TABLE OF CONTENTS
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Editor's Note
NEW DEVELOPMENTS TO BE ADVISED ON:
OLDER DEVELOPMENTS TO BE APPRAISED ON:
UPDATES
ON CASES REPORTED IN PREVIOUS PALE JOURNALS
THE FUTURE:
THE PRESENT:
IMPORTANT
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Dave Aldwinckle, PALE Journal Editor
NEW
DEVELOPMENTS TO BE ADVISED ON:
THE DOKURITSU GYOUSEI HOUJINKA
REFORMS:
RAMIFICATIONS AND OPPORTUNITIES
By Bern Mulvey, Associate
Professor, Fukui University
Introduction
This past summer,
the Japanese government made public the specific details (and proposed timetable)
of its plans to reform the National University (Kokuritsu Daigaku) system. Referred
to in Japanese as "Dokuritsu Gyousei Houjinka" (独立行政法人化--literally "Autonomous
Administrative Managementizing") and/or "Dokuritsu Gyousei Houjin Tsuuzoku
Hou," these reforms would result in sweeping changes to the way National
Universities are organized and administered. Indeed, if fully implemented, these
proposals would effectively end the privileged status of these institutions, placing
them under the care of overseers with broad powers -- including the ability to
cut funding to wayward schools and/or remove ineffective teachers.
As
is perhaps to have been expected, the government's proposals have sparked strong
negative reactions from faculty and administrators throughout Japan. Over one
hundred anti-reform webpages have sprung up on the internet, while protests of
the more traditional variety have occurred (according to documents distributed
at the Zengaku Setsumeikai held at Phoenix Plaza in Fukui on October 22) at every
National University in this country. Furthermore, while the manner and
virulency of this opposition varies by institution, it is becoming increasingly
apparent that these protests are neither isolated incidents nor aberrations; on
the contrary, and in fascinating contrast to the commonly-held conception that
Japanese seek to avoid confrontation at all cost, it is clear that many National
University faculty members and administrators have joined together into an increasingly
organized protest movement, the goals, strategies, and actions of which are becoming
more and more confrontational.
The issues involved in this debate will
have a direct impact on all teachers, foreign and Japanese, working at National
Universities in Japan. This paper provides a summary in English of the proposed
reforms and examines the reasons behind the opposition of many Japanese National
University employees to their implementation. It also analyzes the methods of
protest being employed in an attempt to gain a better understanding of the endlessly-promulgated
but never defined (see Dillon, 1997; Johnson and Sower, 1996, etc.) "Japanese
method of doing things" -- the alleged ignorance of which having long been
a lightning rod for criticism of PALE SIG activism.
What Exactly Are
The "Dokuritsu Gyousei Houjinka" Reforms?1
Beginning as early as the spring of 2001,2 each National
University will become "independent" (hence the use of the term "dokuritsu").
In other words, they will no longer be directly under the thumb of Monbusho, gaining
greater say in, for instance, setting curriculum and deciding areas of specialization.3 However, this new-found independence will come at a
stiff price: each university will still be administered by someone with ties to
the Japanese government, in this case a manager (referred to as "houjin no
chou") to be chosen by an as yet unnamed cabinet minister. Furthermore, a
national advisory committee (with the somewhat Orwellian-sounding name of "Hyouka
I-In Kai" or "standards committee") will also be established at
this time, with the responsibility of evaluating both the performance of these
various managers and the institutions under their control.
These university
managers will in a sense replace the gakuchou (school president) at each university.
They will have both greater powers and more duties than the current gakuchou,
including the responsibility for, among other things ensuring a more "results
orientated efficiency" (kouritsuteki katsu koukateki ni)4
in the running of the institutions under their control. Indeed, the government's
desired emphasis on efficiency (and hence a better return on its financial investment)
is readily apparent through even a cursory examination of the Dokuritsu Gyousei
Houjin Tsuusoku Houan -- the Japanese term "kouritsu" (efficiency) is
repeated therein no less than 20 times in the 7-page document.
