Volume 7 Issue 5 - January 23, 2009
Constructing the Constitutional Theoretical Foundation of School Autonomy
Yue-Dian Hsu

Institute of Law in Science and Technology, College of Social Sciences, National Cheng Kung University
hsuyd@mail.ncku.edu.tw

NATIONAL TAIWAN UNIVERSITY LAW JOURNAL, 36(4), PP. 61-122 (2007)

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This is the first article that discusses the foundation of the legal principle of school autonomy in Taiwan.

Due to the influence of educational reform all over the world, the educational reform in Taiwan transforms toward school-based management. Under the impetus of the Educational Reform Commission of the Executive Yuan, Taiwan first adopts the viewpoint of school-based management in 1996, and it gradually becomes the backbone of educational reform through the 21st century. In recent years, many educational acts and policies are in accordance with this movement. For instance, Educations Basic Law and Nation Educations Law stipulates that schools can assign representations to participate in the election of the principal. Hence, the notion from school-based management of pedagogy to school autonomy of theory of educational law reflects the foundation of school management moves from administrative practice to school autonomy.

In the development of one's life, the more someone lives under the influence of outside-anthropogenic plans and environments, the fewer he (she) can keep self-realization which possesses creativities and belongs to his (her) life. Therefore, the purpose of education is to urge the maximum feasibility of self-realization. As a matter of fact, self-realization and learning build up the “two-way causal interaction”. In the course of one's self-realization, someone could be yearning to learn joyfully, and the development of personality could continue after spontaneous learning. Hence, two-way causal interaction occurs. Here, we find that the constitutional guarantee of fundamental right to education under Article 21 of the  Constitution is the two-way causal interaction between self-realization and learning and its concrete practice.

As far as the whole campus lives are concerned, whether students’ right to free development of personality can be protected or not, it depends on the teaching and managing mode of all schools. So, in order to carry out students’ self-realization completely, we should make use that school autonomy will fulfill educational reform based on fundamental right to education. In other words, we have to turn the traditionally from-up-to-down teaching environment into the school autonomic environment which is aim at students. However, impregnating the from-down-to-up power of educational reform in campus is difficult. Because it is hard to imagine that a from-up-to-down centralizing educational regime would approve of a from-down-to-up school autonomy positively.

As a matter of fact, a from-down-to-up school autonomy is the premise that  accomplishes educational purpose of self-realization, and fulfills fundamental right to education. Therefore, this Article trys to demonstrate that school autonomy is the educational administrative duty in accordance with constitutional foundation as the constitutional theoretical basis of school autonomy and is part of the fundamental right to education as the organizational and procedural bases.

Principle of democracy and principle of rule of law in constitutional foundation have close connection with school autonomy. This Article attempts to discuss the constitutional backbone of school autonomy based on them. First, democracy is a state conformation which performs living one.  And the cultivated backbone of democratic living conformation must depend on the fulfillment of compulsory education. In other words, in the stage of compulsory education, we should make people acknowledge that they are the owners of imperium in political field, and make they decide national affairs correctly. Moreover, we should imbue them with correct democratic cognition, so as to their exercising their right and fulfilling obligation. Furthermore, when some conflicts occur between teachers and students, teachers can not request students to abide by their political opinions. Instead, they have to explain that all different political opinions in the free and democratic order in consistence  with the Constitution.

Secondly, as the core of constitutional foundation, principle of rule of law is used to protect people’s fundamental right. However, nowadays the system of educational law and principle of rule of law conflict with each other. For example, in order to attain the equivalent teaching goal, using the unified textbooks to make student ossified. Hence, educational reform, as the fulfillment of fundamental right to education, should exclude educational administrative regulation which is not included in the entity of teaching in school. Beside, it should urge schools’ members to self regulate in accordance with the purpose of education, and make students respect others under the self-participation and self-responsibility. As a result, students can figure out the culture of material principle of rule of law.

After discussing principle of democracy and principle of rule of law as a constitutional backbone of school autonomy, next, the most important is to seek for the backbone of constitutionality of school autonomy. In fact, in the modern social nations and administrative nations, the governments have to protect peoples’ fundamental right in forms of the formation of appropriate administrative organizations and administrative procedures. So, in order to fulfill school autonomy which is the organizational and procedural bases of the fundamental right to education, we should urge school members to participate in the affairs of schools by setting up all kinds of commissions. Consequently, students can partake the discussion about their self-development, parents can participate in the discussion about the education related to children’s values, and teachers can join the discussion about the choice and decision of teaching materials. Herewith, the supervision to schools by the government should come back to “juristic supervision” of the core of the students’ self-realization under Article 162 of the  Constitution. Only by doing so can we fulfill school autonomy for students.
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