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The Japan Association for Language Teaching (JALT)
(In Japanese:) 全国語学教育学会
Journal of Professional Issues
Professionalism, Administration and Leadership
in Education (PALE) 特別分科会
National Special Interest Group
Vol. 4 No. 1 April 1998
TABLE OF CONTENTS:
(Click on the targeted text under each heading to proceed directly to the essay of your choice)
Employment of Non-Japanese at Japan's National Universities:
My Case at The University of Ryuukyuus, Okinawa
By Timothy J Korst
Why This Case Matters by David C. Aldwinckle
PART ONE: Background:
PART TWO: Taking it to the Streets: Union Action
1. How to Form a Union: An Easy Two-Step Process
2. Declaration of Formation of The OIU Union and Contact Details
3. Press Releases, Newspaper Articles, and Letter to Governor Ota
4. The University Reaction
5. Working With Other Unions: OIU participates in Shuntou ("Union Putsch")
APPENDECIES: (documents for the record, and important tangents)
1. Negotiating Japanese style: Korst's Letter to His Supervisor
2. The Ineffectual "Human Rights Center for Foreigners"
3. Letter to the US Ambassador, and US Government's Ineffectual Reply
4. Is This Guy Worth the Fuss?: Korst's Professional Qualifications
Comments on Issues of Human Rights Violations
Gaikokujin Kyoushi : The Worst of Both Worlds by Tony Laszlo
Prospectives for Employment Rights of Non-Citizens in Japanese
Why the Timothy J. Korst Case Matters
By David C. Aldwinckle
The reason I, as editor of the PALE Journal, felt this case was important enough to allocate over forty pages is because it neatly combines two very important issues to us as educators: 1) how term limitation (ninkisei) foments unnecessary workplace instability and arbitrary abuses of superior-subordinate power, and 2) how the legal system works (or, more to the point, does not work) to serve our interests as workers and financial contributors to Japanese society.
I will not touch upon point 1) above here, for Korst gives a thorough illustration in Part One below. As for point 2), here goes:
Essentially, a legal system exists in order to standardize the treatment of human beings. Particularly in socially-developed countries, there is an apparatus in place to prevent arbitrary abuses of power happening from the top down. The Timothy J. Korst Case thus is not only a case study of Japan's faulty employment system (with no relief from abuse in sight, thanks to Monbushou's vague Sentaku Ninkisei Hou), but also an acid test of Japan's courts. Will the State overrule an intransigent superior, an employee of the State, who, after taking advantage of the university's arbitrary measures of professionality, fired an underling for apparently personal reasons? A complicated question made even more so by the fact that the underling is a non-Japanese.
Giving a good conclusion to all this is difficult, since everything hinges upon the court ruling due in late May 1998. The questions that will hopefully be answered are these: Can legal treatment be standardized? Are non-citizens covered by Japanese employment laws the same way as citizens, and can the former effectively sue for redress of grievances in a court of law?
First the good news: in the field of labor relations, legal precedent is promising. The Japanese Supreme Court in January 1997 ruled that even illegal foreigners (meaning those not holding a valid visa) are entitled to compensation for, in the case that was ruled upon, on-job injuries (see information at http://www.debito.org/activistspage.html#ninkiseifollowup). However, a ruling dealing with the "unwarranted dismissal of a foreign laborer" is still apparently without precedent, but the above case can be pointed to and built upon in court. Thus, chances are that if your job position is covered by the Labor Standards Law (roudou kijun hou), Japanese law apparently can be brought to heel on your side.
However, legal precedent in the field of education is not so stable--mainly because the majority of lifetime educators in Japan are not technically "laborers". The Labor Standards Law only applies to around half of all non-Japanese full-timers (Monbushou toukei youron, 1997, p.80)--i.e those in Private (watakushi ritsu) Universities. It applys neither to the National and Public (kokkou ritsu) Universities, nor to organizations of primary education (such as high schools)--because they are funded by the government. Thus, anyone, including an imported JET language teacher working in a junior high school, is on government payroll and technically a "civil servant". Therein lies the rub: Japan's Ministry of Home Affairs (Jichishou) enforces a (tacit, not explicitly delineated by law) measure, nicknamed the "Nationality Clause" in the English-language press, to reserve the promotion of people to administrative (kanrishoku) positions--or even non-ninkisei positions--for citizens only. Although this employment practice is not unique to Japan, nowhere else is it so widely enforced by government directive, and it raises issues of international standards of human rights (cf. Laszlo below).
This situation does not look like it will change soon enough, or even soon. The Tokyo District Court ruled in 1996 against promoting an Korean-Japanese to a kanrishoku position in the field of public health (see http://www.debito.org/ninkiseikoreancourt.jpg), fortunately reversed in a recent ruling in November 1997. Korst also mentions below (pg 27) that the only precedent dealing with reinstating a foreign lecturer dismissed from a National University ruled in favor of the university. Although local governments in Japan are bucking the Home Ministry, drawing up their own hiring requirements which ignore the Nationality Clause (see http://www.debito.org/ninkiseiupdate1hiring.html), this does not necessarily serve as precedent--for the local bureaucrats can still claim a "different system" (cf. Korst in the "Human Rights Center for Foreigners" in Appendix 2 below), meaning one must patiently rely on the good will of local bureaucrats to come to see the light. The rule of law is neither standardized nor acting as a force for change.
As far as the Korst case goes, the prognosis is not good. Korst, by suing his school, is suing the system itself--the defendant is even noted as The State (kuni) in the legal documentation, address given under the Minister of Justice! History dictates that Japanese courts show practically zero judicial activism--almost always ruling in favor of The State. Chances are, Korst notes, that the court will rule against him, perhaps without even resolving the issue ofhis employment status. This would be a tragedy, for it is essential for us to know whether or not, as a non-Japanese, he is a regular (ippan) , special-status (tokubetsu) civil servant, or something else (which Ryuudai does not elaborate upon), and thus in a grey area where laws do not apply.
In any case, I must conclude by admonishing those who are thinking about working in Japan as an educator for the long term: know what you are getting into beforehand, for the Japanese job market is increasingly hostile. The Public Sector still almost always prefers to employ non-citizens as temporary workers, on contracts revocable at any time on any pretense, and will probably not change that economically advantageous position for the foreseeable future. Private Universities, being shaken up by the Ninkisei Laws (see http://www.debito.org/activistspage.html#ninkisei for a lowdown) and facing a shrinking student body, are finding their powers of dismissal ever more discretionary and advantageous--with no compulsion to grant tenure. Recourses for educators to seek redress, such as government organizations or intra-college discussion groups, claim that they are powerless to challenge their own system. Meanwhile, grass-roots organizations, such as organized labor (for educators, Nikkyousou), are perennially losing ground after years of prosperity-induced apathy. Even less organized are the atomistic non-Japanese, and organizations which could offer them a source of support (such as JALT) prefer to remain aloof and pedagogical-- while their members' job positions get recycled by their cost-cutting universities.
Timothy J. Korst, like Gwendolyn Gallagher of Asahikawa University (see PALE Journal December 1997) are the exceptions and the fighters. On behalf of all of us looking to keep our jobs and build a society where the powers of the superior are kept specific, in check and in balance, I wish them luck, and encourage educators within Japan to use the tips Korst so kindly provides to organize and protect their employment rights.
ABOUT THE AUTHOR: David C. Aldwinckle is a tenured full-time university instructor in Sapporo, and is currently working on a "Blacklist" for Japanese Universities with discriminatory employment practices (as well as a "Greenlist" for the good). Submissions welcome at email@example.com. His web page with hundreds of essays and articles on Japan issues may be found at http://www.debito.org
at Japan's National Universities:
The Case of Timothy J. Korst
at The University of the Ryuukyuus, Okinawa
By Timothy J. Korst
1. How I got the job
It doesn't seem like so long ago. I was lying on the number three jou of my yon-jou-han quarters in the northern district of Kyoto, where I had spent two years part-timing it. It was before 7 am. and the telephone was ringing.
"Hey Tim, this is your old man. There is a job opening in Okinawa. Do you want the info or am I wasting my time?" My old man, retired, following in his son's footsteps, is now enrolled at a university back home studying ESL and had come across the ad from The University of the Ryuukyuus (Ryuudai) in one of his classes. Knowing how tough full-time posts are to catch, I jotted down the telephone number on the bottom of a Kleenex box and went back to sleep.
However, I didn't have much time to waste. It was Friday and the deadline was the following Monday. Nevertheless, I hustled the necessary documents together (proof of work from four universities, academic records, and later, my health certificate) and sent them to Okinawa. It was a June day, 1994, and the job would begin in October.
It turned out I wouldn't be doing it. Ryuudai had chosen a woman from New York to fill the post, I found out later, and I continued hoping for full-time employment in Kyoto. However, in Kyoto, the competition is stiff, and nothing materialized. Instead, another phone call came some months later, this time interrupting Joplin's Sunflower Slow Drag. This time from another old man. In Okinawa.
"Hello, Tim? This is Shimabukuro speaking. Remember me?" He went on to explain that the post was now open, for the coming April. Would I take the job?
"Sure. How long can I stay there?"
"Contract renewal for the first four years is automatic."
He also explained there had been some sort of problem with the woman from New York. I wondered if I wasn't in fact jumping into a beehive, but it was a full-time job with excellent working conditions. How could I refuse?
On my own volition I came to visit Okinawa during the Christmas break. Prof. Shimabukuro, the chairman of the Department of English, part of Ryuudai's College of Education, introduced me to several faculty members and later entertained me in his favorite bar with ample awamori. Sometime after our glasses were refilled, Shimabukuro opened up about Ryuudai's politics. An Assistant Professor Shiroma would replace Shimabukuro as the new chairman of the Department of English in April. "He doesn't want the position, but we forced him." He doesn't have enough publications, but as there is no one else to be chairman, he would get the job.
Later in my stay I took the opportunity to meet with some of the Westerner kyoushi (instructors) at Ryuudai, wanting to find the meat of the reason for the disappearance of the New Yorker. Fault, they assured me, lay with both sides. She had felt mistreated, especially with the housing arrangements, and perhaps some financial transactions, so she had bolted in mid-November, with other profs picking up the slack. But she had hardly been around anyway, one kyoushi explained; she didn't even show up for some of her classes. I knew showing up for classes wouldn't be a problem for me--during high school a friend had once teased me, "Tim, pity for you they don't give out certificates here for perfect attendance." I told Shimabukuro I would take the job.
Ryuudai, however, wasn't so prompt in its reply. Months passed without the university informing me of the salary I would receive. Worry set in. In the meantime, I had heard that I was in the running for a full-time slot at Ritsumeikan. Maybe I'll just stay in Kyoto, I mused, thinking I could withstand the biannual pollen onslaught.
Finally, in mid-March, I received my letter of invitation from Ryuudai, with a very satisfactory salary quoted. I called Ritsumeikan to tell them of my decision: I wouldn't be able to teach my part-time classes.
"It is very late in the year," they said. " Why didn't you tell us sooner?"
"I had been waiting for you to decide on my full-time application." And that was that. Okinawa, here I come!
* * * * * * * * * * * * *
2. How the Job Went Sour
CHAIRMAN SHIROMA: Appointed chairman of the Department of English, College of Education at the time of my arrival. An assistant professor, golf lover, and king of chain smokers.
PROF. KAWANA: Dept. of Social Sciences, College of Education. My initial campaign organizer.
PROF. KOBAYASHI: Art Department, College of Education. Ponytail, goatee, headband; nostalgic for the 60s. My chief supporter.
PROF. TAIRA: Newly-elected Dean of College of Education. Area of Specialty: Sports. Studied in both the US and Germany. A real "humanitarian", people said.
PROF. KATSURA: The President of our university and thus the top of the totem pole.
GAIKOKUJIN KYOUSHI KORST: like many others, wanting little more out of
life than a double scoop of human kindness.
During my first semester (Spring, 1995) at Ryuudai, I was assigned to teach English conversation, pronunciation, and advanced English composition. It was in the last item that the problem developed.
Nearly ten years ago, in my MA TEFL program at San Francisco State University, we grad students learned that in teaching composition we must consider a hierarchy of elements. Most important was the writer's point. Without something important to say, there is no need to write. Secondly, we must check the organization, deciding which information to put where. And, lastly, teachers--and students--should check the grammar of the composition.
