New law on education: what powers does local government have?
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.
- They are responsible for implementation of the state policy in the field of education, for ensuring the quality of education in the respective territory and availability of education.
- Plan and ensure the development of the network of educational institutions.
- Have the right to establish educational institutions, as well as to reorganise and liquidate them.
- Provide equal conditions for the development of educational institutions of all forms of ownership.
- Provide dormitories and/or transport for the students of specialised secondary and vocational education institutions, who do not study at their place of residence (oblast councils).
- Secure the service area (rayon, city councils and the councils of the amalgamated hromadas) for institutions of primary and basic secondary education.
- Provide and fund the transportation of pupils and teachers to primary and basic secondary educational institutions and in the opposite direction (if necessary, by means of transport vehicles adapted for the transportation of persons moving in wheelchairs).
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:
- approves the statutory documents of the educational institution, their new edition and changes to them;
- concludes and terminates an employment agreement (contract) with the head of the educational institution in accordance with the procedure established by the legislation and the statutory documents of the educational institution;
- approves the budget and accepts the financial report of the educational institution in cases and in accordance with the procedure established by the legislation;
- carries out control over financial and economic activities, observance of the statutory documents of the educational institution, as well as the prevention of privileges or restrictions on various grounds;
- ensures the creation of an inclusive educational environment, universal design and a smart equipping in the educational institution;
- implements other rights provided by the legislation and the statutory documents of the educational institution.
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):
- Organisation of registration of children of preschool and school age (now they are in charge of this registration, article 66.2).
- Monitoring of compliance with the requirements on the education of children in educational institutions.
- Management of educational institutions that make up a communal property.
- Coordination of the actions of pedagogical, production teams, families, and the public on issues of education and upbringing of children.
- Control over compliance with the content, level and dimension of education.
- Participation in the development and implementation of a variant component of the content of general secondary education.
- Selection, appointment and dismissal of teaching staff of state and communal preschool, general educational institutions (left only with regard to heads of educational institutions).
- Control compliance with the requirements of laws and other normative legal acts in the field of preschool education, mandatory implementation of the Basic component of preschool education by all preschool educational institutions (transferred to the authority of the central executive bodies in assuring the quality of education)
- Licensing of private educational institutions, legal entities and natural persons for the right to provide educational services (Article 63 of the new law contains the norm according to which the Cabinet of Ministers determines the licensing bodies of preschool and general secondary educational institutions. It is in accordance with the law on licensing of types of economic activity, but is not consistent with the norm of article 19 of the Constitution, according to which the powers of all possible licensing bodies should be determined by the law).
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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