1974.07.19

1967 (Gyo-Tsu) 59

Minshu Vol. 28, No. 5

Judgment concerning the reasonableness of the regulation on students' political activities at a private university

Case to seek a declaration of the status

Judgment of the Third Petty Bench, dismissed

Tokyo High Court, Judgment of April 10, 1967

1. Even if a private university stipulates, in its school rules, etc., that a signature campaign by a student should be notified to the school authorities in advance and that a student should obtain permission to join any external organization from the school authorities, from the standpoint that it is undesirable from an educational perspective to allow its students to participate in signature campaigns for political purposes or join external organizations intended for political activities in light of the school characteristics and educational policy based on its school philosophy, this cannot be immediately considered to be the unreasonable regulation on the freedom of political activities by students.

2. Even if the school authorities made a disposition to expel a student pursuant to Article 13, paragraph (3), item (iv) of the Regulation for Enforcement of the School Education Act and measures taken thereby against the student are not sufficient in terms of guidance to encourage the student to reflect on their past conduct, the disposition of expulsion does not immediately become illegal only for that reason. Unless the choice of a disposition of expulsion cannot be found reasonable from a common sense perspective in comprehensive consideration of various circumstances, including the aforementioned insufficiency, the disposition should be considered to be within the bounds of the president's discretionary power.

3. In the case where students of a private university that has a conservative tendency and advocates the moderation and impartiality of the philosophies of its students violated the school rules and joined or applied to join an external organization intended for political activities without the permission of the university and also carried out a signature campaign for political purposes without giving notification to the university, even if measures taken by the school authorities against these acts only focused on questioning the students' responsibilities and the school authorities cannot be considered to have made sufficient efforts to persuade the students to reflect on their past conduct, if there are circumstances held in this judgment, such as that the aforementioned students were scarcely aware of their responsibilities for the violation of the school rules, had no intention to comply with the school authorities' request for withdrawal from the external organization, had rebelled against the school authorities' attempts at persuasion the whole time, and had publicly criticized the measures taken by the school authorities in a weekly magazine and at an external meeting, etc., the dispositions of expulsion made to the aforementioned students pursuant to Article 13, paragraph (3), item (iv) of the Regulation for Enforcement of the School Education Act are considered to be within the bounds of the president's discretionary power, and their effects should be upheld.

Article 11 of the School Education Act and Article 13, paragraph (3), item (iv) of the Regulation for Enforcement of the School Education Act

School Education Act

Article 11 The principal and teachers may, when it is found necessary from an educational perspective, take disciplinary action against students and elementary school children as specified by the supervising agency; provided, however, that they may not use corporal punishment.

Regulation for Enforcement of the School Education Act

Article 13, paragraph (3), item (iv)

The disposition of expulsion referred to in the preceding paragraph may be made to elementary school children, etc. who fall under any one of the following items, except for school-age elementary school children and those who are in a public elementary school, junior high school, school for the blind, school for the deaf or school for the disabled:

(iv) a person who disrupted order in the school or otherwise went against duties as a student

The final appeal is dismissed.

The costs of the final appeal shall be borne by the appellants of final appeal.

Concerning Reason Chapter I for final appeal stated by the counsel for final appeal, YUKIIRI Masumi and 83 others

The counsel, in short, argues as follows: the provisions of 6-6 of the life guidelines of the appellee university as held in the judgment in prior instance, which stipulate that students should notify the school authorities of their signature campaigns in advance and receive instructions from the school authorities, are in violation of Articles 15, 16, and 21 of the Constitution and the provisions of 8-13 of the same guidelines, which prohibit students from joining an external organization without obtaining permission from the school authorities, are in violation of Articles 19, 21, 23, and 26 of the Constitution; nevertheless, the court of prior instance found the effect of these provisions of the guidelines and determined that the dispositions of expulsion in question (hereinafter referred to as the "Dispositions of Expulsion") on the grounds of violation of these provisions are valid; in the finding and determination mentioned above, the court of prior instance erred in the interpretation and application of the Constitution and laws and regulations.