Frankly, I was sold on this method. But my students, I was soon to discover, were not. Even though I had used the same method in Kyoto with no complaint, after a couple of months teaching in this fashion, the problem broke. Only one student complained to me personally, however. This was Yuu, my chairman's pet student, who worked in his office.
I explained to Yuu my rationale, wanting to wean her from dependency on correctness and have her focus her energy on ideas. Although I thought I had the problem solved, in June 1995, I got a call from my chairman, Shiroma, which thrust me center stage of what I would soon discover was "the Grand Kabuki".
Shiroma said: "If you don't change your method we won't renew your contract next April." This was the very first sentence that he had voiced to me concerning this issue. Never did he even attempt to sound me out, to hear my point
of view, to get both sides of the story. It seemed that he simply let students dictate policy. Scared of losing my job, I wrote a letter to Chairman Shiroma asking for a meeting to talk about our differences (see Appendix 1). I got no answer.
That's how it remained. Over the course of the next several months, I rarely saw him, partly because our offices are in two distant buildings, but also because I was by university statute never allowed to attend departmental meetings nor the College's faculty meetings. I only saw him in passing, uttering a friendly hello. With no reply to my letter, I figured the problem was settled.
But then, a full year after penning that letter, another call came from Shiroma. "The English department has decided not to renew your contract the next time around."
I was stunned, totally baffled by the turn of events. For that past year I had heard absolutely no negative comment regarding my teaching method. Indeed, student evaluations were quite positive.
The decision not to renew my contract was announced at the Foreign Language Staff (FLS) meeting. The FLS is a group of around 40 foreign language teachers that makes decisions regarding employment and administrative issues, but is not an official organ of the University. They pretend they have power, and thus de facto they do.
Without any member of the FLS ever talking to me about this problem, to hear my side of the story, the majority agreed that my contract should not be renewed. So I spent the next several months lobbying for a change of heart.
Unaccustomed to dealing with such issues, I had remained silent the entire year after the problem first arose. Now, a year later, I still did not know where to turn, other than to the senior foreigner, who, being friendly with my chairman, for the next several months acted as a liaison, relaying messages to me and giving advice.
Shiroma gave me some advice of his own: Write a letter to the FLS and apologize. Turn your official student evaluations in to me directly. Make a list of your accomplishments for last year. All of this I did. However, he never submitted my letter of apology to the FLS. And, though I couldn't make copies of the student evaluations, Shiroma told me they were okay on the phone. Yet he belittled my accomplishments outside of class (see Appendix 4, pg 35), like my publications and participation in JALT; "That is for yourself," he criticized, implying that it is not serious academic study. On top of that, a rather petty charge against my professionality: "You are not in your office when I call."
Yet he later reconsidered, probably due to pressure from the other elder professor in the department, who was originally responsible for hiring me. He presented his new decision to the FLS, and they changed their minds. I would be renewed in April, 1997.
Again, in letter form, I made it clear that should there be complaints, I wanted to be informed immediately. And again, silence. Not a peep regarding my teaching performance. In April, after signing my contract, I was allowed to attend the English Department's meeting for the first time to present the issue. The other four members remained stone silent while Shiroma interrupted nearly every sentence from me.
"Have there been complaints from my comp students?" I asked.
"Yes, of course." "
"I don't know. Many."
This was fishy. I had only had twelve students in class that semester, and they had given me a 92% overall satisfaction rating on the official evaluation forms.
"Students from long ago."
I understood him to say that my students from a year ago were still complaining about me, even though I had had no contact with them since then. I began to feel something was being orchestrated against me departmentally, and what followed next made it a college-wide issue.
* * * * * * * * * * * * *
3. Playing by "Japanese Consensus Rules":
An Attempt at Conciliation within the University
I eventually realized that I would not be able to solve this problem by keeping quiet about it within the Department. After gathering information from the Personnel Department, I contacted the 17 foreign employees at Ryuudai. Attempts at meeting were, at best, marginally successful, yet no one would commit to any sort of organization, whether labor union or informal association, to deal with problems like the ones I was facing.
On advisement from one concerned colleague of a "human rights" professor, I sought out Prof. Kawana, a geologist by profession and a humanist at heart. He had been actively involved in supporting other human rights issues at this university, like the sexual harassment court case filed by a female Chinese graduate student in the Agricultural Department. Also, from JALTCALL I got the number of the National Union of General Workers in Tokyo. They put me in touch with the Nisseki (Oil Company) Union in Okinawa, with whom I met.
Kawana met with the Union representative and said that the professors of the faculty would handle the matter internally. I agreed to this form of arbitration--unfortunately, as it would turn out.
In June, on my behalf Kawana formed a gakkai, a group of roughly a dozen professors from the College of Education, including the University President's wife. This support seemed substantial, and I was overwhelmed by the outpouring of concern. They assured me I couldn't be fired simply due to student complaints or disagreement with my teaching method. Truly, it was a relief to have the psychological crutch the gakkai provided. Yet it blinded me from the reality of my situation.
Since my contract was signed by the President, the gakkai had decided to approach the President directly. The College of Education's faculty had not been directly involved in hiring me (unlike with kyouin, for whom they vote), so the group felt that the President ought to be the one held responsible. "We must do something before Shiroma decides to fire you," Kawana advised.
And in July, another meeting. Eight different professors met with us to determine a course of action. But by September, the end of the semester, little had happened. Except for another telephone call from Shiroma.
"We have decided not to renew your contract after April."
"Could you please put the reason in writing?"
"I'll have to ask the department. Good-bye."
However, with the support of the gakkai behind me, I was counting on an ally in the new Dean of the University, Taira, who took office in October. Several months earlier I had attended his congratulation party and more recently the changing-of-the-guard party. Dean Taira was "a humanitarian - a good man," everybody assured me. Surely, with his support we could do something about Shiroma.
Following the decision of the gakkai, Kawana drafted a letter to the President, asking for a meeting to discuss my case. But the President responded only with a phone call to Dean Taira, who then met with Kawana and informed Shiroma of the size of the problem. But all with no concrete results.
"Be patient," Kawana insisted to me in my office. "This is the first time we have had such a problem. We don't know if anyone can overrule Shiroma."
It was late October, and finally I was being told directly the magnitude of what I was facing. Though I continued to believe that an internal solution would be found, in mid-November I began seeking help externally, visiting among other places the Center of Human Rights for Foreigners (see Appendix 2), fruitlessly.
* * * * * * * * * * * * *
4. Conciliation Failure
At a new gakkai gathering, Kawana, suffering from ill-health, asked Kobayashi to spearhead my fight. The plan now was to have a meeting with the English Department, my supporters, and the "humanitarian Dean". Time swept by, Shiroma avoiding easily any attempt at scheduling a meeting.
After a good month of stonewalling, however, Shiroma finally joined us at a table and talked. Seven "Korst supporters", plus me, the Dean, and three of the five from the English Department attended. But when my supporters asked why I was not being renewed, Shiroma fell into a fit of rage.
"Too many complaints," he maintained. "No one signed up for his class last semester." He was referring to my speech class.
"I've had classes with no one signed up, too," one supporter offered. "And I have asked students about Korst's teaching, and they all tell me he is very good."
The other two members of the English Department who were present kept their heads bowed and mouths closed during the debate. The Dean, arms folded across his chest, never spoke. I too said very little.
Having done some research, Kawana had dug up some official papers related to my hiring. One stated that the College of Education, of which the Department of English was a subdivision, had the right to hire a gaikoku-jin kyoushi. Yet no department, other than that of English, even knew that right existed, so the College apparently had assumed that any foreigner hired was part of the English-instruction fiefdom. The English Department had set nobody straight, and thus no other department took advantage of this opportunity to internationalize their staff. Or something like that--the complaint remains unclear. In any case, several professors were upset with this which they deemed an underhanded administrative manoeuver.
The point is this: when my supporters first showed me this paper they were confident that it would buttress my case against taking the final employment decision out of Shiroma's hands . "You belong to the College of Education, not the English Department!"
Kobayashi wrote up a report about this meeting and submitted it to the President. The plan was to talk to the him about the situation on the basis of the report. However, the President stonewalled, and eventually (in late January) passed the buck back to the College of Education, putting us right back to square one, with no solution in sight.
* * * * * * * * * * * * *
5. To Unionize or Not To Unionize?
In the Fall of 1997, through JALTCALL, I heard about the formation of the Kumamoto Prefectural University Union, and was soon in contact with their members. This gave me the impetus to form a union with my colleagues. Unfortunately, the one most interested got cold feet. Mr Kim (a pseudonym) was also facing non-renewal. But because of his kyouin status, he had a chance through the faculty meeting of solving his problem internally. He grew ever more afraid to act, thinking any such action would work against him. He gave a speech to the faculty meeting, telling of his achievements and the conditions under which he thought he had accepted the position. In the end, the College granted him a one-year reprieve; next year he would face the problem anew. And I was left standing alone.
As a last-ditch effort, my supporters suggested I give a speech to the faculty meeting, to sway the decision. But as is the case with gaikokujin kyoushi, I am not an "official" faculty member, so I needed prior permission to attend the meeting. I went to see the Dean and said:
"Can I give a speech at the meeting?"
"You're not a member, so you can't attend," he replied.
And thus became clear the Catch-22. I was not " staff" so I could not speak, but without speaking out I would not remain employed anyway. All our attempts to solve this problem over the course of nearly a year had come to naught, and our reputed "humanitarian Dean" would have it no other way.
I asked for Kobayashi to join us in the Dean's office. Soon he entered, followed later by Kawana. Now, in their presence, the Dean granted me permission to give a speech, providing that the faculty agreed. (Incidentially, they would.)
Immediately after talking with the Dean, four of my supporters and I paid an impromptu visit to University President Katsura. He had said for months that he was too busy to meet with us. Perhaps he would have time now. He did. We discussed with President Katsura the inequity of the situation, but all he had to say was, "It is the decision of the College of Education." Although he was the signatory to my contract, he refused to accept any responsibility for the matter.
Back to plan A--the faculty meeting speech. My supporters thought I could bring the faculty to vote on the issue with a speech. Subsequently, I prepared it, and included the dreaded "D" word: discrimination.
Kawana objected, imploring me not to make this an issue of "discrimination ". "Many professors are conservative." So I changed my speech to leave this out, and presented it. Like my colleague Mr Kim, I spoke briefly of the unfair treatment afforded me, and at length on my accomplishments. Then, as I was not allowed to stay for the discussion, I left the faculty meeting.
After the closed-door discussion, Kobayashi came up to me and said: "New information." The office staff had brought up a point: In my letter of invitation it says that my contract can be renewed "upon mutual consent." Unfortunately, not only were the parties giving "mutual consent" unclear, but also this was not new information. Everybody knew my contract was for only one year. Yet, since now Shiroma's "consent" was apparently neccessary to make things "mutual", we were back to Shiroma holding the reins. Thus, via a reiteration of "rules" without discussion of whether these rules were any good or not, a vote on the issue of fairness was derailed.
Later, Kawana summed up the situation. "Sorry, we couldn't renew your contract. But we support you." This support, although the stuff of bonhomie, was meaningless, and it only added to the frustration and disappointment. After years of negotiating "Japanese style", attempts to solve the problem internally had failed miserably. I had followed my supporters' every suggestion, to my own detriment. Every plan we laid had been misguided, and not one single move had resulted in our benefit.
Let's be frank: although they had tried, my supporters never had a clue as to how to solve the problem. This was due not only to the fact that it was the first time such a problem had arisen, but also to the lack of a formalized channel for problem-solving of this nature. We had been playing a game without knowing the rules--or how to change them, if necessary.
Moreover, it is clear to me that some of my supporters were not anxious to have me go public with my problem. Worse yet, I had squandered many costly months that I could have spent on forming a union and getting an official voice on my behalf.
To be sure, the bones of a union organization did already exist within our university. Back in December I had spoken with Prof. Kobayashi about joining the Shokuin-kai, the University Employees Association. Before Okinawa's reversion in 1972, this organization was quite politically active, fighting to rid the region of American hegemony. But since then, I was told, they haven't done very much. Nevertheless, I joined on the spot, paying my 6,000 yen/year dues and hoped for the best.