However,
by far the most important responsibility of these university managers will be
their ensuring that the institutions under their control satisfy mid-term goals
(chuuki mokuhyou) set for them by the cabinet minister after consultation with
the standards committee. Specifically, universities will be asked to produce 3-
or 5-year plans for achieving improvements in the following areas (condensed to
three categories below for sake of brevity):
1) education and research5
2) community service
3) spending
(by far the longest section,
with many sub-categories denoting specific areas to be improved)
and then achieve tangible results in a cost-effective manner. Performance with
respect to the above objectives will be evaluated at the end of each 3-5 year
period by both the standards committee and the cabinet minister, who will take
appropriate action (shoyou no sochi wo kouzuru) where necessary, including possibly
issuing direct orders for change (henka meirei).6
This idea of greater accountability -- i.e., requiring universities
to satisfy mid-term (i.e., 3-5 year) achievement objectives in order to avoid
possible penalties -- is a central element of the proposed reforms. As delineated
quite clearly in the introductory sections of the proposals, Monbusho is hoping
that the implementation of these periodic checks will help stimulate universities
towards a renewed commitment to world-class research (seikaiteki suijun no kyouiku
kenkyuu wo tenkai suru), as well as prod them to be more cost-effective and results-orientated
(kouritsu teki katsu kekka teki ni okonawaseru koto) in their efforts.7
While the exact form any punitive actions might take for noncompliance is still
under discussion, some of the possibilities suggested so far -- including the
power to fine (and even terminate) employees and/or cut funding to schools8
-- would mean a sharp broadening of the government's powers vis-a-vis the various
National Universities. Indeed, despite Monbusho's assurances that any actions
taken would seek to respect the newly granted "independence" of each
institution (kaku daigaku no jishuusei/jiritsusei ni toku ni hairyo suru), the
Jokoukai Nyu-su and the Dai Ichi Jouichi I-In Kai predict that both funding and
faculty cuts are likely (okonawareru koto ha yousou sare you) under these new
provisions, along with other dire consequences for those universities judged in
need of change.9 Finally, the determination of individual
teacher salaries, heretofore solely a factor of age, will under these new laws
also take into account the skills, duties, and accomplishments of each employee
as well. Individuals judged as not producing adequately -- even if they can avoid
job termination -- will still face the possibility of lower salaries and/or decreased
opportunities for promotion as compared to their more productive colleagues.10
In many ways, the proposed changes delineated above mirror similar reforms
already enacted in Britain and in Australia. The motives -- i.e., the Japanese
government's desire to control university spending and gain a greater say in personnel
decisions -- behind these new proposals are similar as well. In exchange for greater
freedom with regards to research and curriculum development, Japan's National
Universities will instead be placed under various new constraints. As careful
budget maintenance becomes more and more prioritized under these new laws, faculty
and administrators will be forced to become more "bottom-line" conscious,
juggling research and educational priorities with the need to reduce overall costs.
When one factors in the government's additional education, research, and community
service objectives, the challenges posed by these new reforms should be clear.
Why Japanese Teachers and Administrators are Against These Reforms11
In order to understand the reasons for Japanese teacher and administrator opposition
to these proposals, it is necessary to understand the recent historical context
in which these latest guidelines were laid down. Back in 1997, Monbusho announced
that, because of the low national birthrate (and resultant decrease in the number
of applicants for university entrance), it would seek a 10% reduction in the number
of full-time faculty over a ten year period beginning in 2001. This directive
initially met with resistance, but once it was realized that these reductions
could be carried out without mass-firings (i.e., through natural attrition as
Japan's aging faculty finally begin to retire over these next ten years), these
new policies were reluctantly accepted.
However, in the summer of 1999,
Prime Minister Obuchi announced that he would prefer to see an additional 20%
reduction (i.e., on top of the initial 10%) to the faculty workforce over this
same ten-year period. Moreover, his cabinet recently came out with an even more
drastic call for a 35% (total) reduction -- i.e., far more than could possibly
be satisfied by natural attrition. In other words, suddenly Japan's National University
professors and administrators are being confronted with something most of them
thought they would never face in their lifetimes: the possibility of layoffs and
even mass-terminations. As the Jokoukai Nyu-su (Mori, 1999, p. 2) asks, what will
happen to their rights (to guaranteed raises, lifetime employment, etc.) as national
employees?
Given this background, it is easy to understand the opposition
to these latest proposals. Below is a summary of the most important objections:
1) As written, the proposals will drastically reduce the independence
of National Universities, as well as deaden creativity and effectively end regional
specialization. Indeed, note Japanese educators, despite the use of "independence"
in the title to the reforms, and despite the government's stated commitment to
nurturing and promoting greater school and research independence and autonomy
(daigaku no kyouiku no jishuusei to jiritsusei wo tanpou suru), the final result
will be an education system where all must bow to the authority of government
overseers -- not to mention a standards committee and, ultimately, a cabinet minister.
Furthermore, because all National Universities will have to satisfy mid-term goals
set by the cabinet minister and/or the standards committee, these institutions
will, in effect, have to give up their independence and individuality in order
to survive.
2) What exactly is to be the composition of the so-called
standards committee? In other words, who will be entrusted with the all-important
power to judge the institutions? Also, with regards to these judgements, will
the universities in question be allowed feedback into the process? Indeed, considering
the somewhat vague nature of the goals proposed (How does one evaluate success
in meeting the needs of a community?), what is to prevent the committee from using
this ambiguity against the universities (e.g., as an excuse to hasten faculty
reductions)?
