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The Constitution
of the
State of Hawaii

Incorporating the November 7, 2006 election changes,
and including the annotation.

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Article X - Education

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Sections

1Public education
2Board of Education
3Power of the Board of Education
4Hawaii Education Program
5University of Hawaii
6Board of Regents; powers

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.

10.1
Public education

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]

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.

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

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

"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.

10.2
Board of Education

There shall be a board of education composed of members who shall be elected in a nonpartisan manner by qualified voters, as provided by law, from two at-large school board districts. The first school board district shall be comprised of the island of Oahu and all other islands not specifically enumerated. The second school board district shall be comprised of the islands of Hawaii, Maui, Lanai, Molokai, Kahoolawe, Kauai and Niihau. Each at-large school board district shall be divided into departmental school districts, as may be provided by law. There shall be at least one member residing in each departmental school district. The Hawaii State Student Council shall select a public high school student to serve as a nonvoting member on the board of education.  [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]

Cross References:

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.

10.3
Power of the Board of Education

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 296.

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.

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.

10.4
Hawaii Education Program

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]

10.5
University of Hawaii

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.

10.6
Board of Regents; powers

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.

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.

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Article X - Education

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