* * * * * * * * * * * * *
6. To Unionize: Organizations Outside the University
At this point, forming a union of my own seemed an impossibility. The only course left open to me, I reckoned, was to join up with the General Federation of Okinawa Prefectural Unions (Ken Rou Ren) as an individual member.
But from my allies in Kumamoto I heard of the National Union of General Workers' annual shuntou, or spring labor offensive. I flew to Tokyo to meet with the members, and came away with some valuable information.
To form a union you need but two people. This I had known. But what I learned was that only one person's name needs to be made public. Moreover, the other members could come from anywhere; they didn't have to be foreign teachers at Ryuudai. With this new info I was able to recruit two anonymous members.
And the Shokuin-kai? The executive committee had been scheduled to meet with the President in February. "We'll bring up your case then," Kobayashi, the vice chair of the Association, vowed. Moreover, within that kai I formed a small Foreigners Association. At least I thought I had. I wrote up an announcement for publication in the Shokuin-kai's newsletter. It would be published and distributed the following Friday, I was assured. But before it got to press, one of my supporters nixed it, the wording not to his liking. And the meeting with the President? It had been canceled; the President apparently had no time. (It is now scheduled for the end of May 1998, with my case high on the agenda, but technically after my official dismissal). Hence, the stonewalling of earnest discussion of my case is continuing, leaving me no other recourse but to take it outside the University of the Ryuukyuus entirely.
What has occurred since I have made public on JALTCALL, Issho Kikaku, and Dead Fukuzawa Society internet mailing lists. This information may be found in this Journal's PART TWO: UNION ACTION and PART THREE: LEGAL ACTION.
* * * * * * * * * * * * *
7. Conclusions to PART ONE, BACKGROUND:
One can speculate on what would have happened had I taken some other action when the "student complaints" arose. Personally, I feel I should have been more vocal about the unfairness from the start. Instead, I was quiet, not wanting to be a trouble-maker. And perhaps I should have changed my teaching style drastically. Or, perhaps I should have been more forceful in meeting with my chairman.
Perhaps, perhaps... The fact remains that no explicit standard for evaluating teacher performance is established, and with no standard, we with limited contracts are forever at sea when understanding and evaluating the quality of our instruction. More dangerously, this situation removes objectivity from the equation, exposing us to the subjective whims of bosses with axes to grind. Under such a system, the university is under no obligation to find a "good" reason for terminating us; likewise, as I experienced, it has no incentive to show good faith. Without good faith, not even one scoop of human kindness will come to rest in life's hollow cone.
Furthermore, I am not for a moment convinced that "student complaints" were the true reason for the decision not to renew my contract. My (favorable) official student evaluations suggest that some other reason exists, and the complaints, however many there actually were, only suffice as the excuse to dump me.
With so little attention paid to our welfare, we have to watch out for ourselves. One thing I learned is that from the start, one should keep records of events and conversations. I wrote letters to the concerned parties in order to verify what had transpired. Perhaps these documents will come in handy during the legal proceedings. Yet the most dire lesson I learned from this ordeal is that, as we will see below, to have any hope of withstanding the internal onslaught you need to have a legal foundation, either in the form of a union or the filing of a court case. No gakkai or shokuin-kai will save you; no promises will prevent you from falling. Internal support, though very good for morale, can easily wind up screening you from reality.
What exactly can a union do to help? First, and this is important, you get moral support. It is no fun trying to untangle yourself from an invisible web. Let others help you. A gakkai is good for support, but may well end up being a paper tiger. Also, you may find that a union, as a springboard, allows you higher lift into the spotlight of the public arena. As one lawyer put it: "You will need to win this case in a public forum." However, being a newcomer to the labor movement, I had difficulty at this time seeing the concrete legal advantages of forming our own union. Still, our affiliation with the General Federation of Okinawa Prefectural Unions, the Ken Rou Ren, has proven to be a valuable asset. Though the President has thus far refused to meet with our union, it is only with the support of the Ken Rou Ren that the union has gained any respectability.
And finally, an unexplored tactic: at the earliest time possible you may try not signing your contract. It is this document that works against you, and it is your employer's strongest legal defense. Me? I signed, still hoping for that scoop of human kindness.
* * * * * * * * * * * * *
BRIEF UPDATE (as of April 20, 1998)
April 1, the first day of my contractual non-employment, came, and with it a new name on my former mailbox in the College of Education. Nevertheless, since then I have continued to use my office as usual. The university apparently wants me out of my office, so I have heard, but it has yet to officially convey that message to me.
As far as my university subsidized housing is concerned, originally the office of the College of Education told me I had to move by April 1. When they realized I wasn't going to, they informed me that I could stay, but that I would be responsible for the rent. At the time of this writing, I have received no bill.
And still the President of the University, although the signatory to my contract, absolutely refuses to meet with the union. Mr Minema, Co-vice chairman of the Ken Rou Ren, and I went once to the office of the president, only to be rudely received by the head of the General Affairs Division. I have also called twice to no avail.
However, April 2, the Dean of the College of Education met with us. The Dean explained the hiring process of a gaikokujin-kyoushi and how the stamping of the official papers was automatic once the Department of English made a decision. He had the gall to state that, in his opinion, the university's treatment of me was not discriminatory, since part-time Japanese teachers are also on a one-year contract. The clear bind is that Japanese can get noncontractual position, and we cannot.
Now I am waiting until May 12, by which time the judge hopefully will have made a decision. See "The Defense Argues" for a complete legal update.
TAKING IT TO THE STREETS: UNION ACTION
1. How to Form a Union:
An Easy Two-Step Procedure
With time running out (mid-March 1998, just three weeks before my official dismissal on April 1), I called the National Union of General Workers (NUGW) in Osaka (06-352-9619) regarding the union formation process. I was informed that I must register the union with the Roudou-iinkai, the Labor Commission.
So I called them in Naha. "No," said they, "you don't register with us, you have to do that at the Rousei-jimuhou (Labor Administration Office). The ping-pong game continued, but fortunately it didn't last too long. With it being difficult to clarify on the telephone, I went to Naha. The representative of the Rousei, Mr Tamai, was very pleasant on the phone, so I entered his office with only a trace of apprehension, not knowing whose side he was on.
After disappearing briefly, Mr Tamai entered the consultation room with a pot of coffee and listened to my troubles. I thought I would keep my place of employment secret until I found out more about this agency, but not being glib in any language, I quickly handed over my meishi and explained the problem.
Succinctly put, the University of the Ryuukyuus operates with two, unequal systems of employment, depending on nationality. Foreigners get short changed with short-term contracts. It turns out that the Rousei-jimuhyou is a Prefectural organ. Mr Tamai, along with his secretary, proceeded to inform me of how to form a union:
1) Get a bunch of people together; minimum is TWO; and only ONE name needs to be made public.
2) Write up some bylaws (kiyaku), including the name of the union, its address, the names of the members of the executive committee; and agree on the rules.
At this point the union is formed. Quite easy, really. Of course it gets a bit more complicated afterwards, in negotiations and such, but the beginning is encouraging.
Concluding my talks with the Rousei, I ventured to the Kenchou, to the Chihou-roudou-iinkai, the Regional Office of the Labor Commission, to meet with Mr Kuninaka. Here I found out a bit more. Mr Kuninaka explained that with the help of this committee you could take one of two roads:
1) mediation (assen suru) of labor disputes, or
2) file a complaint about unfair labor practices (futou roudou koui).
This is the phrase they use for those employer practices which attempt to break the union.
Though a union is better, even with a structured group of sorts, you can call in this commission to mediate your dispute. However, this commission cannot force either side to negotiate.
Mr Kuninaka informed me that registration of the union with the commission was not necessary, unless the employer is bullying you about carrying out your activities in the union. In this case the commission will investigate your union qualifications (shikaku shinsa) to make sure that your union is operating according to the laws, since you are claiming legal protection.
Luckily, at this point they produced a bilingual booklet, Guide to the Labor Relations Commissions (Roudou-iinkai no tebiki), published by the Secretariat to Local Labor Relations Commission in Tokyo. Here it explains that your union must be voluntary and democratic and such. Your union bylaws must conform to these guidelines.
Once you have done 1 and 2 above, then you have to give notice to your employer that you have formed a union (kumiai dekita tsuuchi). The contents of the letter are up to you, but may include your reasons fo
r forming a union. This must be addressed to someone, like the president of the university. Your second document to your employer will be your demand letter (youkyuu bunsho). This will state clearly:
a) an addressee
b) your demands
c) a date, time, and place for the negotiations to be held
d) and what you want to talk about
You must stamp both letters with your union inkan - a square one is good - and expensive: ca. 15.000 yen. Again, it is pretty easy once you know what you are doing. I would like to stress point 1 above. I had tried to organize the foreigners here at this university, but even those with problems run scared. Once I learned that you could be an anonymous member, however, it was relatively easy to recruit at least one more person. Bear in mind, your strength is in numbers.
Nevertheless, with a union of any size, you have at least a legal leg of sorts to stand on, and an operational base. With gakkai (study groups) and shokuin-kai (university employee fraternities), forget it, baby. Don't rely on established unions or your colleagues to help you when there is practically no precedent for resolving disputes involving non-Japanese.
* * * * * * * * * * * * *
2. DECLARATION OF THE FORMATION OF THE OKINAWA INTERNATIONAL UNION
On March 6, 1998, the Okinawa International Union (Okinawa Kokusai Kumiai) was formed with its main purpose being to fight against discrimination. In particular, this union is concerned with the discriminatory employment practices at the University of the Ryukyus, but insofar is possible, will also concern itself with discrimination problems elsewhere. Since broadcasting to the world in cyberspace via JALTCALL, the problems here at the University of the Ryuukyuus, support has been streaming in. Many have noted a sense of obligation to this cause beyond wishing the union luck. To accommodate this sentiment, the union would like to announce that it accepts distant membership. Before you rush to join, however, we would like to emphasize a couple of points.
WHAT IS DISTANT MEMBERSHIP?
For those living in Japan, distant membership entitles you to the benefits guaranteed by the laws governing union membership in this country. On a practical level, though, our power is severely hampered by geographic and monetary constraints. Also, the laws governing labor unions state that the officers of a labor union have to be elected "through a direct and secret vote by the members." To our understanding, this is not yet possible electronically. Therefore, for the purposes of decision making, a " quorum" has been defined in the union's bylaws as "over half of the membership living in Okinawa Prefecture." This stipulation does not, however, preclude your voting rights. You are welcome to join us for our general meetings. Tip: book your flights early. For those living outside of Japan, legally speaking there is, to our understanding, nothing we can do for you. Your membership will be a warm, symbolic gesture of support for the union and its purposes.
Now you may rush to join. And, in order to show the degree to which the union welcomes your support, union dues, normally set at 3,000/year, have been temporarily waived for distant members. (You may, however, in the near future, once we get our inkan and bank account set up, see a union posting: "Contributions Welcome!") To become a distant member, please copy the form below, fill it in and send it back to us at Korst@edu.u-ryukyu.ac.jp :
Yes! I wish to become a distant member of the Okinawa International Union. Name:_______________________________________________________
Address (including country):________________________________ ____________________________________________________________ Email:______________________________________________________ -------------------------------------------------------------------------------
CONTACT ADDRESS: Okinawa Kokusai Kumiai Matsumoto Mansion 302 Taira-cho 1-4, Shuri, Naha Okinawa 903 Tel: 098-887-1243, Email:Korst@mail2.dddd.ne.jp
To potential philanthopists: To support Mr Korst in carrying out his case in court, a legal defense fund has been established. Any donations to this fund will be used exclusively to cover legal and court fees. Financial contributions can be made to the Union at:
Okinawa Kokusai Kumiai, Okinawa Ginko, Branch #208, Futsu Acc. #1312584
On March 27, 1998, Mr Korst filed a petition in the Naha District Court for an injunction to keep his job at the University of the Ryukyus. To support Mr Korst in carrying out his case, a legal defense fund has been established. Donations to this fund can be made at:
Korst Mamoru Kai, Okinawa Ginko, Branch #208, Futsu Acc.#1313827
Again, thanks for the support!
