NHRC Issues Recommendation to MOE to Remedy Cases of Qualifying Teachers Disadvantaged by Serving Military Duty
The National Human Rights Commission issued a recommendation to the Minister of Education and Human Resources Development (MOE) to swiftly draft and implement measures to remedy cases of school teacher candidates who incurred disadvantage for having served their (compulsory) active military duty in that they were not assigned teaching positions despite having graduated from a public, national university with a major in teacher education, having fulfilled all the administrative prerequisites (completion of a teacher training period, passing an oral exam), and having been entered on the “register of [teacher] candidates for appointment.”
This case came about when a Mr. Kang—36, chair of the “National Committee of Registry-Listed Teachers Unassigned Positions Owing to Damages Resulting from Serving Military Duty (hereafter, National Committee)”—and 65 others petitioned a complaint against the MOE charging that they incurred disadvantaged and were discriminated against for having fulfilled their mandatory military service because in 1990, the Ministry of Education (the former Ministry of Education and Human Resources Development), changed teacher appointment and placement system policy.
Up until 1990 and in compliance with article 11: clause 1 of the Public Educational Officials Act, MOE had preferentially placed public, national university graduates (who had majored in a college of education department) in teaching positions at public secondary schools, and subsequently filled the remaining positions with teacher candidates who graduated from private universities (who had majored in a college of education department) and were selected through an additional, qualifying exam process. Thus, persons enrolling in a public, national university education-related department expected that they would be assigned teaching positions after graduation. However, by the late 1980s, even after placing public, national university graduates in every available teaching position at public middle and high schools, many such graduates were left without placement and graduates of private universities had virtually no chance of being assigned a placement in a public middle or high school.
In 1989, 6 persons—graduates of private universities (who had majored in a college of education department) and private school undergraduates enrolled in a teacher education major—charged that the school teacher appointment policy was unfair to private school graduates and submitted their case to the Korean Constitutional Court. On 8 October 1990, the court ruled that article 11: 1 of the Public Educational Officials Act (prior revision by Act #4304 on 31 December 1990) breached articles 11 (right of equality) and 15 (freedom to choose one’s occupation) of the Korean Constitution. Basing its decision on this ruling, the MOE then promoted amendment of the Public Educational Officials Act such that all new appointments were made through open screening, a policy change that eliminated preferential appointment of public, national university graduates.
The NHRC investigation found that the National Committee members were composed of: (1) those who graduated university late owing to having served in the military before graduating, and were thus entered onto the teacher register late, (2) those who missed the 3-year grace period (1991 – 1993) before the system was actually changed because they were then serving in the military, and thus, lost their opportunity to use the grace period, and (3) those whom a local office of education sent notice of “change of assignment,” but owing to military service, did not receive the notice. The NHRC found that, in the process of teacher appointment, these persons all incurred disadvantage and suffered discrimination as a result of having served in the military, and further, that this contravenes article 39: 2 of the Constitution (“No citizen may be treated unfavorably on account of fulfillment of his obligation to military service.”)
The NHRC noted that military service places persons in a situation where their freedom of self-determination cannot help but be restricted. Thus, the Commission pointed out that based on article 39: 2 of the Constitution, the state has the obligation to proactively protect individuals serving their military duty when they incur grave disadvantage to their social position owing to new laws and systems enacted during their time in military duty, and the Commission recognized that the MOE’s differential granting of opportunities to persons with the same qualifications brought about yet another type of discrimination.
Additionally, the Commission took into consideration the fact that the teachers in the National Committee had drifted in a vocational vacuum for the 10 years since they graduated from their college of education programs; thus, they cannot help but face some difficulty adjusting to current educational programs. Accordingly, the NHRC issued the MOE a recommendation to (1) provide these persons an opportunity to foster their professional growth so as to avoid violating students’ equal right to receive an education (Constitution, article 31: 1) and to (2) ensure that MOE measures to remedy the National Committee teachers’ cases do not disadvantage new teacher candidates currently studying for the teacher qualifying exams.
