(originally sent to several mailing lists and Friends on Weds, Feb 2, 2000)

HEADLINE: FEB 1, 2000:

Decision cites "the relative decrease in the role of English-language
education" (eigo kyouiku no yakuwari ga soutaiteki ni teika shiteiru), and
officially affirms a university's right to fire a foreigner due to length of
stay in Japan and marriage to a Japanese national.


The Asahikawa Gallagher Case has set an important precedent for the
employment rights of Japan's private-sector non-Japanese educators.
Yesterday's ruling has ominous implications for private-sector Japanese
workers as well.

Gwendolyn Gallagher, a non-Japanese married to a Japanese with children and
property, was fired from her contracted English instructor post in 1996 at
Asahikawa University (AU), a private university in Asahikawa, Hokkaido.
Although Japan's Labor Standards Law (roudou kijun hou) requires an
"applicable and rational reason" (soutouteki na gouriteki na riyuu) for the
dismissal of private-sector workers, AU never gave a reason, officially or
informally, to justify it. Gallagher, who had worked there for twelve years
without complaint from the faculty or the student body, took AU to court.
In court depositions, the university, when pressed for justification by the
judge, stated that Gallagher's long tenure at the school gave rise to her
being over-"Japanized" (nipponaizu), voiding her ability to teach foreign
culture to students; moreover in several affidavits (see URL below), AU also
noted that they needed "fresh foreigners" (furesshu na gaikokujin). In sum,
AU alleges that her dismissal was 1) an issue of a foreign teacher's expired
"shelf life" and 2) the school's right to refuse to renew a contract. These
are matters that Gallagher's fellow longer-term Japanese-national educators
never contend with and are legally protected against.

In 1997, the court ruled in Gallagher's favor with an injunction
(karishobun), and AU agreed to reinstate her with back pay in a settlement
(wakai) on the same terms as before. However, AU then three months later
refused to renew her contract for the next year, falsely alleging that "the
settlement was done with the understanding that the new one-year contract
was terminal". Hence despite the court rulings, Gallagher was fired twice.
Gallagher took AU to court again, and on February 1, 2000, 1:05 pm,
Asahikawa District Court Chief Judge Saiki Norio read the decision: AU was
justified in firing plaintiff Gallagher. (cover of decision here FYI)

The legal reasoning reflected the university's position entirely, and
confoundingly so. As reported in Hokkaido Shinbun, Feb 2, 2000, page 30,
"The university is carrying out a reformation of language education, to give
students a wide variety of languages to choose from. If one thinks about
the relative decrease in the role of English language education, there is an
objective and rational reason for refusing the renewal of the contract."
(asahikawa daigaku wa tayou na gengou o gakusei ni sentaku saseru gogaku
kyouiku kaikaku o okonatte ori, eigo kyouiku no yakuwari ga soutouteki ni
teika shiteiru koto nado o kangaeru to, keiyaku koushin kyohi ni wa
kyakkanteki gouriteki riyuu ga aru). As for the shelf-life of Gallagher as
an educator, the court ruling itself (page 63) states, "As the plaintiff has
been living in Japan for about 14 years and is also married to a Japanese,
she lacked the ability to introduce firsthand foreign culture found
overseas, as is required of a teacher of level 3 [classes] ." (mata, genkoku
wa nihonjin to kon'in shite yaku juuyon nenkan mo nihon de seikatsu shiteita
kara, kaigai ni okeru chokkin no gaikoku bunka o shoukai suru nouryoku o
youkyuu sareru reberu III no tantou kyouin to naru koto mo dekinakatta).
The judge also noted the present economic recession and declining student
population, saying (page 64), "In order to survive as an attractive
university, it is crucial that education reform be decisively carried out,
beginning with foreign language education, in which the plaintiff's
usefulness has become relatively low." (miryoku aru daigaku to shite
ikinokoru tame ni wa gogaku kyouiku kaikaku o hajime to suru kyouiku kaikaku
o dankou suru koto ga hitsuyou fukaketsu na jousei ni ari... genkoku no
hitsuyousei ga soutaiteki ni teika shi[ta]...)


The Gallagher Case ruling hereby sets a dangerous legal precedent for all
expatriate language teachers; it assumes that job qualification also
requires the abstract concept of "foreignness", which, by Judge Saiki's
opinion, can be lost if educators live here too long or take steps in their
personal life to assimilate. Moreover, if this undefined "intellectual
staleness" becomes a measure of professionality, how will Japanese-national
educators fare? This precedent may well permit wanton firings of all
long-term faculty, particularly through its equating the inevitable passage
of time with justifiable dismissability. All in the name of carrying out
"reforms" to "make universities appealing" at all costs.

More importantly, this irresponsible ruling will further destabilize the
Japanese education system because it ignores labor laws. Foreign educators
have always been systematically vulnerable; they have with few exceptions
been hired on contracted, temporary positions--dismissable by simple
non-renewal (full-time Japanese nationals, however, without exception had
been tenured from day one). The problem is that Japan changed the laws in
1997 to permit full-time contractural employment for Japanese nationals as
well. This means that everyone regardless of nationality is fair game for
dismissal, increasingly, as the Gallagher case shows, for reasons at the
university's discretion. If the treatment of foreign contracted workers
hitherto is any guide, dismissals of educators will now become matters of
politics and economics and unrelated to professionality or qualification.

The most important fact to stress today is that the courts have hereby
emasculated the laws that are designed to protect private-sector workers.
The Gallagher Case is a test case because, unlike other egregious foreigner
dismissals (cf. Vaipae at Niigata, Korst at Okinawa, Kumamoto Kendai),
Asahikawa University is not a national or public university employing
educators as civil servants. AU is a private university, and therefore all
employees are covered under the Labor Standards Law, which reserves the
private-sector employee's right to expect contract renewal unless there is
that "applicable and rational" reason for dismissal. Unquantifiable
"over-Japaneseness" and irrelevant conjugal choices do not fall under that
rubric. In sum, the court ignores not only two years of testimony that
never obviated the connection between AU's purported curriculum change and
Gallagher's dismissal, but also basically affirms the right of the
university to do as it pleases--firing anybody it doesn't like and blaming
economics (although the record demonstates that AU took no other
cost-cutting measures, contrarily buying land and raising expenses in the

The bottom line: a simple extrapolation shows that increasingly-contracted
Japanese full-timers can fall into the same categories as Gallagher, where
personal matters now easily enable administrators to cut staff in the name
of reform.

Gallagher will be appealing this decision to a higher court. For the sake
of all educators in Japan, let us hope for a more responsible and humanistic


1) A fuller background of this and most cases cited above (with court
documents) may be found in the JALT PALE Journal of Professional Studies,
back issues at http://www.debito.org/PALEJournals.html, as well as at this
author's website, http://www.debito.org/essays.html#ninkiseigallagher

2) Gallagher's support group may be reached at:
Committee to Reinstate Gallagher
Takasagodai 6 chome 8-14, Asahikawa 070-8061 JAPAN
ATTN: Mr Asada
Ph and FAX: (0166) 63-1493
email: gallaghr@eolas-net.ne.jp

Dave Aldwinckle

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Copyright 2000, Arudou Debito/Dave Aldwinckle, Sapporo, Japan