Timothy J. Korst, Chairman, Okinawa International Union
* * * * * * * * * * * * *
On March 6, 1998, teachers from various universities in Okinawa formed the Okinawa International Union, affiliating with the General Federation of Okinawa Prefectural Unions. We have organized to end discrimination at the University of the Ryukyus in particular, and in Okinawa in general.
Last Thursday, March 12, the Union submitted its demand letter to the President of the University of the Ryukyus, Dr. Kosho Katsura. The immediate demand of the Union is:
The abolition of the contractual term limits for full-time foreign employees.
The University of the Ryukyus currently employs over 500 full-time Japanese teaching staff, all who have indefinite employment contracts. In contrast, all of the 16 full-time foreign teaching staff are sub-ject to term limits of one to three years. In other words, the university operates with two unequal systems of employment based on citizenship. Such discrimination runs counter to the spirit of Japanese law.
The problem here is not whether one need be a Japanese citizen to become a public servant. Other national universities, notably Tokyo University, employ foreign nationals with no term limits. Yet the University of the Ryukyus refuses to do so.
The discrimination foreigners face at the University of the Ryukyus is a reflection of the greater problems Okinawa faces in higher education. In reality, this university is not concerned with fostering high academic achievement.
People of Okinawa, is this the role that you want your national university to play?
Governor Ota has clearly stated an intention to create an international Okinawa. In this age of internationalization, the national university should play the leading role.
The members of the Okinawa International Union have organized to campaign for human rights, not only for foreigners, but for all people. To this end, we appeal to Governor Ota: join with us in our fight for equality, so that we might all enjoy a more fruit-ful future together. Okinawa International Union
* * * * * * * * * * * * *
PRESS RELEASE TWO
Appearing on page 31 of the Ryukyu Shimpo in the Society Section, the following was reported regarding the press conference of the Okinawa International Union. Accompanying the article was a photograph of Prof. Masahide Kobayashi from the University of the Ryukyus, Timothy Korst, and Mr Nakamura, chairman of the Ken Rou Ren. (This article was translated by Timothy Korst. All errors are his alone and are unintentional)
Call for Abolition of Employment Discrimination Based on Citizenship
Three Prefectural Foreign Teachers Form Union
With the purpose of abolishing discrimination and pushing for their rights, on March 6 foreign teachers from three universities established the Okinawa International Union (Timothy J. Korst, chairman), demanding that the University of the Ryukyus put an end to term limited contracts and discrimination based on citizenship.
In the afternoon of March 18, the union held a press conference at the Prefectural Government Office, in which Korst stated: "All of the full-time Japanese teachers at the University of the Ryukyus have indefinite employment contracts. In contrast, the full-time foreign teaching staff are subject to term limited contracts of one to three years. It is unjust for the university to operate with two systems of employment depending on citizenship."
According to the Ministry of Education, "this is probably the first union of foreigners at a national university." This union has nearly 20 members and has affiliated with the General Federation of Okinawa Prefectural Unions (Ken Rou Ren; chairman Tsukasa Nakamura).
Regarding the current employment practices of the University of the Ryukyus, Korst explained,
"The University of the Ryukyus employs over 500 Japanese with indefinite term contracts, but all of the 16 full-time foreign teachers have contracts from one to three years.
"The University of the Ryukyus refuses to employ foreign teachers on indefinite contracts. This is discriminatory to foreigners.
"The enrichment of education is hindered by unstable positions."
Furthermore, Korst, who teaches English conversation and advanced composition in the College of Education, was told by the University last September that his contract would not be renewed. Korst asked that "the reason for this be put in writing," but has received no answer. Therefore, he has consulted with a lawyer and plans to file an injunction next week in Naha District Court to save his position.
* * * * * * * * * * * * *
OPEN LETTER TO GOVERNOR OTA, OKINAWA PREFECTURE
With the age of internationalization close at hand, you have stated repeatedly your intent to develop stronger ties, both economic and cultural, between Okinawa and its neighboring nations. The university should play the reading role in this development.
But as it now stands, instead of taking this responsibility, the universities of Okinawa practice systematic discrimination against foreign academics, many who come from these neighboring nations. In a word, the universities of Okinawa operate with two unequal employment systems depending on citizenship.
At the University of the Ryukyus, for example, full-time Japanese teaching staff have indefinite employment contracts. It is very difficult for these people to lose their jobs, even as evidenced by the recent court decision, if found guilty of sexual harassment.
Yet, for no rational reason at all, full-time foreign teaching staff lose their jobs annually. This is because they have contracts that are limited from one to three years. Although their contracts may be renewed, often they are not. This year alone at the University of the Ryukyus at least three of the 16 foreign academics lost their jobs.
Discrimination against foreign academics, as you surely know, as a problem not only in Okinawa, but throughout Japan. According to a 1996 article in the scientific journal NATURE, of the over 35,000 professors with indefinite contracts at national universities, only 66 were non-Japanese.
As evidenced by these numbers, Japanese national universities are not very friendly to foreigners. Yet, according to Mombusho, each university has the power to decide for itself how to treat its employees. And, to the shame of Okinawa, the University of the Ryukyus has decided to treat foreign academics like disposable commodities.
To fight for fair treatment for all people, on March 6, the Okinawa International Union was formed, holding the vision of a discrimination-free prefecture. The Union's members, Japanese and foreigners alike, want dearly to realize this goal.
Governor Ota, in your quest to strengthen international ties, you cannot overlook what happens here at home. Okinawa's treatment of foreigners within the prefecture reflects its attitude towards those living abroad. Let us work together now to bring dignity and respect to all people in Okinawa. In so doing, Okinawa will be most able to develop mutual respect and trust among its neighboring nations. For as we all know, the age of internationalization is waiting.
Okinawa International Union
* * * * * * * * * * * * *
3. The University Reacts:
The Submission of the Letter of Union Demands
Before heading to the office of the university president, I thought it would be good to go with someone to witness this event. Yet my right hand man, Prof. Kobayashi, was nowhere to be found. Be that as it may, beneath the three-month-long gray skies I walked to the building that my office window faces and found the president's secretary in the midst of a telephone conversation.
She interrupted her speech, and I gave her the union's demand letter, concealed in an envelope. I thanked her and moved to the door, but then I thought, a receipt would be good.
The secretary, finished with her telephone duties, read the letter and led me to the jinjika, the personnel section, opposite the stairwell. For the next three minutes the kacho, Mr Ashimine, stood head bowed looking at my letter.
Finally, he spoke. "This is troubling." (Komatte iru yo)
"May I have a receipt?"
"I can't give you one."
"This isn't the university's union."
"I work here. I am the chairman of this union."
"I can't accept this letter." He reached his hand out to me holding the letter, waiting for me to take it back.
"May I have a receipt?"
"I can't give you one. "
"Thank you," I said, leaving him with the letter in hand. He did, however, give me his meishi. The letter said:
===================================================================Notice of the Formation of the Okinawa International Union
Be it known herewith that the Okinawa International Union has been formed. This Union has joined the General Federation of Okinawa Prefectural Unions. The main purpose of this Union is to abolish discrimination at the University of the Ryukyus in particular and Okinawa in general. The University of the Ryukyus refuses to treat foreign employees with equality and human dignity. Instead, this university discriminates in its hiring practices and treatment of employees based on race/nationality. Such discrimination is expressly forbidden by the Labor Standard Laws of Japan.
The Demands of the Union
The demands of the Union include:
1. The abolition of the contractual term limits for foreign employees.
2. The continuation of Mr Korst's employment without a term limit beginning April 1, 1998.
Negotiations We request that negotiations regarding the Union's demands begin no later than March 20, 1998.
Timothy J. Korst
Chairman, Okinawa International Union
===================================================================(You will notice that the form of our letter above does not conform to the suggestions made in "How to Form a Union." This is because I found out the proper form after submitting it. But, in reality, it doesn't matter. The form is not a legal issue.)
* * * * * * * * * * * * *
4. The Okinawa International Union (OIU) Takes to the Streets
On Thursday, March 19, Okinawa Ken Rou Ren, with whom the OIU is affiliated, held its annual shuntou, or spring labor offensive. At dusk over 100 affiliate members gathered at Mayama Park, at the north end of Kokusai-dori, Naha's Champs Elysees, for the rally.
Upon arrival, members of the OIU distributed copies of the Ryukyu Shimpo article covering the press conference the previous day. I met the chairman and vice chairs of the Ken Rou Ren, one informing me that I would give a short speech.
As the skies blackened, several union leaders gave speeches regarding their unions' situations, but not before apologizing for not being able to read their prepared statements in the dark. I sat on a knoll in the park and spoke with those next to me.
"Oh, its the guy from TV," one woman exclaimed, recognizing my face from the news coverage of the press conference. The Union received coverage, beyond television, from both island dailies and a radio station.
In addition to the leaflets, before coming to the rally, union members had prepared a placard. While Kobayashi was fashioning the sign from a couple of pieces of wood, paper and a waa-puro generated text, I was in my office attending to details when the telephone rang.
"Hello, this is the Personnel Office. We have something to give you."
What was this all about, I wondered. On the twelfth of the month I had submitted the Union's demand letter to the president, stating that negotiations should begin no later than tomorrow, March 20. Was this a reply to our demand? In the Dean's secretary's office, the Dean, the personnel director and the secretary all stood poker-faced. Strange that three officials are needed to give me something, I thought.
The secretary spoke. "Last week you gave a letter to the president. He wants to return it to you." He held out the same envelop in which I had delivered the union's demand letter, my name and extension number written in my hand at the bottom. I must have been in kindergarten the last time I played hot potato, but the rules were simple enough.
"I'm sorry, I can't accept it."
At the rally Kobayashi mentioned this incident to one vice-chair of the Ken Rou Ren, Mr Minema. "Just let us know whether you get an answer tomorrow. We'll take care of it then."
Now, in the darkness it was my turn to speak to the crowd.
"Good evening. My name is Timothy Korst. I am a foreign instructor at the University of the Ryukyus and chairman of the Okinawa International Union. On March 6, we foreign teachers formed a union to create better working conditions at the universities.
"As things now stand, we have contracts of one to three years. This means that every few years we are fired and the university hires a new foreigner. We are tired of being treated like oogata-gomi. With your support and the support of the Ken Rou Ren we hope to change this situation. Gambarimasho."
After a warm reception by the crowd, Ken Rou Ren leaders placed the OIU members at the vanguard of the column, which then marched down the main boulevard. I held the Union's placard high, which read on one side:
University of the Ryukyus Stop Discriminating!
And, on the other:
Protect Foreigners' Rights!
Escorted by traffic police, the column of marchers followed a slow-moving van. From four megaspeakers perched atop the vehicle, Ken Rou Ren made public its demands.
No weakening of the Labor Standards Laws!
No raising of the consumption tax!
Higher wages for workers!
And suddenly, with the Ken Rou Ren giving the Union all the support it could have hoped for: Ryuukyuu University:
Stop Discriminating Against Foreign Teachers!
Back in the 70s one of the all-time great TV shows, "All in the Family", aired. As with many Americans, bits of TV dialogue permanently embed themselves in my memory, periodically finding association in day-to-day life. So it is that I can still hear Archie Bunker's New York vernacular putting down his neighboring state: Nobuddy wants ta live in Joisy, but somebuddy sgatta.
Well, this is how I feel regarding my chairman and Ryuudai. For those Japan apologists reading this, I tried the wa-fuu method and only lost ground. Nope--legal proceedings ain't fun. Yet in search of justice I go, forever with Archie in mind: Nobuddy wants ta go ta court, but somebuddy sgatta.
* * * * * * * * * * * * *
Yesterday, March 27, 1998, was a busy day for my lawyer, Kato Yutaka. In the morning he was in court to listen to its decision regarding the sexual harassment case brought against Ryuudai by an Asian graduate student. It was a partial victory. The accused assistant professor in the Agriculture Department was ordered to pay 1,700,000 yen in damages.
Later that day Kato filed my case for an injunction (karishobun) against Ryuudai at Naha Court. If the court agrees, the injunction, which normally takes a few months, would allow me to retain a portion of my salary and office, while I fight the full case in court.
Afterwards, Kato and I, accompanied by the chair and vice-chair of the Ken Rou Ren, held a press conference at the press club on the fifth floor of the Ken-cho. Seven reporters listened, and NHK television filmed, while Kato explained the contents of the legal briefs.
