[Viewpoint] The Dormant Constitutional Clause on University Autonomy

Last week, the Ministry of Education announced guidelines for university academic operations in response to the novel coronavirus infection (COVID-19). Until the situation stabilizes, it advised conducting remote classes instead of in-person classes, allowing each university to autonomously decide the specific methods according to their circumstances. Previously, the Ministry's standards prohibited offering more than 20% of general education and major courses as remote classes, required that each class session's content delivery time be at least 25 minutes, and mandated systems to prevent proxy attendance; however, these were not applied this semester. Although framed as "recommendations," universities perceived them as "mandatory," and while told to decide "autonomously," there is little room for autonomy if they are to follow the Ministry's detailed criteria. The COVID-19 crisis has starkly revealed the reality of online lectures at domestic universities. Not only is the proportion of online lectures minimal, but most universities lack adequate support personnel and infrastructure. This is the result of the Ministry of Education's regulation of remote classes.

Lack of autonomy is not limited to remote classes. Academic operations?including duration of study, academic year classification, number of class days, hours required per credit, and the scope and standards for credit recognition?are naturally under the Ministry's control. While the need for interdisciplinary majors in the era of the Fourth Industrial Revolution is emphasized, establishing interdisciplinary departments without admission quotas is impossible. Customized admissions for adult learners are also restricted. Admission quotas, as well as proportions of early and regular admissions, interview questions, and essay prompts, are all controlled. The same applies when hiring new professors. Specific controls include the proportion of candidates from certain universities, compliance requirements at each evaluation stage, principles for selecting evaluators, and methods of announcing recruitment. Whether prices rise, more professors are hired, or new educational programs are introduced, the university’s average tuition fees must not exceed those of the previous year, and in the future, entrance fees will also be prohibited.

Article 31, Paragraph 4 of the Constitution of the Republic of Korea declares that "University autonomy shall be guaranteed as prescribed by law." However, this has long been a dead letter. Although interpretations of the university autonomy clause vary, the focus is not on limiting university autonomy by law but rather on actively guaranteeing university autonomy through law. The constitutional spirit is that universities may be regulated, but not by a positive approach (principle of prohibition with exceptions allowed) but by a negative approach (principle of allowance with exceptions prohibited).

This clause was added in the 1987 revised Constitution, but there has been no change compared to before the amendment. Regulation of universities remains a positive approach. No independent law guaranteeing university autonomy has been enacted, nor have laws regulating universities been significantly relaxed. Cases where university autonomy is guaranteed by law are rare, and even legally guaranteed autonomy is often nullified by administrative guidelines.

The Higher Education Act permits tuition increases within 1.5 times the average consumer price inflation rate over the previous three years, but national scholarship support guidelines prevent this. The process of abolishing entrance fees is highly unconstitutional. Universities were pressured to decide to abolish entrance fees first, and then the Higher Education Act was amended to prohibit charging entrance fees. This is the true face of legal guarantees of university autonomy. Core areas of university autonomy?student selection, academic operations, university personnel, and university finances?are veritable regulatory department stores. When universities’ complaints increase, special committees are formed to make minor improvements to problematic regulations; this positive approach only increases frustration. The "University Innovation Support Plan in Response to Demographic Changes and the Fourth Industrial Revolution" announced by the Ministry of Education last year contained progressive content but, paradoxically, was a typical positive approach to regulatory reform.

Legislation that fundamentally guarantees university autonomy in principle while regulating only exceptionally, reflecting the constitutional spirit, is urgently needed. Unless regulations on universities are drastically abolished, demanding that universities prepare for the Fourth Industrial Revolution is nonsensical.

Song Ki-chang, Professor, Department of Education, Sookmyung Women’s University

This content was produced with the assistance of AI translation services.