3) Regarding the mid-term objectives -- why are so many
of them non-education and/or non-research-related? Also, how realistic is
it to expect institutions of higher learning to satisfy short- and mid-term "efficiency"
goals anyway? Aren't such goals antithetical to education and research, the fruits
of which are often not recognizable outside the long-term, if at all?
4) Regarding the selection of the university managers (houjin no chou) -- why
is experience in education not listed as an essential prerequisite for hiring?
As now written, only "superior knowledge and experience in management"
(Jimuu to jigyou ni kansuru koudona chishiki to keiken wo yuusuru mono), as well
as the ability to run an institution properly and efficiently (jimuu to jigyou
wo tekisei to kouritsu teki ni unei dekiru mono), are considered necessary. How
can a person lacking experience in education possibly understand the needs of
educators and/or run a university successfully?
Indeed, if there is
a common thread to the above objections, it is the shared distrust in the government's
intentions. If these new proposals become law, ask many Japanese faculty and administrators,
what will happen to their traditional privileges as Japanese national-level public
servants (under the Roudou Jouken Kanren Kitei and the Koukka Koumuin Hou)? Are
not these "reforms" just an excuse for the government to close poorly
attended schools and/or fire unneeded instructors?
How The Universities
are Resisting These Reforms
In response to the government's proposals,
National Universities in Japan have formed various study groups (such as the ponderously
named "Dokuritsu Gyousei Houjinka Mondai ni Kansuru Kentou Sho I-In Kai")
researching ways to best resist the proposed reforms. Meetings between different
regional groups (such as the one in Fukui in October) have also been held, at
first secretly (out of fear of retribution -- see Dai Ichi Jouchi I-In Kai, 1999a,
pp. 1-3), and more recently openly to discuss opposition to these reforms. Actions
taken so far include disrupting important events with posters and flyers, holding
public rallies (complete with speeches) on campus, conducting fund-raising on
campus for an aggressive ad campaign (to be launched in the spring of 2000), and
delivering flyers and giving anti-reform lectures to students at the beginning
of classes.
The protests can be extremely confrontational. At Fukui
University, on "Open Campus Day" (a day when parents and young children
are invited onto campus to attend various exhibits and activities designed to
show the university in the best light possible), hundreds of gaudily colored posters
were plastered to walls, trees, windows demanding the rescinding of the dokuritsuhou
reforms. In November, preparations for the 50th anniversary of the founding of
Fukui University were disrupted by the placing of huge banners in protest of the
reforms, announcing the faculty's resolve to resist their implementation (these
banners remained up throughout the 5-day celebration). Requests for money and/or
notices announcing additional meetings regarding this issue appear in boxes of
the Japanese faculty twice a month. Finding anti-reform flyers strewn about (obviously
distributed to students by the preceding instructor) as one enters one's classroom
is not unusual, nor is it unusual to hear a loud speech (delivered by microphone
from directly outside the school cafeteria) through one's office window.
Ironically, a major slogan of the Japanese protestors is one that will seem very
familiar to most foreign readers of this article: the inhumanity of placing people
on a short-term contract system where workers may be abruptly terminated -- regardless
of performance -- at the end of a fixed contract period. The unfairness of such
a system is emphasized repeatedly. A poster hung up on Open Campus Day in Fukui,
for instance, suggests that this would be akin to treating people like animals
or like garbage. Another asks about the long-term effects of this type of system
on educational quality, suggesting that resultant job insecurity -- not to mention
the inevitable staff turnover -- would invariably disrupt the formation of student-teacher
relationships, as well as put a cap on curriculum development. As many readers
will note, this is what PALE activists have been arguing all along, only to be
told how selfish and/or how "un-Japanese" their arguments were; how
ironic it is, indeed, that our Japanese colleagues, when faced with the possibility
of similar constraints, have responded with these same arguments.
Ramifications
-- and Opportunities -- for Foreign Faculty
Perhaps in anticipation of
faculty and administrative protests, the Japanese government recently moved up
the desired starting date for these proposed reforms. Originally scheduled to
begin April 2003, some of these new directives may be instituted as early as April
2001, with the time allocated to the various National Universities to raise objections
and/or come up with counter-proposals being correspondingly shortened as well.
Indeed, according to Joukoukai Nyu-su, the Japanese government hopes to end all
debate on this issue by the summer of the year 2000 (Mori, 1999, p. 1).
Considering the nature and extent of protests so far, whether the Japanese government
will get its way in this or not is still unclear. However, for foreign faculty,
the years 2001 and 2003 stand out as being especially important. Regular full-time
employees (e.g., sennin koushi, jokyoujuu, etc.) whose contracts (or visa renewals)
come up in either of these two years face a stronger than usual possibility of
non-renewal, as their terminations would count towards the 10-35% faculty-cuts
sought by both Monbusho and Prime Minister Obuchi's cabinet. Moreover, due to
these cutbacks, National University-level full-time positions for foreigners --
already at a premium -- will necessarily become even scarcer; in other words,
those who lose their jobs will have an even harder time than usual finding new
employment elsewhere.