Later that day, I appeared on NHK's local news (I coulda sworn I shaved. Must be the Nixon Effect), with a voice-over of my response to a question at the press conference. (Sorry, no clue as to what they said--too busy trying to read my lips.) Also, we got coverage in the two local newspapers, the Okinawa Times and the Ryukyu Shimpo.
The following is my translation - like the German lottery, wie auch immer, ohne Gewaehr, no promises about accuracy - from the Ryukyu Shimpo article, p. 31, in the Society Section, of March 28.
=================================================================American Instructor Files Injunction
"One-year Employment Contract Discriminatory"
Ryudai: Contract Finished (Keiyaku Douri)
On March 27, Timothy J. Korst (38), who teaches English in the Department of Education at the University of the Ryukyus, filed an injunction in Naha District Court to keep his position (chii hozen) from April, claiming his employment contract is discriminatory, since foreign instructors have limited contracts and Japanese do not.
According to his statements, Korst has been teaching English composition and other classes at Ryudai since April, 1995. His one-year contract has been renewed, but last autumn he was told that it would not be renewed the following year.
While Japanese teachers are not subject to limited contracts, foreign kyouin have three-year, and foreign kyoushi one-year contracts.
Since the decision of whether to renew a contract is made at the discretion of the University, foreigners have no job security (mibun hoshou ga naku). The legal papers claim that under the law, particularly Article 14 of the Constitution and the International Human Rights Agreement (Kokusai Jinken Kiyaku) discrimination on the basis of citizenship (kokuseki) is not allowed.
Korst, who formed a labor union on March 6 with other university foreign instructors, is demanding that the University negotiate. In reply, the University has offered "No comment," and "We are only following the terms of his contract. We don't intend to meet with the Union." (Korst shi ni tsuite wa keiyaku no touri ni suru dake. Dou kumiai to no hanashiai ni oujiru tsumori wa nai). The Ministry of Education responded by saying, "After we receive a report from the University, we will investigate how to proceed." (Daigaku kara no houkoku wo motte taiou wo kentou shitai).
* * * * * * * * * * * * *
2. THE PLAINTIFF ARGUES
This is a translation from the legal briefs submitted to court in Japanese (translated by Korst and Aldwinckle):
1. Plaintiff files for a provisional preservation of his position as gaikokujin kyoushi at the University of the Ryukyus.
2. Defendant, until the court reaches a decision, will provisionally pay plaintiff the amount of XXX,000 yen on the 16th day of the month beginning April 1, 1998.
3. Plaintiff demands that the court decide that the plaintiff's use of his office #236 in the Department of Education, University of the Ryukyus, shall remain undisturbed.
REASONS FOR THIS PETITION
I. THE PARTIES CONCERNED
1. It is established that defendant is the University of the Ryukyus (Ryudai), address following....
2. Plaintiff is a gaijokujin kyoushi, who teaches advanced English composition and other courses in the Department of Education, University of the Ryukyus. He is a US citizen. Plaintiff graduated from the MA TEFL graduate program of San Francisco State University in May, 1989. Before being employed by Ryudai, he worked, among other places, at Kyoto University of Foreign Studies, Ritsumeikan University, and Seika University.
II. COURSE OF EVENTS LEADING TO A CONTRACT BETWEEN THE PLAINTIFF AND THE DEFENDANT
1. On March 17, 1995, the then-President of Ryudai, a Mr Sunegawa, sent plaintiff a letter of invitation informing him that the University wanted to employ him as an instructor in the English Department, College of Education (Appendix 1 [all appendecies omitted from the PALE Journal]).
2. Based on the Civil Servant Law, Article 2, Paragraph 7, the President of the University and plaintiff entered a contract (hereafter the "employment contract") from April 1, 1995, to March 31, 1996, employing the plaintiff as a gaikokujin kyoushi.
3. The employment contract was renewed in both 1996 and 1997.
4. The main contents of the contract of 1997 [also excerpted in original legal document] are as follows:
i. That the President of Ryudai, Katsura Koushou, hired plaintiff to take charge of courses in General English (I and II), Practical English, Mid-level English Composition, and Advanced English Composition, from April 1 1997 until March 31 1998.
ii. The monthly salary would be at XXX, 000 yen (as per employment contract in English). In addition, there would be end-term allotments for study and commute paid, as per other Japanese faculty. Furthermore, pay periods coming at odd times would cause salary to be calculated on a daily basis.
iv. Plaintiff would be responsible for following University directives concerning scheduling and on-duty times, but the class instruction period would not exceed an average of 12 hours a week.
vii. It would be possible for plaintiff to be released from contract within the employment time period should one of the parties' circumstances (tsugou) change. In that case, 30 days' prior notice of contract release would be necessary from one of the parties to the other.
5. Around September, 1997, the new Ryudai President, Katsura Kosho, through the Chairman of the English Department, College of Education, Assistant Professor Shiroma, informed plaintiff that his contract would not be renewed after April 1, 1998.
III. THE INVALIDITY OF THE TERMS OF THE EMPLOYMENT PERIOD (koyou kikan no sadame no mukou)
1. THE EXISTENCE OF DISCRIMINATORY TREATMENT BETWEEN JAPANESE FULL-TIME TEACHING STAFF AND GAIKOKUJIN KYOUIN/KYOUSHI
1. Though over 500 Japanese teaching staff are employed at the University, all of them have unlimited terms. The 16 foreign teaching staff (kyouin/kyoushi), however, have limited contracts of one to three years. Presently, the University decides at its discretion whether to renew these foreigners' contracts. If the University decides not to renew such a contract, at the end of the appointed term the foreigner immediately loses his position, having no job security. As stated above, plaintiff occupies the post, according to the Civil Servant Law 2.7, of gaikokujin kyoushi. Gaikokujin kyouin at national and public universities, on the other hand, have limited contracts according to the special consideration of Civil Servant Law 2.1.
2. From the perspective of protecting the university's freedom to self-govern, according to "the university managing organ," transference, dismissal, demotion of Japanese teaching staff is not possible (Education Civil Servant Special Law, Articles 5 and 6), but rather their positions are warmly secured. 3. Accordingly, as for the University's full-time employment of teaching staff, Japanese teaching staff have unlimited terms and their future positions are secure, while foreigners, as a principle, are employed from one (Plaintiff's case) to three years, clearly indicating discrimination on the basis of citizenship.
2. CONCRETE DISADVANTAGES TO DISCRIMINATORY TREATMENT OF FOREIGN KYOUIN/KYOUSHI INCLUDING THE PLAINTIFF
The following are concrete disadvantages to the dicriminatory treatment of gaikokujin kyouin/kyoushi, including plaintiff:
1. Gaikokujin kyouin/kyoushi have to live with the fear of their contracts not being renewed, and therefore cannot plan their futures.
2. Due to the fear of not having their contracts renewed for even a triviality, gaikokujin kyouin/kyoushi must be careful beyond normal conditions regarding their statements to their bosses and colleagues.
3. Since there is the possibility of their contracts being unrenewed due to student criticism, gaikokujin kyouin/kyoushi must abandon their own pedagogical policies, leaving no other choice but for them to make courses flattering the students (geigou teki na jugyou).
4. It takes time to aquaint oneself with Japanese students and Japan. But once the kyouin/kyoushi have done so, they must leave without being able to attain educational results.
3. PROHIBITION OF DISCRIMINATION BASED ON CITIZENSHIP
Under laws guaranteeing equality in Article 14, the Japanese Constitution approves of equality as one of the fundamental principles within a constitution for a modern democratic society. Moreover, Article 7's declaration of human rights states, "All people are equal before the eyes of the law, and indiscriminately everyone has a right to equal protection under the law" (subete hito wa hou no mae ni oite byoudou de ari, mata, ikanaru sabetsu mo nashi ni hou no byoudou na hogo o ukeru kenri wo yuu suru). Article 14 also applies to extranationals.
Moreover, Article 2, Paragraph 1 of the International Treaty on International Human Rights, (otherwise known as the "Freedom Rights" Treaty), which was ratified by Japan and is effective as law in this country, states that "The signatories of this treaty promise to ensure that all people under their jurisdiction shall not be discriminated against on the basis of race, skin color, sex, language, religion, political or other ideas, citizenship or social position, wealth, place of origin, or position."
Article 26 of the same treaty states: "All people are equal under the law, and under the law shall be free of all forms of discrimination, and have the right to protection of equality under the law. To this end, the law shall prohibit all forms of discrimination based on race, color of skin, sex, language, religion, political or other ideas, citizenship or social position, wealth, place of origin or other standing" However, as stated above, the period of employment in the contract of this case is dependent on the citizenship of foreigners, and therefore discriminatory and illegal according to the Constitution and the International Human Rights Treaty.
4. THE NON-EXISTENCE OF A RATIONAL REASON FOR DISCRIMINATORY TREATMENT
It cannot be seen that there is any rational reason for national universities to discriminate against foreign kyouin/kyoushi based on the fact that they have foreign citizenship. It is incomprehensible that the defendant uses any reason at all for the discriminatory treatment of foreigners. Yet, according to the Notice from the Ministry of Education of December 4, 1997, "From the perspective of wanting to use the budget in an effective manner, consider steps to employ young people as far as possible." That is, it is clear that simply as a measure to reduce the cost of labor discriminatory treatment should not be allowed as a rational reason.
Moreover, at the General Education Department of Ibaraki University, it is stated, as a reason for subjecting only foreign kyouin/kyoushi to limited contracts, that "'foreign' kyoushi have the function of "cooking things up" (炊け目) and playing the role of enlivening the staff" (ittei kikan nai no koudai [交代] ni yori, gaikokujin koushi to shite no seikatsu no kinousei to kekka o takemi, katsu, kono jinji ni okeru kasseika o hakaru). It is difficult to see that this is a rational reason for limiting contracts for foreigners.
THEREFORE, the Plaintiff's contract, as demonstrated above, based on the Constitution and the International Human Rights Treaty, must be judged to be invalid and his period of employment should not be fixed.
IV. ABUSE OF THE RIGHT TO REFUSE TO RENEW A CONTRACT
1. Related (analogous) reasons for the abuse of legal principles regarding employment based on multiple renewals. [ED'S NOTE: I had a lot of trouble translating this bit, and I don't understand how the word "analogy" (ruisui 類推) fits in here either.]
a. In cases of multiple renewals of short-term contracts where the person employed is for all practical purposes a full-time staff member (jijitujou jouyouka shita), expression of intent to not renew a contract due to fulfillment of contract period is tantamount to an official firing (jisshitsujou kaikou), and as we should make analogies with legal reasoning as per abuses of dismissals, here are some points that have been established in this court:
b. In this case, plaintiff had his contract renewed twice, and was released after three years. However, from Professor Shimabukuro, plaintiff heard the oral promise of at least four years of employment, and was led to expect a longer period. As far as job description, the University also demanded a high level of academic expertise for its English Composition and English Education courses, and indeed that is hard to achieve with only a short-term position. Given the fact that this post should have security from unfair abuses of personal position, and from the standpoint of academic and research [ED'S NOTE: I'm having trouble with this bit: gakumon kenkyuu no jiyu no kanten kara futou na mibun no hakudatsu kara hoshou sareru beki chii ni aru koto nado no jijitu kara sureba], the Court should acknowledge that this is for all practical purposes a full-time position.
c. Regarding the reasons for the defendant not to renew the plaintiff's contract: although there was no clear, official reason given for the dismissal, the fact there is a past history of goings-on (yaritori) between plaintiff and the English-language full-time staff. We think it is important that Ryudai's Department of English think about what kind of English instruction it wants, what kind of education it wants for its students, and either say or write down clearly the requirements. The University asserts that it puts importance on a technically grammatical (gijutsuu teki na bunpou) level of instruction. Plaintiff thinks it is because of the difference in instruction styles [between plaintiff and defendant] that this dispute came about. However, plaintiff also thinks that defendant should of course appraise (hyouka suru) the former's class style as one possible method, and refer to this as one of the other methods that are part of a pluralistic modern education system. Then it of course there should be acknowledged that there are many styles of teaching, whether or not this one is approproriate be debated, and not left unfairly to the forceful decisions of one person's values towards technical grammatical education.
