School Operational Committees in Private SchoolsCase

(13-2 KCCR 762, 2000Hun-Ma278, November 29, 2001)

Contents of the Decision

1. Scope of legislative discretion concerning the establishment of the school operational committees

2. Whether Article 31 and other Articles of the Elementary and Sec-ondary Education Act ordering the mandatory establishment of theschool operational committees in private schools infringe on the property rights of the founder or the incorporated foundation ofprivate schools.

3. Whether Article 31 and other Articles of the Elementary and Sec-ondary Education Act violate the constitutionally guaranteed inde-pendence and professionalism of education.

Summary of the Decision

1. A school operational committee is a system which enablesteachers, parents, and leaders of the community to deliberate on im-portant matters in school management. The system is a means toguarantee the parents' right to participate in their children's educa-tion. It also helps enhance school autonomy and enable a diverseand creative educational system reflecting the special conditions and characteristics of the local community.

Because parents should naturally be allowed to participate in theirchildren's education, legislation recognizing the parents' right to col-lectively participate in their children's educational process is consti-tutionally permitted. Also, a teacher's right to educate (right to teachclass) should be guaranteed by law. Allowing the participation ofcommunity members in the school operational committee is related tothe democratic principle of local autonomy, and its merits would bethat it enables a school to reflect the needs and characteristics ofthe community in its management.

Thus, whether to require the mandatory establishment of schooloperational committees in private schools, as is the case in nationalor public schools, is a policy matter for the legislature, and it can-not be deemed as unconstitutional unless the legislature clearly de-parts from the scope of legislative discretion.

2. Article 23(1) of the Constitution states that "the right to prop-erty of all citizens shall be guaranteed. The contents and limita-tions thereof shall be determined by Act." Statutory provisions re-quiring the establishment of school operational committees may re-strict the right of the foundation of private schools, to freely disposeof or use their property, but such restrictions are consequences ofthe legislature determining certain limits to the property rights ofprivate school foundations.

The school operational committee is usually an advisory organi- zation, and among the advisory matters, the drafting of budgets andsettlement of accounts of schools are deliberated on only when theparticular private school requests consultation. In this light, statutoryprovisions requiring the establishment of the school operational com-mittee does not violate the essential aspect of the property right ofprivate schools. Even if the instant statutory provisions can be seenas legislation restricting property rights, not legislation forming thecontents of property rights, the restriction is for a legitimate purpose,and is not excessive.

3. In order to ensure stable and continuous development of anation, education needs to be led and managed by educators or edu-cational experts, so that education is not influenced by unjustifiedinterference from external power. Thus, independence, profession-alism, and political impartiality of education is required, as is stipu- lated in Article 31 of the Constitution. The instant statutory provi-sions may impose restrictions on independence and professionalismof education in private schools. However, considering the legislativepurpose and the composition and nature of the school operational com-mittee, it cannot be held that the system of school operational com- mittee in private schools is clearly arbitrary or puts an unreasonableemphasis on the public nature of education in private schools whilenegating autonomy of private schools.

Parties

Complainants

1. School Corporation Wooam Education Foundation and 15 others

Counsel of record: Legal Corporation Hwabaek

Attorney in charge: Roh Kyong-rae and 3 others

Holding

The complaint against Article 62(1) of the Local Education Auto-nomy Act (revised by Act No. 6216 on January 28, 2000) is dismissed.The complaint against Article 31(1), (3), 32(2), (3), 34(2), and partsof Article 63 concerning private schools of the Elementary and Sec- ondary Education Act (revised by Act No. 6007 on August 31, 1999)and Article 63 of the Enforcement Decree of the Elementary andSecondary Education Act (revised by Presidential Decree No. 16729on February 20, 2000) is rejected.

Reasoning

1. Overview of the Case and the Subject Matter of Review

A. Overview of the Case

Complainants are members of the Coalition of Private Middle and High School Foundations in Korea. On April 26, 2000, the complain-ants filed a constitutional complaint against provisions of the Ele-mentary and Secondary Education Act revised on August 31, 1999, andprovisions of the Enforcement Decree of the Elementary and Second-ary Education Act requiring the mandatory establishment of the schooloperational committees in private schools. The complainants allegethat these provisions violate the complainants' property right and areagainst Article 31 of the Constitution stipulating independence andprofessionalism of education. Simultaneously, the complainants fileda constitutional complaint against a provision of the Act on Auto-nomy of Local Education stipulating that the electoral body for mem-bers of the Board of Education or the Superintendent of the Officeof Education should be composed of individuals who are members ofthe school operational committees, alleging that it is against Article11(1), 24, and 117(1) of the Constitution because it deprived localresidents of the right to vote.

