|JPRI Working Paper No. 58: June 1999
Combating Discrimination at a Japanese University
by Cynthia Worthington
In 1997, a group of foreign teachers at the Prefectural University of Kumamoto formed the Kumamoto General Union--the first general union of foreign teachers at a public university in Japan. Almost one year later, the union held a one-day strike--the first by foreign teachers at a public university. A few months after the strike, the president of the university announced that six of the foreign teachers, three of whom were active members of the union (including myself, president of the union), would be dismissed as of April 1, 1999, the upcoming academic year. Then, on March 31, 1999, at the 11th hour, the university and Kumamoto Prefecture impressed their seals onto a settlement agreement brokered by the Regional Labor Commission which reinstated two of the union members, with no prohibition to renewal of employment.
Why are these events significant? Why does continued employment for a few foreign teachers in a small, public university matter? As foreign teachers in Japan, like most non-Japanese academics, the teachers at the Prefectural University of Kumamoto have different employment conditions because we are not Japanese. The simple fact is that as foreigners, we have been deliberately separated out from our Japanese colleagues, given worse conditions, singled out for second-class, inferior treatment. Much of the distinction in employment is reflected by the very word "foreign" in the job titles held by non-nationals--gaikokujin kyouin and gaikokujin kyoushi. This is not unique to the Prefectural University of Kumamoto; it is a problem plaguing the majority of universities in Japan.1 They have constructed a Byzantine edifice of regulations, laws, and practices, and of linguistic shape-shifting, to restrict access to foreign scholars. By erecting and maintaining structural impediments to the participation of non-nationals and the ideas and values they bring with them, by treating them differently from their Japanese colleagues, academia shuts the door on international discourse.
What is happening at the Prefectural University of Kumamoto is a battle against Japan's traditional, closed-minded conception of what academia should be. It also strikes against the assumption that bureaucracy always gets its way, regardless of the people it is supposed to serve. It has primarily been a battle among Japanese people themselves who not only want their children to benefit from access to international perspectives but see it in their own interest to strive toward a fairer, more equitable society for citizens and non-citizens alike. The foreign teachers are a catalyst in this evolving social phenomenon.
University Teaching Staff Structure
To understand the nature of systemic discrimination in Japanese universities, a tour of the labyrinthine laws, practices, and definitions governing university employment is necessary. A. Educational Categories
The two main categories of instructional staff at universities in Japan are sennin and kennin. Sennin refers to a teacher holding the rank of professor, associate professor, and assistant professor. It carries with it affiliation to a faculty and anchors the teacher as belonging to a particular university. It is usually translated as full-time since professors, associate professors, and assistant professors affiliated with a university and responsible for administrating the university are considered full-time employees. Sennin staff have full membership in the academic community, including membership and voting rights at faculty meetings and committees, research budgets, research offices, the duty to report on their research, and other administrative responsibilities such as creating entrance exams. They are paid a salary with a bonus usually amounting to 4-6 months of salary and benefits such as paid vacations, research leave, and severance pay. Until the passage of a law in 1997 that permits universities to apply term limits to their Japanese teaching staff (Daigaku no Kyouin to no Ninki ni kansuru Houritsu), sennin Japanese teachers were employed without term limits. The closest English equivalent is tenure, but it is more accurately called secure employment.
Kennin refers to part-time teachers who have a contractual arrangement with a university to teach specific courses. They have a one-year term limit and no administrative responsibilities, such as faculty or committee meetings, other than teaching their classes and submitting grades. They are paid-by-the-class, usually on an hourly basis. They receive no pay during university holidays, are not entitled to vacation pay, do not have access to research funding, and do not have their own offices at the university. Often kennin teachers belong to another university and arrange to teach one or two courses at a neighboring university. B. Employment Status
While the above educational categories tend to imply the type of employment a teacher can expect--either full-time or part-time--there are separate terms for employment, as distinct from educational status, although the terms do overlap.
1. Full-time (joukin) employment means a teacher is a full-time employee and a full member of the university. Instead of connoting hours of work, a sense that the employment is permanent infuses the term.
2. Part-time (hijoukin) refers to work that in the public sector amounts to less than the hours, customarily 40-42 hours per week, designated as full-time. Typically a teacher employed on a part-time basis has a number of specific courses and the corresponding hours clearly spelled out in a contract with the public employer and is paid on a course-by-course basis. Like joukin, however, hijoukin refers less to the number of hours worked than to a prevailing sense of impermanent employment. A part-time teacher is not a full member of the academic community and is not expected to be responsible for anything more than teaching and grading the courses designated in a contract. A part-time teacher does not 'belong' to the university.
