Article 89 of the Constitution states, “No public money or other property shall be expended or appropriated for the use, benefit, or maintenance of any religious institution or association, or for any charitable, educational, or benevolent enterprises not under the control of public authority.” After the current Constitution came into force, there was a period where it was debated whether government aid to private schools was in violation of the Constitution.
In 1946 at a meeting of a House of Peers special committee set up to draft a bill to revise the Imperial Constitution, the government explained that the aim in forbidding the disbursement of public money to educational institutes not under the “control of public authority” was “to prevent the misuse of public money.” The government sees private schools as being under the “control of public authority.”
In contrast, a leading argument for deeming government aid to private schools to be unconstitutional is based on the thinking that it would compromise the independence of private schools if the national or local government were to exert a major influence on the schools’ budget and personnel.
With the enactment of the 1949 Private Schools Act and the 1975 Act on Subsidies for Private Schools, however, it became required by law for private schools to be under the “control of public authority.” In 1979, the director-general of the Cabinet Legislation Bureau at that time said at the National Diet, “Under current legislation, the interpretation has taken root that government support to private schools is permitted under the Constitution.”
Despite this, many in the House of Representatives Commission on the Constitution sought to revise Article 89, saying, “doubtful points in the Constitution should be cleared up.” This position aims to revise the article in light of the reality that government support is given to public schools. Others are opposed to revising Article 89 because the constitutionality of government aid to private schools is derived from Article 26, which states, “All people shall have the right to receive an equal education correspondent to their ability, as provided by law.”
In a 1986 ruling, the Urawa District Court (today Saitama District Court) decided that it was constitutional for towns to disburse subsidies to preschools that were essentially the same as kindergartens. On the other hand, at a 2008 meeting of the House of Councillors Committee on Audit, Kisaburo Tokai, then minister of education, culture, sports, science and technology, said in response to a question related to “free schools,” private facilities mainly for elementary and junior high school students who are unwilling or unable to attend regular schools, “It is very hard to see them as being under the control of the state because they are operated by private organizations at their own discretion.” This continues to be MEXT’s official position even today. Article 89 still contains contemporary issues.
Initiatives from Osaka has proposed that Article 26 be revised and education from early childhood education through higher education be made free of charge. It seems that 3.7 trillion yen in financial resources would be needed to do this, however.