Case on Designating Autonomous Private High Schools (APHS) as Schools of the Second Term and Banning the APHS applicants from Reapplying for Schools of the Second Term in High School Equalization Policy Areas

[2018Hun-Ma221, April 11, 2019] * First Draft

In this case, the Court held that the provision of Enforcement Decree of the Elementary and Secondary Education Act banning applicants for autonomous private high schools from reapplying for the schools of the second term in the high school equalization policy area violates the Constitution by infringing upon the right to equality of the students and their parents. On the other hand, the Court ruled that the provision of the Enforcement Decree of the Elementary and Secondary Education Act designating the autonomous private high schools as the schools of the second term does not violate the Constitution for it does not infringe upon the freedom of school foundations to run private schools and its right to equality.

Background of the Case

The complainants are school foundations (hereinafter referred to as the “complaining foundations”) that operate autonomous private high schools (hereinafter referred to as the “APHS”); middle school students who reside in High School Equalization Policy Area (hereinafter referred to as “HSEPA”) and want to be admitted to the APHS (hereinafter referred to as the “complaining students”); and, their parents (hereinafter referred to as the “complaining parents”). Since APHS were included in the category of the schools selecting students in the first term (hereinafter referred to as the “schools of the first term”) under the high school admission schedule of 2018, students could reapply for the second term schools selecting students in the second term (hereinafter referred to as the “schools of the second term”) until 2018, if he/she fails to be admitted to APHS in the first term, pursuant to Article 85 Section 2 of the Enforcement Decree of the Elementary and Secondary Education Act. As the Enforcement Decree was amended on December 29, 2017, however, Item 5 from Article 80 Section 1 was deleted to classify the APHS into the category of the second term and inserted ‘except for autonomous private high schools under Article 91-3’ to Article 81 Section 5 to prohibit APHS applicants from reapplying for the schools of the second term in the HSEPA (hereinafter referred

to as the “Amendment at Issue”). The complainants filed a constitutional complaint on February 28, 2018, arguing that the Amendment at Issue infringes upon the students and their parents’ right to select the school as well as the school foundations’ right to select its students by making it difficult for the students and parents to apply for the APHS and the APHS find it challenging to select its students. The complainants also argued that the Amendment at Issue infringes their right to equality and it violates the principle of protection of confidence.

Subject Matter of Review

The subject matter of review in this case is whether Article 80 Section 1 (hereinafter referred to as the “Provision for Simultaneous Selection”) and the part ‘Autonomous private high schools in accordance with Article 91-3 are excluded’ of Article 81 Section 5 (hereinafter referred to as the “Provision Banning Multiple Applications”) (collectively, “Provisions at Issue”) of the Enforcement Decree of the Elementary and Secondary Education Act (amended by Presidential Decree No. 28516, Dec 29, 2017) (hereinafter referred to as the “Decree”) infringes upon the basic rights of the complainants.

Provision at Issue

Enforcement Decree of the Elementary and Secondary Education Act (Amended by Presidential Decree No. 28516, Dec 29, 2017)

Article 80 (Classification of Selection Time)

(1) The time for selecting new high school students shall be divided into the first term and the second term, and schools or departments selecting students in the first term (hereinafter referred to as "schools of the first term") mean the following high schools or departments, and schools or departments selecting students in the second term (hereinafter referred to as "schools of the second term") mean the high schools, other than the schools of the first term.

1. Deleted;

2. Art and athletic high schools (referring to high schools which mainly provide technical education, such as arts and athletics; hereinafter the same shall apply) among general high schools;

3. Special purpose high schools under Article 90 except for the special purpose

high schools under Article 90 Section 1 Item 6;

4. Specialized high schools under Article 91;

5.AutonomousprivatehighschoolspursuanttoArticle91-3;

6. Departments determined by the Superintendent of an Office of Education among departments established in general high schools (limited to departments established for the purposes of training artists and athletics or training talented persons in a specific field corresponding to specialized high schools under Article 91).