3. Part-time, special, irregular (hijoukin tokubetsu shokutaku) employment exists primarily in public, non-national universities. This category is usually applied to employment that carries no expectation of continuation beyond six months or a year and most often refers in the academic environment to library assistants and technical personnel. The only teaching personnel to which it has been applied are foreigners, where the status has come to mean teachers working full-time with a full course load, who 'belong' to the university, receive a salary, and have duties and responsibilities nearly equivalent to full-time teachers, including research. However, these teachers are employed on one-year contracts, renewable or otherwise, and are often paid a percentage of a full salary without a bonus or certain other benefits. They are also ineligible for promotion. C. Educational Categories and Employment Status for Japanese Teachers
Japanese teachers can expect that if they are designated as sennin their employment status will be full-time. If they are kennin, they can expect to be employed as part-time teachers. Sennin Japanese teachers usually enter a university as an assistant or associate professor, and occasionally as a full professor, with a sense of permanent employment. Although the law permitting term limits was passed in 1997, few, if any, universities have introduced this system of employment for their Japanese sennin teachers. Japanese teachers are also extensively employed as part-time, kennin, teachers on a course-by-course basis. It appears, however, that no salaried Japanese teacher is ever employed as a part-time, special, irregular teacher. D. Educational Categories and Employment Status for Foreign Teachers
Until the Special Measures Law (Kokuritsu mata wa Kouritsu no Daigaku ni okeru Gaikokujin Kyouin no Ninyou nado ni kansuru Tokubetsu Setchi Hou) was passed in September 1982, foreign teachers at national universities were employed as gaikokujin kyoushi, literally 'Foreign Teacher.' As can be seen from the title, this is a category of teacher defined by nationality rather than an academic position. It has existed since Meiji times and still exists. These teachers, while given full-time teaching duties, are not treated as part of faculty, have limited administrative responsibilities, and are not involved in the management of the university. These posts are outside the regular academic ranking and there is no provision for promotion, for example from assistant professor to associate professor. A one-year term limit is applied, renewable on an annual basis.
After the 1982 Special Measures Law, national and public universities, including prefectural universities, were expressly permitted to employ foreign teachers as gaikokujin kyouin (Foreign Teaching Staff) on the same terms as Japanese teachers. This position carries normal academic rank, allows promotion from one rank to the next, forms part of professorial committees, and participates in the management of the university. They are essentially the same as their Japanese full-time colleagues with one significant proviso: each university has the discretionary power to impose term limits on these foreign teachers. Private universities run the gamut from tenured foreign teachers holding a recognized rank with no term limits to foreign teachers with rank but subject to limited terms to true part-timers.
The Prefectural University of Kumamoto Teaching Staff
The Prefectural University of Kumamoto (hereinafter the PUK) is a public university administered by Kumamoto Prefecture. As a public institution, all its employees are hired under the Local Government Employees Act (Chihou Koumuin Hou). Japanese sennin teachers at the university are all regular public employees (ippan-shoku chihou koumuin) with full-time status and no term limits.
In 1993, for the first time a foreign (Canadian) linguistics specialist was brought in as a sennin regular public employee. The following year, a number of foreign teachers of English and a Korean teacher of management joined the ranks of regular public employees as part of the university's plan to seek accreditation of a new faculty. Just like the 'Foreign Teaching Staff' at national universities, the regular public employee foreign teachers' duties, responsibilities, benefits, and privileges are the same as their Japanese colleagues. But they are unlike their Japanese colleagues in one important respect: the PUK has imposed a three-year term limit on the appointments of all its foreign regular teachers while reserving unlimited term employment for the Japanese teachers.
Since 1982, the university has also employed foreign teachers to work full-time but not as regular public employees. This status of employment is part-time, special, irregular, Foreign Teacher (hijoukin tokubetsu shokutaku gaikokujin kyoushi) (hereinafter irregular teacher) on one-year renewable contracts. The category appears to have been reserved for non-Japanese teaching foreign languages, regardless of their credentials or qualifications. No Japanese teacher, not even those teaching English, French or German, has ever been employed in this status. In my own case, I was interviewed and hired in 1993 not only to teach English but with the prospect of teaching law in the soon-to-be established Administrative Studies Faculty. Nonetheless, I was and am employed as an irregular teacher.
The PUK extensively employs both Japanese and foreign part-time teachers to teach specific courses at the university on a contractual pay-per-class basis. These part-timers usually teach one or two courses, although occasionally they may teach more. The part-time teachers do not have their own offices, research budgets, or administrative duties. They do not participate in faculty or departmental meetings or serve on committees.
The Problem with Being Special
The part-time, special, irregular foreign teachers are not part-time, special, or irregular in any but a formal sense. Our responsibilities and duties, both educational and administrative, closely match those of our Japanese colleagues. Until 1998, most of the advertisements for the positions stated 'full-time.' Yet, although the nature of our work is full-time and despite receiving a salary, our official status remains 'part-time irregular.' No Japanese teacher at the PUK is or was employed in that status. All Japanese teachers are employed as regular, full time public employees or as paid-by-the-course part-time teachers.
As teachers in the irregular status, we do not have a normal academic rank such as professor, associate professor, or assistant professor and no opportunity for promotion. Thus, years of work and number and quality of publications are irrelevant to advancement in rank. By calling us 'part-time,' the university can justify paying us 75% of a full-time salary and deny us bonuses (amounting to an additional 4-6 months salary) and other benefits that accrue to full-time regular public employees. 'Irregular' also hardly describes teachers who have worked at the PUK continuously for many years. For example, I am in my seventh year and had received assurances on numerous occasions that my employment would be "indefinite."