THEREFORE, as there was no rational reason (gouriteki riyuu) given by the defendant for firing the plaintiff in this case, the dismissal should be held as invalid.
2. The refusal to renew a contract without a rational reason is an abuse of the law. 3. As seen above, and as relates to the employment contract, defendant dismissing plaintiff by refusing to renew his contract is equivalent to an abuse of plaintiff's rights, and thus plaintiff should not lose his position as a gaikokujin kyoushi at the University of the Ryuukyuus.
V. THEREFORE, as the plaintiff's dismissal by the defendant is illegal, we hold that the plaintiff should be reinstated from April 1, 1998 onwards, and have the right to demand wages from defendant. [VI paraphrased:] Wages are set at XXX,000 yen per month, and the full value of back wages should be paid.
VI. "SELF-PRESERVATION NECESSITIES" (hozen no hitsuyousei)
Plaintiff is on his own, and at this time is single in an apartment rented out by the university. Due to his dismissal, he has no forthcoming salary from this April, and it there is a fear that his livelihood will be in a bind (kyuu suru). As plaintiff is unable to maintain his livelihood without wages amidst litigation, we hope that the decision from the courts will be handed down in due time. [Chaff at the end of the document omitted]
* * * * * * * * * * * * *
3. LEGAL PRECEDENT
The following is the only case found in which a foreign kyoushi sued a national university. In brief, he argued that his contract should be renewed because: 1) language teaching is a long term endeavor; 2) a professor told him it would be; 3) his name was printed in the following year's catalogue. His claim against Tsukuba University was rejected. All of these points, however, differ substantially from the claims that I am bringing before the court. (The text that follows is a paraphrasing of the original. As usual, I make no claims for the accuracy of the text.)
LEGAL BASE (NIHON HOURITSU JOUHOU SENTAA) LITERATURE NO. 027214 CASE NAME: PETITION FOR AN INJUNCTION TO PRESERVE POSITION
CASE N0. 1975 (YO) NO. 2285
COURT DATE: FEB. 19, 1976
PRESIDING COURT: TOKYO DISTRICT COURT;
COURT SUMMARY: The court rejected the petition to temporarily preserve the position of a national university foreign kyoushi who entered a contract with Japan (Kuni).
LEGAL REFERENCE: CIVIL SERVANT LAW 2 - 7, PERSONNEL REGULATIONS 1 - 7 NATIONAL UNIVERSITY FOUNDING REGULATIONS 30.2.1.
I. THE FOLLOWING IS PROVISIONALLY SUSTAINED BY THE COURT
1. A foreign national entered a contract in 1974 with Tsukuba University to teach Chinese. As a kyoushi, his contract was for one year. He was told by the vice-president that his contract would not be renewed after March, 1975. The president sent him a letter verifying this decision in March.
2. The plaintiff maintains that he has a right to renew his contract in so far as foreign language teaching is a long term endeavor, and the university guarantees employees' positions.
II. INVESTIGATION OF THE PLAINTIFF'S CLAIM
1. However, he maintains this even though Article 1 of his contract states that the employment period is limited. Therefore, the court cannot sustain his petition. Furthermore, there is not enough evidence to substantiate his claim that his contract should be renewed. The possibility of renewing his contract (Article 7 and 8 of the contract) is based on the condition that the term is limited.
Furthermore, although the court believes that Mombusho's directive to limit foreign kyoushi's contracts to one year is related to the national fiscal budget, Tsukuba University, just opening in April, 1974, did not already have a long term plan to teach Chinese and did not have enough time to evaluate whether the plaintiff was fit for the position. Based on this, the court rejects the plaintiff's claim that his contract should be renewed. Moreover, the fact that one professor mentioned to the plaintiff that his contract would be renewed is groundless, since this professor did not hold a position to officially represent the University.
2. The plaintiff claims that his contract had been renewed based on the Catalogue of Courses.
i. The following is provisionally sustained: Tsukuba University published its Catalogue of Courses based on the recommendation of its Educational Advisory Panel in January, 1975. The Catalogue listed the plaintiff as teaching Chinese Wednesday, first and third periods. But the Educational Advisory Panel, as it usually does, simply used previously published information in compiling the list of teachers for the Catalogue.
ii. Based on the above, the Court can hardly sustain the plaintiff's claim to have his contract renewed in 1975. iii. According to the aforementioned, although the contract was provisionally valid, it ends on March 31 and is finished. Based on the lack of evidence, an injunction will not be sustained while the case is tried. Court costs will be borne according to the Civil Code, Article 89.
* * * * * * * * * * * * *
4. THE DEFENSE ARGUES
In the petition, my lawyer argued, among other points, that international treaties, the Japanese Constitution, and the Labor Standards Law protect me from being terminated from my job.
The following is a summary of the arguments for the defense (Kuni), submitted to the court on April 16. At this hearing (shinjin), only people directly involved in the case were allowed to attend. I sat with my attorney at the large oval wooden table, with the judge and a subordinate seated to our left. A second subordinate never arrived.
In attendance for the defense were ten people, possibly four lawyers flown in from Tokyo, four bureaucrats, and the last two chairmen of the English Department, College of Education, Mr Shimabukuro and Mr Shiroma. Mr Shimabukuro was responsible for hiring me in April, 1995, while Mr Shiroma was chairman since that time.
The judge asked both sides if they had any further documents they wished to submit. Counsel for the plaintiff will submit a rebuttal to the arguments below by April 30, with the defense's reply scheduled for May 12. The judge should hand down a decision by the end of May, 1998.
The defense argues that the plaintiff has the status of a civil servant. Among the different kinds of civil servants, he is neither a regular (ippan), nor a special (tokubetsu) civil servant, but simply something else that falls in the range of this category.
The Personnel Regulations 1.7 (15 August, 1949) allows for the government to hire foreigners in those cases where a Japanese national with suitable qualifications cannot be found. As such, Article 2.7 of the Civil Servant Law is relevant to the plaintiff's contract, making him a civil servant.
As a civil servant, the laws governing the private sector (shihou houki) do not apply to him.
Furthermore, although the Constitution protects foreigners' rights, this protection does not extend to foreign civil servants. Also, since the Constitution supersedes any international treaty Japan may have ratified, the plaintiff's argument of discrimination based on such treaties is invalid.
Since the plaintiff admits that he is aware that the other foreigners employed at the University of the Ryukyus are limited in their term of employment, he cannot expect to be automatically renewed.
* * * * * * * * * * * * *
A LAYMAN'S TAKE: MY VIEWPOINT
From the beginning it looked like it would come down to the interpretation of my status. Rather than argue the applicability of the Constitution or international treaties to my case, the defense seeks to nullify the relevance of these documents by arguing that I am a civil servant.
The position the defense is taking is perhaps the most legally feasible, yet it does not seem to be on solid ground. Article 2.1 of the civil servant code states unequivocally that civil servants are divided into two groups, regular and special.
Kokka koumuin no shoku wa, kore wo ippan shoku to tokubetsu shoku to ni wakatsu.
The law does not allow for any other category beyond these two. In arguing that I am something other, with no name, yet still a civil servant, the defense is attempting to stretch the law to cover me. Article 2.6 states that the government may not hire anyone to do work that is outside the realm of regular or special civil servant work, nor pay the salary of that person.
Seifu wa, ippan shoku mata wa tokubetsu shoku igai no kinmusha wo oite sono kinmu ni tai shi houkyuu, kyuuryou sono hoka no kyuuyo wo shiharatte wa naranai.
Article 2.7, however, states that the preceding article (2.6) does not apply to contracts entered between the government and foreigners.
Zenkou no kitei wa, seifu mata wa sono kikan to gaikokujin no aida ni koujinteki kihon no oite nasareru kinmu no keiyaku ni wa tekiyou sarenai.
The defense argues that on the basis of Articles 2.6 and 2.7, I have been employed by the government in a capacity that falls outside of the realm of either a regular or special civil servant. But (and here the defense tries to stretch the law) since my employment is related to the Civil Servant Law (kouhou kankei), I am therefore a civil servant.
Certainly Article 2.7 relates to my employment. But it does not follow that I am therefore a civil servant or covered by that law. The law only allows the government to hire people outside of the two categories of civil servants. Again, as explicitly stated in Article 2.1, there are only two categories of civil servants, and as the defense argues, I am neither.
If this is correct, then the Labor Standards Law, the Constitution, and the international treaties would come into force.
* * * * * * * * * * * * *
But recently I sat down with Kato Yutaka, my attorney, to discuss the particulars. As often is the case, there was both good news and bad news.
The good news: I am on much firmer legal ground than I imagined. Another article of the Civil Servant Law defines my situation even more clearly. Article 2.4 states (the following translations are from the book, Kokka Koumuin Hou by Nakamura Hiroshi, which provides commentary to the law, with an English translation in the back. Other commentaries also exist.):
The provisions of this Law shall apply to all positions in the regular service ..... The provisions of this Law shall not apply to positions in the special service unless specifically provided by an amendment to this law.
Here it is stated clearly to whom this law applies and to whom it doesn't. Throughout the whole law - 109 Articles, Supplementary Provisions, and Supplementary Provisions to the First Revision of the Law - there is no other reference, besides 2.6 and 2.7, to anything that could be construed to cover me. Even the article on Temporary Employment (Article 60) states clearly that:
...temporary employment [is] not to exceed six months in duration....[but may] be renewed for a period of six months.....but may not be renewed a second time. It even takes care to clarify: Except as prescribed in the preceding four paragraphs, this Law and rules of the Authority (jinjiin) shall be applied to temporary appointees.
We can see the lengths to which this law goes to avoid misunderstanding. First, it states that there are only two categories, then it adds to whom this law applies, and finally it even includes temporary hires. But no mention of me.
Every employee is covered by either the Civil Servant Law or the Labor Standards Law. But if it is determined by the court that I am a civil servant, the question remains: What law is my contract based on?
Here Kato says simply, "Nobody knows." I don't know, the judges don't know, nobody knows. A contract without legal foundation is meaningless. Without a body of law, one cannot know the legality of the contract. Yet in the Civil Servant Law there is no mention of my status.
And finally, a more technical legal point. Kato filed a petition for an injunction to protect my position (karishobun meirei moushidatesho). This is a procedure found only under private law.
If I were a civil servant, he would have to have filed a shikkou teishi, or invalid suspension (?). Before the defendant responded, its lawyers told Kato he filed the wrong petition and asked him to withdraw it. But, of course, he didn't.
Yet, in the defense's argument there is no mention of our petition being the wrong one, which signifies implicit agreement that it is correct. If it indeed were wrong, the courts already would have dismissed it.
The only point in favor of the defense (other than Article 2.7) is one regarding my contract. The terms stipulated in my contract are determined by the Japanese national government. In this respect, my work resembles that of a civil servant.
However, the very fact that I have a contract buttresses my argument that the Labor Standards Law should apply to my case. Civil servants do not have contracts, but rather appointments (jirei). Governmental appointments are akin to commands. Every time civil servants get a pay raise, for example, the government simply tells them. That's that.
But with me it is different. Every time I get a pay raise (and there have been a few), I have to sign a new amendment to my contract. This is a formality found only in the private sector, which implies that my contract stems from such, and that therefore the Labor Standard Laws should apply.
With its argument that I am a civil servant, the defense is merely reaching for straws.
And now the bad news: the odds are they will grab one.
The courts, Kato explained, are conservative. They think that the university, as an organ of the government, can hire whomever they want, under their own conditions. Unlike American courts, they won't be able to explain their decision. They'll just say it's natural that foreigners' rights are not protected (kenri no seshitsujou gaikokujin ni hoshou sarenai?). The upshot is I'll probably lose the case and never have a clear answer as to why.
* * * * * * * * * * * * *
(EDITOR'S NOTE: Sadly, we here leave the Korst Case, which has unfolded in the best traditions of courtroom dramas, and await a May 1998 verdict-- publishable in the next issue of PALE. We'll keep you posted. Now, for incidental information that would have interrupted the flow of the essays: The Appendices.)
APPENDECIES TO THE KORST CASE (For the Record)
Korst's Letter to Professor Shiroma on Teaching Problems
How Playing Ball Japanese-style was ineffectual.