B. Subject Matter of Review

The complainants challenge the constitutionality of Article 31, 32,34, and 63 of the Elementary and Secondary Education Act and Article63 of the Enforcement Decree of the Elementary and Secondary Edu-cation Act. Since the complainants filed the instant complaint tocontest the constitutionality of the establishment and management of school operational committees in private schools, Article 31(2), 32(1),and 34(1) of the Elementary and Secondary Education Act which only deal with national or public schools are irrelevant to the instant case,therefore not subject

for review. The constitutional review of theremaining provisions should also be limited to aspects dealing withprivate schools.

Thus, the subject matter to review in the instant case will beArticle 31(1), (3), 32(2), (3), 34(2), and parts of 63 concerning privateschools of the Elementary and Secondary Education Act (revised byAct No. 6007 on August 31, 1999), hereinafter referred to as Act,Article 63 of the Enforcement Decree of the Elementary and Sec-ondary Education Act (revised by Presidential Decree No. 16729 on February 28, 2000), hereinafter referred to as the instant provision,and Article 62(1) of the Act on Autonomy of Local Education (revisedby Act No. 6216 on January 28, 2000).

The provisions on review and related provisions in the instantcase are in the attached Appendix 2.

2. Complainants' Arguments and Opinions of Related

Agencies

A. Complainants' Arguments

The school foundation is the principal agents managing privateschools, and to require agents other than the school foundation such as students' parents, teachers, and members of communities to par- ticipate in the school management violates the independence and es- sential aspects of private schools. The school operational committeeis stipulated to deliberate or advise on "matters related to schoolcharter", "matters related to drafting budgets and the settlement ofaccounts of school", "matters related to the method of operating theschool curriculum", and "matters related to the recommendation ofvisiting teachers" (Article 32 of the Act), and this infringes on theauthority of the board of directors of the school foundation. Theschool foundation could be penalized if it does not go through thedeliberation and resolution of the school operational committee, merelyan advisory organ, on matters related to the creation, operation anduse of the school development fund. It is also problematic to holdthe school foundation, not the school operational committee, responsi-ble for legal consequences of the decision of the school operationalcommittee.

If private schools are required to organize school operational com-mittees, parents of students and members of local communities who know little of or are unfit for school management will participate inschool management, and this would infringe on the teachers' authori-ties in education. As for teacher members of the school operationalcommittee, teachers with strong political motivations would partici-pate and this would impede stability in education.

The instant statutory provisions are against Article 31 of theConstitution stipulating independence and professionalism of education,and are contrary to Article 23(1) of the Constitution since the provi-sions infringe on the property right of private school foundations.

The provision of the Act on Autonomy of Local Education be-stowing the right to elect leaders of local education to individualmembers of school operational committees deprives local residents ofthe right to vote and it is against the local representation principle.Hence, it is against Article 11(1), 24, and 117(1) of the Constitution.

B. Opinions of the Minister of Education & Resources

Development(previously, Minister of Education):

see Appendix 3

3. Review of the Complaint Concerning Article 62(1) of

the Act on Autonomy of Local Education

A constitutional complaint should be filed by an individual whose constitutionally guaranteed basic right has been violated by an exer-cise or non-exercise of governmental power. In other words, only a person satisfying the self-relatedness requirement can file a consti-tutional complaint. A private school foundation is not entitled to the right to vote as guaranteed by the Constitution. Aside from whether Article 62(1) of the Local Education Autonomy Act granting individu- al members of school operational committees the right to elect leadersof local education, deprives local residents of the right to vote or isagainst the local representation, it is evident that the instant statu- tory provision does not infringe on the basic right of the complain- ants, who are not entitled to the right to vote. Therefore, the com- plaint against the provision is not legally sufficient because it does not meet the self-relatedness requirement.