Article 81 (Application for Admission)

(5) Notwithstanding the main sentence of Section (1), a person who intends to enter a day session of a school of the second term (except forthe special purpose highschool sunder Article 90 Section 1 Item 6 andautonomous private highschool sunder Article 91-3) in the area prescribed by ordinance of the relevant City/Do pursuant to Article77(2) may select and apply for atleast two schools according to the methods and procedures determined by the Superintendent of an Office of Education.

Summary of the Decision

1. Whether Codification of Education System is violated (Provisions at Issue)

The Elementary and Secondary Education Act provides for basic issues such as purpose (Article 45), term of school years (Article 46), qualifications, etc. for admission (Article 47) and departments, subjects and curricula (Article 48) regarding the high school education system and its operation. However, matters concerning the admission, such as methods and procedures of entering high schools, are delegated to administrative legislation according to Article 47 Section 2 due to the need to take into account the situation of supply and demand for high school education, which varies upon region and time, and the characteristics of each high school. Thus, it is difficult to find that the Provisions at Issue stipulate the time of selecting new students and the method of application by Presidential Decree according to the characteristics and needs of each high school violates the codification of education system.

The Provisions at Issue enabled individual schools to select new students at different times reflecting their own purpose and needs, since various types of special purpose high schools were recognized in ways to complement as the

national policy of high school equalization was adopted. In addition, application methods were decided differently considering the characteristics of the schools of the second term in HSEPA, where students can practically be allocated by the draw, and those of APHS that the admission process is consisted of draw and admission interview, and etc.

Therefore, the Provisions at Issue were amended in consideration of the situation of demand and supply for high school education as well as the characteristics of the individual high schools, and are consistent with the delegation purpose of Article 47 Section 2 of the enabling statute, Elementary and Secondary Education Act.

2. Judgment on Provision for Simultaneous Selection

(1) Whether the restriction on the basic right goes beyond the limit and the freedom of private high school education is infringed

Since private schools cannot differ materially from national-public schools in that they play a role in public education, the state has the authority and responsibility to supervise and control the operation of private schools within a certain scope and the degree of regulation will depend on circumstances of the time and conditions of respective schools. Constitutionality of the Provision for Simultaneous Selection, despite its restriction on freedom of the complaining foundations to run their schools, should be based on whether it arbitrarily infringes upon the essence beyond the limit of restricting the basic rights under Article 37 Section 2 of the Constitution.

The Provision for Simultaneous Selection was enacted to ‘discourage a handful of schools from singling out excellent students as well as alleviate high school rankings’, and ‘relieving excessive competition for prestigious high schools’ through the operation of equal and fair admission process. The original purpose of designating APHS as the schools of the first term was reflecting the expectation that they would provide differentiated education from that of general high schools under autonomous operation by selecting students suitable for their foundation philosophy and curricula before the schools of the second term. Despite the original intention, however, the curricula of the APHS were not so different from those of the general high schools and selecting students in the first term was exploited to select excellent students before others do. Some argued that it is an unfair discrimination between the general high schools and

APHS based on the school type, and the gap in academic performance between them is widening. Under such circumstances, it is no longer justifiable to classify the APHS in the category of the schools of the first term.

The key element in selecting students fit for individual APHS is the selection method, and the principals of each school can decide the admission process even if the APHS and general high schools select their students at the same time. Therefore, the APHS would not face difficulty in selecting the students fit for their own education program, and the Enforcement Decree minimized restricting freedom of the APHS to run private schools by maintaining the administrator of admission process or the size of students to select intact. Besides, it cannot be concluded that enhancing competitiveness of the general high schools alone is good enough to ease high school rankings and competition for prestigious high schools.

Thus, the Provision for Simultaneous Selection is within discretion and authority of the state that establishes the school system.

(2) Whether the principle of protection of confidence is violated and the freedom of private high school education is infringed

It is increasingly necessary to flexibly carry out the education policy to properly respond to a changing education environment. And if any unexpected side effect emerges from an education system put in place, the state must redress the problem as it builds the education policy.