July 29, 1995
Dear Professor Shiroma,
On June 13 we had a short telephone conversation in which you informed me of a problem that some students are having in my composition class. Thank you for mentioning this to me. Since it is my sincere desire to teach effectively, it is important that I know my students' concerns.
In our conversation I replied that I would like to speak to you in person about the problem. In this way, I think, I can best explain my approach to teaching composition. Briefly stated, since ideas are more important than grammar, I want the students to learn to focus on this aspect of their writing before proceeding to the surface level problems. My students' writing shows clearly that most of their problems in communication are not with grammar, but with so-called higher order concerns, such as point development and organization. In this respect, teaching composition is tantamount to teaching critical thinking.
I trust that you will find time to discuss this issue a bit more fully. Especially since you mentioned that my contract may be terminated next year because of this, I find it to be of utmost importance that we talk at length about my pedagogy.
Since I will be busy during most of the summer, perhaps we can meet next week or after the break, in September. In any case, please contact me at your convenience to arrange a meeting. I look forward to discussing this matter with you.
Once again, thank you for bringing this issue to my attention.
Timothy J. Korst
Being brushed off by the Japanese Government:
"The Human Rights Center for Foreigners"
How even official channels specifically set up to handle complaints from non-Japanese are in fact ineffectual.
Since I took up the position of gaikokujin-kyoshi here at the University of the Ryukyus nearly three years ago, I have had an ongoing dispute with my chairman, ostensibly due to student complaints regarding the way I mark students' essays. My error: I focus on meaning, not grammar, as they would like me to. I have to emphasize "ostensibly" because these students give me excellent ratings on the student evaluation forms.
Subsequently my chairman has, over the course of time, threatened to fire me, actually fired me, changed his mind, re-hired me, and now again has informed me I will be fired at the end of March, 1998. Of course, technically speaking I am not going to be fired; simply my contract will not be renewed.
To my surprise, many other Japanese professors in my faculty have taken up my cause and offered their support. And the other day I found in my mailbox at work, with no name attached, a pamphlet with the title, "Welcome to the Human Rights Center for Foreigners." As it appeared quite an oxymoron to find this pamphlet in Japan, I was intrigued and went to see what they were all about.
Located in the same building as the immigration office three floors above, this center looked like - well, it looked like the immigration office, with desks to prop up the bureaucrats sitting behind them. Dressed in a business suit, carrying my important documents in my attache case, I was ushered into a meeting room, and shortly thereafter two bureaucrats sat opposite me at the small circular table.
"What would you like to talk about?" the younger one inquired.
"My work," I replied. "It seems there are two systems, one for Japanese and one for foreigners."
I went on to explain that Japanese full-time teaching staff are tenured from day one of their appointments, while all foreigners are required to sign contracts for one year (kyoshi) or three years (kyoin). This seemed unfair to me since any time there was a dispute with a chairman, the foreigner faced the possibility of dismissal or non-renewal of the contract. Furthermore, even if there is no dispute, the kyoshi, and often the kyoin, are automatically terminated after six years, according to the motto in the Asahikawa University case, of wanting fresh gaijin.
I explained that since the Japanese constitution prohibits discrimination based on race that the fact that foreigners were required to sign contracts which included terms for their dismissal seemed to run counter to the Constitution. Quite clearly the university operates with two unequal systems, depending on race.
With some help from an interpreter, for a moment it seemed they grasped my point. Yes, the system was not yet fair in this respect. But it is changing slowly. Up in Kawasaki, foreigners are now allowed to be civil servants (koumuin), but not so in Okinawa. If I wanted to work at the national university without a contract, I would have to become a koumuin. And this was not possible.
"You have to understand," the interpreter repeated time and again, "our system is different."
But then the younger one chimed in, "It is not only because you are a foreigner that your contract won't be renewed, is it? You had a fight with your chairman."
He was correct. I had had differences with my chairman. But one thing stood clear in my mind. "If I were Japanese I wouldn't have this contract and couldn't be fired."
"It may seem like discrimination to you, but you must understand our system," the interpreter reiterated.
In the meanwhile the kacho had entered and taken a seat at the small table, frequently flipping through a four inch thick law book.
I asked again if they could help me in this matter. His reply indicated quite clearly how far this human rights center was prepared to go. "We at this center are koumuin. We cannot say anything against the government."
"So what do you do here at this center?" "We can only talk with the university and search for the truth."
The truth. It surely lies somewhere, but would it ever be revealed? In the Asahikawa University case it took a lawsuit before the university even offered a reason for Ms. Gwendolyn Gallagher's termination. Ms. Gallagher had apparently lost her "freshness," the university said. Suddenly, after 12 years of successful teaching, her freshness just up and went.
"Thanks, but I already know the truth," I replied.
And with that the meeting ended, but not before the kacho referred me to the bengoshi-kai, across the street, where I subsequently sought legal advice.
Being brushed off by the American Government:
Korst's Letter to the US Ambassador
How official channels established by our home governments to protect citizens abroad are willing to sacrifice them to the greater good of "The Relationship"
February 5, 1998
Dear Mr. Ambassador,
Three years ago, Dr. Ivan Hall brought to the attention of your office the problem of Mombusho's attempt to solve budgetary matters with the dismissal of elder foreign instructors, or gaikokujin-kyoushi, at its national universities. I refer you to the attached documents regarding this matter.
I would like to take this opportunity to inform your office that on a broader, more fundamental level, the discriminatory hiring practices of national universities is endemic. As Dr. Hall demonstrates in his latest book, Cartels of the Mind, nearly all of these universities hire foreigners on a limited basis, which necessarily impedes their work performance and the influence they have in the world of academia in Japan. As a case in point, I would like to bring the hiring practices of the National University of the Ryukyus to your attention.
Currently, of the over 500 members on its teaching staff, this university employs 17 foreigners. While the number of foreigners is small and a possible point of contention, it is expressly the manner in which we are employed that is disturbing.
Like nearly all national universities in Japan (the only possible exception being Tokyo University), the University of the Ryukyus uses nationality as a basis for discrimination in its hiring practices. While Japanese nationals are tenured from day one, all 17 foreign members of the teaching staff, without exception, have limited contracts.
Generally speaking, foreign teaching staff fall into two categories: kyouin and kyoushi. The contracts of kyouin are for three years, while those of kyoushi are for one-year. Though the contracts of both are renewable, this university imposes an unwritten six-year limit on kyoushi, with the explanation of wanting a "fresh face." It is quite possible that this six-year limit is imposed on kyouin, too, since at present only one foreign professor has been able to overstay this limit.
The employment limitations which foreign teaching staff face at this university are demonstrative of the fact that Japanese national universities refuse to accept foreign academics on an equal footing.
The consequences of these discriminatory employment practices are manifold. First, we foreigners must live in constant fear of losing our jobs, since a simple personality conflict may result in the non-renewal of our contracts; secondly, because of this "revolving door" policy, we are kept on the fringes of the academic world and therefore are held in check as to the effect we can have at our institutions. And, on an international level, while countless Japanese nationals enjoy the benefits of equal treatment at America's universities, the important question of reciprocity must be raised.
As this semester now draws to a close, three of us foreign teaching staff members face termination of our contracts. Apparently, one of them, a German kyoushi, has elected to accept her fate. A Malaysian kyouin and I however, have chosen to fight against the discriminatory employment practices of this university in the hope of maintaining our positions.
In order to give you a concrete understanding of the situation, I would like to briefly outline my case.
In April, 1995, I was invited by the University of the Ryukyus to teach English as a gaikokujin-kyoushi. Like other kyoushi, I was given a one-year renewable contract.
Shortly after taking up my post, however, students from my composition class complained of my teaching methods. Though this was now nearly three years ago, and subsequent student evaluations have reached a 92% overall satisfaction rating, these complaints remain the spoken reason for the decision to terminate my contract after this March.
The problem here is that at national universities foreign instructors exclusively are subject to such petty politics. Due to student complaints no Japanese professor could ever lose his job. Indeed, barring criminal activity, no Japanese professor can be fired. Yet, since all foreigners are on limited contracts, all of us face the possibility of dismissal. Due to this kind of discrimination, many foreigners in the past have lost their positions, and many of us will suffer the same fate in the future. This, in short, is the inequity of the situation.
I trust that you are familiar with the statements of your predecessor, Mr. Mondale, on this subject, and like him will find this to be a worthwhile issue to broach with your Japanese counterparts.
Also, as time is drawing near, I would be highly appreciative if your office, Mr. Ambassador, could in any way show support for the immediate situation that we foreigners at the University of the Ryukyus now face.
I thank you kindly for your consideration in this matter.
Sincerely yours, Timothy J. Korst
===================================================================REPLY FROM THE AMBASSADOR'S OFFICE
(The following was faxed to me March 11, from the United States Information Service, Embassy of the United States of America, Tokyo.)
February 17, 1998
Dear Mr. Korst:
Your recent letter to Ambassador Foley has been forwarded to my office for reply. The U.S. Embassy in Tokyo is very concerned about the fair treatment of American faculty in Japan. The Ministry of Education, however, insists that individual universities are responsible for hiring of foreign faculty, and that it does not have the right to intervene.
Regretfully, the Embassy staff cannot intercede in contractual disputes. We regularly advise those considering legal action to consult with an attorney. The Embassy has a list of English-speaking lawyers throughout Japan, which we can provide to any American who requests it. You may also wish to check with the Japanese Bureau of Labor Standards (RODO KIJUNKYOKU) to determine your rights in such a contract dispute.
The Embassy will continue to emphasize to the Japanese Government the importance of fair treatment for foreign faculty members in Japan.
Sincerely, Louise K. Crane
Minister-Counselor of Embassy for Public Affairs
Is Korst a qualified professional, worthy of all this attention?
If this can happen to a professional like him, it could happen to you too
CV Information: Timothy J. Korst
Age: 38. Citizenship: USA. Residency in Japan since July 1991.
EDUCATION Master of Arts, Teaching English as a Foreign Language (M.A. TEFL), San Francisco State University. 1989. Bachelor of Arts, German Literature, University of California, Irvine, 1982. Studied four years at the University of Goettingen, Germany.
SCHOLARSHIP Fulbright Scholarship to teach English as a Foreign Language Assistant in Gelsen-kirchen Comprehensive High School, Germany. 1983-84.
RECENT TEACHING EXPERIENCE
4/95 - now: Visiting Professor: Ryuukyuu Dai. Teaching Duties: Conversation, Composition, Pronunciation
1/96 - 2/96: Teacher Trainer: Intensive Language and Teacher Training Seminar, Sponsored by Monbushou and the Okinawa Prefectural Board of Education.
3/94: Instructor: TOEFL Intensive Course: Ritsumeikan University.
4/92 - 3/95: Adjunct Faculty Member: Kyoto Seika University, Kyoto University of Foreign Studies; Notre Dame Women's University; Ritsumeikan University. Teaching Duties: Conversation, Composition, Reading.
1) Answer, Please Answer: A Perspective on Japanese Students' Silent Response to Questions. JALT JOURNAL, Vol. 19, No. 2. 1997. Presentation: Okinawa JALT Mini Conference, Jan, 1996.
2) Somewhere in the East China Sea. Scripsimus, University of the Ryukyus, No. 6. Nov, 1997.
3) A Bucket of Water. Oklahoma English Journal, Vol. 11, No. 3. 1997
4) Man and Beast, Ryukyu Shimpo. One of a series of six essays published in 1997.
5) Zeitmessung im Mittelalter: Ein Vergleich der Raume: Land, Kloster, Stadt. Bulletin of College of Education, University of the Ryukyus, No. 48. March, 1996.
6) The Holocaust: Mystification of the Destruction of European Jewry. Bulletin of College of Education, University of the Ryukyus, No. 47. October, 1995.
7) Love, Metaphorically Speaking. Journal of Kyoto Seika University No. 8. February, 1995.
8) Drama-based Activities and Second Language Acquisition. Studies in English Language and Literature, Kyoto University of Foreign Studies, No. 10. February, 1994.
9) Putting Grammar in Its Place: Deciding Which Competencies Should Be Taught. Journal of Kyoto Seika University, No. 5. July, 1993.
AREAS OF SPECIALIZATION AND INTEREST ESL:
Content-based English Instruction, Global Issues, Cross-cultural Communication, Process Approach to Teaching Composition.
