Volume 5 Issue 1 - June 27, 2008
Legal Supervision of the Educational Administration: From the Perspective of Studentship at the School
Yue-Dian Hsu

National Cheng Kung University Department of Law and Institute of Law in Science and Technology
Email:hsuyd@mail.ncku.edu.tw

BULLETIN OF EDUCATIONAL RESEARCH, 53(2), PP. 73-101 (2007).

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After the interpretations of the Grand Justices of the Constitutional Court and the enactment of the Basic Law of Education, the relationship between students and schools transforms from a special power one to a legal one.  After the transformation, it gives rise to two logic questions.  One is what rights and obligations schools and student have?  The other is how and what protective procedures students may employ to seek for remedies when their rights are infringed by school administrations and the state?  To answer these two questions and to truly realize the preservation of students’ rights, the starting point is the legal supervision of the educational administration.  This article is the first one in Taiwan starting from the legal relationship between schools and students to further discuss and review the educational administrations of Taiwan’s high schools and elementary schools.  Through the discussion and review, this article is expected to furnish a description and facilitate the understanding of the scope and content of the legal supervision of the educational administration and to endeavor to build the legal framework of the educational administration in Taiwan.

  The legal relationship between schools and student begins with the grants of students’ admissions and ends at students’ graduations.  Because public schools are treated as public facilities by law, traditionally the relationship between public schools and their students are deemed as one of special power relationships under administrative law.  However after the Judicial Yuan Interpretation No. 382 which affirmed the fundamental right for education, the then dominating view of the special power relationship was gradually replaced by the legal relationship as so do in other countries under the rule of law.  The legal relationship between schools and students can be analyzed into two prongs.  One is that students’ right for education falls under the constitutional guarantee of fundamental rights which in turn makes it applicable the principle of reservation of law.  The other is that students may seek for judicial remedies, especially under the administrative procedure, when their rights are infringed.

  If one simply looks at the language of Article 162 of the Constitution, he may come to a conclusion that every education related matters are subject to governmental supervision as prescribed by law.  But such a broad reading does not reflect the contents of the law.  Article 162 of the Constitution mandates the establishment of legal system of governmental supervision and does not mandate the exact scope.  To fill the gap under Article 162 of the Constitution, this article begins with the constitution mandates of Article 21 of the Constitution to explore the constitutional basis of legal supervision of educational administration and to delineate the contents of state’s legal supervision of educational administration.

  In countries under the rule of law, the relationship between schools and students shall be developed toward the realization of student’s self-fulfillment under the constitutional guarantee of fundament right for education and toward the facilitation of student’s personality freedom.  Therefore, the contents of legal supervision of education administration as so prescribed by Article 21 of the Constitution shall be constructed for the benefits of students’ personality freedom and with a view to students’ self fulfillment.  State’s legal supervision of educational administration shall be limited to students’ self-fulfillment and personality freedom.  That is to say, Article 21 of the Constitution not only prescribes the contents of state’s legal supervision of educational administration, but also provides the boundaries of state’s legal supervision of educational administration as well.

  The phrase “supervision under law” prescribed by Article 162 of the Constitution means the government’s supervision over educational administration as so authorized by law.  This article contends that the meaning of the phrase “supervision under law” consist of three parts, legal supervision, professional supervision and personnel supervision.  These three parts will be discussed in turn below.

  Legal supervision represents state government’s formal legal control over other organizations.  Government’s legal supervision of educational administration means the government may exercise control over school affairs, which can be divided into two aspects, internal school affairs and external school affairs.  Internal school affairs include affairs related to curricula, such as the goal of education, and so forth.  Such affairs shall be left exclusively to the state government.  On the other hand, the external school affairs, such as the construction of school buildings, and so forth, shall fall into the administration of local government self-autonomy and only subject to state’s government supervision in form, not in substance.

  Professional supervision represents the supervision of all curricula related affairs performed by professional organizations formed by the state government.  As discussed above, though internal school affairs fall into the state government’s authority, the state government is not suitable for detailed enactments by state legislature.  Therefore, state can only lay out principles by legislation and perform the substantive review of examining whether the principles and goals are met.

  Personnel supervision represents that the administration and management of school personnel related matters shall be supervised by state government’ s supervisory branches.  It is settled that state government may exercise personnel supervision of public schools; however, state government can only intervene and exercise personnel supervision over private schools only when the private schools conduct behaviors which are not educationally suitable under the Private School Law.

  Generally speaking, this article is the first one in Taiwan starting from the legal relationship between schools and students and from the constitutional law to administrative law to further discuss and review the educational administrations.  Namely, this article attempts to link between Article 162 and Article 21 of the Constitution in order to explore the scope and content of legal supervision of educational administration.  The formation of a state is for its people, and the state exists for this very purpose.  From the constitutional guarantee of the right for education, it is perceived that students’ self-fulfillment is the utmost guiding principle of educational administration and it is also the scope and limit of the state government’s legal supervision of educational administration.  The author wishes this article will serve as stepping stone to enabling the development of Taiwan’s educational administration to move toward the goal of centering upon students’ self-fulfillment.  In sum, state government’s employment and exercise of legal supervision, professional supervision and personnel supervision over educational administration are all with a view to realize students’ self-fulfillment.
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