However, in light of the text of the provisions of the aforementioned life guidelines, these provisions are not directly related to the exercise of the right to vote or the right of petition of the students of the appellee university or the right to receive education thereof. Therefore, out of the counsel's arguments, the argument that the aforementioned provisions are in violation of Articles 15, 16, and 26 of the Constitution is already unreasonable in its premise. In addition, the provisions guaranteeing the liberty rights-like fundamental rights of Articles 19, 21, and 23, etc. of the Constitution are intended to guarantee the fundamental freedoms and equality of individuals against governance actions taken by the State or a public entity and exclusively rule the relationship between the State or a public entity and an individual, and are not naturally applied or applied by analogy to the relationship between private individuals, as indicated in the judicial precedent of the Grand Bench of this Court (1968 (O) 932, the judgment of December 12, 1973, Saibansho Jiho No. 632, at 4). Therefore, in light of the purport thereof, it should be said that there is no room to argue about whether the aforementioned provisions of the life guidelines, which have the characteristics of being the detailed regulations of the school rules of a private university, the appellee university, are directly in violation of the aforementioned provisions of the Constitution guaranteeing the fundamental rights. The counsel's argument of unconstitutionality is not acceptable.

Incidentally, a university is a public facility intended for the education of students and academic research, irrespective of whether it is national or public or private, and a university should be considered to have comprehensive power to unilaterally establish matters necessary to achieve the purpose of its establishment by school rules, etc. and discipline its students thereby even without any special provision in law. In particular, for a private university, the social meaning of its existence is recognized based on its unique tradition or school characteristics and educational policy based on its school philosophy, and students are also considered to enter the university in hope of receiving education based on such tradition or school characteristics and educational policy. Therefore, a private university should be naturally permitted to give shape to the aforementioned tradition or school characteristics and educational policy in its school rules, etc., and practice the rules. In addition, it must be said that students are obliged to accept such discipline as long as they receive education at the university. In the first place, the aforementioned comprehensive power of the school authorities cannot be unrestricted and can be approved in relation to the purpose of establishing the relationship between students and the university and only to the extent that the content thereof is found to be reasonable in light of common sense. However, what specific actions by students are appropriate for the school authorities to regulate and what level and method of regulation on those actions are appropriate cannot be necessarily uniformly determined because these issues are related to educational measures, and it is thus undeniable that answers to these issues naturally differ depending on the tradition or school characteristics and educational policy of each school. When this is applied to students' pollical activities, a university student has the aspect of being able to act as a member of society in terms of their age, etc., and the freedom of political activities is also, needless to say, an interest protected by law that should also be attached importance in relation to such student as a member of society. However, on the other hand, if a university lets its student conduct political activities completely freely, irrespective of whether they conduct the activities inside or outside the university, the student may possibly ignore their studies or disturb the educational and research environment in the university and impair the achievement of educational purposes and performance of research undertaken by themselves or by other students, and may thereby inhibit the realization of the purposes of the establishment of the university. Therefore, the reasonableness of the imposition of some regulation on these political activities by the university authorities itself can be fully accepted. In addition, even where a private university that puts special emphasis on its students' devotion to studies or has comparatively conservative school characteristics enforces considerably extensive discipline for its students' political activities inside and outside the university, considering it appropriate from an educational perspective to restrict its students' political activities as far as possible in light of its educational policy, this cannot be immediately considered as an unreasonable restriction on the students' freedom from a common sense perspective.

Then, the provisions of the aforementioned life guidelines of the appellee university are examined from this perspective. In consideration of the fact that the same university is a private school having a conservative tendency that advocates the moderation and impartiality of the philosophies of its students, the provisions of the aforementioned guidelines are considered to include the intent of regulating its students' acts of participating in a signature campaign for political purposes or joining an external organization intended for political activities by adopting a notification or permission system in relation to such acts conducted by students based on the educational policy of the same university that considers it undesirable from an educational perspective to allow its students to conduct such acts. Therefore, such regulation itself cannot be determined to be unreasonable, as instructed above.