The APHS are governed by Article 61 of the Elementary and Secondary Education Act, and the provision does not grant them special confidence as to the time of selecting new students. In addition, the admission process needs to be determined based on supply and demand for the high school education and characteristics of respective high schools. Moreover, designating them as the schools of the first term depends on whether their need to select students with certain gifts or aptitude in a particular field ahead of the schools of the second term is recognized.

As stated earlier, the APHS have been operated unlike the original purpose of introduction. The expectation or confidence that APHS would remain as the schools of the first term is based on the premise that they would run their curricula in faithful ways serving the original purpose. If such premise is not met, the value or necessity of protecting confidence of the complaining foundations falls naturally.

Easing high school rankings and competition for school entrance exam are significant public interests. Keeping the APHS under the category of the schools of the first term would make it difficult to address the issue of APHS’ preoccupation of excellent students and eventually it will be difficult to lessen the high school rankings. Besides, the value of protecting confidence of the complaining foundations is small. When these are taken into account, the Provision for Simultaneous Selection does not violate the principle of protection of confidence.

(3) Whether the right to equality of the complaining foundations is infringed upon

Classifying certain schools under the category of the schools of the first term should be determined based on whether their need to select students with certain gifts or aptitude in specific areas before the schools of the second term is recognized. It can be acknowledged that science high schools need to select students with gifts or aptitude in science in order to fulfill its foundation philosophy of ‘nurturing talents in science or particular curricula’ before the schools of the second term. On the other hand, it is deemed less necessary for the APHS to select students with certain gifts or aptitude before the schools of the second term when considering their curricula and etc. Thus, the Provision for Simultaneous Selection does not infringe upon the right to equality of the complaining foundations as there is a reasonable cause to designate the APHS as the schools of the second term and treat them like the general high schools but unlike the science high schools.

3. Judgment on Provision Banning Multiple Applications

The issue in the Provision Banning Multiple Applications is a matter of equal opportunity for high school admission. Though high school education is not compulsory, it is considered a general education that everyone is provided. When such fact is taken into account, restricting the opportunity for high school admission has a significant impact on the students, Thus, it should be examined strictly, whether the purpose and degree of discrimination conform to the principle of proportionality.

Applicants for the APHS and those of general high schools either did not apply for the schools of the first term or did not pass the entrance exam. Therefore,

the two are in same position for that they all have only one chance to apply to go to high schools of the second term.

It may vary by cities and provinces, but the admission process of the schools of the second term in the HSEPA is guaranteed if the ranking based on the middle school records falls within the total quota of the schools of the second term in each area.

However, the unsuccessful APHS applicants in the HSEPA in principle do not have the chance to apply for general high schools in their areas because of the Provision Banning Multiple Applications and whether to assign them to other schools is up to the superintendent of the respective area. Under the circumstances, some of the unsuccessful applicants for the APHS in the HSEPA cannot go to general high schools in their own school district as the local education authorities does not provide a general high school assignment process for them. Those students might have to go to schools in non-HSEPA far from home or need to wait for applying for schools that fail to meet their full student quota. In a worst case scenario, if nothing above mentioned is available, they might have to spend another year to go to high school. When the meaning of high school education and the high school entrance rate in Korea are taken into account, it is certainly questionable if the disadvantage possibly coming from applying for APHS is justifiable.

The state should have provided other measures for the students who failed to be admitted to APHS and had a difficulty to be assigned to the schools of second term, due to the fact that the admission processes for the APHS and the schools of the second term in the HSEPA are implemented by their own respective administrators. Nevertheless, the Provision Banning Multiple Applications simply stated the principle of banning multiple applications without presenting any measure for the unsuccessful applicants for the APHS enter high schools. Consequently, the Provision Banning Multiple Applications infringes upon the right to equality of both the complaining students and complaining parents as it is not deemed to have proportionality between the purpose and degree of discrimination to a level that justifies discrimination against the applicants for APHS as for the chance to enter high schools.

