12. Compulsory Allocation of High School Student Case

[21-1(B) KCCR 185, 2005Hun-Ma514, April 30, 2009]

In this case, the Constitutional Court decided that the provision of the Enforcement Decree of the Elementary and Secondary Education Act does not infringe on the basic right of the complaint who is a parent.

Background of the Case

Complainant whose son is a high school student and whose daughter is a middle school student filed this constitutional complaint on May 23, 2005, arguing that Article 84 of the Enforcement Decree of the Elementary and Secondary Education Act (hereinafter, the 'Instant Provision') violates the Constitution. The Instant Provision stipulates that new students at day-time sessions of general high schools in an area where the entrance screening is conducted by the Superintendent of the Office of Education (meaning an area where the levels of high schools are equalized) shall be allocated to each high school by lottery conducted by the Superintendent of the Office of Education. Regarding this, the complainant maintained that the Instant Provision deprived his children of an opportunity to choose schools where they desire to go to, while randomly allocating them to schools that have specific philosophy or religious education programs with which they do not agree, thereby infringing on parents' right to choose school for their own child, right to educate child based on their religion, and right to pursue happiness.

Provisions at Issue

Enforcement Decree of the Elementary and Secondary Education Act

Article 84 (Recruiting new students and allocation of general school) New students at day-time sessions of general high schools in an area prescribed in the Ordinance of the Ministry of Education, Science and Technology by the Article 77 Section 2 shall be allocated to each high school by lottery, provided students who had applied may be

allocated to the school on the application in the event of applicants applied to two more schools according to the Article 81 Section 5.

Summary of the Decision

In a vote of 5 to 4, the Constitutional Court held constitutional Article 84 of the Enforcement Decree of the Elementary and Secondary Education Act. The summary of the decision is as follows:

Although not expressly stipulated in the Constitution, the parents' right to educate children is one of the important basic rights derived from Article 36, Section 1 of the Constitution which protects marriage and family life and Article 37, Section 1 of the Constitution. In relation to school education, this right includes parents' right to make a choice for children's educational course or parents' right to choose schools for the children.

Article 31 of the Constitution endows a broad formative right to the state regarding fundamental matters pertaining to the school education such as school system, administration, types of school and contents and method of class. The purpose of the Instant Provision is to normalize middle school education by controlling extreme competition in high school entrance examination and to provide equal opportunity for high school education by eradicating school hierarchy and minimizing regional disparity in education, and this purpose is legitimate. And the entrance screening procedures conducted by the Superintendent of the Office of Education and the allocation method of lottery selection system according to school groups and districts, as opposed to the competitive selection process conducted by each school, are proper means to achieve the legislative purpose.

When it comes to the allocation method by lottery conducted by the Superintendent of the Office of Education, the most reasonable and commonly used method is to allocate students to schools in their neighborhood, taking into consideration of the distance and distribution of schools in a certain school district. And the Instant Provision provides various supplementary measures such as allowing multiple applications or conducting lottery selection only among those who have already filed applications. Therefore, it is hard to assert that the

Instant Provision excessively restricts the parents' right to choose schools based on one's place of residence. Meanwhile, the guarantee of the right to choose a 'private' school is the issue to be put on the political agenda after the educational infrastructure is sufficiently settled down. Considering that our country is moving toward guaranteeing the right to choose a private school as the number of special purpose high schools, independent private high schools and autonomous high schools is increasing; that most cities/provinces limitedly allow the right to choose or not choose a religious school by conducting lottery selection only among those who have already filed applications; and that it is mandatory for a school which has religion class as regular course of education to provide alternative class, it cannot be said that the parents' right to choose a 'private' school or the right to choose a school for religious education are excessively limited by the Instant Provision.

Article 47, Section 2 of the Elementary and Secondary Education Act is the legal basis of the Instant Provision as it should be considered that the high school entrance screening method and process, in an area where the levels of high schools are equalized, are decided by the Ordinance of the Ministry of Education and Science, taking into consideration of the balance between demand of students and supply of high schools and the opinions of the local residents and the Office of Education. Further, given the fact that the Instant Provision is enacted to make it possible for the Superintendent of the Office of Education to control the demand of students and supply of high schools and effectively utilize educational facilities, taking into consideration of the balance between demand of students and supply of high schools and the opinions of the local residents and the Office of Education, it is consistent with the purpose of the delegated legislation.

Dissenting Opinion of Three Justices

The system of the 'high school entrance processes by lottery', which is the very basic and fundamental element pertaining to school education system and its management, should be directly controlled by the National Assembly through enacting related statute pursuant to

Article 31, Section 6 of the Constitution, since it restricts the parents' right to choose school for their children. Nevertheless, Article 47, Section 2 of the Elementary and Secondary Education Act delegates this authority to the Instant Provision, which is administrative legislation, without providing specific conditions or guideline, thereby violating the Constitution. Consequently, the Instant Provision, which stipulates the system of 'high school entrance processes by lottery' pursuant to the unconstitutional delegation by the aforementioned provision of the Elementary and Secondary Education Act, runs afoul of the Constitution as it restricts the parents' right to choose school for their children in violation of the constitutional principle of parliamentary reservation.

Dissenting Opinion of One Justice

The portion of the Instant Provision which does not give students a chance to choose and apply for high school to attend should be regarded violating Article 31, Section 1 and Article 37, Section 2 of the Constitution because it intrinsically limits the students' freedom to choose school according to their aptitude and ability without proper ground and thus infringes on the parents' right to educate their children.