1996.03.08

1995 (Gyo-Tsu) 74

Minshu Vol. 50, No. 3, at 469

Judgment upon the case ruling that a disposition to retain in the same class for another year and a disposition for dismissal from school handed down to a municipal technical college student who refused to take kendo practice for reasons of religious faith are illegal beyond the scope of discretionary authority

Case to revocation of a disposition to deny promotion, revocation of a disposition to order dismissal from school, etc.

Judgment of the Second Petty Bench, dismissed

Osaka High Court, Judgment of December 22, 1994

In the case where, concerning a student who had refused to take part in kendo practice for reasons of religious faith, the principal of a municipal technical college handed down a disposition to retain the student in the same class for two consecutive years on the grounds that the student was not eligible for certification of completion of physical education (P.E.) as a compulsory subject and moreover, on that premise, handed down a disposition to dismiss the student from school, in light of such facts pointed out in the holding that the said student refused to take the practice for serious reasons closely related to the core of his religious faith but did not refuse to take other items of P.E. and had excellent records in other subjects, that each of these dispositions has the nature of inflicting a grave disadvantage on the said student, compelling him to act in a manner against the doctrine underlying his religious faith to avoid such disadvantage, that while the said student requested the college to take alternative measures including writing reports, etc., the college denied the said request, although alternative measures were not necessarily impossible, without giving any consideration to such possibility and so forth, each of the said dispositions should be judged as lacking in appropriateness compared with the view commonly accepted in society and illegal beyond the scope of discretionary authority.

Article 11 of the School Education Law
In school, the principal and teachers may impose discipline on students and pupils, if deemed necessary in education, as stipulated by the competent authorities. However, no corporal punishment shall be inflicted.

Article 70-2 of the said law
Technical colleges shall aim to teach specialist arts and sciences in depth and develop the abilities necessary for a trade or profession.

Article 13 of the Rules of Enforcement of the School Education Law
The principal or teachers, in imposing discipline upon their pupils, etc., shall take due care necessary in education, corresponding to the mental and physical development of their pupils, etc.
Of the types of disciplinary action, a disposition to dismiss a student from school, suspend a student from school, or a reprimand shall be handed down by the principle (for a university, including a dean delegated by the president).
Dismissal from school stipulated in the preceding paragraph can be imposed on pupils, etc. in any of the following cases, except for elementary school-aged pupils or junior high school-aged students enrolled at public elementary schools, junior high schools, schools for the blind, schools for the deaf, or schools for physically-handicapped or mentally-retarded children:
1. If an individual has problems with his/her disposition and conduct and is not expected to improve.
2. If an individual has an inferior level of academic ability and is not expected to accomplish their studies.
3. If an individual is not able to attend regularly without justifiable reason.
4. If an individual disturbs the existing order in school and fails to do his/her duty as a student.
Suspension from school stipulated in Paragraph 2 shall not be imposed on elementary school-aged pupils or junior high school-aged students.

Article 27 of the said rules
In elementary school, certification of completion of the curriculum for each grade, or for graduation, are decided upon by a mark given for a pupil's class participation.

Article 72-6 of the said rules
The provisions set forth in Article 27, Article 28, Article 44, Article 46, Article 47, Article 59, Paragraph 1 and Paragraph 2, Article 60, Article 61, Paragraph 1, Article 62, Article 63, Article 65, Paragraph 3 and Article 71 shall apply mutatis mutandis to technical colleges. In this case, "the second Saturday and the fourth Saturday of every month" laid down in Article 47, Paragraph 1 shall read "Saturday" instead.

Article 13 of the School Rules of Kobe Municipal Technical College (the Kobe Municipal Board of Education Regulations No. 10 of 1963)
For certification of completion of the curriculum for each year or graduation, evaluation shall be made based on a mark given for a student's class participation.

Article 14 of the said school rules
If a student is to be retained in the same class for another year as a result of certification under the preceding article, he/she shall take all of the subjects required for the relevant year again for completion.

Article 31 of the said school rules
A principal may order a student to leave school in any of the following cases:
1) If an individual has problems with his/her disposition and conduct and is not expected to improve.
2) If an individual has an inferior level of academic ability and is not expected to accomplish his/her studies.
3) If an individual is not able to attend regularly without justifiable reason.
4) If an individual disturbs the existing order in school and fails to do his/her duty as a student.