4. Review on the Subject Matter

A. Scope of Legislative Discretion Concerning School

Operational Committee

(1) In order to provide diverse educational opportunities, the free-dom to establish private schools and the freedom to manage educa-tion in private schools generally has to be guaranteed. While thepublic education system is dominant in modern society, private schoolsare approved because they offer diversity that public schools cannot. Today, emphasis is on the public beneficial characteristics of educa- tion, and the

public nature of education in private schools similar to that in national or public schools is required of private schools1). Inits earlier decision, the Court also recognized the public nature ofeducation in private schools while emphasizing autonomy in privateschools.

The content of this decision is as follows:

The public nature of education has been increasingly emphasizedin the modern countries, and the national and public school systemhas continued to expand. However, the distinctive feature of a freedemocratic society is that creative and voluntary efforts of peoplewith diverse perspectives and capabilities meet to maintain balanceand harmony. In this regard, the independence, diversity, and crea- tivity of education is a very important objective. Generally, nationalor public schools have a duty to conduct standardized education inaccordance with the universal philosophy of education and the prin-ciple of equal opportunities in education. Therefore, there are inher-ent limits for these schools to develop and cultivate unique qualities of their own. On the contrary, private schools are allowed to strive to achieve their specific founding principle, and they are free to ex-ercise originality in education following their unique educational prin-ciples. Furthermore, private schools voluntarily supplement the limitsof the State's financial investment on matters concerned with edu-cation.

In this light, it is appropriate and desirable to ensure a certain amount of autonomy in private schools when managing its materialand personnel resources. However, as there is no essential differ- ence between national or public schools and private schools in that private schools are also responsible for rendering public education,the State which has a duty to maintain the public school system,legitimately has

an authority and responsibility to a certain extent tosupervise and control operation and management of private schools.

The degree of supervision or control of private schools by theState, while recognizing the autonomy in operating private schools, cannot remain constant at all time. It depends on social conditionsand/or special circumstances at the time and on the types of schools becoming subject to such supervision. As long as such supervision does not violate the essential principles of education, such regulationultimately belongs to the formative power of the legislature. (3 KCCR387, 408-410, 89Hun-Ka106, July 22, 1991; 11-1 KCCR 233, 243,97Hun-Ma130, March 25, 1999)

According to some statistics2), private schools make up 40% of secondary schools, 96% of junior colleges, and 77% of universities.Up until now, private schools in Korea have not been granted auto-nomy in the right to select students and the right to decide tuitionlevels because of the emphasis on the public nature of education. TheState has exercised control over these matters. It is noteworthy that 98% of private middle and high schools depend on tuition and federalsubsidies to meet expenses, and money from the school foundationscovers only 6% of total college or university expenditure.

While autonomy of private schools should be respected, it is more imperative to realize the peoples' right to receive education. Several measures have been considered to guarantee the public nature of edu-cation in private schools, the school operational committee being one of them. A school operational committee is a system which enables teachers, parents, and leaders of the community to deliberate on im-portant matters in school management. The system is a means toguarantee the parents' right to participate in their children's educa-tion. It also helps enhance school autonomy and enable a diverseand creative educational system reflecting the special conditions andcharacteristics of the local community. (11-1 KCCR, 233, 241, 97Hun-Ma130, March 25, 1999).

(2) Parents' right to educate children is not explicitly stated inthe Constitution. However, it is an intransferable, inviolable humanright that all people enjoy regardless of their nationality. Article36(1) of the Constitution protecting marriage and family life, Article 10 stating the right to pursue happiness, and Article 37(1) providingthat "people's liberties and rights shall not be disrespected for not being enumerated in the Constitution" form the foundation for thisright (12-1 KCCR 427, 446-4483), 98Hun-Ka16 and etc., April 27,2000).

Parents' right to participate in school management may not bedirectly derived from the parents' right to educate children. Never-theless, parents should be allowed to participate in their children'seducational process.4)Therefore, legislation allowing parents' collec-tive participation in their children's education by statute can beclearly constitutionally upheld.

Whether to regard the teacher's right to teach as a constitution-ally protected basic right is a matter of dispute,5)but it is clearly aright that should be legally protected. The educational system inmany countries today are increasing teachers' participation in school management and educational decision making process.

Allowing participation of community members in the school oper- ational committee is related to the democratic principle of local auto-nomy, and its merits would be that it enables a school to reflect the needs and characteristics of the community in its management.