Since the first foreign irregular teacher was hired in 1982, the PUK teachers have repeatedly petitioned the university to grant equal working conditions to all its teachers regardless of nationality. When the university made no conciliatory gestures toward dismantling the system, we finally looked to our own university teachers' union for assistance. That union, however, refused to permit the irregular teachers to join saying that its rules would not allow it to accept teachers who held posts under the irregular status. Meanwhile we were in a Catch-22: we needed to join a union as a forum to address the issue of our status but we were not permitted to join the union because of our status.
Discontent Escalates: The Story Begins
In 1993, during the accreditation process, the university had to submit its new faculty plans and the credentials and qualifications of its foreign and Japanese teaching staff to the Ministry of Education for approval. In 1993 and 1994, the foreign and Japanese teachers signed Acceptance of Appointment documents (shuuninshodakusho) for the Ministry and addressed to the Governor of Kumamoto Prefecture. Those documents stated that we accepted appointment as sennin kyouin, which in the English version read full-time faculty member in the Administrative Studies faculty. This is where the story begins.
We fully expected that upon signing the Acceptance of Appointment documents, which stated that our status was sennin, we would have permanent status and be full-time, regular faculty members, just like our Japanese colleagues who signed those documents. Japanese full-time regular teachers had confirmed to us that sennin kyouin meant full-time teacher, and administrators had assured us prior to signing that we would be full-time regular faculty members in fact as well as in name.
At a special meeting late in 1993, however, the university informed us that we would be continued in our part-time, irregular status. When we asked how official documents stating we were sennin kyouin affiliated to the Faculty of Administrative Studies could be reconciled with part-time employment conditions, the official university line was that sennin kyouin merely meant someone "based" at the university. In a linguistic contortionist's act they added that sennin was compatible with part-time, special, irregular employment status. A senior administrator, however, told us frankly that the documents had been "rigged" to get accreditation from the Ministry of Education. He explained that the university never had any intention of giving the foreign teachers full-time working status and that the Ministry knew this and had agreed.
The Kumamoto General Union
The following academic year, April 1994, we were presented with the same old part-time, special, irregular contracts. We refused to sign those contracts, citing the Acceptance of Appointment documents, the actual full-time nature of our work, and the promises made. In 1996, growing dissatisfaction with the discrepancy between our formal and actual status, agreements not honored, and increasing anxiety over the longevity of our employment led us to consult a local attorney. His advice was to join a union. He said, "As a union you legitimize your position in Japan. Individuals have less credibility than a group occupying a recognized position in society." When the PUK teachers' union informed us that we were not eligible for membership, we turned to Japan's general unions. The National Union of General Workers accepted us, and we formed the Kumamoto General Union in July 1997. This was the first general union of foreign teachers in a Japanese public university.
Regular full-time teachers employed in national or public universities are public employees and are not covered by Japan's various labor laws. They are severely limited in permissible union activity. For example, they cannot strike nor is the public employer enjoined to enter into collective bargaining negotiations with any union formed by civil servants. However, there is a loophole in the Local Government Employees Act, the legislation governing the employment of prefectural public servants. Under Article 3, Section 3, part-time, special, irregular workers, whose employment conditions are considered precarious since they are exempted from the security that accrues to government employees, are instead specifically covered by the Japan's labor laws. Since the irregular foreign teachers were employed under that provision, the university found itself in the peculiar and uncomfortable position of having a group of teachers in its midst with the right to form a labor union, insist on collective bargaining negotiations, and go on strike.
In July 1997, the Kumamoto General Union submitted its demands, calling for the elimination of discriminatory employment practices based on nationality and rectification of the status arbitrarily and improperly assigned to the majority of full-time foreign teachers. These were new types of demands for our Japanese union representatives, who were more accustomed to demands for higher wages or better leave benefits or safer working conditions. They tackled this new task with enthusiasm, however, and unswerving support, at least partly because the alliance with us met their own agenda for changes in the society.
Formal negotiations began with the university and prefecture in October 1997. The PUK immediately rejected all our claims at each of the five negotiation sessions. A sample from the sessions is worth repeating. When asked why only foreign teachers are given worse conditions, separated out, called part-time, special, irregular, temporary when in fact they work full-time, officials only repeated that the employment practices were "appropriate" (tekitou) for teachers who were native speakers of English. They explained that since there was a qualitative difference between the English spoken by Japanese teachers of English and that spoken by native teachers, it was natural to employ us differently. When asked how the university officials could tell the nationality of a native English teacher, one administrator replied "We know by looking at you that you are not Japanese" (miru to wakaru). The conversation continued:
Union: When you look at Lopez [a player on the Japanese national soccer team], do you know what nationality he is? University: Yes, I do. Union: What nationality is he? University: I don't remember clearly. Union: In fact he's Japanese. University: Ah. One can understand [from looking at him] that he's not racially Japanese [jinshuteki ni nihonjin de wa nai to iu koto wakaru.].2
The university then repeatedly denied that nationality was a factor in the hiring of foreign teachers as irregulars.
Finally, in February 1998, the president of the university announced that the university, as a public employer, had no obligation to discuss terms and conditions or change in employment status with the union. This is a legal issue which has not yet been challenged in a Japanese court. The PUK also abandoned negotiations and unilaterally imposed worse contracts than before on the irregular teachers.
