Does the new law allow local authorities to create the units and departments of education? Will they be able to control schools?
Volodymyr Bakhrushyn, chief expert on education of the Reanimation package of reforms, advisor to the Minister of Education and Science of Ukraine, member of the working group on the elaboration of the Law "On Education" answers these questions to the New Ukrainian School.
I. Powers of the local governments for the management of educational institutions
Article 66 of the new law on education.
All abovementioned powers do not foresee the interference of the local authorities in the internal activity of educational institutions, but may provide for obtaining the necessary information.
Experience of the previous years has shown that local governments often take advantage of the information requirements. Therefore, it is necessary to provide certain safeguards for such improprieties in the legislation or at least to develop methodological recommendations for local authorities regarding the exercise of these powers. In the long run, all information should be in a single electronic database, and the grounds to require something else will disappear.
There may also be attempts of the local authorities to interfere in the internal affairs of the educational establishments under the pretext of their responsibility for the implementation of state policy.
However, there exists article 19 of the Constitution of Ukraine that envisages that public authorities, local self-government bodies and their officials are required to act only on the basis, within the limits of powers and in the manner provided by the Constitution and the laws of Ukraine. Therefore, any requirements of local authorities are valid only if they are expressly provided for by the law.
Educational management is based upon the law on education, as well as the laws on preschool, general secondary, vocational and extra-curricular education. In particular, if we restrict ourselves to the law on education, in order for local authorities to be responsible for the implementation of the state policy, they are granted with the powers stipulated in paragraphs 2-7 of the law.
Thus, the local self-government bodies as education management bodies have no powers in direct management of educational establishments. Therefore, they cannot delegate these powers to anyone, in particular, to oblast and rayon educational departments.
Instead, local self-government bodies have a duty to ensure the development of the network of educational institutions, availability of education, and transportation of students.
To do this, they can create appropriate structural units. Though these units should not manage institutions, but provide their activities, that is, to perform service functions for them.
They can also perform functions of collecting and analysing statistical information, forecasting, planning (at the level of a respective territory) etc. That is to carry out preparatory analytical work for making decisions by the relevant local self-government bodies.
II. Local self-government bodies can also be the founders of educational institutions. Powers of the founders (similar for all – CMU, local self-government bodies, natural persons and legal entities) are determined by article 25. Pursuant to it:
The founder of an educational institution or a person authorised by him/her:
It follows that the founder does not have the power to interfere in educational activities, solving the issues of educational process organising, personnel issues (except the appointment and dismissal of the head of the institution).
It is often stated in discussions that departments of education are meant to be the authorised person. In fact, it is not true.
The law determines the possible authorised persons. First of all, it is the Ministry of Education and Science and other central executive bodies that may be authorised by the Cabinet of Ministers to perform certain functions of the founder of state institutions (articles 64, 65). Secondly, it may concern the right of the founder of a private institution to establish an authorised body.
The right of the local self-government bodies to create additional “authorised bodies” is doubtful as such power is not provided for them by the law. The idea may arise that in this case it is possible not to expand the effect of article 19 of the Constitution on them, as it concerns their powers as a founder, and not as a body of power or local self-government. But even in this case, they can provide these authorities only with the powers granted to them by the law.
With due account of article 19 of the Constitution, the possibility of extension of the powers of the local self-government bodies as the founders through the legislation or statutory documents is doubtful as well.
Only other laws can be understood under the the legislation here. In particular, these are special laws on education, the Civil Code, etc. Extension of powers by statutory documents will be a direct violation of the Constitution.
III. Under the new law, local self-government bodies, as well as educational management bodies established by them (if they are created), are deprived of the powers they had under the previous law on education (article 14 of the Law on Education, article 37.3 of the Law on General Secondary Education, article 19.2 of the Law on Preschool Education):
IV. Summarising: the law does not foresee or prevent local self-government bodies from establishing units, departments or other structural divisions that will deal with the problems of education development in the respective regions, districts, cities, etc.
However, these divisions will not have powers to interfere in the educational, personnel, organisational work of the educational institutions, excluding, probably, the preschool educational establishments. For the last part 6 of article 10, which regulates the powers of local self-government bodies did not change significantly.
Volodymyr Bakhrushyn, member of the National team of experts on higher education reforming, chief expert on education of the Reanimation package of reforms
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