In summary, whether to require the mandatory establishment ofschool operational committees in private schools is the case in na-tional or public schools or to let a voluntary organization such as theexisting school supporting committee to play a similar role and makethe establishment of the school operational committee optional, while inducing the organization of such a committee, is a policy matter forthe legislature, and it cannot be deemed as unconstitutional unless thelegislature clearly departs from the scope of legislative discretion.(11-1 KCCR 233, 243, 97Hun-Ma130, March 25, 1999)

B. Reviews on Individual Merits

(1) Violation of Property Right

(A) It is difficult to hold that the instant statutory provisions re- quiring the establishment of the school operational committee restrict the property rights of the foundation of private schools. Article 23(1)of the Constitution states that "the right to property of all citizens shall be guaranteed. The contents and limitations thereof shall bedetermined by Act." Statutory provisions requiring the establishmentof school operational committees may restrict the right of the foun-dation of private schools, to freely dispose of or use their property,but such restrictions are consequences of the legislature determining certain limits to the property rights of private school foundations.

Specific details of property rights are formed through legislation stipulating contents and limitations of property rights. In such case,the statute does not restrict property rights, but forms property rights(5-2 KCCR 36, 44, 92Hun-Ba20, July 29, 1993). This is such case,and the foundation of private schools is allowed to freely use, profitfrom, or dispose of the school properties under the limitations imposedby the instant statutory provisions.

However, legislation forming contents of the property right shouldnot violate the essential aspect of the right to freely use, profit from,or dispose of property nor negate the private ownership system al-together (5-2 KCCR 36, 44-45, 92Hun-Ba20, July 29, 1993).

The school operational committee is an advisory organization (buta deliberation and resolution organization on matters related to thecreation, operation and use of the school development fund6)), and it deliberates on matters related to drafting budgets and the settlement of accounts of school only when the particular private school re-quests for advice. In this light, statutory provisions requiring theestablishment of the school operational committee do not infringe onthe essential aspect of the property right of private schools to use, dispose of, or profit from property, nor negates the private owner-ship system altogether.

(B) Even if the instant statutory provisions can be seen as legis-

lation restricting the property right, they do not constitute excessiverestriction. A school operational committee is a system which enablesteachers, parents, and leaders of the community to deliberate on im-portant matters in school management. The system is a means toguarantee the parents' right to participate in their children's educa-tion. It also helps enhance school autonomy and enable a diverse and creative educational system reflecting the special conditions and char-acteristics of the local community. Therefore, legislation requiringthe establishment of the school operational committee is designed toachieve public welfare stipulated by Article 37(2) of the Constitution, and has a legitimate legislative purpose. Furthermore, the school op-erational committee can only advise on matters related to the draftbudget and the settlement of accounts of school when there is therequest of the school foundation (Article 32(2) of the Elementary andSecondary Education Act), and it remains an advisory organizationfor the rest of the matters listed in Article 32(1) of the Elementaryand Secondary Education Act related to the property of the schoolfoundation. In this light, the instant statutory provisions do not ex- cessively restrict the property right.

Generally, a "consultation" is not legally binding, with regard tothe execution of the agreed matters. Article 63(3) of the EnforcementDecree of the Elementary and Secondary Education Act states that"the principal of a school shall respect the result of consultation withthe governing committee to the best of his ability," and Article 63permits the competent authorities to order correction or modificationin case of a violation of education-related Acts. But actions contrary to Article 63(3) of the Enforcement Decree does not immediately con-stitute a violation of the Act, and the statutory provisions do notexcessively restrict the complainants' property right. Also, generallywhen the private school doesn't go through a consultation with the school operational committee, it may be subject to a correction order pursuant to Article 63, but as the contents of the correction ordersare mostly those ordering the schools to actually go through the con- sultation, Article 63 (the part concerning the school operational com-mittee) does not excessively restrict the complainants' property rights.

Article 63(4) of the Enforcement Decree of the Act stipulates thata deliberation and resolution by the school operational committee isrequired for the creation, operation, and use of a school development fund and that the competent authorities may issue an order for cor-rection when the principal of the private school violates the provi-sion. But as we have seen, this is not unreasonable because theschool operational committee is the organ responsible for raising aschool development fund. Also, this statutory provision does not forma restriction on the property right of the private school foundationsregarding existing assets. Even if it does restrict the property right,it does not constitute an excessive

restriction. In conclusion, theinstant statutory provision does not violate the complainants' prop- erty right.

