1990.01.18

1984 (Gyo-Tsu) 46

Minshu Vol. 44, No. 1

Judgment concerning the case in which the Court ruled that the disciplinary actions taken against teachers of a prefectural high school on such grounds as giving lessons in violation of laws and regulations on education cannot be held to fall outside the scope of the discretion given to the administrator of disciplinary action

Case seeking revocation of administrative dispositions

Judgment of the First Petty Bench, quashed and decided by the Supreme Court

Fukuoka High Court, Judgment of December 24, 1983

The disciplinary actions taken against teachers of a prefectural high school on such grounds as giving lessons in violation of the obligation to use a textbook as prescribed in Articles 51 and 21 of the School Education Act and giving lessons and examinations deviating from the Course of Study for High Schools (Public Notice of the Ministry of Education No. 94 of 1960) cannot be held to be extremely unreasonable according to social common sense and to fall outside the scope of the discretion given to the administrator of disciplinary action, given the following facts mentioned in the judgment: the teachers engaged in these acts of violation in connection with giving lessons and examinations on their respective regular subjects (Japanese history and geography B); their acts in violation of the obligation to use a textbook continued throughout the year; the lessons given by them deviated to an extreme degree from the goals and contents of the respective subjects as specified in the Course of Study for High Schools; at that time, the high school was in the state of extreme disorder; immediately before being subjected to the disciplinary actions in question, the teachers had been subjected to other disciplinary actions for participating in acts of dispute.

Article 29, paragraph (1) and Article 32 of the Local Public Service Act, Articles 21 and 51 of the School Education Act, Article 57-2 of the Regulation for Enforcement of the School Education Act, Article 30 of the Administrative Case Litigation Act



Local Public Service Act



Article 29,paragraph (1)

(1)If an employee falls under any of the following items, the employee may, as a disciplinary action, be reprimanded, suffer a reduction in pay, be suspended from duty, or be dismissed:

(i) when the employee has violated this Act, the law providing for special measures prescribed in Article 57 or any prefectural or municipal ordinance based thereon, regulations of a local government, or rules established by an organization of a local government;

(ii) when the employee has breached his/her obligations in the course of duties or has neglected duties; or

(iii) when the employee is guilty of malfeasance rendering the employee unfit to fulfill the role as a public servant.



Article 32

Employees must, in the performance of their duties, comply with laws and regulations, prefectural or municipal ordinances, regulations of a local government, or rules established by organizations of a local government, and faithfully observe the orders of their superiors in the course of duties.



School Education Act



Article 21

(1) Textbooks authorized by the Minister of Education or textbooks copyrighted by the Ministry of Education must be used at elementary schools.

(2) In addition to the textbooks referred to in the preceding paragraph, books and other teaching materials which are useful and appropriate may be used.

(3) Cabinet Order prescribes a council to be formed to investigate and deliberate on textbooks for which an application for authorization referred to in paragraph (1) is filed.



Article 51

The provisions of Article 21, Article 28, paragraphs (3) to (11), and Article 34 apply mutatis mutandis to high schools.



Regulation for Enforcement of the School Education Act



Article 57-2

High school curricula are governed by the Course of Study for High Schools separately announced by the Minister of Education as the curriculum standards, in addition to what is provided for in this Chapter.





Administrative Case Litigation Act



Article 30 The court may revoke an original administrative disposition made by an administrative agency at its discretion only in cases where the disposition has been made beyond the bounds of the agency's discretionary power or through an abuse of such power.

The judgment in prior instance is quashed, and the judgment in first instance is revoked.

Both of the claims filed by the appellees of final appeal are dismissed.

The total court costs shall be borne by the appellees.

Concerning Reason for Final Appeal II stated by the counsel for final appeal, K, Reason for Final Appeal II stated by the counsel for final appeal, L, and Reason for Final Appeal I stated by the counsels for final appeal, M and N

In summary, the counsels argue that the court of prior instance made errors in the interpretation and application of laws and regulations when it determined that the disciplinary actions taken against the appellees fall outside the scope of the discretion given to the administrator of disciplinary action.

