made, nor shall the public credit be used, directly or indirectly, except for a public purpose. No grant shall be made in violation of Section 4 of Article I of this constitution. No grant of public money or property shall be made except pursuant to standards provided by law."

Haw. Const. art. X, § 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."

·       Haw. Const. art. XII, § 7: “The State reaffirms and shall protect all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.”

Statutes

·       HRS § 39A-251 (2004): “CHAPTER 39A  SPECIAL PURPOSE REVENUE BONDS PART VIII  ASSISTING NOT-FOR-PROFIT PRIVATE NONSECTARIAN AND SECTARIAN ELEMENTARY SCHOOLS, SECONDARY SCHOOLS, COLLEGES, AND UNIVERSITIES SERVING THE GENERAL PUBLIC

…’Project agreement’ means any agreement entered into under this part by the department with a project party providing for the issuance of special purpose revenue bonds to finance facilities of the project party or for the project party or to loan the proceeds of such bonds to assist not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges, and universities that serve the general public, including, without limitation, on any loan agreement.

‘Project party’ means a not-for-profit private nonsectarian and sectarian elementary school, secondary school, college, and university that serves the general public.”

·       HRS § 39A-255 (2004): “Project agreement

No special purpose revenue bonds shall be issued unless, at the time of issuance, the department shall have entered into a project agreement with respect to the project for the financing or refinancing of which such revenue bonds are to be issued.

Any project agreement entered into by the department shall contain provisions unconditionally obligating the project party to: …

     (2) Operate, maintain, and repair the project as long as it is used in the provision of not-for-profit private nonsectarian and sectarian elementary, secondary, college-level, and university-level education to the general public, and to pay all costs of its operation, maintenance, and repair.”

·       HRS § 39A-256 (2004): “Issuance of special purpose revenue bonds to finance projects ...

The legislature finds and determines that the exercise of the powers vested in the department by this part constitutes assistance to not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges, and universities serving the general public and that the issuance of special purpose revenue bonds to finance or refinance facilities of or for project parties or to loan the proceeds of the bonds to assist project parties is in the public interest. The legislature also finds and determines that the exercise of the powers vested in the department by this part are pursuant to separate acts of the legislature, each of which shall be enacted in a nondiscriminatory manner on the basis of neutral, secular criteria and will not in any manner violate the First Amendment of the Constitution of the United States or article I, section 4, of the Constitution of the State of Hawaii.”

·       HRS § 39A-257 (2004): “Authorization of special purpose revenue bonds

(a) Special purpose revenue bonds for each single project or multi-project program for not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges, and universities serving the general public shall be authorized by a separate act of the legislature, by an affirmative vote of two-thirds of the members to which each house is entitled; provided that the legislature shall find that the issuance of such bonds is in the public interest; provided further that no authorization shall be made for a period exceeding five years of its enactment. Any such special purpose revenue bond authorization, or any portion of such special purpose revenue bond authorization, which has not been issued at the close of the fiscal year for the period for which the authorization is made, shall lapse. Special purpose revenue bonds issued pursuant to this part may be in one or more series for a single project, multiple projects, a single-project party, or multiple-project parties pursuant to the authority of one, or the combined authority of more than one, separate act of the legislature.

The State may combine into a single issue of special purpose revenue bonds two or more proposed issues of special purpose revenue bonds to assist not-for-profit private nonsectarian and sectarian elementary schools, secondary schools, colleges, and universities, separately authorized as aforesaid, in the total amount of not exceeding the aggregate of the proposed separate issues of special purpose revenue bonds.”

RELEVANT CASES

State Courts

Spears v. Honda, 449 P.2d 130 (Haw. 1968) (Hawaii Supreme Court held that providing school transportation to sectarian school students was a violation of the Hawaii constitutional provision prohibiting public support of sectarian institutions).

SECONDARY MATERIALS

State Attorney General Opinions

Op. Att'y Gen. No. 77-2 (Feb. 9, 1977). "We believe that it is legally permissible for the Department of Education to use... appropriated funds to contract with private language schools to provide language skills as an alternative to enrollment in DOE language courses. However, use of appropriations in the form of grants in aid to schools or students may run afoul of the mandate of [Spears]. Thus, appropriations subsidizing or encouraging the existence of private language schools would violate [the Blaine Amendment].

Op. Att'y Gen. No. 73-15 (Dec. 7, 1973). Expenditure of public funds to procure insurance for the junior police officer programs would violate the Blaine Amendment.

Op. Att'y Gen. No. 67-13 (Apr. 27, 1967). A proposed appropriation of $20,000 to the Church College of Hawaii for dormitory planning would violate the Blaine Amendment. Appropriation of state funds for transporting public and private school students would not violate the Blaine Amendment. On the second question, the AG indicated that the transportation service would be for the safety, welfare and benefit of the child and not the educational institution.

Op. Att'y Gen. No. 66-24 (Aug. 9, 1966). The rental of county-owned buses to sectarian institutions to transport students who are released from public schools to attend religious education classes does not violate the Blaine Amendment.

Op. Att'y Gen. No. 58-59 (Mar. 11, 1958). The Hawaiian Organic Act Blaine provision would not prohibit counties from providing free transportation of school children, including transportation to parochial schools. Such a program of transportation would require an express legislative enactment. Further, such program must not be unlawfully discriminatory and must properly be all-inclusive. Finally, the program should be properly fashioned as an exercise of the police power, consistent with Everson v. Board of Education. See Everson, 330 U.S. 1 (1947).

Articles

Andrew A. Cheng, The Inherent Hostility of Secular Public Education Toward Religion: Why Parental Choice Best Serves the Core Values of the Religion Clauses, 19 U. Haw. L. Rev. 697 (1997).

REPEAL EFFORTS

See the Heritage Foundation website for a list of state contacts.