(2) Violation of Principle of Independence and

Professionalism of Education

Article 31(4) of the Constitution states that "independence, pro-fessionalism and political impartiality of education and the autonomy of institutions of higher learning shall be guaranteed under the con-ditions as prescribed by Statute." Generally, independence of edu-cation implies that educators have the authority to decide contentsand means of education and that the administrative agency should nothave control over these matters. It also means that the teachers'independence from supervisors and founders of educational facilities, and the exclusion of administrative agencies in deciding the contents of education, and the public election of the members of the board ofeducation or similar education management organizations. Profes-sionalism of education requires that professional educators take chargeof preparation and execution of education policy, or at least, thatthey participate in the process7).

In order to ensure stable and continuous development of a nation,education needs to be led and managed by educators or educational experts, so that education is not influenced by unjustified interfer-ence from external power. Thus, independence, professionalism, andpolitical impartiality of education is required, as is stipulated in Article31 of the Constitution. (8-1 KCCR, 433, 447, 94Hun-Ma119, April 25, 1996).

The school operational committee is designed to ensure democra-cy and transparency in the school policy making process by encourag-ing participation of various members of the school community, and it is an autonomous organization established to enable a diverse andcreative educational system reflecting the special conditions and char-acteristics of the local community. In this light, the school opera-tional committee in itself does not violate autonomy of educationguaranteed by the Constitution. Since the school operational com-mittee is merely an advisory organ designed to assist the head of aprivate school to make reasonable and appropriate decisions on im- portant matters in school management by gathering the opinions ofvarious members of the committee, it is not contrary to the profes- sionalism of education.

The instant statutory provisions may impose restrictions on in-dependence and professionalism of education in private schools. How-ever, if such restriction is imposed by legislation and if such legis-lation is

within the scope of discretion coordinating independence,professionalism, and autonomy of private schools with the publicnature of education, it would not be against the Constitution. Con-sidering the legislative purpose and the scope of legislative discretion in allowing the system, and also considering the aforementioned con-tents on property rights, it cannot be concluded that the instantstatutory provisions requiring the establishment of the school opera-tional committee in private schools are clearly arbitrary or put an unreasonable emphasis on the public nature of education in privateschools while negating autonomy of private schools.

The statutory provisions also provide measures to keep restric-tions on autonomy of private schools to a minimal extent as follows:First, the school operational committees in private schools, unlike thosein national or public schools, are merely advisory organs (Article32(2) of the Elementary and Secondary Education Act); Second, theschool operational committee can advise on matters related to formu-lation and amendment of school charter and regulations and mattersrelated to the draft budget and the settlement of accounts of schoolonly when there is a request by the school foundation (proviso of Article 32(2) of the Act); Third, faculty members except ex officiomembers (i.e. principal) of the school operational committee in aprivate school, unlike those in national or public schools, are com-missioned by the principal of a school from among those recom-mended at a plenary session of school personnel (Article 63(2) of the Enforcement Decree of the Elementary and Secondary Education Act);and lastly, other matters necessary for the operation of the schooloperational committee is to be prescribed by the articles of associa- tion (Article 34(2) of the Act).

In conclusion, even if the instant statutory provisions put restric- tions on independence and professionalism of education, such restric-tions are within the constitutionally permitted boundary of legisla-tive discretion.

5. Conclusion

Therefore, the complaint against Article 62(1) of the Act onAutonomy of Local Education (revised by Act No. 6216 on January 28,2000) is dismissed as it is not legally sufficient. The complaintagainst Article 31(1), (3), 32(2), (3), 34(2), and parts of 63 concern-ing private schools of the Elementary and Secondary Education Act (revised by Act No. 6007 on August 31, 1999) and Article 63 of theEnforcement Decree of the Elementary and Secondary Education Act(revised by Presidential Decree No. 16729 on February 28, 2000) iswithout basis, and thus is rejected. So held by a unanimous deci- sion of all Justices.

Justices Yun Young-chul(Presiding Justice), Han Dae-hyun,Ha

Kyung-chull, Kim Young-il, Kwon Seong(Assigned Justice),Kim Hyo-jong, Kim Kyoung-il, Song In-jun, and Choo Sun-hoe

Appendix

Appendix 1 : List of complainants - [omitted]

Appendix 2 : Provisions on Review and Related Provisions

Elementary and Secondary Education Act(revised by ActNo. 6007 on August 31, 1999)

Article 31 (Establishment of School Operational Committees)

(1) National, public and private elementary schools, middle schools,high schools and special schools shall organize and operate schooloperational committees to enhance the autonomy of operating schools and to conduct education to meet the actual circumstances and char-acteristics of a region.