On that basis, the determination of the court of prior instance that the provisions of the aforementioned life guidelines themselves cannot be determined to be invalid should be said to be reasonable, and the judgment in prior instance (including the judgment in first instance cited therein; the same applies hereinafter) contains no illegality as argued by the counsel. The counsel's arguments are not acceptable.

Concerning Reason Chapter II for final appeal stated by the same

The counsel, in short, argues as follows: the Dispositions of Expulsion are in violation of Articles 23, 19, and 14 of the Constitution as it constitutes infringement of the appellants' academic freedom and falls under a discriminatory treatment on the grounds of thoughts and creeds, and the act of depriving the appellants of the right to receive education by those unconstitutional dispositions is also in violation of Articles 13 and 26 of the Constitution; nevertheless, the court of prior instance determined that the aforementioned dispositions of expulsion are valid; in this determination, the court of prior instance erred in the interpretation and application of the Constitution and laws and regulations.

However, it is clear from the holdings in Reason Chapter I for final appeal that there is no room to argue the violation of the provisions of Articles 23, 19, and 14, etc. of the Constitution that guarantee the liberty rights-like fundamental rights in relation to the Dispositions of Expulsion. Consequently, the argument of violation of Articles 13 and 26 of the Constitution on the premise of the aforementioned unconstitutionality is also not acceptable.

Moreover, the details of the appellants' act of violating the life guideline determined by the court of prior instance are as follows: without obtaining permission from the university authorities, Appellant A1 joined a left-wing political organization, Union D, and Appellant A2 applied to join Union D; furthermore, Appellant A2 carried out a signature campaign for petition against the enactment of the Political Violence Prevention Act in the university without filing a prior notification to the university authorities. However, it is clear in light of the purport of the judicial precedent of the Grand Bench of this Court (1956 (A) 2973, the judgment of May 22, 1963, Keishu Vol. 17, No. 4, at 370) that the act of making dispositions of expulsion on the grounds of such acts that fall under political and social activities in the real world neither immediately constitutes infringement of the students' academic freedom and right to receive education nor violates public policy. In addition, the aforementioned dispositions of expulsion do not fall under discriminatory treatment on the grounds of the appellants' thoughts and creeds, as held later in Reason Chapter III for final appeal. The judgment in prior instance contains no illegality as argued by the counsel, and the counsel's arguments are not acceptable.

Concerning Reason Chapter III for final appeal stated by the same

The counsel, in short, argues as follows: it should be considered that a university assumes the legal obligation to go through the process of guidance to encourage a student to reflect on their past conduct by procedures and methods that are appropriate for an educational institution before making a disposition of expulsion to the student; nevertheless, the court of prior instance did not find the existence of the aforementioned obligation and determined that the Dispositions of Expulsion that were made without going through the appropriate process of guidance are within the bounds of the discretionary power of a person who has the right to take a disciplinary action and are thus valid; in this determination, the court of prior instance erred in the interpretation and application of Article 11 of the School Education Act, Article 13, paragraph (3) of the Regulation for Enforcement of the School Education Act, and Article 36 of the school rules of the appellee university.

A disciplinary action taken by a university to its student is considered as an autonomous action that is permitted to be taken to maintain the internal discipline of the university as an educational and research facility and achieve educational purposes. When the president who has the right to take a disciplinary action determines whether a student's act deserves a disciplinary action and which type of disciplinary action should be chosen before instituting a disciplinary action against the student's act, the president needs to consider various factors, such as the personality and ordinary conduct of the student, impact of the aforementioned act on other students, the admonishing effect that the disciplinary action has on the student and other students, and the general effects of overlooking the aforementioned act, in addition to the severity of the act. It is clear that an appropriate result cannot be expected unless determinations concerning these points are left to the reasonable discretion of a person who is acquainted with the circumstances in the university and directly engages in educational tasks (see 1953 (O) 525, the judgment of the Third Petty Bench of the Supreme Court of July 30, 1954, Minshu Vol. 8, No. 7, at 1465 and 1953 (O) 745, the judgment of the Third Petty Bench of the Supreme Court of July 30, 1954, Minshu Vol. 8, No. 7, at 1501).