I. The developments up until the disciplinary actions in question (hereinafter referred to as the "Disciplinary Actions") were taken and other facts lawfully determined by the court of prior instance are as follows.

(1) [A] Prefectural [E] High School (hereinafter referred to as "E High School") was one of the high schools with the longest history in [A] Prefecture, and enjoyed a reputation as a prestigious school or a competitive school in university entrance examinations. Appellee B1 worked as a teacher at E High School since April 1966 and taught Japanese history and geography in the subject category of social studies, and Appellee B2 worked as a teacher at the same school since April 1969 and taught ethics and social studies and politics and economics in the subject category of social studies.

(2) Until around 1967, in most prefectural high schools in [A] Prefecture including E High School, the teachers' meeting had substantially served as the supreme decision-making body in school administration, and most new principals had been appointed from among candidates recommended or approved by the [A] Prefectural High School Teachers' Union (hereinafter referred to as the "prefectural high school teachers' union"). However, since the appellant appointed most new principals from among candidates not recommended by the prefectural high school teachers' union in April 1968, the union carried out a campaign to refuse the assumption of office by these new principals. Furthermore, in October 1968 and November 1969, the prefectural high school teachers' union carried out a campaign by having its member teachers take annual paid leave all at once to demand the complete implementation of the recommendations by the National Personnel Authority, among others. Appellee B1 was subjected to disciplinary actions twice, reprimand on December 14, 1968, for participating in a strike, and reduction in pay for one month on January 14, 1970, for participating in a strike. Appellee B2 was also subjected to a disciplinary action of reduction in pay for one month on January 14, 1970, for participating in a strike.

(3) In April 1968, F was appointed as the principal of E High School. At that time, the principal of the high school was unable to hold discussions with individual teachers without the intermediation of officers of the prefectural high school teachers' union, and thus faced difficulties in providing sufficient guidance and supervision for teachers.

(4) Around the end of the first term of Academic Year (AY) 1969, Principal F heard that some teachers including the appellees were giving lessons deviating from textbooks, and that Appellee B2 and other teachers were giving a uniform evaluation of students' performance. With regard to the lessons, the principal gave a warning at the teachers' meeting that lessons should be conducted based on textbooks, and with regard to the uniform evaluation, the principal asked the academic affairs director, etc. to give a warning to the teachers concerned. At the teachers' meetings held around mid-November of 1969 and around the end of the second term of the same academic year, the principal gave a warning on the excessive self-study hours in lessons and the uniform evaluation of students' performance.

(5) Around November 1969, the [A] Prefectural Office of Education, which is the appellant's administrative office (hereinafter referred to as the "prefectural office of education"), received anonymous letters and phone calls claiming that there were too many self-study hours in lessons conducted by the appellees and other teachers. On December 7, 1969, the prefectural office of education investigated the actual conditions of the performance of duties by teachers at E High School.

(6) At the closing ceremony for the second term held on December 24, 1969, Principal F was asked by students to express his/her view on the investigation conducted by the prefectural office of education, and promised to express his/her view at the opening ceremony for the third term to be held on January 8 next year. At the teachers' meeting held on January 7, 1970, a resolution was adopted to the effect that the investigation by the prefectural office of education was unjustified intervention, and Principal F stated the purport of this resolution to all students at the opening ceremony held on the next day. At the teachers' meeting held after that, Principal F promised to hold a meeting on January 16 to give an explanation to students again. Having learned about Principal F's remark at the opening ceremony and the plan to hold an explanatory meeting, the prefectural office of education tried to persuade Principal F to withdraw his/her remark at the opening ceremony and cancel the explanatory meeting, but the explanatory meeting was held as scheduled.

(7) After that, around mid-February 1970, many copies of a document titled "February Appeal" were sent by mail in the name of the Tokyo Committee of the Preparatory Committee of the "Group to Protect E High School" to the persons related to the prefectural office of education, teachers of E High School, parents of its students, and its graduates. This document contained statements that Teacher G at E High School was a rebel teacher related to the so-called Sanpa Zengakuren (Zengakuren of the Three Main Sects) and that this fraction was extending its influence under the leadership of Teacher G followed by the appellees and two other teachers, and listed up the specific statements and actions that these teachers had made in and outside the school. In resistance to the February Appeal, a "Group to Support E" was formed in the name of interested members of the graduates' association, and it distributed flyers supporting the five teachers mentioned above. Thereafter, a number of documents were distributed by both sides. Thus, in the wake of the February Appeal, turmoil occurred within E High School.