Gaikokujin kyoushi, historically immune to these
kind of issues (they are not considered full-time faculty, so their termination
would not count toward the required faculty cuts), have their own problems.
Already at some schools, they are being asked to take pay cuts (at Fukui University,
almost 15%), as well as accept greater administrative scrutiny over the usage
of their already meager (usually less than half that of "regular" faculty)
research allowances. Considering the government's emphasis on greater financial
restraint and/or spending efficiency, this trend will only continue. Hence, the
biggest selling point -- the comparatively high salaries -- to this position notoriously
lacking (with its standard one-month notice termination provisions and no retirement
benefits) in long-term prospects and job security would appear to have been removed.
Still, while these proposed new laws would severely impact upon Japanese
and (to a lesser extent) foreign employees at all National Universities in Japan,
it is difficult to argue against their necessity. In eleven years of experience
in Japan, this author has seen reform-minded schools (names -- there are several
-- have been omitted) hamstrung by their inability to terminate teachers (including
one memorable case where a teacher had been absent from class for over 10 years
after being institutionalized for schizophrenia). This author has seen teachers
who consistently fail to show up for classes, who pad their research records by
plagiarizing (including one individual who copied an essay I'd read in high school
and submitted it as his own work!) or by having their names attached to studies
in which they'd never participated (a Chinese student at one school I've worked
at once came to me with a paper he'd written in English which had the names of
11 Japanese faculty -- none of whom had assisted or even met the author -- attached
to it as co-authors), and who use government funds for dubious research purposes
(only to return with extensive picture travelogues depicting their various overseas
adventures).
These people are, of course, exceptions. By far the
majority of faculty (whether they be Japanese or non-Japanese) and staff at Japanese
universities are extremely diligent and professional, passionately committed to
helping their students and working with them towards a better future for the Japanese
people. However, the problem remains that, as the laws stand now,
there is little the government can do regarding those few malingerers whose presence
saps both the financial resources and the morale of the universities in question.
The reforms proposed would change this situation, forcing universities to become
more budget-conscious and results-orientated in the process. Indeed, if anything,
the implementation of these reforms would result in a more level playing field,
for Japanese professors would, for the first time, be placed under the same constraints,
and receive the same level of scrutiny, that foreign professors now receive as
a matter of course. While the current proposals as now written place perhaps too
much emphasis on budgetary concerns (expecting National Universities to turn themselves
overnight into profit-orientated businesses is unrealistic) to be ideal, they
represent a good first-step towards finding a solution to the problems described
above.
Considering the resistance of many Japanese nationals to the government's
proposed reforms, an opportunity would also seem to exist: could not we (foreigners
and Japanese nationals) work together in order to achieve a more balanced deal
with the government, thereby improving long-term prospects for everyone? Movement
towards the recognition of this opportunity is apparent on the Japanese side.
For example, in a meeting regarding the Dokuritsu reforms held between the "LDP
Educational Reform Research Group" (Jimintou no Kyouiku Kaikaku Jisshi Honbu
no Kenkyuu Chi-mu) and an action group made up of former National University presidents,
one of the few areas of agreement was that employment conditions between Japanese
nationals and foreigners should be made the same (Fukui Shinbun, February 25,
2000). Specifically, both sides agreed that hiring foreign faculty under conditions
inferior to their Japanese counterparts is both counterproductive to workplace
unity and hamstringing efforts to get (and keep) high quality foreign employees.
Will foreigners living in Japan be able to make anything of this opportunity?
Certainly, the answer to this depends on whether they will be able to put aside
their differences and work together for a common cause; recent history does not
suggest this will be possible. Too often, foreigners let internal divisions prevent
them from forming a united front even in defense of their common interests. Moreover,
there is the attitude of "If I don't rock the boat, maybe I will be different"
among many foreigners living in Japan, a belief egged on and excused by the perpetuation
of certain myths of cultural difference (see Dillon, 1997; Johnson & Sower,
1996; for examples of this phenomenon). And while one can only shake one's head
at the irony of the growing list of long-time advocates of non-confrontational,
so-called "Japanese approaches" to solving labor issues who ended up
suing their former universities for unfair termination, the net result is that
nothing is done in a united fashion.
Bottom line: many long-term foreigners
here -- whether because of age, marriage and/or family situation, etc. -- cannot
easily pack up and return to their own countries. For better or for worse, they
are Japanese in all but name and blood. Some are experienced and professional
about what they do; some, however, are not. The travesty is that all, professional
and unprofessional alike, are treated the same: e.g., no job security, broken
contracts and promises, lack of retirement benefits, etc. This is the current
situation. Now, as residents of Japan, should not we set about continuing to redress
these issues in what is now clearly also a Japanese fashion?