Incidentally, Article 11 of the School Education Act provides only the time "when it is found necessary from an educational perspective" as the case where a disciplinary action can be taken. On the other hand, in response to these provisions, Article 13, paragraph (3) of the Regulation for Enforcement of the School Education Act provides for four specific grounds for a disposition only with regard to a disposition of expulsion, and Article 36 of the appellee university's school rules also provides to the same effect as above. These provisions are considered to enumerate grounds for a disposition of expulsion in a limited scope, based on the idea that a disposition of expulsion should be chosen only in the case where a student has no chance of improvement and it is found inevitable from an educational perspective to remove the student from the school in consideration of the fact that a disposition of expulsion is a serious measure that deprives the student of their student status, unlike other disciplinary actions. According to the above, when choosing to make a disposition of expulsion to a student while considering them to be a person "who disrupted order in the school or otherwise went against duties as a student" as referred to in Article 13, paragraph (3), item (iv) of the Regulation for Enforcement of the School Education Act and Article 36, item (iv) of the appellee university's school rules, needless to say, more careful attention is required in the finding of the fulfilment of the requirements therefor compared to other dispositions. However, taking into account the fact that a choice to make a disposition of expulsion is also just an educational determination made in consideration of various factors as mentioned above, when determining whether it is inevitable from an educational perspective to remove a student as they have no chance of improvement in a specific case, determinations concerning issues, such as whether it is necessary from an educational perspective and appropriate to give guidance to the student to encourage them to reflect on their past conduct and how and to what extent such guidance should be given, must be left to the specific, professional, and autonomous determinations of the school authorities based on the policy of each school. It is not reasonable to consider that the school authorities always assume the legal obligation to go through the aforementioned process of guidance in making a disposition of expulsion, except for special cases, unless otherwise provided by the school rules, etc. Therefore, even if a disposition of expulsion is not sufficient in terms of the aforementioned guidance, it does not immediately become illegal only for that reason. It should be said that a disposition of expulsion is considered to be within the bounds of the discretionary power of a person who has the right to take a disciplinary action and its effect cannot be denied unless the choice to make the same disposition is one that cannot be found to be reasonable from a common sense perspective in comprehensive consideration of various circumstances of the case, including the aforementioned insufficiency.

Incidentally, the development before the Dispositions of Expulsion determined by the court of prior instance is roughly as follows.

(1) The appellee university came to know the appellants' acts of violation of the life guidelines as mentioned above around late October 1961, urged the appellants to sever their relationships with Union D based on the idea that those acts are extremely unjust in terms of the educational policy of the same university, and took measures as held in the judgement in prior instance, including de facto prohibition of their attendance to the university. However, when making comments on the attitude of the university authorities during this period as a whole, the university authorities only focused on questioning the appellants' responsibilities for the sake of the same university's reputation and are hardly found to have made efforts to persuade the appellants to reflect on the fact that their acts were against the school characteristics of the university.

(2) On the other hand, the appellants joined or applied to join Union D while knowing that those acts were in violation of the life guidelines. The appellants were scarcely aware of their responsibilities for the aforementioned violation, did not think that it was unjust to join Union D, truly had no intention to comply with the appellee university's request for withdrawal from Union D (Appellant A2 who was under application to join Union D officially joined the union in December 1961), and had rebelled against related professors' attempts at persuasion the whole time. However, the university authorities had adopted an approach to resolve the case as amicably as possible up to December 1961.