(8) On March 1, 1970, E High School held a graduation ceremony. As soon as the person acting on behalf of the superintendent of the [A] Prefectural Board of Education (hereinafter referred to as the "prefectural education superintendent") started to read an address, some students put up a banner that said "Refuse," booed and hissed, and sang a work song when the school song was being sung, thus throwing the ceremony into an uproar.

(9) At the meeting of the [A] Prefectural Assembly held in March 1970, some members posed questions concerning various problems at E High School and pointed out that some teachers at the school provided biased political education to students. The prefectural education superintendent answered that the board of education would take necessary measures based on the results of the investigation on the facts of the February Appeal and the chaos at the graduation ceremony, and would also take necessary measures to improve the school management and student guidance.

(10) The evening edition of the newspaper H issued on May 18, 1970, reported the lessons given by the appellees at E High School as unusual lessons in the article titled "Education Torn Apart."

(11) Subsequently, the prefectural office of education conducted investigation by analyzing related books and documents of E High School and interviewing its students and graduates, and reported the investigation results to the prefectural education superintendent. Based on these investigation results, the prefectural education superintendent proposed the appellant to take disciplinary actions against the appellees and Teacher G, and on June 6, 1970, the appellant took disciplinary actions against these three teachers. The reasons for disciplinary action stated in the written explanations were as follows. With regard to Appellee B1: "When conducting lessons of the assigned subjects in AY1969, the subject person did not use the required textbooks, and taught students in a manner deviating from the goals and contents of the relevant subjects as specified in the Course of Study for High Schools. In addition, upon conducting lessons in the same academic year, the subject person often left students who were at school but did not attend lessons as they were, without giving them any instruction, and thus neglected to provide guidance and supervision for students. By acting as such, the subject person breached his/her obligations in the course of duties and neglected duties." With regard to Appellee B2: "When conducting lessons of the assigned subjects in AY1969, the subject person did not use the required textbooks, and taught students in a manner deviating from the goals and contents of the relevant subjects as specified in the Course of Study for High Schools. In addition, upon evaluating students' performance in the same academic year, the subject person did not conduct the required examinations but gave a uniform evaluation. By acting as such, the subject person breached his/her obligations in the course of duties and neglected duties." As the legal basis, these written explanations stated that both cases fell under Article 29, paragraph (1) of the Local Public Service Act.

Before these disciplinary actions were taken, the appellant had taken a disciplinary action against Principal F on June 1 by reducing his/her pay for the negligence in providing guidance and supervision for the employees under his/her charge. Principal F resigned on June 2.

II. The acts of the appellees lawfully determined by the court of prior instance are as follows.

1. Appellee B1

(1) In AY1969, Appellee B1 was in charge of teaching Japanese history to four classes in the third year for four hours per week for each class. Appellee B 1 prepared for lessons by first reading through the textbook published by [I] Publishing Company, "Shosetsu Nihonshi" (Detailed Japanese History), and its teaching manual, and then by creating lecture notes using other reference books as well. Appellee B1 decided to use, as teaching materials, the abovementioned textbook, the collection of materials on Japanese history compiled by the study group of teachers of high schools in the prefectures in the Kyushu region, and the handout created by him/herself. This collection of materials contains Japanese historical materials and comments on them, and unlike a textbook, it does not describe the complete history of Japan. The handout was created by Appellee B1 using the textbook, teaching manual, and other reference books. Until around mid-April, Appellee B1 gave lessons on the historical view and the periods in history over five to six hours, without using the textbook. In these lessons, Appellee B1 talked about various periodization theories, including the periodization based on the materialistic conception of history, and also talked about the thoughts, politics, and economics of the Soviet Union and China, for which periodization had been hotly debated based on the materialistic conception of history, since the times of their formation, as well as the so-called Sino-Soviet Dispute, and further talked about the class struggles that still exited in socialist society where, based on the materialistic conception of history, there must not have been any class struggle. From around late-April until mid-June, Appellee B1 gave lessons on primitive and ancient times using the abovementioned textbook and collection of materials, and then, from around mid-June to around early-July, Appellee B1 gave lessons using the handout created thereby, titled the "Japanese history of slave economy," over seven to eight hours. After that, Appellee B1 let the students make presentations of their group study on Japanese history for two hours per week in the second term, and gave lessons on the subsequent times in history using the abovementioned textbook, collection of materials, and handout, with the collection of materials and handout being used more often than the textbook. By the end of the academic year, these lessons completed the teaching of history only up until around the end of the Edo period.