Acknowledgments:
Thanks go to Minashima Hiroshi, Tachi Kiyotaka, and Mulvey Eiko for checking my
Japanese, and to Charles Jannuzi for looking over my English. All mistakes are
my own.
NOTES
1. The discussion in the following
sections is a distillation of information from the following sources: "Dokuritsu
Gyousei Houjin Tsuusoku Houan," "Kokuritsu Daigaku no Dokuritsu Gyousei
Houjinka ni Tsuite," and "Kokuritsu Daigaku no Dokuritsu Gyousei Houjinka
no Kentou no Houkou" (all three from Monbusho), "Kokuritsu Daigaku no
Dokuritsu Gyousei Houjinka Mondai ni Kansuru Zengaku Setsumeikai no Kansei ni
Tsuite" and "Dokuritsu Gyousei Houjinka Mondai ni Kansuru Iken Oyobi
Shitsumon" (both handouts prepared and distributed by the Dai Ichi Jouchi
I-Inkai), and "Dokuritsu Gyousei Houjinka ni Hantai Suru" (Jokoukai
Nyu-su [faculty newsletter]). To avoid the readability problems associated with
multiple citations for each sentence, specific citations are included only for
points where there is some disagreement among these 6 sources.
2.
See Jokoukai Nyu-su, p. 1.
3. Monbushou (1999a), dai
1 jou (2), dai 3 jou (3), dai 5 jou, dai 8 jou (2); Monbushou (1999b), p. 3; Monbushou
(1999c), p. 1.
4. Monbushou (1999a), dai 2 jou. See also,
dai 14-26 jou for a more detailed description of responsibilities.
5.
Interestingly, there is no direct mention of research- and/or education-orientated
goals in the original Hoan (an oversight which has led to its criticism B see
Jokoukai Nyu-su, pg. 1; Dai Ichi Jouichi I-In Kai 1999a, 1999b). The supplementary
documents later provided by Monbushou (Monbushou [b] and Monbushou [c]) redress
this oversight.
6. Monbushou (1999c), pg. 4. See also,
Monbushou (1999a), dai 34-35 jou.
7. Monbushou (1999b),
pg. 2; Monbusho (1999a), dai 1 jou (2).
8. Monbushou
(1999a), dai 23 jou (2), #1 & 2; dai 46 jou; dai 66 jou; Monbushou (1999c),
pp. 6-9.
9. Jokoukai Nyu-su, p. 1; Dokuritsu Gyousei
Houjinka Mondai ni Kansuru Iken Oyobi Shitsumon, pp. 1-7.
10.
Monbushou (1999a), dai 57, 59 jou; Monbushou (1999b), p. 4.
11.
The following discussion is a distillation of arguments presented in the following:
"Kokuritsu Daigaku no Dokuritsu Gyousei Houjinka Mondai ni Kansuru Zengaku
Setsumeikai no Kansei ni Tsuite" and "Dokuritsu Gyousei Houjinka Mondai
ni Kansuru Iken Oyobi Shitsumon" (both handouts prepared and distributed
by the Dai Ichi Jouchi I-Inkai), and "Dokuritsu Gyousei Houjinka ni Hantai
Suru" (Jokoukai Nyu-su [faculty newsletter]).
REFERENCES:
Dai Ichi Jouichi I-In Kai. (1999a). Koukuritsu daigaku no dokuritsu gyousei
houjinka mondai ni kansuru zengaku setsumeikai no kaisai ni tsuite (About
the all-university meeting regarding National Universities and the concerns they
have with the dokuritsu gyousei houjinka). Handout.
Dai Ichi Jouichi
I-In Kai. (1999b). Dokuritsu gyousei houjinka mondai ni kansuru iken oyobi
shitsumon (Opinions and questions regarding problems with the dokuritsu gyousei
houjinka). Handout.
Dillon, Ken. (1997). Acceptance. The Language
teacher, 21 (9), 107.
'Kokuritsudai Houjin' mo kentou. (Another look
at the 'National University managers'). Fukui Shinbun, February 25, 2000,
p. 3.
Johnson, K. and C. Sower. (1996). Job hunting in Japan: Cross-cultural
issues. The Language Teacher, 20 (12), 26-29.
Monbushou. (1999a).
Dokuritsu gyousei houjin tsuzoku hoan (The dokuritsu gyousei houjin amendment
proposals). Explanatory mailer provided to all universities by Monbushou.
Monbushou. (1999b). Kokuritsu daigaku no dokuritsu gyousei houjinka ni
tsuite (About National Universities and the dokuritsu gyousei houjinka). Explanatory
mailer provided to all National University employees by Monbushou.
Monbushou.
(1999c). Kokuritsu daigaku no dokuritsu gyousei houjinka no kentou no houkou
(The dokuritsu gyousei houjinka at the National Universities: An examination of
directions). Explanatory mailer provided to all National University employees
by Monbushou.
