NINKISEI UPDATE OCTOBER 1997
BAD NEWS: THE SHOE'S ON THE OTHER FOOT NOW
(originally sent to JALTCALL and Friends Wed, 15 Oct 1997)

The "Daigaku no Kyouin Tou no Ninkisei ni Kansuru Hou" has now become law. Recommended by the University Deliberation Council (Shingikai) from 1991, drawn up by Monbushou over the past few years, passed by Japan's Diet June 13, 1997, and put into effect August 25, 1997, it states that all universities can decide their own policies on granting tenure to its new faculty entrants. This may sound like a liberalizing policy, along the lines of deregulation and Big Bangs and all that--a "shake-up of the system" is an explicit policy goal. However, the new Monbushou guidelines are hazy enough to allow for abuses (like those seen towards non-Japanese academics from 1992 onwards--"Academic Apartheid"), except now with adverse effects on the livelihoods of ALL academics in Japan.

Ninkisei was the subject of a JALT Roundtable that took place a few days ago, describing the letter of the law and its effects. It was so charged with emotion and full of surprises that it became the talk of the conference. Read on:

ROUNDTABLE: "A NEW TIDE IN ACADEMIC TENURE"

Presented at JALT (Japan Association for Language Teaching), 23rd Annual International Conference, Hamamatsu City, under the auspices of the PALE (Professionalism, Administration, and Leadership in Education) N-SIG group. Saturday, October 11, 1997. 1:15 to 4:00 pm

Moderator: Michael H. Fox, Associate Prof at Hyogo Women's College
Speakers: Tadashi Shiozawa, Associate Prof at Chubu University
Gwendolyn Gallagher, arguably an Instructor at Asahikawa University
David Aldwinckle, Lecturer in a Sapporo university

The room was packed. Around 50 people, probably all non-Japanese, were in attendance.

(NB: This is not a verbatim transcript of the proceedings. The author, Dave Aldwinckle, takes sole responsibility for the information in this posting. Any errors or misrepresentations should be brought to his attention for correction.)

OPENING BY MICHAEL H. FOX

Mike started by pulling out a full-page article from the Daily Yomiuri which talked about Nobel Laureates' opinions of the future. Noteworthy were comments from three Laureates who were Japanese, a surprisingly small group, and thus a particularly prestigious accolade here. One was Dr Tonegawa, who in the past has been keenly critical of Japanese universities and how they stifle academic excellence, specifically scientific work worthy of Nobel Prizes. Since most research takes place in National Universities, they were the first targets of the "Tonegawa Shock". Momentum grew for change in the 1980's as the foreign press embarrassingly reported that Dr Tonegawa refuses to do his research in Japan, for, as he openly admits, he would have never won his Nobel if he had stayed home.

Monbushou and its affiliated committees decided that an academic "shake-up" was necessary. University departments were full of "inbreeding", where professors hired those sharing their dogma, and where automatic tenure for full-timers gave no incentive to do more research. The attitude of the Japanese academic, according to Nakane Chie, is something like, "insufferable arrogance towards society at large, incredible fawning towards academics above". To remove these fiefdoms from the Japanese education system, the Daigaku Shingikai recommended Ninkisei--a contract system to encourage more research and give the universities the power to fire deadwood.

THE FORM OF THE NEW NINKISEI LAW, BY PROFESSOR SHIOZAWA

Professor Shiozawa had a set of notes which he read from. Here are his points, edited:

(snip)
MAIN FEATURES OF THE LAW (summary, not exact translation)

1. Purpose: to promote the mobility of (potentially) good scholars and teachers among universities, which would eventually enhance better education and research.

2. "Ninki" means the duration of employment agreed upon between an employer and an employee, and upon completion of the term, the employee will resign unless the contact is exchanged again (not renewed) between... both parties.

3. It applies to all levels of teachers--professors, associate professors and research associates and all private and public schools.

4. It's up to each school whether they want to adopt this system. They need to make regulations at each school and have to announce them without delay.