(2) In the mid-term examination for the first term on the subject of Japanese history which Appellee B1 taught to four classes in the third year in AY1969 as mentioned in (1) above, Appellee B1 set the following questions: "Describe the class struggle in socialist society"; and "Choose one theme from among the following two and discuss it: A. Stalinism and criticism thereof B. Maoism and criticism thereof." Appellee B1 had given lessons on these themes before the examination.

(3) When talking about the periodization in the lessons on Japanese history mentioned in (1) above, Appellee B1 taught about Marx and Mao Zedong.

(4) In the term-end examination for the third term on the subject of geography B which Appellee B1 taught to three classes in the first year for three or four hours per week for each class in AY1968, Appellee B set a question about "classes and their struggles in capitalist society and socialist society" as part of the selective questions. Appellee B1 had given lessons on this theme before the examination.

(5) In the mid-term examination for the first term on the subject of geography B which Appellee B1 taught to one class in the first year for two hours per week in AY1969, Appellee B1 set questions about "class struggle in socialist society," "Stalinism and criticism thereof," and "Maoism" as part of the selective questions. Appellee B1 had given lessons on these themes before the examination.

2. Appellee B2

(1) In the lessons on politics and economics which Appellee B2 taught to five classes in the third year for two or three hours per week for each class in FY1969, Appellee B2 first explained the composition of the textbook published by [J] Publishing Company, titled "Politics and Economics," according to its table of contents. However, Appellee B2 used only the first few pages of the textbook because its contents were inconsistent with his/her own view, and after that, Appellee B2 gave lessons on political and economic issues mainly using the collection of materials on politics and economics compiled by the study group of teachers of high schools in the prefectures in the Kyushu region, sometimes using newspaper clippings about international relations and other current issues.

(2) In AY1969, Appellee B2 was in charge of teaching ethics and social studies to three classes in the second year for two hours per week for each class and teaching politics and economics to five classes in the third year as mentioned in (1) above. In the first term, Appellee B2 did not conduct any term-end examination on these subjects, but instead, required students to submit reports on one question they respectively selected from among the three questions, and uniformly gave 60 points to all those who submitted reports and 50 points to all those who did not submit reports. In the third term, Appellee B2 did not conduct any term-end examination on ethics and social studies for the classes in the third year.

III. Given the facts mentioned above, the court of prior instance determined as follows. With regard to Appellee B1's acts: since it is found that the manner in which Appellee B1 used the textbook in the lessons on Japanese history as mentioned in II.1(1) above considerably simplified the lessons on the complete history based on the textbook, his/her act of using the textbook in such manner is in violation of Articles 51 and 21 of the School Education Act; the act of setting the questions in the examination on Japanese history and giving the related classes as mentioned in II.1(2) above, as well as the act of giving lessons on Japanese history as mentioned in II.1(3), are in violation of the goals and contents of Japanese history specified in Chapter I, Section 2, Subsection 6 and Chapter II, Section 2, Subsection 3 of the Course of Study for High Schools (Public Notice of the Ministry of Education No. 94 of 1960; hereinafter referred to as the "Course of Study"); and the act of setting the questions in the examinations on geography B among the acts mentioned in II.1(4) and (5) above is in violation of the goals and contents of geography B specified in Chapter I, Section 2, Subsection 6 and Chapter II, Section 2, Subsection 2-7 of the Course of Study. All these acts of Appellee B1 violate Article 32 of the Local Public Service Act and constitute the grounds for disciplinary action set forth in Article 29, paragraph (1), items (i) and (ii) of the same Act. With regard to Appellee B2's acts: most of the lessons on politics and economics mentioned in II.2(1) above were given using the abovementioned collection of materials, which was not a textbook, and the act of using the textbook in such manner is in violation of Articles 51 and 21 of the School Education Act: the act of conducting no examinations and giving a uniform evaluation of students' performance as mentioned in II.2(2) is in violation of Article 65, paragraph (1) and Article 27 of the Regulation for Enforcement of the School Education Act, Article 8 of the Rules of [A] Prefectural High Schools, and the internal rules of E High School. All these acts of Appellee B2 violate Article 32 of the Local Public Service Act and constitute the grounds for disciplinary action set forth in Article 29, paragraph (1), items (i) and (ii) of the same Act. However, taking into consideration the following points in particular, the Disciplinary Actions should be held to be extremely unreasonable according to social common sense and to fall outside the scope of the discretion given to the appellant.