Mori, Touru. (1999). Dokuritsu gyousei houjinka ni hantai
suru (Opposing the dokuritsu gyousei houjinka). Joukoukai Nyu-su, 4, 1-2.
Bern Mulvey is an Associate Professor at Fukui University.
OLDER DEVELOPMENTS
TO BE APPRAISED ON:
UPDATE ON THE GALLAGHER CASE AT ASAHIKAWA UNIVERSITY
(for more background, see PALE Journal August 1998 at www.debito.org/PALE898.html)
By Joseph Tomei and other concerned parties
(NB: This letter
appeared in the May 2000 issue of JALT's The Language Teacher as a paid advertisement,
but for the sake of follow-through on past reporting, the PALE Journal hereby
reprints it for the record.)
An Open Letter of Protest
Concerning the Asahikawa District Court decision in the Gwendolyn Gallagher Case
On February 1st, 2000, a ruling against a foreign teacher, Gwendolyn
Gallagher, was issued that could have ramifications not only for all language
teachers in Japan, but also for the educational system of Japan.
In March
1996, Professor Gallagher was dismissed from her job as full-time lecturer, despite
having worked 12 years without incident or complaint. Though legal precedent based
on the Labor Standards Law requires employers to give adequate and justifiable
reasons for dismissal, the university gave no official or unofficial reason for
her dismissal. In response, Ms. Gallagher took the university to court, demanding
that she be reinstated.
In December 1996, the court issued an injunction
and in March 1997, a settlement was reached where the university would continue
to re-employ her and pay back wages. As a gesture of reconciliation, Ms. Gallagher
waived demands for monetary damages or reimbursement of legal fees.
At
the end of this subsequent year of employment, the university refused to renew
her contract, falsely claiming that the settlement made the contract a terminal
one. She then took the university to court again.
In this second lawsuit,
the university did present reasons which the judge accepted, quoting the following:
"As the plaintiff has been living in Japan
for about 14 years and is also married to a Japanese, she lacked the ability to
introduce firsthand foreign culture found overseas, as is required of a teacher
of level 3 classes ."
The judgement shows how arbitrary dismissals
of foreigners can take place despite:
i) the long standing Japanese
legal precedent that multiple renewals of contract constitute a binding agreement
between the parties which cannot be broken without a valid reason
ii)
Japan's signatory status to the International Convention on the Elimination of
all forms of Racial Discrimination (CERD)
We believe in this case
no valid reason was produced for firing Gwendolyn Gallagher and that the university
unfairly took advantage of its discriminatory hiring practice to dismiss a foreigner,
which constitutes a breach of human rights.
We also feel that the accepting
the university's reasoning completely contradicts not only to the expressly stated
goals of the Ministry of Education, but also the basis of good language education.
In addition, it does great damage to Japan's efforts to attract talented
foreigners to Japan and to improve the status of women in the workplace. Indeed,
it runs counter to the goals expressed in the report of the Prime Minister's Commission
on Japan's Goals in the 21st Century, which argue specifically for improving the
status of women, opening a debate on making English as a second official language
in Japan over time as well as calling for a permanent residence system to "encourage
foreigners who can be expected to contribute to the development of Japanese society
to move in and possibly take up permanent residence here." (from www.kantei.go.jp/jp/21century/houkokusyo/0120yousi.html
)
This decision should be recognized as:
We alert our Japanese and expatriate colleagues to the crippling
precedent set by this case, which in effect makes all our jobs hostage to the
whims of our administrators. While it is no coincidence that a foreign resident
is the target of this decision, such a precedent will surely be employed to harass,
punish, and discard 'inconvenient' native Japanese colleagues as well.