(2) Any school operational committee established in any nationalor public school shall consist of representatives of teachers of theschool concerned, representatives of student parents and leaders ofcommunities.

(3) The fixed number of members of any school operational com-mittee established in a national, public or private school shall beprescribed by the Presidential Decree with the size, etc. of the schoolconcerned taken into account, within the scope of not less than 5but not more than 15.

Article 32 (Functions)

(1) Any school operational committee established in a nationalor a public school shall deliberate matters falling under any of thefollowing subparagraphs:

1. Matters relating to the formulation and amendment ofschool charter and regulations;

2. Matters relating to the draft budget and the settlement of accounts of school;

3. Matters relating to the method of operating the schoolcurriculum;

4. Matters relating to the selection of textbooks and educa- tional materials;

5. Matters relating to educational and training activities afterregular study hours or during a vacation period;

6. Matters relating to the recommendation of persons as

invited teachers under the provisions of Article 31(2) of thePublic Officials for Education Act;

7. Matters relating to the raising, operation and use of theschool operation support fund;

8. Matters relating to school feeding;

9. Matters relating to recommendations made by principalwith respect to college entrance examinations;

10. Matters relating to the composition and operation of aschool sports team;

11. Matters relating to proposals and recommendations withrespect to school operation; and

12. Other matters prescribed by the Presidential Decree andthe Municipal Ordinance of the Special Metropolitan City,Metropolitan City, or Province (hereinafter referred to as the "City/Province").

(2) Any private school principal shall consult with the schooloperational committee with respect to the matters of each subpara-graph (excluding the matters of subparagraph 6) of paragraph (1):Provided, That for matters as referred to in subparagraphs 1 and 2of the same paragraph, it shall be subject to a request by an in-corporated school foundation.

(3) Any school operational committee established in a national,public or private school shall deliberate and vote on matters relatingto the raising, administration and use of the school development fund.

Article 34 (Organization and Operation of School OperationalCommittees)

(1) The matters necessary for the organization and operation ofschool operational committees established at national schools underArticle 31 shall be determined by the Presidential Decree, and thematters necessary for the organization and operation of school opera- tional committees established at public schools shall be determined bythe Municipal Ordinance of the City/Do within the scope as deter-mined by the Presidential Decree.

(2) Matters relating to the composition of any school operationalcommittee established in any private school shall be prescribed by thePresidential Decree and other matters necessary for the operation of such committee shall be prescribed by the articles of association.

Article 63 (Order for Correction or Modification)

(1) Where any school violates education-related Acts and regula-tions, or orders or school regulations thereon, with respect to facili-ties, equipment, classes, school affairs and other matters, the compe-tent

authorities may order the founder and operator or the head of a school to correct or modify them within a fixed period.

(2) Where any person who has been issued an order for correc-tion or modification referred to in paragraph (1) fails to satisfy themwithin the designated period without a justifiable cause, the competentauthorities may annul or suspend the actions in violation of the order,or take measures such as reducing the number of students, reducingor closing classes and department or suspending the enrollment ofstudents in the schools concerned, as prescribed by the presidentialdecree.

Enforcement Decree of the Elementary and SecondaryEducation Act(revised by Presidential Decree No. 16729 onFebruary 28, 2000)

Article 58 (Composition of National and Public School Governing Committees)

(1) The fixed number of members of a school governing commit-tee to be established at national and public elementary schools, middle schools, high schools, and special schools (hereinafter through Article62 referred to as "national and public schools") referred to in Article31 of the Act (hereinafter referred to as "operational committees")shall be determined by the school governing committee regulations ofthe school concerned (hereinafter referred to as "committee regula-tions") with the size, etc., of the school concerned taken into ac-count, within the limits as set forth in the following subparagraphs:

1. A school of which the number of the students is less than200: Not less than 5 but not more than 8 members;

2. A school of which the number of the students is not lessthan 200 but less than 1000: Not less than 9 but not more than12 members; and

3. A school of which the number of the students is not less than 1000: Not less than 13 but not more than 15 members.

(2) The component ratio of members of a governing committee to be established at national and public schools shall be determinedby the committee regulations within the following limits:

1. Members for parents of students (meaning those whorepresent parents of students at the school: hereafter in thisSection the same shall apply): 40/100 to 50/100;

2. Members for teachers (meaning those who represent teach-ers at the school: hereafter in this Section the same shallapply): 30/100 to 40/100; and

3. Community members (public educational officials living inthe area where the school is located who conduct the affairs on

educational administration, businesspeople who conduct businessin the area where the school is located, those who graduatedfrom the school, or others who wish to contribute to operatingthe school: hereafter in this Section the same shall apply):10/100 to 30/100.