The Strike and Its Aftermath
Faced with no alternative to getting a fair hearing, the union decided to hold a one-day strike and human rights rally on June 24, 1998. The strike was well received. People from all sectors of the community showed up. Representatives from non-governmental organizations, lawyers, and unionists gave speeches attended by concerned citizens, supporters from neighboring universities, students, and union activists from all parts of Japan. It was one of those rare occasions when the three major union federations, Rengo, Zenrouren, and the Zenroukyou, put aside their traditional rivalry to join together in our support. Students, so often dismissed as apathetic or unconcerned, stayed throughout the lunchtime rally and talked with us afterward. Regional and local news coverage was extensive and supportive.
However, the strike did not soften the university's attitude. Instead, it decided to accelerate a review of foreign language education curriculum. Despite student surveys indicating overwhelming support for the language program then in place, the PUK decided to reduce the number of English classes in the Administrative Studies faculty and increase class size from an unusually enlightened 25 to the standard 40-50 students in most compulsory classes. This is contrary to recent Ministry of Education guidelines that suggest universities adopt smaller classes for more effective language instruction. The PUK plan would have entailed a gradual reduction in the number of English teachers required, which the Kumamoto General Union viewed as a thinly veiled attempt at union busting.
In August 1998, the union used Kumamoto Prefecture's newly passed Freedom of Information Act (jouhoukoukai) to obtain the documents the PUK had actually submitted to the Ministry of Education in 1993. Our insistence over the years that we should not have been hired as part-time irregular teachers was dramatically validated. The documents clearly reveal that in 1993 the PUK reported to the Ministry that it was employing ALL its foreign teachers as full-time faculty members (sennin) with official academic ranks of professor, associate professor, or assistant professor.
On September 30, 1998, our struggle against discrimination took an unexpected turn. The PUK president made a surprise announcement to the university council that the position of part-time, special, irregular, foreign teacher would be discontinued as of the following academic year. This essentially meant that the six foreign teachers employed under that status, which happened to include all the irregular teacher members of the Kumamoto General Union, would be fired. Thus, rather than rectifying the situation of the irregular teachers, the president had decided to get rid of us. He did, however, add that the prefecture had agreed to create three new full-time regular positions for teachers of foreign languages, although of course if the teachers were not Japanese, then they would be limited to a three-year contract. Applications would be solicited from all over the world; no preference was to be given to the irregular teachers already on board. The gap in courses would be filled by hourly part-time teachers to replace the dismissed irregular teachers.
The Law Is an Undrawn Sword
When our Japanese attorney advised us in 1996 to join a union to legitimize our position, he urged us to put aside any notion we might have had of turning to the law to assist us in seeking relief from discriminatory employment practices. "The law alone will not help you," he said. "The law is merely one among several pressure points to build social consensus." As an American lawyer with an ingrained respect for the law, I view courts as reasonable places to interpret the law and seek compliance. To me, the university's practice of treating teachers differently based on nationality, a practice mirrored in most universities in Japan, was a case ripe for the courts. After all, the Constitution of Japan prohibits discrimination. When the Kumamoto General Union was formed, it seemed so obvious to rely on Article 3 of the Labor Standards Act (Roudou Kijun Hou), which specifically condemns discrimination on the basis of nationality. But the protection guaranteed by those laws resembles Japan's prized antique swords: to be admired but never drawn.
Japanese courts are notoriously reluctant to make any ruling that disturbs the status quo or challenges administrative power structures, and they are hostile to individuals' assertions of their right to protection under the law. Our lawyer told us frankly that district courts in particular do not like to interpret the law and will use any shred of evidence to make a factual finding denying coverage of protection. Even when a court does decide in a plaintiff's favor, its rulings come after 5-10 years of piecemeal hearings, are often unenforceable, and damage awards are negligible.
Legally our case is quite complex. Prefectural public employees are appointed to their position by the governor and do not have recourse to the protection of the labor laws. In exchange, public employees have been assured through regulations and social convention that their employment is lifelong. Although the foreign irregular teachers are public employees, we are employed as part-time, special, irregular workers and therefore contract workers covered by the labor laws. We are permitted to strike and bargain collectively, rights denied our regular public employee brethren. It would make sense that other protections of employment conferred by the labor laws would also apply, such as the provision converting one-year temporary employment into permanent status if certain conditions are met and that terms, conditions, and status of employment are negotiable items. Both these issues have been part of the union's agenda. The teachers all had a reasonable expectation of renewal, have all been continuously renewed for four to eight years, and have received assurances of continued employment. Moreover, the propriety of their status of employment as part- time, special, irregular teachers is itself in dispute.
Both our attorney and a consulting legal expert on the labor laws have stated, however, that these issues have never been brought before the courts, and judges might be just as likely find us 'appointed' for some purposes and contractual employees for others. If we are 'appointed,' then we can have no expectation of renewal of employment and issues such as status and terms of employment are within the discretion of the public employer. The meaning of sennin koushi/kyouin or full-time faculty member in the Acceptance of Appointment and FOIA documents and our claim that the university has failed to honor the terms of those documents is a separate issue that the teachers, as individuals, may yet bring to court under contract law. Class action suits are not permitted in Japan.