You can help by doing the following:
--Add your name to this letter
by contacting jtomei@kumagaku.ac.jp
--Bring this matter to the attention of your colleagues and encourage them
to add their voice in support of Professor Gallagher
The list of names
is being maintained at www.kumagaku.ac.jp/teacher/~jtomei/protest.htm
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THE ABOVEMENTIONED GALLAGHER DECISION PROTEST LETTER IN JAPANESE
(courtesy
www.kumagaku.ac.jp/teacher/~jtomei/protest-j.htm)
グウェン・ギャラガー裁判における旭川地裁の判決に関する公 開抗議質問状
2000年2月1日、外国人教員グウェン・ギャラガーに対し、日本国内のすべての語学教員に対してだけでなく、日本の教育システム自体にも影響を及ぼしかねない判決がだされた。
1996年3月、ギャラガー氏は常勤講師として12年間、その間なんの事件も苦情もなく勤めてきた大学から解雇された。労働基準法に則った過去の判例では雇用者は解雇の際に妥当でかつ正当な理由をあげることが必要とされているにもかかわらず、大学側は公式非公式を問わず彼女を解雇した理由を明らかにしなかった。これをうけてギャラガー氏は復職を求めて大学を訴えた。
1996年12月、裁判所は仮処分を下し、1997年3月には大学が彼女を再雇用し、その間の給料も支払うことで和解に達した。和解の意思表示としてギャラガー氏は損害賠償金請求や裁判費用の弁済を要求することを差し控えた。
和解により再雇用されて1年後、大学は、和解では契約はこれで最終のものとなったと偽って契約更新を拒否した。そこでギャラガー氏は再び大学を訴えた。二度目の裁判では、大学は解雇理由を提示し、裁判庁もそれを受け入れた。それは以下のものである。
「原告は日本に約14年間生活しており、また、日本人と結婚もしており、レベル3のクラスの教師として必要とされる海外の生きた文化を紹介するという能力に欠けていたからだ」
この判断は外国人の解雇が以下のような事実にもかかわらず、いかに恣意的に行われるかを示している。
我々は、この件に関してグウェンギャラガー氏を解雇する何らの妥当な理由はあげられておらず、大学側は差別的な雇用慣行を不当に利用して外国人を解雇し、人権を侵害したものと考える。
また、大学側の主張を認めることは、文部省が明確に掲げている目的に反するだけではなく、健全な言語教育の基本にも矛盾するものであると思われる。加えて、日本が才能溢れる外国人を日本へ招こうとする努力や職場での女性の地位向上のための努力に多大な悪影響を与える。実際、それは、政府首相の２１世紀日本の構想の報告に述べられている目標にも反するものである。２１世紀日本の構想では女性の地位向上や英語を第二公用語としていくかどうかの検討をはじめること、また永住権のシステムを導入し、「外国人が日本に住み、働いてみたいと思うような「移民政策」が求められる。当面、日本社会の発展への寄与を期待できる外国人の移住・永住を促進する明示的な移住・永住制度を設けるべき。
」(www.kantei.go.jp/jp/21century/houkokusyo/0120yousi.html
) などの事柄が議論されている。
この判決は次のように認識されるべきである。
･このことで、リストラの名の下に行われるならば大学が勝手に教員を解雇する権限を認めることとなり、学問の自由をそこなうものである。
･大学側が十分に教育、研究、職業的奉仕に関する記録を認めなかったということは、日本の高等教育のシステムにとって有害である。
･政府の方針として英語教育の強化を急激に進めているというこの時期に、この件は日本の英語教育の向上に悪影響を与えるものである。
･経験や文化的感受性が語学教育者の仕事に必要な要素ではないということになり、学生にとっても不利益である。
我々は、日本人教員と外国人教員に、この裁判によって出された我々を不利な立場に追いこむこの判例に対しての注意を喚起したい。
これは、事実上、我々の職が学校行政の気紛れに左右されるといわれるに等しいのである。この判決の標的が外国人に向けられているのは明らかであるが、このような判例はきっと「不都合な」日本人教員にいやがらせをしたり、罰を与えたり、解雇することに利用されることにつながるであろう。
以下に述べる方法であなたもこの運動を支援することができます。
１）jtomei@kumagaku.ac.jp
にメールを送り、この手紙にあなたの署名を加えて下さい。
２）この事柄を同僚の人々に知ってもらい、ギャラガー氏への支援を求めて下さい。
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NB: Dave Aldwinckle has a website concerning this case at www.debito.org/activistspage.html#gwenupdate2100.
On the same page can be found a rebuttal by one of Asahikawa University's unions
(now disbanded), a response by David Aldwinckle, as well as pegs of Asahikawa
University's original affadavit, jpegs of relevant portions of the judge's ruling
(in Japanese), a brief message from Gwen concerning this second dismissal. In
addition, an email exchange on the problematic nature of AU's definition of
culture between Bob March, currently a visiting lecturer at the University of
New South Wales, and Gwen Gallagher, may also be found at www.kumagaku.ac.jp/teacher/~jtomei/
gwen/margal.htm
Joseph Tomei is a tenured Assistant
Professor at the Department of Foreign Languages, Kumamoto Gakuen University.
What follows is a brief summary of some points in an article published in the
Kumamoto Nichinichi Newspaper (Feb. 24, 2000):
On the 23rd of this
month (February 2000) two foreign teachers at the Prefectural University of Kumamoto
were told that their employment will end in March. They were also told that they
would have to vacate their (university-owned) apartments. On the same day, the
teachers sent a formal document calling for stable employment and the revocation
of the demand to vacate their apartments.
The battle is expected to continue
in the courts, with the teachers filing suit against the university.