(1) Most of the acts of the appellees which constitute the grounds for disciplinary action cannot be deemed to be extremely serious in terms of the degree of violation of law. Although Appellee B2's act of conducting no examination and giving a uniform evaluation of students' performance may constitute a serious violation, Appellee B2 stopped giving the uniform evaluation in the second term after receiving warning.

(2) Among the acts of the appellees which the appellant identified as the grounds for disciplinary action, only a few of them can be found to constitute the grounds for disciplinary action and the rest do not constitute any grounds for disciplinary action.

(3) There is no evidence to show that the appellees, in their lessons or on any other occasions, encouraged the political activities of students of high schools in [A] Prefecture and the unusual behavior of students of E High School at that time.

IV. Although the determination of the court of prior instance ruling that the appellees' acts mentioned above constitute the grounds for disciplinary action can be upheld, its determination that the Disciplinary Actions are extremely unreasonable according to social common sense and that they fall outside the scope of the discretion given to the appellant cannot be upheld, for the following reasons.

In the case where any ground for disciplinary action is found with regard to a local government employee, the decision as to whether a disciplinary action should be taken against the employee, and, in the event it is to be taken, which type of disciplinary action should be chosen, is left to the discretion of the administrator of disciplinary action who is familiar with all the circumstances within the local government and is in charge of exercising control and supervision over government employees. More specifically, it should be considered that the administrator of disciplinary action is authorized to make a decision at his/her discretion as to whether or not a disciplinary action should be taken against a government employee and, in the event it is to be taken, which type of disciplinary action should be chosen, by comprehensively taking into consideration various circumstances including not only the cause, motive, nature, mode, result, and influence of the act that is found to constitute a ground for a disciplinary action, but also the government employee's behavior before and after the act in question, the record of the employee having been subjected to a disciplinary action, etc., and the influence that the disciplinary action to be chosen would have on other government employees and society. Consequently, when examining the appropriateness of the disciplinary action actually taken, the court should not judge, from the same position as the administrator of disciplinary action, whether a disciplinary action should have been taken or which disciplinary action should have been chosen, and discuss whether the disciplinary action actually taken is heaver or lighter by comparing the judgment result and the disciplinary action, but should rather judge the disciplinary action to be illegal only if it is found that the action taken by the administrator of disciplinary action at his/her discretion is extremely unreasonable according to social common sense and falls outside the scope of the discretion given to the administrator, and thus constitutes an abuse of the discretion (see 1972 (Gyo-Tsu) No. 52, the judgment of the Third Petty Bench of the Supreme Court of December 20, 1977, Minshu Vol. 31, No. 7, at 1101). From this viewpoint, the Court examines whether, given the facts determined by the court of prior instance, the Disciplinary Actions should be held to fall outside the scope of the discretion given to the appellant.

Although education at high schools aims to provide ordinary and specialized education at a higher level, its goals must be achieved within the prescribed duration of study based on education at junior high schools (see Articles 41 and 46 of the School Education Act). Furthermore, at high schools, teachers have considerable influence on and control over students, whereas students do not yet have sufficient capability of critically examining the contents of education given by teachers and they have little scope to choose their teachers. In view of these points, the State needs to establish standards to be complied with regarding the contents and methods of high school education in order to assist the achievement of the goals of high school education while maintaining a certain level of education, especially with regard to matters covered by such standards established by laws and regulations, the discretion that teachers at high schools are allowed to have in choosing the specific contents and methods of education should necessarily be subject to restrictions.

