The Liberal Democratic Party (LDP) added 4 items to its revised constitutions: Explicitly mentioning the Self-Defense Forces, an emergency clause, the enhancement of education (which includes providing government aid to private schools), and the cancellation of “combined districts” in the House of Councillors elections (Article 26 and Article 89). The major points of contention related to the enhancement of education are making higher education free and government aid to private schools. As the percentage of students enrolling in institutions of higher education (universities, junior colleges, higher technical colleges, and technical schools) increased, the LDP argued that the scope of free compulsory education stipulated in Article 26 of the Constitution should be expanded to include higher education. The LDP also called for a revision to the limits set on the use and expenditure of public funds stipulated in Article 89, and clarifying the constitutionality of government aid to private schools (aid to private schools provided by the national government or local public entities), an issue that had been considered to be unconstitutional. On the other hand, critics pointed out the problems related to the revenue source for such government aid. Some believed that enhancing education did not require a revision to the Constitution, and others criticized the LDP for attempting to get approval for improving education from the public and the opposition party to take advantage of the situation and revise Article 9. Making higher education free was one of the items that the Japan Innovation Party revised in its draft of the Constitution. The LDP provoked an angry response after adding the 4 items to its draft as some were suspicious that the LDP’s goal was to secure cooperation from the Japan Innovation Party for its plans to revise the Constitution.
The debate over the constitutionality of government aid to private schools has been ongoing for a long time. Even though Article 89 states that “No public money or other property shall be expended or appropriated for the use, benefit or maintenance of any religious institution or association, or for any charitable, educational or benevolent enterprises not under the control of public authority,” opinion is divided over whether private schools are “under the control of public authority.” Some believe that because the state (the Ministry of Education, Culture, Sports, Science and Technology) grants permission to establish private schools and teacher’s licenses, they are “under the control of public authority.” However, some have pointed out that if that interpretation is correct, then private businesses would also be “under the public authority” since the Ministry of Justice is the administrative authority in charge of the Companies Act and they would therefore be “under the control of public authority.” The reason why the Constitution originally restricted public expenditure for aid to privates schools was to guarantee the educational autonomy of business (education) by private individuals. Also, this was meant to prevent the misuse of public funds for profit. Furthermore, because many private schools have connections to specific religions, there was a fear that aid to private schools would go against the principle of separation of church and state. However, after the 1970s the number of students enrolling in private schools suddenly increased, the government started giving private schools subsidies for operating expenses. After the establishment of the Act on Subsidies for Private Schools in 1975, it became possible for the national government and local public entities to give aid to private schools based on resolutions passed by the Diet or local assemblies. It has been pointed out that because school corporations (gakkō hōjin) that receive government aid must report to the Minister of Education, Culture, Sports, Science and Technology (MEXT) and prefectural governors, and because they are under the supervision of the national government or local public entities, these subsidies do not violate Article 89, nor do they harm the autonomy of private individuals.
The constitutionality of schools for foreigners and “free schools” (alternative schools) have become another point of contention related to Article 89. According to one interpretation, because Article 26 of the Constitution and the Basic Act on Education stipulate that compulsory general education is imposed on Japanese nationals, it does not apply to foreigners. However, the Japanese government ratified the Convention on the Rights of the Child and the International Bill of Human Rights. Some believe that because those treaties stipulate that all children, regardless of nationality, have the right to receive an education, then their rights should be guaranteed. Because of this, public elementary and middle schools started accepting the children of foreigners free of charge. The national government also increased its support to schools for foreigners as multicultural and multiethnic education were being promoted. All Japanese schools, including, kindergartens, elementary schools, middle schools, compulsory education schools, secondary education schools, special-needs schools, universities (junior colleges and graduate schools), and higher technical colleges, are appear in Article 1 of the School Education Act (the so-called “Article 1 Schools”) and they receive subsidies from the national government. Most of the schools for foreigners are established by foreign governments and international organizations receive authorization from the Japanese government. For example, some Korean schools are recognized as “Article 1 Schools.” In 2010, the High School Tuition Support Fund program was implemented, and all schools and organizations designated by MEXT were eligible for the program. However, in December 2012, Hakubun Shimomura, the MEXT Minister announced that Korean schools would no longer be covered under the program due to the North Korea abduction issue (the abduction of Japanese citizens by North Korea) and Japan’s lack of diplomatic relations with North Korea.The government was criticized for its decision. Critics argued that politics and the guaranteed right of children to learn should be separate. In Tokyo and Osaka there were lawsuits claiming that excluding Korean schools from the program was unconstitutional. However, a lawsuit filed in Tokyo was ultimately defeated in the Supreme Court. Since then, similar lawsuits have also failed.
It can be said that government aid to free schools has been increasing. Free schools developed out of a progressive education movement which criticized the existing educational system. During the 1980s, the German educator Rudolf Steiner (1861-1925) had a major influence on the establishment of free schools in Japan. After the 1990s, free schools were seen as a way to support the increasing number of truants and school dropouts. In 2002, the Act on Special Districts for Structural Reform established during the Koizumi administration made it possible for profit-seeking companies that wanted to run schools to apply to the government for recognition as a school (this was not possible under the previous education-related laws). As a result, a number of free schools used the new system and the trend towards deregulation to be recognized “Article 1 Schools.”