The case of Timothy Korst, formerly of the University of the Ryuukyuus, is a striking example of the netherworld of unprotected employment faced by foreign teachers at a national university. In 1998, Korst, a 'Foreign Teacher,' was informed that his contract would not be renewed. He was being dismissed. Korst claimed that as a public servant he should be protected from arbitrary dismissal under the National Public Employees Law (Kokka Koumuin Hou). Or, if such protection did not apply, he should be considered a contract worker and thereby receive the protection afforded by the labor laws, which would require the university to give legitimate reasons for dismissal and permit him to argue that multiple renewals of his yearly contract had converted his employment into permanent status.
Korst filed for an injunction in District Court. Three months later a decision was rendered. The court found Korst to be a public servant and therefore the labor laws, and their protections, were not applicable. However, the court further reasoned that since the 'Foreign Teacher' status is a special provision of the National Public Employees Law, Korst was not entitled to claim the employment security afforded to other full-time public servant teachers. Unless Korst were willing to begin an actual court case and spend 3-5 years waiting for a decision, the university's dismissal would stand.
What's In a Name?
The Acceptance of Appointment documents state that the PUK teachers accepted full-time employment as sennin no kyouin in the Administrative Studies faculty. According to Japanese professors from universities around Japan, that term can only refer to regular, full-time teachers with a faculty affiliation. Contrary to the commonly understood meaning, however, the PUK president has invested that phrase with protean qualities and insists that sennin kyouin can include part-time teachers who are "located" within a particular university.
The documents we retrieved under the Freedom of Information Act further substantiate our claim that we were full-time teachers. In those documents the PUK submitted us to the Ministry of Education as sennin koushi. Not only does that word sennin appear but it is coupled with koushi--a term designating the academic rank of assistant professor, which implies the possibility of promotion to the rank of associate or full professor. Nonetheless, in October 1998, at a meeting with the PUK president, he stated in answer to a question about how the teachers were submitted to the Ministry during the accreditation process that the teachers employed in the part-time irregular status were probably submitted as something like gaikokujin kyoushi but certainly not as sennin koushi. When confronted with the FOIA documents, the president could only mutter "Akiraka na misu" (It was clearly a mistake).
On February 18, 1999, Kumamoto General Union members, representatives from the National Union of General Workers, members of the support group (described below), and a Diet member met with the Ministry of Education to discuss the PUK's treatment of the foreign teachers. Ministry officials stated that sennin kyouin indicates full-time faculty member and agreed that it would be natural for foreign teachers who had accepted employment as sennin no kyouin to expect regular full-time (joukin) employment. The Ministry stated it was neither aware of nor had it approved employment of sennin kyouin as part-time teachers (Kumamoto Nichi Nichi Shimbun, February 19, 1999, and February 25, 1999, covered the Ministry's statements).
The ministerial pronouncements undermined the prefectural and university assertions made at collective bargaining negotiations and before the Labor Commission that their systems for employing foreign teachers were in line with ministerial standards. The pronouncements enhanced the credibility of the union claims that the phrase sennin no kyouin was incompatible with part-time employment status.3
However, Japanese courts and the Labor Commission (described below) are more attuned to community sentiment than the law itself. As Leila Madge noted in JPRI Working Paper 54, "What [the law] can do is provide a framework for the creation of consensus which can then lead to compliance, or it can legitimize an already existing norm. But for law to be effective it has to be accompanied by consensus."
The law in our context too was one among other agents in consensus-building rather than a means for redress in itself. After receiving word of our dismissal in October 1998, since we could not simply go to court without first establishing public consensus, sympathizers organized a formal support group called the "Coalition against Discrimination at the Prefectural University of Kumamoto." This group (mamorukai) began to work with the union in an effort to garner sponsors and supporters for the appeal to end discriminatory employment practices at the PUK and return the teachers to their jobs.
The heart of this group is comprised of different sectors of the community and is led by two Japanese professors from neighboring universities. Members include Japanese and foreign educators, unionists, lawyers, journalists, and students. The support group sets up various activities to widen our support base, such as signature-gathering for our appeal. We now have around 6,000 signatures from petition drives, internet, and supporter activity. The support group hopes to obtain 10,000 signatures from all over Japan and other parts of the world to submit to the Governor of Kumamoto as proof of a social consensus for change. It has also organized symposia with leading academic activists and has created and maintains a web site, in Japanese and English.
We wrote an appeal for support in Japanese and English and also sought sponsors (yobikakenin) for our petition. We were advised to avoid any sponsor with political connections since that would taint our appeal with the dishonesty associated with politics and factionalize possible sponsors. We were fortunate in that our first sponsor was Professor Masazumi Harada at Kumamoto (national) University. He is a respected member of the Kumamoto community and was one of the foremost medical researchers who linked the infamous Minamata mercury poisonings to fetal and birth defects. His signature opened the door for other academics. So far, over 65 Japanese professors from Kumamoto University and Kumamoto Gakuen University, the main local private university, academics from other parts of Japan and the world, lawyers, doctors, and editors have agreed to be sponsors.