5. Three conditions, one of which has to be met. The ninkisei employee should be able to work:
a. at a special research or educational organization which needs a variety of personnel
b. as a research associate (joshu) and mainly do his own research for a specific purpose
c. on a special project the school plans or joins within a limited time span

6. Need to consult Gakucho (the president of the school) when they want to employ Ninkisei.

7. Anybody on the ninkisei contract can leave for another position even before the completion of the contract except the initial year.

8. Exceptionally many supplementary resolutions made at both houses [of the Diet]

a. Monbusho should respect the autonomy of each school, and never require the university to adopt this system as a condition for alloting extra budget.
b. Each school should fairly apply this system in reviewing the contract, and should never be arbitrary.
c. Review the evaluation system of teachers at each school, and have each school understand the importance of mid-term or long-term research and education activities.
d. Salary for ninkisei teachers should be fairly determined especially at national schools.
e. Monbusho should help local schools improve their unique educational and research environment so that they can attract good teachers.
f. Monbusho should collect and provide information on excellent teachers and scholars and improve the employing practices.
g. Monbusho should recognize the [adoption of] Ninkisei at private schools is subject to "the terms of employment (labor conditions)."

CONCERNS: [all emphases in Prof. Shiozawa's original]

1. No specific durations of the contract (except for three years or longer and up to 10 years) are specified by the law; it's entirely up to each school.

2. THE CONTRACT IS NOT RENEWED, BUT "REMADE" OR "RE-EXCHANGED" UPON THE COMPLETION OF THE CONTRACT. THERE IS NO PROMISE OR POSSIBILITIES OF THE TENURE TRACK EVEN UPON SUCCESSFUL COMPLETION OF THE CONTRACTED TERM. It is very easy to for the administration to get rid of teachers because they don't have to give reasons for not renewing the contract, and it's very difficult for teachers to complain about the termination of the contract. In other words the job on the ninkisei track is extremely unstable. This is exactly the same tactics the AUL in Yokohama took 9 years ago to fire a massive number of teachers who joined the labor union.

3. Long-term or basic research may be difficult to conduct. Scholars on the ninkisei might conduct only short-term reearch with quick results? Does it really promote original and creative reseach, which was an original intention of the system?

4. Does the ninkisei really promote flexible and active mobility of teachers? eg Average mobility for one person: England 1.77, Germany 2.0 vs America 1.62, Japan .78

5. Monbusho is likely to require universities to adopt this system as a condition for alloting the budget or founding a new department. eg They already decided to give 400 - 600,000 yen to 100 researachers on the ninkisei scheme in public schools and some supplementary budget to each school if it employs teachers from private companies or institutes--a total of 260,000,000 yen.

6. PRIVATE SCHOOLS MIGHT USE THE NINKISEI SYSTEM AS AN EXCUSE TO GET RID OF UNFAVORABLE TEACHERS, TO HIRE ONLY YOUNG TEACHERS AS CHEAP LABOR, OR TO EMPLOY NON-JAPANESE TEACHERS ON A DIFFERENT PAY SCALE AND ON DIFFERENT LABOR TERMS.

7. Isn't it agains the Labor Standard Law, Article 14, which prohibits making any labor contract longer than 1 year except the life-term employment?

8. THREE YEARS (PROBABLY 2 YEARS WHEN THE EVALUATION TAKES PLACE) MAY BE TOO SHORT TO EVALUATE ANYONE'S TEACHING AND RESEARCH PERFORMANCE. 9. FACULTY MEMBERS WHO ARE GOOD TEACHERS BUT DO LITTLE RESEARCH MAY BE PENALIZED (lines in [caps] concern foreign teachers directly)

That was the meat of his talk. There were two more pages with some Japanese script, so I'll put them up on my web page when I have more time.

Following were several questions and requests for clarification from the audience, which were received as time allowed. Speaking of shake-ups, a large earth tremor lasting for a couple of minutes hit then Hamamatsu, making our building sway appreciably. Jokes were made that Monbushou was more powerful than we thought.

Then the discussion turned to examples of actual abuse of the Ninkisei system, where a wanton firing took place because the employee was non-Japanese and on a limited-term contract.