Foreign Language Ability: Japanese (intermediate); German (fluent).
Professional Accomplishments at Ryuukyuu Dai, 1995-1996
PROFESSIONAL AFFILIATIONS, CONFERENCES AND MEETINGS
Member of the Japan Association of Language Teachers (JALT).
Member of the JALT National Special Interest Groups: Global Issues, Teacher Education. Participation in the 1996 Japan Association of Language Teachers Conference, Nagoya, November, 1995.
Regular Monthly Attendance at the Meetings of the Okinawa Chapter of JALT.
Participation in the Fifth Annual Japan-America Grassroots Summit in Kagoshima, October, 1995:
Participation in the Conference on Language Education, Kanoya.
Attendance at the University of the Ryukyu's Guest Lecture Series.
Participation in the University of the Ryukyu's FLS Meeting for Ryuudai Review of Euro-American Studies.
1. Zeitmessung (see above) Ryukyus, March, 1996.
2. Answer, Please Answer: (see above) December, 1995.
3. The Holocaust: (see above) October, 1995.
TEACHER TRAINING SEMINAR AND PRESENTATIONS
1. Three Day Guest Lecturer at the Kyushu--Okinawa Regional Intensive Language Training Seminar for English Teachers Sponsored by the Ministry of Education, Science and Culture. January, 1996. Lecture Content: Communicative Language Teaching, Content-based Language Instruction, The Role of the Teacher.
2. Okinawa JALT Mini-Conference, January, 1996: Presentation: Answer, Please Answer: A Perspective on Japanese Students' Silent Response to Questions.
Kyoto Memoirs - Writing in Progress
Summer English Program at UCLA - Research and Development Participation in Student Activities
Major Role in German Department Theatrical Production: The Diary of Anne Frank Attendance at Student Performances of English Plays
Participation in University Festival Participation in English Club Meetings
Attendance at English Club Dance
ABOUT THE AUTHOR: With a psychic having warned him last summer of "job problems," Timothy J. Korst was, until recently, employed as a foreign instructor at the University of the Ryuukyuus. A former Fulbright scholarship recipient and native of Los Angeles, he has spent seven years in Japan.
THE WORST OF TWO WORLDS
Foreign Academics at Japan's National Universities
by Tony Laszlo
Gaikokujin kyoshi (foreign lecturers) employed at Japan's national universities are in a peculiar legal situation. Unlike their peers who have Japanese nationality, they are not civil servants. The Japanese government has made its stance clear regarding the nationality requirements of the civil servant: "civil servants wield governmental authority and participate in the nation's decision-making process. Therefore, only Japanese nationals may become civil servants." (Footnote 1) Gaikokujin kyoshi working at national universities do not have the employment protection (i.e. guarantee of lifelong employment) enjoyed by their Japanese colleagues. Rather, the question of whether or not their yearly contracts will be continued is left up to the whim of the university and their Japanese colleagues who make up the various professorial committees. There have been many cases where gaikokujin kyoshi have been terminated with little or no notice, for little or no reason and with little or no compensation. In Japan, among individuals legally employed in Japan, one would be hard-pressed to find an individual with less employment protection; under Japanese domestic law, a gaikokujin kyoshi wishing to take issue with his termination has hardly a leg to stand on.
Spirit of '93
The great number of foreign academics working at Japan's national universities are hired by the Ministry of Education (MoE) in a category separate and distinct from that of their Japanese colleagues --gaikokujin kyoshi. They are hired on a year-to-year basis, and are neither able to attend faculty meetings nor oversee students' research projects in the same manner as their Japanese colleagues. They do not bear the official title of professor or associate professor at their schools -- rather they are limited to the role of 'instructor'. The gaikokujin kyoshi policy is a measure that has remained largely unchanged since its inception in 1893 (Meiji 25), just three years after the Meiji Constitution was established. The idea was to import scholars from the industrially-advanced Western nations, absorb the knowledge they had to offer and implement the bits which were deemed useful. The rest was discarded or forgotten, as, more often than not, were the academic messengers. One of the more famous of these discarded foreign lecturers was also one of the earliest: the renowned literary man Koizumi Yakumo (Lafcadio Hearn). The aging Koizumi was abruptly relieved of his position at Teikoku University (currently Tokyo University) in 1903, despite massive demonstrations by his students. His great grandson Koizumi Bon, chief consultant of the Lafcadio Hearn Museum in Shimane Prefecture, concludes that the availability of Natsume Soseki was the reason for the termination. Natsume, recently returning from his studies in the West, was one of the first Japanese who could do what Koizumi did: teach English literature classes at a Japanese university. "They'd rather use a Japanese than a foreigner" (Footnote 2), Koizumi Bon told this writer in a 1996 private correspondence. Although national universities are now legally capable of hiring foreign academics as kyoin (tenured faculty), they are not officially encouraged to do so. (Footnote 3) Consequently, the gaikokujin kyoshi plan is still in widespread use with little incentive or compulsion to change.
There are many reasons why Japan's national universities should employ foreign academics on the same terms as Japanese nationals, and do away with the policy of hiring them as gaikokujin kyoshi. First and foremost, it is inconceivable that the antiquated gaikokujin kyoshi policy is appropriate in this day and age. Needless to say, the Japan of today is in a very different situation from the Japan of the Meiji Era, when then Prime Minister Ito Hirobumi's second cabinet designed the gaikokujin kyoshi plan as part of the fukoku kyohei policies. The measures were intended to quickly convert the feudal Japan, which had only recently ended its self-imposed isolation period, into a militarily and economically powerful nation. The plan was highly effective. In less than a generation, Japan grew from an isolated, agrarian socety into a powerhouse of a nation that would, in fact, compete militarily with industrialized countries--to the point of subjugating its lesser-developed neighbors, exploiting their resources to aid its economic and military growth. In contrast, Japan's contemporary political structure, Constitution and laws are today based on a far more democratic system which has even renounced militarism. As a member of the international community, Japan plays an important role in the United Nations and other international organs, and it has signed and ratified many important treaties. Many observers think that it is only a matter of time before Japan wins the seat on the UN Security Council that it has lobbied for at length. How can it be that this educational policy, a remnant of the Meiji Era, is suited to Japan's present needs, goals and responsibilities? Considering the ultimately cataclysmic results of the fukoku kyohei policies, the fact that this one, essential in shaping the tertiary education system and thus the thinking of the entire nation, is still being implemented in contemporary Japan, is flabbergasting. The burden of providing the reasoning for keeping this policy is on the supporters of the status quo. Secondly, the quality of Japan's tertiary education sector can only suffer due to this policy. The top scholars of the various academic fields are not to be found in one country, but scattered about the world. The academic quality of a university is largely dependent on the teaching and research staff. The practice widespread in Japanese universities of limiting professorships to Japanese nationals guarantees a closed-mindedness towards the outside world, and ultimately the lack of ideas exchange will ensure academic inferiority compared to those institutions in more open OECD nations. Thirdly, there is the standpoint of international relations. None of the other developed countries have policies which relegate Japanese nationals to the post of 'instructor' with no job security. On the contrary, one must only look at the number of Japanese who hold not only professorships, but even prestigious posts at educational institutions around the world, to see the vast opportunities available to Japanese scholars. From the perspective of international trade and intellectual exchange, Japan's gaikokujin kyoshi policy can only be seen as an unfair and despicable practice of continually 'taking' without 'giving'. It is thus self-evident that the hiring of foreign academics at national universities as gaikokujin kyoshi is detrimental to Japan's tertiary education system and conflicts with Japan's present position in the international community. It also runs directly contrary to the spirit of Japan's numerous 'internationalization' pledges and policies. Furthermore, despite the Catch-22 in Japan's domestic law described above, the policy is very likely illegal, as well.
Japan ratified the International Covenant on Civil and Political Rights in 1979. In doing so, it obligated itself to "undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind" (Part II, Article 2) The following are among the rights noted in the Covenant: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground (including race, color, national or social origin or other status)". (Part III, Article 26) Foreign nationals, by virtue of the fact that they are individuals within Japan's territory, have certain rights which must be upheld, as stipulated by this Covenant. Among them are the right to equal protection of the laws of the land, and the right to effective protection from discrimination of any kind whatsoever. It is clear that the gaikokujin kyoshi policy practiced by national universities discriminates against the foreign academics based on nationality. It also leaves them without equal protection of Japan's domestic laws, a point which once again violates their rights provided by the Covenant.
Bridging the Gap
It is commonly agreed that International Law, of which the Covenant in question is part, takes precedence over the domestic laws and constitutions of countries which have ratified them. The Japanese government itself acknowledged this interpretation as they brought this very treaty into force. (Footnote 4) The hiring of foreign academics as gaikokujin kyoshi at national universities does not conform with Japan's obligations and responsibilities under its current circumstances as a nation. The fact that Japan is a State Party to the International Covenant on Civil and Political Rights not only acts to further emphasize the ignominious nature of the gaikokujin kyoshi policy, but also legally prohibits such a policy. Under the assumption that Japan wishes to maintain its status with regards to the International Covenant on Civil and Political Rights, it must bring its laws and policies into line with its obligations as a State Party to the Covenant. It is my opinion that the pertinent passages from the International Covenant on Civil and Political Rights may and should be introduced in a court of law in a bid to cause the invalidation or revision of the gaikokujin kyoshi policy employed by national universities.
*1 ' Tozen no hori' - government viewpoint released by the Cabinet Legislation Bureau in 1953. (back to original place in text)
*2 Though Koizumi had naturalized by this time, he was still largely perceived as a foreigner. (back to original place in text)
*3 Legislation passed in 1982 simply made it legal for national universities to hire foreign academics on the same terms as Japanese nationals; the gaikokujin kyoshi policy was not invalidated. It should be noted that the 1982 legislation was one of the tiny minority of bills introduced to the Diet by a Parliamentarian, rather than the respective governmental office, in this case the MoE. As such, it did not and does not have the complete support of said governmental office. During an interview with the Parliamentary Minister of Education in 1996 conducted by this writer, one MoE official stated his opinion that the 1982 legislation was unnecessary and inappropriate. (back to original place in text)
*4 In 1981, the Chairman of the International Covenant on Civil and Political Rights Committee asked Japanese government officials whether or not Japanese laws would conflict with the treaty. They responded by saying, "This treaty takes precedence over domestic law...any domestic laws which are found to be in conflict with this treaty must be invalidated or revised". (back to original place in text)
Reference materials (in Japanese text):
標 題 小泉八雲の悲慣を今再び(切り捨てられる国立大学の外国人教師たち) 著者名 トニー・ラズロ 誌名 等 Ronza 2(10) 1996.10 p72〜75
標 題 在日への差別に通じる、外国人教師問題の本質 著者名 椎名 茂 誌名等 Ronza 2(10) 1996.10 p77 〜79
標 題 日本の「高等教育」の逆行(金曜日エッセイ) 著者名 トニー・ラズロ 誌名等 週刊金曜日 4(34) 1996.9.13 p34
標 題 Learning a Lesson 著者名 Tony Laszlo 誌名等 ACCJ Journal 1996.8 p44 誌名等 FAJ Project, ISSHO Kikaku, www.issho.org/faj
標 題 知の鎖国 著者名 アイヴァン・ホール（鈴木訳） 出版社名 毎日新聞社、1998
（予定） 標 題 新しい社会結合と外国籍住民 著名 ライブラリ相関社会科学・第５巻 著者名 トニー・ラズ ロ 出版社名 新世社・サイエンス社, 1998 (this is the source of the material regarding the 1981 Japanese gov't comment regarding legal precedence of treaties)
ABOUT THE AUTHOR: Tony Laszlo is a journalist currently writing/broadcasting for Shukan Kinyobi, Shukan Asahi, Shukan Shincho, Tokyo Journal and NHK, among other media. He also lectures at Kagawa Nutrition University, is an advisor to Yokohama City Midori Ward's Online Lifelong Education Program and the director of the Tokyo-based non-profit organization ISSHO. Contact details: http://www.issho.org or email: firstname.lastname@example.org
TIM KORST DECISION HANDED DOWN BY NAHA DISTRICT
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PALE JOURNAL OF PROFESSIONAL ISSUES APRIL 1998 ENDS