In the past, sponsorship support from Japanese academics for foreign teachers has been either unusual or nonexistent. However, the professors who have supported us were asked to consider the effect of discriminatory practices on academia and have concluded that at the very least, the weight of the documents, the history of broken promises, and blatant dishonesty have rendered the practices at the PUK unsustainable.
The press has been encouraging and sympathetic since the Kumamoto General Union held its first press conference to announce the formation of the union and submission of its demands. Newspaper and televised coverage has continued. In December 1998, our case was featured on an hour-long regional TV program and more recently on a shorter roundup. Despite all the active interest and support of the Japanese press, it is ironic but also typical that the foreign press has shown little interest.
We have discussed our situation with several members of the prefectural assembly, two of whom have raised our issue as Parliamentary Questions in the legislative assembly. We are continuing to urge that political pressure be placed on the Governor and university to reform employment practices in keeping with Kumamoto's image of itself as a caring, internationalized prefecture.
During his tenure, former Ambassador Mondale was sympathetic to the issue of foreign teachers. In 1993, the principal officer then at the U.S. Consulate in Fukuoka visited Kumamoto and gently raised our issue with the university's administrators. They assured him, falsely, that their hands were tied by Ministry of Education requirements. However, the present ambassador, Thomas Foley, seems to have dismissed the issue as irrelevant to important U.S. interests. Despite my doubts about the present regime's willingness to listen, I met with the current principal officer in Fukuoka in December, 1998. He surprised me by saying he would consider a press conference and talks with the prefecture and university. Months later, however, he seems to have retreated from his former qualified endorsement and appears ready to treat this as a mere contract issue that is more appropriately handled by Japanese courts. My American colleagues and I have written to our senators asking them to consider the kind of discrimination practiced at the PUK as unacceptable to American interests and apply some pressure on decision makers in the U.S. Senator John McCain has replied that he had contacted the Japanese Ambassador to the U.S. about the matter.
Interestingly enough, our main support has come from Japanese people--those who do not want to be implicated in this kind of injustice, do not want to be at the mercy of a sclerotic bureaucracy, and are deeply concerned about their children's education. Because we had taken action before our dismissal we could operate from a greater position of strength. By forming a union and a support group, we have been acting within the Japanese milieu, within Japanese social convention, and according to Japanese laws. Because of all this, the people of Kumamoto have rallied to our side. A billboard that has been standing in front of Kumamoto Prefecture's administrative offices for quite a few years reads yasashii kumamoto--sabetsu no nai machi zukuri (a kinder, gentler Kumamoto--let's make a discrimination-free city). Many people in Kumamoto say this is what they want their city to be and they are alarmed that a retreat from international education will leave their children ill-prepared to participate in the fast-approaching global community.
The Regional Labor Commission
As part of its many-pronged approach to applying pressure on the administrative authorities, the union (the plaintiff), as is its right under the labor laws, submitted a petition to the Regional Labor Commission (Chihou Roudou Iinkai) in November 1998, asking that tribunal to find the dismissal of the teachers an unfair labor practice and to recommend continued employment of the teachers. Kumamoto Prefecture and the university (formally represented by the Governor and president, respectively) were the respondents. The petition and subsequent submissions also included the issues of the propriety of employing the teachers as part-timers considering the nature of their work, the Acceptance of Appointment and FOIA documents, memoranda and notes documenting discussions and understandings over the years, as well as the general theme of discrimination which was (and is) the crux and source of the problems associated with the university's employment practices of foreign teachers.
The Commission hears petitions from workers and unions covered by the labor laws. Its role is primarily that of a broker or mediator when the parties to a labor dispute cannot find common ground. Its decisions do not resemble those of a court which can involve a ruling on the law and a declarative judgment, such as payment of wages or right to continued employment. Instead, the Commission makes a finding in the form of a settlement proposal to get the parties to agree. Such a finding, while it cannot be enforced, carries social weight. The usual course undertaken by the Commission is to schedule one session per month with the expectation that the whole process will take at least a year to complete.
Although the submissions by both parties raised the larger issues of employment discrimination and the legitimacy of employing the foreign teachers as part-time, special, irregular workers, the Commission formally could only make a finding on the limited issues under the labor laws, in this case whether the dismissal of the teachers amounted to an unfair labor practice. Naturally, however, the broader themes can influence the commissioners, and social consensus proved to be a crucial factor in the outcome. During the hearings, the PUK was soliciting applications for the three new regular posts that had been created by the prefecture for teachers of foreign languages. The positions were offered to three of the six irregular teachers whose employment was to end. Two posts were offered to non-union members and the third to one of the three irregular teachers belonging to the union. The offer of employment to a union member was no doubt designed to deflect accusations of union busting.
One of the six fired teachers had already found work elsewhere, but it is worth noting that the two teachers not considered for the posts were not only union members but also the only two foreign women at the university, myself and my female colleague. The PUK has only 10 regular women faculty members out of 90, despite guidelines from the Ministry of Education encouraging greater participation of women in the traditionally male domain of academia and the strengthening, on April 1, 1999, of the Equal Employment Opportunity Law for women (Kinyou Kintou Hou). Comments recently made by a professor at the PUK that my colleague and I were regarded as "troublesome women" who "should know our place" provide a disturbing indication that sexist attitudes also play a role.