GWENDOLYN GALLAGHER, RE-FIRED DESPITE WINNING HER CASE IN COURT

[Gwen wrote up her case in a one-page summary which I have mislaid. I apologise in advance for careless errors, and will type it all in when I eventually put this email up on my web page.]

Gwen, an American employee teaching English at Asahikawa University (Private) for 12 years, came to school about three years ago to find that her courses had been deleted from the curriculum and her name from the roster. There had neither been advance warning of her dismissal, nor a reason given at any time. She took the school to court, claiming unfair and illegal dismissal, in a highly-publicized case. She won last year, and the school settled, reinstating her in March with back pay but with waived reimbursement of legal fees. She was then fired again in July, with no legal reprocussions. Gwen is taking them to court again. Those are the bare bones of the case.

At JALT, her presentation covered the same ground as above but in a different light: "I must say at the outset that I am not a Joan of Arc, nor a Cruella DeVille. I am just me, and I don't really like standing up here before you and talking about this." After taking an informal survey of the audience, asking how many of them have been, or know somebody whom they feel has been, unfairly dismissed from a school (about half the class total raised their hand), Gwen pointed out that her case is not all that unusual a phemonenon. She then gave her story from a very personal perspective, describing her abrupt termination, the unwillingness (arguably inability) of the Gakuchou (Dean) to give a reason, and the proceedings of the court battle itself.

Because Asahikawa University, with a small faculty of about 30 full-time professors, is a Private University (not Public or National), its workers are not employed by the government, so the Labor Standards Law applies. Dismissals without just cause [NB: Those "just causes" are death, insanity or complete incapacitation of employee, or a serious legal offense on the part of the employee, such as embezzlement, fraud, or the like, which threatens the survival of the organization] are illegal. And the judge is the judge of justness. The reasons Asahikawa Dai gave to the court was that Gwen was "too Japanese", and they had wanted to "refresh" the school with some "fresh gaijin". The judge was unimpressed and ruled in Gwen's favor; she was to be reinstated with all the trimmings, and all previous salary was to be paid in full. The school settled. But soon after the settlement things turned sour again.

Gwen: "The court's judgement was not binding because the school ignored it. They hired me, and a few months later they fired me all over again. No police officer is going to come to your school and arrest your Gakuchou. They were just looking for a reason." They found one by simply saying that her courses did not exist any more. English was no longer going to be a subject taught at Asahikawa Dai. Gwen (and her Japanese-national husband, also a professor at the same university) are preparing for yet another tedious legal battle.

ORDER, ORDER PLEASE

Throughout the proceedings a young man in the front row kept interrupting to ask clarifications and reconfirm specific points: "How many people at your university support your efforts?" After about his tenth piping-up, Moderator Fox asked him to hold his questions to the end. He seemed to find that exceedingly difficult. Fox, perhaps sensing a need for audience release, then opened up the floor for questions for five minutes.

The young man then suddenly stood up and, bearing a piece of notepaper, began rattling off several points that he wished to take issue with in Gwen's description of her case: "Is this, or is this not, a personal war between you and your Gakuchou? There is another side to this story, which I think ought to be heard..."

Moderator Fox, amidst several surprised looks from the audience, told the young man, Sean, to sit down, that his comments were hardly questions. Several members of the audience chimed in to say that this venue was not the place for a personal discussion of the rights and wrongs of Gwen's case, but of the Ninkisei issue in general.

Sean, visibly agitated, was apparently not willing to be shut up. "Excuse me! There is an important issue here. I am a person adversely affected by Ms Gallagher's actions, and I want to be heard. I am losing my job because of her!"

Moderator Fox told him to sit down again.

Sean wouldn't. "Ms Gallagher, is it not true that you were dismissed because your husband is in fact a well-known MEMBER OF THE COMMUNIST PARTY!?"

We should have had a video camera. There was an audible and disdainful "ohhhh!" from the audience as it polarized. One person applauded, apparently for the commies, others screamed sentiments such as "Reds under the beds!", still others blurted out "So what if he is?!" Hands flew up to describe how irrelevant this diatribe was, and Fox said later that he was wondering if he should ask for help from the veteran rugby player in the room.