The entire article (in Japanese) can be read at www.kumanichi.co.jp/dnews/20000224/
kiji1_0000001567.html, and we reproduce it here for the record:
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県、打ち切り通告 県立大学の任用更新問題
外国人教員任用更新問題で県立大学（手島孝学長）は二十三日までに、非常勤特別職の外国人教員二人に対し、今年三月末での任用打ち切りと、その後の宿舎明け渡し要求などを文書で通告した。教員側は同日、県と大学側に明け渡し要求の撤回と安定雇用を求める要求書を内容証明で発送した。
教員側の要求書では、任用は一年任期更新の繰り返しで、期限の定めのない労働契約となっており解雇権は乱用できないとし、「外国人差別に基づいた恣意（しい）的な任用行為は憲法違反」と主張している。
この問題では昨年三月末、県地方労働委員会で一年間の任用更新と、その間に協議をすることで和解が成立した。
教員側は「和解では、二人が常勤職員としての採用を希望していることを双方が理解するとの条項があるのに、大学側は誠実な協議をしてこなかった」と反発。今後、県側に対し法的措置を講じる方針。
大学側は「任用打ち切りは昨年の和解に基づくもので、教員側は説明を聞いた上で本年度の任用通知に署名している。更新や常勤職としての採用予定はない」との姿勢を変えていない。
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A very important point, which doesn't come out clearly enough in the article,
is that the university has attempted, on the one hand, to use the two teachers
as full-time (_sennin_) staff, even sending documents to the Ministry of Education
declairing them to be full-time (_sennin_), while, on the other hand, arguing
that they can dismiss the teachers whenever they like because they are "part
time." I don't think the university should be allowed tohave it both ways.
They have declaired the teachers to be _sennin_, they have had them do _sennin_
work, so they should treat them as _sennin_. (In Japan, _sennin_ faculty cannot
be fired unless they have made some serious mistake. The university is not claiming
that the teachers have done anything wrong. They are just saying "We don't
need you any more.")
This, I think, is the problem in an nutshell.
If you want to know more, a wealth of information is available from the homepages
(which I am doing my best to maintain) of the supporters of the teachers. Here
are their addresses:
www.kumagaku.ac.jp/teacher/~masden/mamorukai/english/Ehome.htm
(English)
www.kumagaku.ac.jp/teacher/~masden/mamorukai/index.html
(Japanese)
Also, I think the following summary by Farrell Cleary is very
helpful:
====
"Unlike their Japanese colleagues, all of the _senninkyouin_ foreign teachers have limited employment terms. Moreover, many of the full-time (_senninkyouin_) foreign teachers (eight out of thirteen in 1997) had been employed as Special Part-Time Irregular Foreign Teachers. Employing full-time teachers on part-time contracts is of course contradictory. [The Ministry of Education has since confirmed this.] None of the full-time (senninkyouin) Japanese teachers at the Prefectural University of Kumamoto are employed in this way. The teachers formed the Kumamoto General Union and submitted claims to the University and Kumamoto Prefecture in July 1997, asking for an end to the discriminatory practices, and for all the full-time foreign teachers to be employed in the same way as their full-time Japanese colleagues.
"Formal negotiations between the Union and the Prefectural University began in October 1997, and continued until broken off by the President of the University, Dr. Teshima Takashi, in February 1998. The University rejected all demands, repeating only that their employment practices were 'appropriate' (_tekitou_). The President said that this was a problem concerning appointment, and that it was a management matter which could not be the subject of negotiations. The University then imposed worse contracts on the Special, Part-Time, Irregular Foreign Teachers in an apparent attempt to crush the Union.
"The University and Prefecture refused repeated requests for negotiations and the union staged a one-day strike in June 1998. Rather than talk, the University then decided to get get rid of the problem by getting rid of both the contentious posts and the teachers filling them. All six teachers working on the one year contracts were given notice that their contracts would not be renewed at the end of March, 1999. As a result of a strong campaign of support for the teachers by their support group and union and fortuitous personnel decisions by Faculty hiring committees, five of the six were rehired in April 1999, three on three-year foreign staff contracts and two on the old, one-year contracts. (One had left for work at another university.)
"Promises of further talks made during a settlement brokered by the Regional Labour Commission have borne no fruit and the University has remained adamant that it reemployed the two teachers for one year, and one year only. The University has spurned opportunities to re-hire the two teachers, Cynthia Worthington and Sandra Mitchell, who are the President and Vice-President respectively of their union, the Kumamoto General Union.
"As of April 1, 2000, the two teachers are officially unemployed and are living off their savings. They are seeking a fast-track court injunction from the courts to help resolve this dispute.
Kirk
Masden is a tenured Assistant Professor at private-sector Kumamoto
Gakuin University.
Farrell Cleary is a gaikokujin kyouin on a
three-year contract at the Prefectural University of Kumamoto, having been rehired
from his old position as a Special Part-Time Irregular Foreign Teacher in April
1999.
PALE JOURNAL OF PROFESSIONAL STUDIES, SPRING 2000, ENDS