From December 1998 until March 26, 1999, a total of five sessions were held. At the hearing on March 3, 1999, the mood among the Labor Commission members perceptibly shifted in the plaintiff's favor. The Commissioners had the newspaper clippings of the February visit to the Ministry of Education among their material, mentioned the contents, and questioned the members who had participated in that visit. The Commission then proceeded to schedule the next hearing for March 24, a sympathetic gesture in light of the upcoming dismissals of two of the teachers.
On March 24, in an surprise move, the Commission offered the parties its finding: a proposed wakai, or settlement agreement. The action was unusual since the parties were still in the investigative phase of the hearings and the Commission, by offering a wakai, had thereby accelerated and telescoped what are usually protracted proceedings. The wakai offered by the Commission was a great validation of the union's position. It stated that the university should continue to employ the two dismissed teachers who had not been rehired and formally recognized that there was an employment problem at the university which required "sincere" discussions.
The respondents were unhappy, however, and wanted to add a cap on renewal of employment and eliminate mention of an employment problem. The union was adamant about stated limits to renewal since such a concession would have amounted to an agreement to leave after one year. This is the devil's choice offered most foreign teachers who openly object to dismissal: a university typically offers the teacher one more year of nonrenewable employment if the teacher drops his protest.
Thirteen hours later a document emerged that avoided imposing a cap on renewal of employment for the two teachers but involved other concessions by the union. The Labor Commission scheduled another session two days later. On March 26, after a marathon round of negotiations, the wording of the wakai was tweaked in minor ways. Most of the day was taken up with discussion of the official commentary on the wakai, as the respondents sought to make the settlement appear more palatable. The result, nonetheless, retained the essence of the Labor Commission's original proposal: reemployment without a nonrenewable clause for the two teachers and a promise to hold discussions about improving the working environment of the teachers. The two 'troublesome women' were thus employed again by the PUK in the irregular status, which by its nature carries a one-year term. However, in the wakai itself there is a clause stating that my colleague and I expect that we will be appointed to 'regular' posts by the next academic year.
Administrative Prerogative: An Excess of Bureaucratic Power
Bureaucratic resistance to the settlement was immense. Bureaucracies in Japan tend not to act as public servants in the commonly understood sense nor do they often act in the public interest or for the public good. While ordinary citizens are expected to follow the rules, administrators are often excused from this burden. One attorney summed up the latitude afforded bureaucrats when we asked him about the likely attitude of a court to the prefecture's submission of false documents to the Ministry of Education to gain accreditation: for administrators "dappo de mo ii desu" (deviation from or bending of the law is all right).
The durability of the bureaucratic structure depends on the acceptance by the general populace of its authority, irrespective of the legitimacy or fairness of its decisions. Aggrieved individuals or groups are not expected to go outside the chain of command to seek redress. The individual is seen as powerless against authority and can only grumble privately and endure. Although members of the community supported us, they were highly doubtful as to our chances of continued employment. It is impossible to win against City Hall, they warned, sometimes using that English phrase. There is no independent legal check to its power. The foreign teachers and our supporters, on the other hand, questioned the legitimacy of the decision-making process and administrative discretion, and asked for accountability. In so doing, we struck at the very sinews of authority and were met with stony resistance.
Nonetheless, the prefecture and the university crumbled under the weight of their own internal contradictions, the mounting social criticism, and eventual abandonment by the Ministry of Education. Through the great effort of a great many people, the hubris of the prefecture and university was exposed. They had gone 'too far.' But without an independent judiciary willing to apply the protection of the laws to individuals, without a more developed civil society, each assertion of rights as an individual or a group becomes a massive commitment of time, energy, and money.
The wakai, despite its limited purview in returning teachers to their jobs without examining the legitimacy of the employment system itself, has been deemed a significant achievement. It was one step in keeping bureaucrats marginally honest and more inclined to meet their obligations to citizens and non-citizens alike. That and our efforts at eliminating government-sanctioned and systemic discrimination are being viewed as important examples--precedents that will inspire others to resist unreasonable and illegitimate government action and to speak up for those rights guaranteed but not yet enforced under the law.
In present-day Japan, there have been hundreds of foreign victims of unfair contracts and dismissals. In Japanese academia, they are victims of an attitude that refuses to take foreign teachers seriously or is uneasy about the prospect of integrating foreigners into the university structure. Yet, Japanese teachers are not denied full participation in U.S., British, or New Zealand universities or told "we want to replace you with fresher, younger foreign faces?" That is precisely what happens in Japan, and what happened to Gwendolyn Gallagher of Asahikawa University, who was dismissed after 12 years with that excuse. She took her case to court as an individual, received an injunction, was reinstated. Three months later, the university dismissed her again. She is back in court since there is no mechanism for enforcing the court's decision. Japanese universities are simply reluctant to treat foreigners the way they would expect Japanese nationals to be treated in other countries.