(3) Notwithstanding the provisions of paragraph (2), the compo-nent ratio of a governing committee at national and public vocationalschools referred to in Article 80 may be determined by the schoolgoverning committee regulations within the following limits. In thiscase, not less than a half of community members shall be elected fromenterprisers referred to in paragraph (2)[3]:

1. Members for parents of students: 30/100 to 40/100;

2. Members for teachers: 20/100 to 30/100; and

3. Community members: 30/100 to 50/100.

(4) Deleted.

Article 59 (Election of Members)

(1) The principals of national and public schools shall be exofficio members for teachers.

(2) Parent members shall be directly elected among the parent,through democratic representative procedures at a plenary session ofparents: Provided, That where it is difficult to elect them at a plenarysession in the light of the size, facilities, etc. of a school, as pre-scribed by the regulations of the committee concerned, the membersmay be elected at a meeting which is composed of representativesof parents of students by each class under the conditions as pre-scribed by the regulations of the committee concerned.

(3) Members for teachers except ex officio members shall beelected from teachers by a secret ballot at a plenary session of schoolpersonnel.

(4) Community members shall be, upon the recommendation ofany parent members or teacher members, elected by a secret ballotof the latter.

(5) A governing committee shall have a chairman and a vice-chairman, and they shall be elected from members other than mem- bers for teachers by a secret ballot.

Article 60 (Deliberation of Governing Committee)

(1) The principal of any national or public school shall respectthe results of a deliberation by the governing committee to the bestof his ability, and where he intends to act differently from the result of the deliberation, he shall make a report in writing to the governingcommittee

and the competent authorities.

(2) Where it threatens to severely impede the conduct of educa-tional activities and operating the school in the course of a delibera-tion by the governing committee, or there is no time to convene thegoverning committee due to any national disaster or other forcemajeure, the principal of any national or public school may implement the matters listed in Article 32 without deliberation by the governingcommittee.

(3) Where the principal of any national or public school imple-ments the matters without deliberation by the committee pursuant toparagraph (2), he shall make a report in writing without delay onrelated matters and the causes therefor to the governing committee and the competent authorities.

Article 61 (Order for Correction)

Where the principal of any national or public school acts differ-ently from the result of a deliberation and resolution by the governing committee under Article 32(1) and (3) of the Act or fails to implementa result of such deliberation and resolution without any justifiablecause, or he implements without deliberation a matter subject to de- liberation without any cause referred to in Article 60(2), the compe-tent authorities may give an order for correction referred to in Article 63of the Act.

Article 63 (Governing Committees of Private Schools)

(1) Governing committees to be established at private elementaryschools, middle schools, high schools, and special schools (hereafter inthis Article referred to as "private schools") pursuant to Article 31of the Act (hereinafter referred to as "private school governing com-mittees") shall be composed of members for teachers, members forparents of students, and community members of the respective schools.

(2) The provisions of Articles 58, 59, and 60(2) and (3) shallapply mutatis mutandis to the fixed number and election, etc. of themembers of a private school governing committee, but members forteachers except ex officio members shall be commissioned by theprincipal of a school from among those recommended at a plenarysession of school personnel in accordance with the procedures asdetermined by the articles of incorporation. In this case, the term"national and public schools" shall be read as "private schools", andthe term "deliberation" as "consultation".

(3) The principal of a school shall respect the result of consul- tation with the governing committee to the best of his ability.

(4) Where the principal of any private school fails to go througha deliberation and resolution by the governing committee concernedor acts

differently from the result of such deliberation and resolutionor fails to implement the result of such deliberation and resolution,without any justifiable cause, or implements the result without goingthrough consultation without any cause under Article 60(2), withrespect to the creation, operation, and use of a school development fund under Article 32(3) of the Act, the competent authorities maygive an order for correction referred to in Article 63 of the Act.

(5) The matters not prescribed by this Decree concerning thecomposition of a private school governing committee shall be deter- mined by the articles of incorporation.