Article 30 of the Code of Administrative Litigation
Regarding a disposition handed down at the discretion of any administrative organ, the Court may revoke such disposition, provided that it is found to have involved any exercise beyond the scope of discretionary authority or abuse thereof.

Article 3, Paragraph 1 of the Basic Law on Education
All people shall be provided equal opportunities to receive an education corresponding to their ability and shall not be discriminated against while receiving said education because of their race, creed, sex, social status, economic position, or family origin.

Article 9 of the said law
An attitude of tolerance towards religion and the place of religion in social life shall be respected in education.
Schools established by the State and local public bodies shall refrain from religious education that is only in the interests of a particular religion or any other religious activity.

Article 20 of the Constitution
Freedom of religion is guaranteed to all. No religious organization shall receive any privileges from the State, nor exercise any political authority.
No person shall be compelled to take part in any religious act, celebration, rite or practice.
The State and its organs shall refrain from religious education or any other religious activity.

This jokoku-appeal is hereby dismissed.
The litigation costs incurred in this jokoku-appeal shall be borne by the Appellant.

Regarding the reasons for the jokoku-appeal presented by Attorney Tawara Shoichi, Attorney Shigemune Jiro, Attorney Karino Toshihiko, Attorney Sakaguchi Yukihiro, Attorney Terauchi Norio, and Attorney Ogawa Yoichi:

I. The facts found and established lawfully by the court below are outlined as follows:
1. The Appellee is a person who entered the Kobe Municipal Technical College (hereinafter referred to as "Kobe Technical College") in April 1990.

2. Technical colleges have introduced an academic year system, under which students may not move up to the senior class unless they are certified to have completed each academic year. According to the Regulations concerning Evaluation of Scholastic Performance as well as Certification for Promotion and Graduation laid down by Kobe Technical College (hereinafter referred to as the "Regulations concerning Promotion, Etc."), certification for promotion requires that a student should have all subjects to be completed in the current academic year accredited, but if a student is graded lower than 55 on a scale of 100 for his/her scholastic performance in any subject, it follows that he/she fails to get accredited for that subject. In terms of scholastic performance, a teacher in charge of a particular subject is supposed to evaluate each student comprehensively in terms of learning attitude and exam results at the end of the first and second terms, respectively, while achievement should be evaluated on a school year basis, as a rule, by taking a combination of the evaluations for both terms into account. According to the Regulations on Promotion, Etc., except for leave of absence, no student is permitted to remain in the same class two times in succession, and according to the School Rules of Kobe Municipal Technical College (the Kobe Municipal Board of Education Regulations No. 10 of 1963; hereinafter referred to as the "School Rules") and the Bylaw concerning Dismissal from School (hereinafter referred to as the "Bylaw on Dismissal"), the principal may order any student to leave school if he/she fails to move up to the senior class two times in succession.

3. At Kobe Technical College, health and physical education was required for students of all classes as a compulsory subject, and in the academic year 1990, kendo was introduced as an activity in P.E. for first-year students. Students were required to take kendo sessions either in the first or second term, and a 70-mark was allotted to kendo out of a 100-mark for P.E. on a term basis; namely, kendo accounted for 35 out of the 100 marks for P.E. for first-year students.

4. The Appellee, partly because his parents were followers of the Jehovah's Witnesses, whose religious faith includes abiding strictly by the Bible, also became a believer in the teachings of the Jehovah's Witnesses. The Appellee, in following those teachings, believed that taking part in the practice of kendo as a combative sport was essentially irreconcilable with his religious faith, and around the end of April 1990, just after he had entered Kobe Technical College but before kendo sessions had started, together with other students who were also followers of the Jehovah's Witnesses, explained to four P.E. teachers that they could not participate in kendo practice for reasons of religious faith and requested that they be given alternative activities such as writing reports and the like. However, the said teachers denied the request right away. The Appellee repeatedly made the same request to the same effect up until a kendo session actually took place, but the Appellee was told by a P.E. teacher that the Appellee would be treated as an absentee if the Appellee did not take part in kendo practice. The Appellant learned that the Appellee and others had given notice that they could not participate in kendo practice, and at the end of the said month, after conferring with the P.E. teachers, decided not to offer alternative activities for these students in place of kendo practice. The Appellee, during kendo sessions starting around the end of the said month, changed his clothes and participated in circuit training, the lecture, and warming-up exercises, but not in the kendo practice itself, during which he sat upright in a corner of the kendo hall and recorded the details of the session in order to write a report. The Appellee prepared a report based on the said record after the session and tried to hand it in to the P.E. teacher on the day before the next session was held, but the said teacher refused to receive said report.