Discrimination is endemic. An attitude of ghettoizing foreigners, of treating them as separate and unequal, "finds its most extreme expression . . . at the highest levels of the Japanese bureaucracy, the Ministry of Education in particular. The Ministry simultaneously pursues policies that maintain and intensify the 'Japaneseness' of the country's educational institutions on the one hand and insulate them from 'foreign' influence on the other."4 Despite its many pronouncements on internationalization, the Ministry's actions reveal a deep hostility to realizing such an event.
During our February 1999 visit to the Ministry, one official told the delegation that term limits on foreign teachers were not discriminatory since they were permitted in the 1982 Special Measures Law. Moreover, term limits ensured the 'rotation' of foreign teaching staff, which the Ministry viewed as desirable. Although a Ministry official has stated that the teachers at the PUK who accepted appointment as sennin in the 1993 Acceptance of Appointment documents could naturally expect to be considered full-time faculty members, it also deemed that the "conditions for meeting university establishment standards were not related to the recent problem relating to the employment conditions of the part-time, special, irregular Foreign Teachers" (Kumamoto Nichi Nichi Shimbun, February 25, 1999). The Ministry indicated that it would not be asking for an improvement in the way the foreign teaching staff was employed at the university.
Universities around the world depend on statistics supplied by the Ministry to ascertain which schools are accredited to meet criteria for exchange programs or sister school relations. For example, the PUK has a sister-school relationship with Montana State University, Bozeman. The Ministry, however, seems willing to overlook the PUK's 1993 false submissions for accreditation. It has simply asked that the university resubmit the reports to reflect the requirements of the university with regard to sennin staff. This calls into doubt the credibility and reliability of Ministry statistics and official statements and the value of Ministry-accredited universities.
In the past two years, there has been a noticeable shift in the Ministry of Education away from internationalization (kokusaika) toward the buzzword kyousei, variously translated as coexistence or symbiosis. According to a professor at Kumamoto University, the Ministry is now more likely to reject university proposals containing the word internationalization. This year, for example, the PUK received approval for its plans to revamp one of its faculties. It submitted its proposal for a change in the name of the faculty from Seikatsu Gakubu (living sciences faculty) to Kankyou Kyousei Gakubu (environment and coexistence faculty). This may signal a retreat from the pluralism implied in internationalization toward the separatism of 'coexistence.' If so, does it also imply a nationalistic trend hearkening back to 'co-prosperity' and eventually kokutai (the national body), words redolent of Japan's fascist years?
The problems at the PUK over employment questions, the wrangling over definitions of status arose out of a simple fact: discrimination. The PUK had the discretion to employ its foreign teachers in exactly the same way as its Japanese teachers. The Special Measures Law of 1982 made clear that there was no legal impediment to choosing equal employment terms. Yet, so opposed was the university to giving foreign teachers equal status that it created one set of documents for the Ministry of Education stating the teachers were sennin koushi/kyouin while continuing to employ the teachers as part-time irregulars. This is not to say that the PUK is unusual. According to a Ministry of Education official, over 80% of the foreign teachers in national universities had term limits to their employment while the figure for regional public universities was 40%. The PUK, with all its foreign teachers on term limits, is thus only somewhat retrograde.
The teachers at the PUK and our supporters are pressing on in our efforts to highlight the insularity of Japanese higher education and the impact that conflicts like the one in Kumamoto can have on universities and the community. Universities, which should be at the vanguard of internationalization efforts, have betrayed the public trust through their unjust and careless treatment of foreign faculty. Our efforts may already have influenced the wider academic community. Recently, Toyama University's Economics Faculty, breaking with the past and looking to the controversy at the PUK, decided to employ two foreign teachers without term limits.
1. For an incisive analysis of restrictions of access of foreign lawyers, journalists, and scholars in Japanese business and academia and telling portraits of numerous unfair and unconscionable dismissals of foreign teachers, see Ivan P. Hall, Cartels of the Mind: Japan's Intellectual Closed Shop (W.W. Norton & Co., 1997).
2. For a more complete rendition of this remarkable conversation, see Farrell Cleary, "Let's Make a Discrimination-free Town," The Japan Association of Language Teaching, College & University Educators' Newsletter, Dec. 1997.
3. For a description of the visit to the Ministry, see Farrell Cleary, "Notes from the Visit to the Ministry of Education (Mombusho)" in The Japan Association of Language Teaching Journal of Professional Issues, Professionalism, Administration and Leadership in Education (PALE), National Special Interest Group, Vol. 5, no. 1 (April 1999).
4. Kirk Masden, "The Impact of Ministry of Education Policy on Pluralism in Japanese Education: An Examination of Recent Issues," in D. Y. H. Wu, H. McQueen, and Y. Yamamoto eds., Emerging Pluralism in Asia and the Pacific, Research Monograph No. 36, (Hong Kong: Chinese University of Hong Kong, 1997), p, 57.
CYNTHIA L. WORTHINGTON is an attorney and a member of the New York State Bar. She has worked for the Office of the Administrative Law Judges, U.S. Department of Commerce, Washington, D.C., and for a law firm in Tokyo. She is in her seventh year of teaching at the Prefectural University of Kumamoto and is President of the Kumamoto General Union.