At this point, Sean sat down and shut up.

Gwen retained her composure throughout and said that yes, she has been helped by people who are active in labor movements, and that her lawyer's wife is an elected candidate of the Communist Party. Her husband's party involvement is minimal, but he does receive Akahata (the JCP's newspaper). She wasn't sure if leftist involvement was a factor in her dismissal. It could indeed have been a case of the school trying to get her husband by firing her, but the school was not making its motivations clear.

TRYING TO TIE LOOSE ENDS TOGETHER: DAVE ALDWINCKLE

I started off by saying that this is indeed a hot topic, and that many people have strong feelings both ways. My task here is to tie these two speakers together--one from a legalistic standpoint of the ninkisei law, and the other from the possible effects, even abuses, of it. And I will argue that this policy, since it is so open-ended, has the ability to impair the prosperity of not only us non-Japanese, but every single Japanese educator in Japan.

First of all, this image of the "shake-up" in the field of education. Cupping my hands and making motions like a soda jerk, I pointed out that this is a shake-up without any container. Monbushou has not really addressed the problem of instituting a systematic "up-or-out" system such as is seen in the US (where as a young academic, you are on a contract period for seven years; if you are denied tenure by the end of it, you are effectively shut out of the academic world). Yes, Monbushou has stated that ten years is the longest limit for a person on Ninkisei. But not only is ten years a long time in a person's life, there is really no incentive for schools to ever stop just giving contracts, keeping you on as a part-timer outside of ninkisei, or just firing you altogether. Tenured people are expensive.

Which brings me to my next point. Moderator Fox noted that this is a drive to increase the number of Nobel Laureates in this country. I think there is another important factor. That of economics. What is the birthrate in Japan? 1.5. Japan is not at replacement levels, and according to NHK, we are going to lose about 160,000 students within the next ten years [Sean here began to dispute this, but Mike shut him up]. Hence schools have an incentive to downsize, and they can only do that by keeping their employees on contract, where they can lay them off at will. This is the precise purpose, explicitly stated by Monbushou in its term-limit recommendations, when hiring younger, "fresher" foreigners: saving money. Now it applies to everybody.

So what now? I would like to focus on a couple of bright spots, and a number of reasons for seeing dark skies.

BRIGHT SPOTS

1) FOREIGNERS CAN BE CIVIL SERVANT BOSSES TOO
I mentioned the move of some prefectural governments to ignore the nationality clause when promoting non-Japanese in government posts (this is discussed elsewhere on this web page, so I won't delve here). The reason this matters is because non-Japanese in National and Public Universities are in fact civil servants, and up to now were generally denied tenure due to the nationality requirement.

I do qualify this by saying that this trend is very piecemeal. The central government still enforces the nationality clause, and it is unclear if a National or a Public University falls under Central or Local. Moreover, only a few localities (Kobe, Kochi, Kawasaki, Sapporo) are actually bucking the Home Ministry and promoting us. Thus tenured jobs are at the whim of the provinces, and are not necessarily indicative yet of a mass movement.

2) FOREIGNERS, EVEN ILLEGALS, ARE GETTING COMPENSATION, SO HOW ABOUT US?
I mentioned the injured unvisa-ed Pakistani bookmaker who was compensated by the Supreme Court (again see the above URL). The point is that labor laws thus hold for us too, IF we work in Private Universities.

However, qualification again: those laid off over the past few years without promise of pension or compensation are still being ignored by Monbushou. It'll take a number of successful court cases like Gwen's before enough precedent is established. So right now there isn't a great deal of hope for the law coming down on our side. Gwen's case of court judgments remaining unenforced also bodes ill.

Moreover, these trends are developing irrespective of the Ninkisei drive, so it is stretching it a bit to call them bright spots. Focussing upon one possible direct and positive effect of the new law:

3) MORE NON-JAPANESE WILL PROBABLY GET TENURE
Yes, the universities are now by law more autonomous. This means that they can decide for themselves whether or not you get tenure. If you are ingratiating, you can perhaps become permanent in more places than before. That is, of course, if the universities themselves believe they can tenurize you, and don't bow to the pressure of the authorities who don't know--or who choose to ignore--the letter of the law.