Local Education Autonomy Act(revised by Act No. 6216 onJanuary 28, 2000)

Article 62 (Composition of Electoral Body)

(1) An electoral body for members of the Board of Educationor the Superintendent of the Office of Education shall be composedof all individuals who are members of school operational committees(hereinafter called the "school operational committee electorate) underArticle 31 of the Elementary and Secondary Education Act as of the date when the election day is announced.

Appendix 3 : Opinion of the Minister of Education and

Human Resources (previously, Minister of

Education)

(1) Numerous nations around the world including the UnitedKingdom have launched diverse education reform programs to preparepeople for the 21st century. The school operational committee pro-gram has been adopted with the understanding that education atindividual schools need to be changed if education is to successfullyperform its duty in this rapidly changing globalization era. It isdesigned to do away with school management based on regulationand control, and to reform a formerly undemocratic decision makingprocess, or a closed school management. It has been adopted tomaximize autonomy and creativity of each school, thereby enablingdiverse and creative education in accordance with the local condi-tions and school characteristics.

(2) Independence of education implies that educators have theauthority to decide contents and means of education and that the administrative agency should not have control over these matters.It also means that the teachers' independence from supervisors andfounders of educational facilities, and the exclusion of administrativeagencies in deciding the contents of education, and the public electionof the members of the board of education or similar education man-agement organizations. The school operational committee is designedto ensure democracy and

transparency in the school policy makingprocess by encouraging participation of various members of the schoolcommunity, and it is an autonomous organization established to con- duct diverse and creative education appropriate to the local conditionsand regional characteristics. In this light, the school operational com-mittee in itself does not violate autonomy of education guaranteedby the Constitution.

Professionalism of education requires that professional educators should take charge of preparation and execution of education policy,or at least, they should participate in the process. Since the schooloperational committee is merely an advisory organ of diverse mem-bers of the school community which deliberate on matters of greatsignificance for the school management upon the principal's request, it is not contrary to professionalism of education.

The school operational committees in private schools, unlike thosein national or public schools, are advisory organs, not compulsoryorgans. While the principal has to consult with the committee onthe matters that require such consultation by the law, the result ofconsultation is not legally binding. Provisions requiring establishmentof the school operational committees in private schools also do notinfringe on the authority of the board of directors of the schoolfoundation.

Article 32(2) of the Elementary and Secondary Education Actexempt "matters related to the recommendation of persons as invitedteachers" from consultation by the school operational committee. Theschool operational committee deliberates and decides on matters relatedto the raising, administration and use of the school development fund. But a "school development fund" is money endowed by persons otherthan the school foundation or that collected from parents, and sincethe school operational committee is the organ responsible for raisinga school development fund under Article 33(1) of the Act, this is in-evitable. Article 63 (Correction and Modification Order) of the Act is legislated to achieve the legislative objective of the Act by pro- viding means to compel private schools to abide by the regulationswhen private schools violate education-related Acts or subsequentorders of competent authorities. Thus, whether to require the man-datory establishment of school operational committees in privateschools, as is the case in national or public schools, is a policy matterfor the legislature, and it cannot be deemed as unconstitutionalunless the legislature clearly departs from the scope of legislativediscretion.

(3) The school operational committee is an advisory organ design-ed to ensure democracy and transparency in the school policy makingprocess by encouraging participation of various members of the schoolcommunity, and it is an autonomous organization established to con- duct diverse and creative education appropriate to the local conditionsand regional characteristics. The school operational committee doesnot restrict the

right of a private school foundation to freely use,profit from, or dispose of the school properties, so it does not in-fringe on the property rights of the private schools.

(4) The complainants argue that to grant all members of theschool operational committees the right to vote for members of theBoard of Education or the Superintendent of the Office of Educationviolates the local residents' right to vote and that it is against Article117 and 118 of the Constitution. However, the right to elect mem-bers of the Board of Education or the Superintendent of the Of-fice of Education is given to the members of the school operationalcommittee in accordance with Article 62(1) of the Act on Autonomyof Local Education stipulating that "an electoral body for members of the Board of Education or the Superintendent of the Office of Educa-tion shall be composed of all individuals who are members of schooloperational committees (hereinafter called the "school operational com-mittee electorate) under Article 31 of the Elementary and Secondary Education Act as of the date when the election day is announced."