Opinion of Unconstitutionality by Five Justices on Provision for Simultaneous Selection

(1) Whether the principle against excessive restriction is violated and the freedom of private high school education is infringed

Ensuring the autonomy and independence of private schools is the essence of the private school system. In this context, the state’s interference in private school education should be confined to what is necessary to ensure the faithfulness of the education provided by private schools, or the education that is recognized to be equivalent to the public education. Autonomous operation of school foundations or private schools can be limited only when the conditions of Article 37 Section 2 of the Constitution are met.

The controversy over the APHS leads to the matter of educational philosophy of what to emphasize: autonomy or publicness in private education and excellence or equity in education. When this is taken into account, the legislative purpose itself is acceptable and the Provision for Simultaneous Selection is deemed an appropriate measure that contributes to serving the purpose.

The APHS are financially independent from the state or local governments in return for a greater autonomy than general private high schools and possibly little regulation on the right to select their own students. When high tuition fees, special educations according to individual founding philosophy and dormitories of APHS that select the students all across the country are taken into account, it is critical for the APHS to select the students in the first term for school operation before the general high schools.

In order to discourage a handful of schools from singling out excellent students and alleviate high school rankings, competitiveness of the general high schools should be enhanced eventually. However, the Provision for Simultaneous Selection may make all high schools uniformly mediocre by relatively easily regulating the APHS. And it is not regarded to particularly overheat competition for high school entrance as the admission process for the APHS disallows asking knowledge based on textbook. This implies that it is uncertain how greatly its legislative purpose is served. Moreover, the Provision for Simultaneous Selection and the Provision Banning Multiple Applications do not guarantee that the unsuccessful applicants for the APHS are assigned to the schools of the second term in the HSEPA as mentioned above. Subsequently, students are likely to avoid applying for the APHS, which can have a negative impact on their very existence. If any of APHS fails to meet the legal requirement or achieve its foundation purpose, the legislative purpose can be served through less restrictive regulations for the APHS concerned such as revocation of designation by the

responsible superintendent. Accordingly, the Provision for Simultaneous Selection violates the principle of minimum restriction. Besides, the public interest to achieve is greatly outweighed by the infringed private interest of the complaining foundations, making it difficult to acknowledge the balance of interests. For this reason, the Provision for Simultaneous Selection violates the principle against excessive restriction and infringes upon the freedom of the complaining foundations to run private schools.

(2) Whether the principle of protection of confidence is violated

If an action of an individual according to law is induced by the state in a certain direction more than use of opportunities given by the law reflectively, the expectation interest that is particularly worth protecting can be acknowledged. And there is room to believe that protecting individual confidence should take precedence over the state’s interest coming from legal amendment. Foundation and operation of the APHS by the complaining foundations is not solely for their private interests but induced and encouraged by the state in certain ways to realize the public interests of diversity, autonomy, excellence and responsibility of high school education. Furthermore, their foundation and operation was realized as the state assured the complaining foundations of selecting students in the first term under the presidential decree (Enforcement Decree Article 80 Section 1 Item 5 before the amendment on Dec 29, 2017). Such confidence of the complaining foundations is especially worth protecting under the Constitution.

The Provision for Simultaneous Selection is slightly or uncertainly contributing to serving the legislative purpose while the complaining foundations run with corporate contributions and tuition fees without receiving the government subsidy. If the students avoid applying for the APHS, the complaining foundations would experience difficulty in school operation and have no choice but to turn into general high schools when they cannot suffer the loss anymore. The complaining foundations in particular that select students nationwide invested significantly in facilities such as dormitories that would be unnecessary in the general high schools. Simply turning them into general high schools cannot address the loss and disadvantage of the complaining foundations. It is hard to see that the government went through sufficient review and hearings about changing the admission process of the APHS. Moreover, it suddenly revised the enforcement decree on December 29, 2017 and enforced the revision from the school year of 2019 immediately without any grace period. Therefore, the Provision for

Simultaneous Selection violates the principle of protection of confidence, infringing upon the school foundations’ freedom to run private schools.

* This translation is provisional and subject to revision.