If your school really wants you to stay forever, you might have to show them the law yourself. I personally called up and asked Monbushou for copies of the law...

(I mentioned at this point what an exquisite feeling it is to actually phone up Monbushou and ask them for information. Most of the time, policy documents are public and purchasable in any govt. publications store. But Sapporo not being Tokyo, and several phone calls to local govt. stores proving futile, I was referred back down to Central Control in Kasumigaseki. I actually talked to a person connected with the Daigaku Shingikai. He didn't ask my name. He just asked me to send a self-addressed stamped envelope. Um... Resourcefully, I had my wife write the request and sign her name. And since we will be moving house, our address will soon be defunct. I received the documents while I was away at JALT. When I have found pages that will potentially strengthen our employment situation, I will put them up my web page for downloading.)

But anyway, we are just as much--if not more--at the whim of the universities, and there is no real incentive I can see for them to change their minds. This brings us to:

DARK SKIES

1) MORE NON-JAPANESE WILL PROBABLY ALSO *NOT* GET TENURE
I assert this because the factors and pressures that would make universities prefer contracts over tenure have not changed. Economically, nothing forseeable is going to reverse the lowering tides of student bodies, or prevent us from getting caught in the rip tide. Plus Monbushou has not really reversed its course of preferring younger, fresher foreigners, and has not made clear enough stipulations on the rights of the employed vis-a-vis renewal. While they claim it's "all up to the universities", Monbushou is using its "Discretionary Budget" (see Shiozawa above) to expand budgets of schools which will undertake contract hiring. The universities, if anything, are being encouraged not to tenurize. But this is not an isolated effect:

2) WHAT HAS HAPPENED TO US FOREIGNERS WILL HAPPEN TO EVERYBODY
This is the ultimate irony of this situation: the shoe is truly is on the other foot. Before, a contract pogrom was only limited to a few hundred gaijin guinea pigs, which had little voice and few clear rights. Now, in all fairness, all Japanese are gaijin too, and at the mercy of the universities as well as Monbushou.

This is the reason why I will go so far as to decry Ninkisei as evil:

3) IT HAS THE POTENTIAL TO DESTROY THE PROSPERITY OF A WHOLE SERVICE SECTOR When I went to get my loan for my house (I have Permanent Residence, so I qualify) from a couple of private institutions (my house builder served as interlocutor, so I was in no way involved in the negotiation), I was turned down. They had no compulsion to give reasons, but I asked my builder off the record if my reason was because I am a non-Japanese. He said (and this could be tatemae, of course) that my nationality was not an issue. It was that our whole employment sector was not stable (gyoukai ga fuantei). This is to say, educators for the first time ever are seen as working in an unstable job market. I eventually got my loan, but my point is this: Now all of us teachers are going to find difficulties planting roots, raising roofs, providing for ourselves and our kin the same way as other workers. So much for the respect for educators in historical Japanese society.

I doubt that I was articulate enough to say as much as I did above, especially since the mood of the meeting was "pressure-cooker-comment-time". I decided to keep it short and let the questions come in.

QUESTIONS AND COMMENTS are a bit hazy in my memory, but they were basically from people asking for clarifications on the law and on Gwen's specific case. A couple of people spun quick tales about their contract nonrenewals, or being requested to sign forms that acknowledged their term limitations and eventual firing. Others noted a neat trick--Monbushou has been telling schools to disband their Liberal Arts Depts (kyouyoubu), to eliminate academic field vagueness, and reorganize their faculty rosters. What happens is that new departments are created with new rules--contracts instead of tenure. Unsuspecting teachers can thus be phased out by signing into new departments.

I stood up and said, "Key point: DON'T SIGN ANYTHING! If it has been vaguely worded or can be easily misconstrued, you may have just signed your job away." I also meant to mention that like any contract, you should be given both a copy of it and some time to look over it with a lawyer. That's just common sense.

