Constitution has provisions regarding education. Article 31, Paragraph 1 of the Constitution guarantees the right to receive education equally according to one's abilities for all citizens, and Paragraphs 2 and 3 stipulate free compulsory education at...
Constitution has provisions regarding education. Article 31, Paragraph 1 of the Constitution guarantees the right to receive education equally according to one's abilities for all citizens, and Paragraphs 2 and 3 stipulate free compulsory education at a certain level. Paragraph 4 guarantees the autonomy, professionalism, and political neutrality of education, while Paragraph 6 establishes the principle of constitutionalism in education legislation. The right to receive education is an essential prerequisite for individuals to pursue happiness (Article 10 of the Constitution) and lead a dignified life (Article 34, Paragraph 1 of the Constitution), enabling them to meaningfully exercise other fundamental rights. Education, on an individual level, provides opportunities for personal development and preparation for a vocational life, and in a democratic society, it plays a role in cultivating civic competence and realizing equal opportunities.
However, in Korean society, educational disparities caused by income inequality are deepening, and the actual state of education is moving further away from the constitutional ideals regarding education. This is due to the examination-oriented entrance examination system and the culture of elite education based on academic backgrounds. Therefore, this paper aims to shed light on the discrepancy between the current educational reality in Korean society and the constitutional ideals regarding education, and propose solutions through the interpretation of Article 31 of the Constitution, which pertains to education. The paper includes an analysis of the impact of previous Constitutional Court decisions on the interpretation of Article 31 of the Constitution in today's Korean educational reality. The current educational reality, such as excessive state control over school education, the lack of channels for parental and student participation, the weakening of the autonomy of education, the exacerbation of educational disparities due to neglect of the private education market, and the inadequacy of civic education, is not unrelated to the interpretation of Article 31 of the Constitution. Decisions by the Constitutional Court on cases such as the National Curriculum Textbook Incident (Constitutional Court Decision 89Hun-Ma88), the Ban on Private Tutoring (Constitutional Court Decision 98Hun-Ga16), the Prohibition of Preferential Support for Autonomous Private High Schools (Constitutional Court Decision 2018Hun-Ma221), the Ban on English Education in Lower Grades of Elementary Schools (Constitutional Court Decision 2013Hun-Ma838), and the Ban on Teachers' Political Affiliation (Constitutional Court Decision 2018Hun-Ma551) have granted the state strong and comprehensive regulatory authority over school education, but have relatively weakened the autonomy of education subjects such as parents, students, schools, and teachers. The excessive emphasis on the political neutrality of education also weakens the autonomy in educational settings and leads to the inadequacy of civic education.
To overcome the current discrepancy between the educational reality and the constitutional ideals regarding education, it is important to achieve both 'educational equality' and 'educational autonomy.' While the state needs to play an active role in establishing the school education system to achieve educational equality, it is also necessary for education to take place by reflecting and respecting the will of students and parents, who are the subjects of learning rights, and guaranteeing autonomy to teachers who engage in teaching activities. Therefore, this paper argues that a shift in interpretation is needed for Article 31, Paragraph 1 of the Constitution, which guarantees the right to receive education equally, Article 31, Paragraph 4, which ensures the autonomy of education as a principle, and Article 31, Paragraph 6, which emphasizes constitutionalism in education legislation, as these provisions are closely related to the simultaneous realization of 'educational equality' and 'educational autonomy.' By examining the problems of the existing interpretations through relevant Constitutional Court decisions, this paper aims to find the direction.
Chapter 1 serves as an introduction, explaining the background and purpose of the research. Chapter 2 provides a preliminary summary and interpretative perspectives necessary for the interpretation of Article 31 of the Constitution before delving into the discussion of each clause. In interpreting Article 31 of the Constitution, it is important to understand not only the purpose of education as stated in the Constitution but also the inherent laws of education, which entail that even if the state actively establishes an educational system to ensure equal educational opportunities, education should be conducted with utmost respect for the intentions and autonomy of the educational subjects, including students, parents with the right to educate their children, and teachers who engage in teaching activities. Furthermore, in the interpretation of the Constitution, considering its openness, political nature, and historical context, the principles of republican constitutionalism that emphasize the importance of citizens' participation in the formation of social conditions for equality and the establishment of laws and institutions through democratic contestability are referred to as a useful analytical framework for understanding the constitutional reality of the time and seeking desirable constitutional ideals. This is because it offers significant implications for the interpretation of Article 31, Paragraphs 1, 4, and 6 of the Constitution, which aim to pursue equal opportunities through the provision of substantial equal educational opportunities, respecting the autonomy of educational subjects and establishing educational systems through democratic decision-making processes.
Continuing to Chapter 3, it analyzes the relationship between the right to receive education equally as stated in Article 31, Paragraph 1 of the Constitution and the Constitutional Court decisions related to the guarantee of equal opportunities and the provision of equal educational opportunities. It also examines the meaning of "according to ability" in Article 31, Paragraph 1, emphasizing that the right to receive education equally enshrined in the Constitution is closely related to the active role of the state in realizing substantial educational equality. It clarifies its legal nature and constitutional significance. In Chapter 4, it highlights the special significance of Article 31, Paragraph 4 of the Constitution, which guarantees the autonomy of education and serves as a theoretical basis for educational autonomy, leading to the guarantee of teachers' classroom autonomy and the participation rights of parents in education, aiming to prevent the dominance of education by power resulting from a state-led educational system. In Chapter 5, it discusses Article 31, Paragraph 6 of the Constitution, a provision that has existed since the original Constitution, not merely as a formal provision for establishing the foundation of the educational system, but as a provision that provides a methodological basis for realizing educational autonomy. It means that regardless of whether it is a statutory regulation, a subordinate legislation, or an ordinance, the provision signifies the establishment of democratic decision-making processes for educational systems through the participation or exercise of oversight power by educational subjects, including parents' participation rights in education, in order to strive for equal opportunities by guaranteeing educational autonomy. To address the current educational reality in Korea, it is necessary to shift the interpretation of these provisions, with Article 31, Paragraph 4 guaranteeing educational autonomy serving as the theoretical basis for educational autonomy and Article 31, Paragraph 6 providing a methodological basis for educational autonomy.
With critical analysis of Constitutional Court decisions related to Article 31 and a clear recognition of the current educational reality faced by Korea, it is hoped that by understanding the meaning of Article 31 of the Constitution from the perspectives of ‘educational equality’ and ‘educational autonomy’ a constitutional solution to the educational problems that our society is facing can be proposed.