교과서검인정제도의 본질과 정치적 중립성 -학생의 교육권에 관한 미국판례들을 중심으로-

Abstract

Education is a field where multiple parties can claim rights. Students can claim right to receive education to their best interests. Teachers can claim right to teach what they would like to teach. Parents derive their rights from their parental duties. Schools have institutional academic freedom. There is no one party whose right dominates over others. What is more complicated, in most countries, the modern states appear on the scene sometimes with a constitutional promise and financial guarantee that proper education be provided and give themselves a share of control on the field. It is clear that the government, to the extent that it has a constitutional duty to provide education, should have some amount of discretion in deciding what is taught, and such discretion has been institutionalize in the form of state selection processes, adopted in more than 20 U.S. states and many liberal-democratic countries. The question is what limit, if any, exists on such discretion. That question came to the fore when, in November 2008, The Korean Ministry of Education, in an announced attempt to neutralize what it considered “left-orientation”, ordered revision of the modern history textbooks used in secondary education. Korean Constitution Article 31 guarantees all people the right to education and in its paragraph 4 states that “Independence, professionalism and political impartiality of education and the autonomy of institutions of higher learning shall be guaranteed under the conditions as prescribed by Act.” However, “independence, professionalism, and impartiality” have not been interpreted by the Korean Constitutional Court as an external restraint on the state's power to intervene in the field of education but as a requirement that legislative, rather than executive, powers be used in such intervention. Legislature can, of course, delegate a fair amount of discretion to the Executive in such intervention. Therefore, this article attempts to derive such limit from American court cases concerning education and find that a ban on viewpoint discrimination operates the minimum restriction applicable even to the fora controlled and reserved by the State for a specific purpose, and also that procedural safeguards guaranteeing participation of all parties to education must be observed.