5. The P.E. teachers and the Appellant tried to persuade the Appellee and the other students who did not participate in kendo practice and their guardians to participate in kendo practice, and explained to the guardians that the students would be forced to repeat a year unless they participated in kendo practice and that the college would not provide any alternative activities and so on as policy on the part of Kobe Technical College. The guardians petitioned to the effect that they had called for alternative activities to be offered, but Kobe Technical College responded that no alternative activities would be offered. Meanwhile, the Appellant and the parties concerned including the P.E. teacher conferred and decided to offer a catch-up kendo practice session as a special measure for those who had not participated in kendo practice, and advised the students and their guardians to participate in it on two occasions, but the Appellee did not do so. As a result, the P.E. teacher marked the Appellee as absent from kendo practice on the register and awarded 5 marks for that part of the kendo activity for which the Appellee had done warming-up exercises (or a mark of 2.5 on a school-year achievement basis), and gave the Appellee 42 marks for P.E., on adding up the marks for the other P.E. items completed by the Appellee in the first year. At the first certification meeting, it was determined that the Appellee and five other students who had not participated in kendo practice came short of completing their accreditation for P.E. and decided to offer these students a catch-up kendo practice session, but the Appellee and four others did not attend it. Consequently, the second certification meeting held on March 23, 1991 determined that the said students were not certified for promotion, and the Appellant, on the 25th of the month, handed down a disposition to retain the Appellee in the same class for another year to the effect that the Appellee was not eligible for moving up to the second year, and notified the Appellee and his guardian thereof.

6. In academic year 1991, since the Appellee took the same attitude as in the previous year, while the school dealt with the matter in the same manner as before, the Appellee was given 48 marks in total for his achievements in P.E. for the year, and the Appellee who had not attended catch-up kendo practice did not get certified for promotion together with the other four students at the second certification meeting held on March 23, 1992, for the academic year 1991, and the Appellant decided to issue a disposition to retain the Appellee in the same class for the second time. On the said date, a commendation/disciplinary committee was convened, which decided it appropriate to take action to dismiss the Appellee and another student from school, and on 27th of the month, the Appellant, judging that this case fell under "If an individual has an inferior level of academic ability and is not expected to accomplish his/her studies," one of the justifiable causes for dismissal from school set forth in Article 31 of the School Rules, on the grounds that the Appellee had been retained in the same class two times in succession, notified the Appellee, who had not quit school voluntarily, of the disposition to dismiss him from school on the premise of the said disposition to retain him in the same class.

7. It is not found that the Appellee was markedly unenthusiastic in attending classes for P.E. activities other than kendo. The Appellee had good grades in his studies other than P.E., and attended classes in an earnest manner.
It should be noted that there are technical colleges that have offered alternative activities, requiring students in a similar position as the Appellee to write reports or do other sports.