According to the facts of the case mentioned above, the appellees engaged in the abovementioned acts that constitute the grounds for disciplinary action in connection with giving lessons and examinations on their respective regular subjects and giving evaluations of students' performance, activities which form the core part of educational activities at high schools. Even based on the discretion that teachers at high schools are allowed to have in choosing the specific contents and methods of education, the acts of the appellees clearly fall outside the scope of such discretion and obviously violate the provisions of the School Education Act and the Couse of Study which regulate the manner of education to be provided on a daily basis. Moreover, among the abovementioned acts of the appellees, the acts in violation of the obligation to use the textbooks continued throughout the year. In particular, Appellee B2 did not use the required textbooks because he/she considered the contents thereof to be inconsistent with his/her own view, and the contents of the examination questions and lessons on Japanese history and the examination questions on geography B given by Appellee B1 appear to deviate in an extreme degree from the goals and contents of the respective subjects. Taking into consideration these points as well, it should be said that the violation of laws and regulations by these acts of the appellees is not at all of a minor nature. The acts of the appellees that constitute the grounds for disciplinary action are the major reasons cited by the appellant to take the Disciplinary Actions.

Furthermore, it is clear that against the abovementioned background in and outside E High School at that time, the school was in the state of extreme disorder, and it cannot be denied that the abovementioned unusual educational activities carried out by the appellees under such circumstances were highly likely to intensify the disorder at the school and cause the students' parents to have deep concern and dissatisfaction, and to ultimately have an impact on the community. In this sense, the appellees' responsibility cannot be treated lightly. In addition, during the period of about one year and a half before being subjected to the Disciplinary Actions, Appellee B1 had been subjected to the disciplinary actions of reprimand and reduction in pay for one month for participating in the strikes, and Appellee B2 had been subjected to the disciplinary action of reduction in pay for one month for participating in the strike. These facts should also be taken into consideration as the matters that demonstrate the appellees' attitude of taking the rule of law lightly.

For the reasons stated above, the Disciplinary Actions, which the appellant took against the appellees in his/her capacity to administer and execute the appointment and dismissal of teachers, etc. and other personnel affairs at high schools, etc. in [A] Prefecture under his/her jurisdiction, while taking into consideration various circumstances including not only the nature, mode, result and influence of the abovementioned acts of the appellees that constitute the grounds for disciplinary action but also their attitude and records of disciplinary actions before and after these acts, can hardly be found extremely unreasonable according to social common sense, and these actions cannot be held to fall outside the scope of the discretion given to the appellant. The determination of the court of prior instance that is contrary to this should be held, after all, to be illegal due to the errors in the interpretation and application of the laws and regulations concerning the discretion given to the administrator of disciplinary action, and such illegality obviously affects the conclusion of the judgment in prior instance. The counsels' arguments are well-grounded, and without needing to examine other arguments, the judgment in prior instance should inevitably be quashed. Accordingly, the Court examines the claims filed by the appellees. The abovementioned acts of the appellees constitute the grounds for disciplinary action set forth in Article 29, paragraph (1), items (i) and (ii) of the Local Public Service Act. Given the facts lawfully determined by the court of prior instance, the Disciplinary Actions do not involve any breach of procedure argued by the appellees, and as explained above, these actions cannot be held to fall outside the scope of the discretion given to the administrator of disciplinary action, and hence there is no basis for the appellees' claims to seek revocation of these actions. Consequently, the Court revokes the judgment in prior instance that ruled to the contrary and dismisses both of the claims filed by the appellees.

Accordingly, in accordance with Article 7 of the Administrative Case Litigation Act and Articles 408, 396, 386, 96, 89 and 93 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text of the judgment.

Justice OHORI Seiichi

Justice TSUNODA Reijiro

Justice OUCHI Tsuneo

Justice SATO Tetsuro

Justice YOTSUYA Iwao