(3) However, late January 1962, under a pseudonym, Appellant A1 published her diary about the circumstances of an interview that she received from the university authorities in an article titled "Good wife and wise mother or garden of freedom," which critically describes a series of measures that had been taken by the appellee university since the beginning of this case, in a certain weekly magazine. Then, the appellants stated the development of the case, respectively, at a "discussion meeting against the war and the reactionary trend of education" that was held in a public hall in Tokyo under the sponsorship of university associations and Union D, etc. Furthermore, on February 9, 1962, the appellants stated the way that they were interviewed by the university authorities in a radio broadcast covering this case that was titled "Turbulent garden of women." Therefore, the appellee university recognized these acts as the appellants' acts of defamation of the same university outside the university. At this stage, the appellee university determined that the appellants' series of actions and behavior fall under those that "disrupted order in the school or otherwise went against duties as a student," which constitute a ground for expulsion, and made the Dispositions of Expulsion on February 12, 1962.

According to the facts mentioned above, it is obvious that the Dispositions of Expulsion were not decided only on the grounds of the aforementioned acts of violation though the circumstances of the aforementioned acts of violation of the life guidelines conducted by the appellants were relatively minor in itself. As mentioned in (2) and (3) above, the appellants are not recognized as having actually reflected on their violations of the life guidelines, and in particular, while the university authorities were continuously attempting to persuade them to resolve the case as amicably as possible, the appellants took actions publicly criticizing measures taken by the university authorities in a weekly magazine and an external meeting, etc. Therefore, it is unavoidable that the appellants are considered to have expressed their unwillingness to comply with the educational policy of the same university. These circumstances must be considered to be impossible to ignore in terms of treatment of students. However, when examining the facts mentioned in (1) above and other measures taken by the university authorities that were indicated in the holdings in the judgement in prior instance, the words and actions of the related professors who engaged in the attempts at persuasion included those that stimulated the appellants' emotions unnecessarily, and the professors somewhat lacked composure, tolerance, and patience in terms of the method and degree of guidance as a result of focusing on the seriousness of the case. However, according to the findings of the court of prior instance, it is not found that those measures taken by the university authorities caused the appellants to assume a rebellious attitude and increase contacts with the external organization. As long as this is true, it cannot be said that the appellants' attitude and actions as mentioned in (2) and (3) above were caused mainly by grounds attributable to the appellee university, and the university authorities cannot be considered to have been extremely careless on the grounds that they determined that the appellants had no chance of improvement at the aforementioned stage. Moreover, even if the appellee university requested the appellants to withdraw from Union D or rescind the application to join Union D, it does not immediately constitute interference with their thoughts and creeds, and the court of prior instance did not find that the same university discriminatively treated the appellants by other means on the grounds of their thoughts and creeds. When considering these points together, in this case, although the university authorities determined that the aforementioned series of acts conducted by the appellants are those that "disrupted order in the school or otherwise went against duties as a student" on the grounds that the appellants cannot be expected to make improvements in compliance with the educational policy of the same university and no longer have a chance of achieving educational purposes, such determination is hardly considered to be unreasonable from a common sense perspective, setting aside the question of whether measures taken by the appellee university during the period from the beginning of the case to the dispositions of expulsion are criticized from an educational perspective. In the end, the Dispositions of Expulsion are considered to be within the bounds of the discretionary power granted to a person who has the right to take a disciplinary action, and their effect should be upheld.

Therefore, the determination of the court of prior instance that is the same as above in conclusion is reasonable. The judgment in prior instance contains no illegality as argued by the counsel, and the counsel's arguments are not acceptable.

Concerning Reason Chapter IV for final appeal stated by the same

The findings made by the court of prior instance with regard to the counsel's arguments are not those that cannot be upheld in light of evidence cited in the judgment in prior instance, and the judgment in prior instance contains no illegality as argued by the counsel. The arguments simply conclude by criticizing the findings of facts and selection of evidence made by the court of prior instance under its exclusive power, and thus are not acceptable.

Accordingly, in accordance with Articles 401, 95, 89, and 93 of the Code of Civil Procedure, the Court unanimously decides as set forth in the main text of the judgment.

Justice SAKAMOTO Yoshikatsu

Justice SEKINE Kosato

Justice AMANO Buichi

Justice ERIKUCHI Kiyoo

Justice TAKATSUJI Masami