II. It should be left to the rational, educational discretion of the principal of a technical college whether or not a disposition to retain a student in the same class for another year or a disposition to dismiss a student from school is to be handed down to the student concerned in the first place, and when it comes to examining the propriety of such a disposition, the Court should not discuss the relevant disposition in terms of propriety, severity and the like by determining whether or not the relevant disposition should have been handed down from the principal's standpoint, etc. and comparing the findings from such a determination with the relevant disposition, but ought to judge it illegal provided a disposition handed down through the exercise of discretionary authority by the principal is found to have no foundation in fact or to be lacking in appropriateness compared with the view commonly accepted in society, and handed down beyond the scope of the discretionary authority or by way of abusing the discretionary authority (see the Judgment of the Third Petty Bench upon Case 1953 (O) No. 525 rendered on July 30, 1954, Minshu Vol. 8, No. 7, at 1463; the Judgment of the Third Petty Bench upon Case 1953 (O) No. 745 rendered upon July 30, 1954, Minshu Vol. 8, No. 7, at 1501; the Judgment of the Third Petty Bench upon Case 1967 (Gyo-Tsu) No. 59 rendered on July 19, 1974, Minshu Vol. 28, No. 5, at 790; the Judgment of the Third Petty Bench upon Case 1972 (Gyo-Tsu) No. 52 rendered on December 20, 1977, Minshu Vol. 31, No. 7, at 1101 ). However, a disposition to dismiss a student from school is a serious measure that divests the individual of his/her status as a student, and in view of Article 13, Paragraph 3 of the Rules of Enforcement of the School Education Law that restrictively cites no more than four cases as justifiable causes for dismissal from school, a disposition to dismiss a student from school should be chosen only if it is deemed unavoidable to expel the relevant student from school from the educational viewpoint, and in determining the requirements therefor, utmost care should be taken involving yet more prudence than when other types of disposition are chosen (see the Judgment of the Third Petty Bench upon the above-mentioned case rendered on July 19, 1974). Also, since a disposition to retain a student in the same class obliges the relevant student to take the same subjects and items already taken for another year against his/her will, postponing the commencement of him/her taking lessons in the senior class and putting off his/her graduation and on top of that, in the case of Kobe Technical College, if a disposition to retain a student in the same class is handed down two times in succession, it would lead to a disposition to dismiss the student from school, in light of the magnitude of the disadvantage given the relevant student, the Court is of the opinion that the utmost care should be taken in deciding on a disposition to retain a student in the same class for another year. In the context of the above-mentioned facts, as expounded below, each of the dispositions in question is significantly lacking in appropriateness compared with the view commonly accepted in society, and is illegal beyond the scope of discretionary authority.

1. With a view to ensuring the national standard of education and so on, it cannot be denied that in the public education curriculum, it is necessary to help students acquire a certain level of essential knowledge, ability, etc. proportionate to each school year, and the completion of physical education as a subject is no exception to this need. As for technical colleges, however, it is rather hard to conclude that students should take kendo practice as a requisite, but the Court assumes that the educational purpose of physical education as a subject can, by its nature, be accomplished in alternative ways, such as by participating in other P.E. activities.

2. On the other hand, according to the facts described above, there was a serious reason why the Appellee refused to participate in kendo practice, closely related to the core of his faith. The Appellee did not refuse to take part in other P.E. activities and was not found markedly unenthusiastic, but it is found that because he was given only 2.5 marks on a scale of 35 for the kendo activity, it was extremely difficult for him to attain the pass mark for P.E. even though he completed the other P.E. activities successfully. As a consequence of his refusal to participate in kendo practice for reasons of religious faith, the Appellee was led into a situation of being retained in the same class for another year and dismissed from school even though he had an excellent record in other subjects, and it is evident that the Appellee was put at a great disadvantage arising therefrom. In addition, although none of the said dispositions orders the Appellee to take action incompatible with the doctrine underlying his faith as far as its contents are concerned, and in this respect, neither of the said dispositions can be said to directly restrict the freedom of religion guaranteed to the Appellee, it is obvious that these two dispositions are of such a nature that the Appellee had no choice but to participate in kendo practice, which was an activity in conflict with the doctrine underlying his faith, to avoid grave disadvantages inflicted by these dispositions.
Even if the measures taken by the Appellant did not aim at restricting his freedom of religion or religious acts specifically, or even if these measures were taken in accordance with general stipulations concerning the development of the curriculum and the way of evaluating the accomplishments thereof, so long as each of the said dispositions had said nature, the Court is of the opinion that the Appellant should have given due consideration, as a matter of course, in exercising the said discretionary authority. Furthermore, it should not be automatically seen as justifiable to put the Appellee at the tremendous disadvantage described above on the ground that the Appellee, at his own discretion, had chosen the said school that provides kendo sessions as one of its P.E. activities.

