Opinion on the Partial Amendment Bill to the Private School Act

- Bill No. 170595 proposed by Rep. Bok Giwang: Partial Amendment to the Private School Act -

1. Raising the Issue

On October 20, 2004, Rep. Bok Giwang of the Uri Party proposed an amendment to the Private School Act on the grounds of strengthening the public character and transparency of private school management. The main points of the proposed amendment are as follows: i) The status of school councils and university senates would be greatly strengthened, turning them into deliberative bodies. ii) School councils and university senates would be granted the authority to recommend and appoint at least one-third of the fixed number of directors and one auditor. iii) A new provision on the term of office for the head of a private school would be introduced, limiting the term to four years with reappointment allowed.

The proposed amendment to the Private School Act has become controversial because it raises the possibility of seriously infringing on the freedom to operate private schools. The freedom to operate private schools basically includes the freedom to shape academic affairs, the freedom to appoint faculty, the freedom to select students, and the freedom to manage finances. The Constitutional Court has indicated that the subject of the freedom to operate private schools is the “school foundation” established according to the will of the “founder” (Official Gazette 53, 107, 110). In other words, “because private schools are established with the founder’s intent and property in order to realize an independent educational purpose, guaranteeing the freedom to establish private schools and the autonomy of their operation is an essential core that cannot be traded for anything else.”

Of course, as with all fundamental rights, the freedom to operate private schools is not absolute. It may be restricted by law for national security, maintenance of social order, or public welfare, but only “when necessary.” However, this phrase “only when necessary” refers to the principle against excessive legislation, or the principle of proportionality. Certainly, the argument that transparency, public character, and democracy should be secured in the operation of private schools is persuasive. While one may fully sympathize with the legislative purpose of rooting out corruption in private schools, one must also consider that there are normative limits that cannot be crossed in the method of approach. In other words, guaranteeing fundamental rights comes first, and restrictions are exceptional, permitted only to the extent necessary to prevent concrete harm.

2. Problems and Improvement Measures

Unlike advanced foreign countries, private schools in Korea account for an overwhelmingly high share of education and are responsible for most school education. At present, 22.9% of middle schools, 45.1% of high schools, 90.5% of junior colleges, and 84.8% of four-year universities are private. Nevertheless, as regulation of education becomes increasingly severe, the reality is that the ground is becoming ever more barren for private schools to realize the founder’s special educational ideals or to provide distinctive education according to their own educational policies.

Because private schools are established with the founder’s intent and property in order to realize independent educational purposes, guaranteeing the freedom to establish private schools and autonomy in their operation belongs to the category of constitutional fundamental rights. The Constitutional Court has also ruled that this freedom to operate private schools is a constitutional fundamental right. (Constitutional Court, Jan. 18, 2001; and Official Gazette 53, 107.)

Despite this, the proposed amendment to the Private School Act reveals the problem of treating private schools as though they were “public property contributed to society” by placing excessive emphasis on the public character of school education. In particular, as stated in the rationale for the proposal, it is questionable whether the reason of “enhancing the democracy, transparency, and public character of private school management...” can truly constitute a legitimate legislative purpose.

It is significant that religious circles have clearly expressed opposition to this proposed amendment to the Private School Act. The ruling party has so far dismissed opposition from ordinary private school foundations as merely an effort to “protect the vested interests of private school owners.” But it is not right to view in the same way the opposition of religious groups, which are in a relatively objective position to express an opinion in the debate over amending the Private School Act.

First, regarding the basis for Article 14, Paragraph 3 of the proposed amendment, which requires that at least one-third of the directors of a school foundation be appointed from persons recommended by the school council or university senate, some have argued that there is no problem by invoking the outside director system of ordinary stock companies. The outside director system in stock companies was introduced to prevent the tyranny of controlling shareholders and to supervise and advise on the company’s management from an objective standpoint by having people unrelated to major shareholders participate on the board. In other words, the outside director system is fundamentally a device to protect minority shareholders from controlling shareholders, and therefore does not conflict with constitutional guarantees of property rights and management rights in stock companies. In addition, outside directors are appointed by the shareholders’ meeting after being recommended by an outside director candidate recommendation committee composed of directors, so the procedure, the recommending body, and the method differ from the recommendation method by school councils or university senates under this amendment.