Moderator Fox made some concluding comments about village mentalities, and the ability of smaller communities like Asahikawa to come down hard on dissenters and troublemakers. The lack of alternate employment and the high visibility of her case in both the press and the workplace made her an easy target.

Sean stayed quiet through to the end.

POSTMORTEM:
WHAT WAS ON SEAN'S MIND?

I sat down with Sean to ask him what was eating him--so much that he would come all the way down to Hamamatsu just to stand up and look like a heckler. Here's a paraphrase of what he had to say:

"I work for the junior college affiliated with Asahikawa Dai. I respect her as a person and agree with everything you all have said here, but there are two sides to the story. Both she and her husband are known troublemakers. Gwen enjoys basically no support within the school--it's just become a personal fight between the Dean and her. So how can she be fighting for all of us when we don't want her to? She's just making trouble at our expense. And the result is that all of us contracted teachers face nonrenewal because she set the precedent. I will lose my job because of her. I don't feel sorry for her position at all. She has a husband working there, a steady income, two houses and have enough money to travel overseas. All I have is a small apartment and soon no job at all. Why couldn't she just have gone quietly instead of spoiling it for all of us?"

I pointed out that 1) isn't it possible that she was fighting for herself more than she was for anyone else?, and 2) why don't you blame the system which pits people against each other like this, instead of blaming the victims?

To this, Sean basically recapped his above arguments and questioned who was the victim here.

CONCLUSIONS:

This Roundtable became the talk of JALT. Many people came up to Gwen to offer their moral support; one even asked for her autograph. Numerous others asked about the famous cry of "communism!", and asked about the logic of the accusation. I explained as well as I understood it. And at the end of the day after several glasses of wine, several thoughts occurred to me on the emerging face of Ninkisei:

1) EMERGING CONTRACT SYSTEMS ARE ABUSABLE.
The bottom line is that renewal is at the discretion of the employer, and the employee enjoys surprising little legal recourse, except for years in court appeals, no guarantee of compensation in a judicial system that famously often sides with the State, and no guarantee of enforcement should the law even come down on the teacher's side. The only way to battle is not as an individual, but as a union. But to thwart that:

2) EMERGING CONTRACT SYSTEMS DIVIDE AND CONQUER.
As we can see in Gwen's case, just about every tactic--even accusations of communism--was used to blacken her name in her workplace. It was powerful enough to turn even a close non-Japanese workplace associate (Sean), who met Gwen just about every week for tea in her office, and who followed her case personally and closely, against her most pubicly. It makes the victim seen wrong for causing trouble, and making consequent victims take it out on the troublemaker. Now, while I don't fully understand how the dynamic works yet (that's why I talked to Sean--since only he has a view into the school's mindset), the fact is that people are going to look out for their own jobs first (and thus the vitality of the school), and ignore the plight of the few suddenly disenfranchised. Schools can abuse that phemonenon far too easily when tenure disappears.

3) EMERGING CONTRACT SYSTEMS ARE GOING TO CLEAN OUT THE LEFT.
Mike and Tadashi were unconvinced by my "Oliver Stone Argument"--that Monbushou will eventually gain enough leverage over the power of appointment that they will be able to deny tenure to those with unsuitable (read: leftist, Nikkyousou) mindsets--and hinted that I leave it out of the Roundtable. But looking at the way the label of communism was used against Gwen, I am even more convinced that leftism is a factor in this drive--it was at least part of her character assassination in the workplace. Although this is of course only speculation (and saying that this is also Monbushou preference is unfounded at best), I daresay that Gwen's abrupt dismissal may have been an attempt to get at least one leftist out of Asahikawa Dai's ranks--since her husband has tenure and of course cannot be fired. It has happened to four other known communist professors at a university in Hiroshima. Who knows how many more at how many other universities will be put on Gwen's non-tenure track?

This theory may sound far-fetched now, but give it time and I bet you it will become far-reaching.

Something wicked this way grows, and it is called Ninkisei. Who is next in its sights?

Dave Aldwinckle
Sapporo