3. The Appellee repeatedly requested the provision of alternative activities, such as writing reports and the like, but it is not true that he was asking for evaluation as if he had participated in kendo practice. On the other hand, as soon as the Appellee and other students, followers of the Jehovah's Witnesses, gave notice to the effect that they refused to participate in any combative sport class for reasons of religious faith, Kobe Technical College stated that they did not accept the Appellee's refusal to participate in kendo practice and would not offer alternative activities, and turned down the request for alternative activities made by the Appellee and his guardian, persuading them only to take part in catch-up kendo practice, instead. In light of the above nature of each of the said dispositions, the Court holds that sufficient consideration should have been given to the rightness of offering any alternative activity, the way and manner thereof, if any, and so on before each of the said dispositions was handed down, but there is no proof of any such consideration being given in this case.
The Appellant's side contends that on the part of Kobe Technical College there were technical difficulties in offering any alternative activities. In practice, however, there are schools that offer alternative activities for students refusing to participate in classes of combative sport for reasons of religious faith, and it is deemed possible to offer alternative activities in appropriate ways and manners which would not give rise to a sense of unfairness on the part of the other students. In addition, it can be easily clarified through investigation of external circumstances whether the refusal to participate arises for religious reasons or not, and it is not rational to assume that a large number of students refuse to attend particular classes for falsely-claimed reasons of religious faith. Moreover, the Court upholds the original determination that finds that it was unlikely that order could not be maintained in the educational setting in Kobe Technical College or that the operation of the school as a whole might be hampered in a manner too serious to be overlooked if alternative activities were offered. Hence, it cannot be said that it was practically impossible to offer alternative activities.
The Appellant's side argues that taking alternative measures is against Article 20, Paragraph 3 of the Constitution, but the Court does not believe that, in the case of a student who is not able to participate in kendo practice for valid reasons of religious faith, the action of offering alternative activities such as requiring the relevant student to take part in alternative physical training activities, write reports and so on and evaluating the results thereof, has religious implications in its purpose, or has the effect of supporting, enhancing, or promoting a specific religion or the effect of oppressing or interfering with those believing in other religions or those with no religion; the Court holds, therefore, that employing alternative measures, regardless of the way or manner thereof, is not against Article 20, Paragraph 3 of the Constitution for obvious reasons. It is not permissible for public schools to ask about or scrutinize students' religious faith, or rank religions hierarchically and treat each one differently, but when a student refuses to participate in kendo practice for reasons of religious faith, the school, in order to determine the justifiability of the reasons, makes an investigation to determine whether it is an excuse for idleness, or whether there is any rational relevance between the religious teachings explained by the student in question and the refusal to participate, which is not construed as a case that would undermine the neutrality of public education in relation to religion. These points are obviously substantiated in view of the purport of the Judgment of the Grand Bench upon Case 1971 (Gyo-Tsu) No. 69 rendered on July 13, 1977, Minshu Vol. 31, No. 4, at 533.

4. [Summary] As discussed above, the measures taken by the Appellant who, without distinguishing the refusal to participate in kendo practice for reasons of religious faith from refusal to attend for unjustifiable reasons, without considering possible alternative measures notwithstanding it is not impossible to offer alternative activities, just resting on the evaluation by the teacher-in-charge and others who did not accredit the said student in P.E., handed down a disposition to retain the student in the same class for another year and furthermore, handed down a disposition to dismiss the student from school, without regard to the main grounds for unsuccessful accreditation and the overall school record of the said student, concluding that it fell under "If an individual has an inferior level of academic ability and is not expected to accomplish his/her studies" set forth in the School Rules pursuant to the Regulations on Promotion, Etc., and the Bylaw on Dismissal because the said student was subjected to being retained in the same class for two consecutive years, fails to take into account the matters to be considered, or obviously falls short of rationally evaluating the facts under consideration; hence, this Court arrives at the ruling that the Appellant handed down dispositions that are lacking in appropriateness compared with the view commonly accepted in society and that are illegal beyond the scope of discretionary authority.

This Court upholds the determination to the same effect as above made by the court below, and this Court rules that the original judgment is not illegal in the respect pointed out by the Appellant's side. The rest of the argument presented in this appeal in relation to a violation of the Constitution is, in essence, nothing but a minor contention that the original judgment makes an error in construing and applying laws and ordinances in the said determination. It should be noted that the said determination is not incompatible with each of the precedents cited by the Appellant's side. Thus, the argument cannot be accepted.

Therefore, in accordance with Article 7 of the Code of Administrative Litigation, Article 401, Article 95, Article 89 of the Code of Civil Procedure, the judicial opinion is unanimously formed and the judgment rendered as the main text.

Justice KAWAI Shinichi
Justice OHNISHI Katsuya
Justice NEGISHI Shigeharu
Justice FUKUDA Hiroshi