Meanwhile, the view that school councils and university senates are justified in recommending directors because of government subsidies to private schools is also hard to accept. First, for private universities, where government subsidies account for only 4% of the budget, there is no basis for government intervention. In the case of private middle and high schools receiving financial support, however, the introduction of open directors to enhance public character may be justified. Even so, it cannot be justified for school councils and university senates to be the bodies that recommend directors. If open directors are needed, it would be preferable for that authority to be exercised by the provincial and metropolitan offices of education, which are the providers of financial support.

According to Article 29, Paragraph 4 of the proposed amendment to the Private School Act, school councils and university senates would be elevated to deliberative bodies. Given that these committees would have the right to recommend at least one-third of the directors of private school foundations, they would in effect become the highest decision-making bodies of private schools. Even so, it is hardly an exaggeration to say that these committees would bear almost no responsibility. In other words, an imbalance of authority and responsibility would arise, with authority passing to school members while responsibility remains with the foundation. In particular, with regard to deliberation on budget proposals, if a budget shortfall arises, giving deliberative power to committees that have no ability to provide support would plant the seeds of further disputes in the operation of private schools. Therefore, it would be preferable for elementary, middle, and high school councils to remain advisory bodies as they are now, and for university senates likewise to be left to university autonomy.

Article 53, Paragraph 3 of the amendment, which provides for a four-year renewable term for the heads of private schools, also contains a toxic provision that infringes upon freedom of contract by legally compelling a contract between private parties. At present, public elementary, middle, and high schools operate under a fixed-term system for principals. However, imposing the same legal compulsion on the terms of private school heads is unreasonable. This is because the school foundations that establish and operate private schools are private legal entities, not subjects of public authority, and the relationship between a school foundation and a school head basically falls under a private-law employment contract.

3. Summary and Conclusion

As stated in the rationale for the proposal, the proposed amendment to the Private School Act is justified on the grounds of eradicating corrupt private schools and enhancing transparency and public character in the operation of private schools. In this regard, not only the public but even private school organizations themselves acknowledge that there are problems in the operation of some private schools. However, regulating all private schools on the pretext of a few problematic ones may instead result in plunging education into confusion. In particular, since most of the contents of this amendment reflect claims long advanced by certain special-interest groups, one cannot help but wonder whether it carries a political coloring.

Corrupt private schools in Korea’s educational world must be eradicated. In particular, given the public character of education, audits and social oversight related to private school management should be strengthened so that corrupt private schools cannot take root. If the main rationale for this amendment to the Private School Act is regulation of corrupt private schools, then it is necessary to strengthen the supervisory authority of the competent authorities over private schools and to tighten regulations so that those involved in corruption in private schools can never again set foot in the education sector.

Considering the share and role of private schools in Korean education, it is all the more important to establish a private school system that respects both the efficiency of private school operation and the management rights of school foundations. In particular, private schools are important actors in education that provide society with diversity and creativity in education. Therefore, the Private School Act should aim in the direction of granting greater autonomy in school operation while demanding responsibility commensurate with that autonomy. If amending the Private School Act only dampens the motivation of private school founders and private school foundations, which are at the center of private education, it will clearly hinder rather than promote the development of private education.

Junhyeok Cho (Department of Economics, University of Incheon)

Wiki:

https://www.cfe.org/w/bbsDetail.php?idx=79

---

Original title: 私立學校法中改正法律案에 관한 의견

Author: Jeon-hyeok Cho

Date: 2004-11-05

Source: https://www.cfe.org/bbs/bbsDetail.php?cid=bill&pn=3&idx=25836