Enrollment of Disabled Children in Japanese Municipal Junior High Schools: Litigating for Inclusive Education

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

Japan, like many developed nations, is increasingly focused on promoting inclusive education for children with disabilities. National laws such as the Basic Act on Education, the Act for Persons with Disabilities, and the Act for Eliminating Discrimination Against Persons with Disabilities all underscore a policy direction towards enabling students with disabilities to learn alongside their non-disabled peers wherever possible, supported by reasonable accommodations. However, disputes can still arise when parents and local Boards of Education (BoEs) disagree on the most appropriate school placement for a child with disabilities, particularly at the transition to compulsory junior high school.

This article explores the legal framework governing such placement decisions in Japan, the administrative actions that can be challenged, and the litigation strategies, including interim relief, that may be employed to advocate for enrollment in a desired municipal junior high school rather than a segregated special needs education school.

(Please note: The primary legal framework discussed is the School Education Act and its Order for Enforcement (Shikōrei), reflecting the system in place following significant amendments to the Shikōrei around 2013.)

Compulsory education in Japan covers elementary and junior high school. The system for determining school placement for children with disabilities has evolved.

The Shift in the Order for Enforcement of the School Education Act (Shikōrei)

A critical change occurred with the 2013 amendment to the Order for Enforcement of the School Education Act (学校教育法施行令 – Gakkō Kyōiku Hō Shikōrei).

  • Pre-2013 System: For children meeting certain disability criteria (就学基準 – shūgaku kijun), enrollment in a special needs education school (特別支援学校 – tokubetsu shien gakkō) was generally the default. Enrollment in a regular mainstream school was possible if the municipal BoE recognized special circumstances, designating the child as a "recognized enrollee" (認定就学者 – nintei shūgakusha).
  • Post-2013 System (Current Framework for this Discussion): The presumption has shifted. Now, enrollment in a regular local municipal school is generally the default path. A child is directed to a special needs education school only if the municipal BoE, after a comprehensive assessment, designates them as a "recognized special needs school enrollee" (認定特別支援学校就学者 – nintei tokubetsu shien gakkō shūgakusha) (Shikōrei Article 5, Paragraph 1).

This designation by the municipal BoE is based on considering:

  1. The child's disability status.
  2. The educational support the child requires.
  3. The availability and setup of the local educational system (including support services in mainstream schools).
  4. Crucially, the opinions of the child's guardians and experts (e.g., in education, medicine, psychology related to disabilities) (Shikōrei Article 18-2).

If a child is designated as a "recognized special needs school enrollee" by the municipal BoE, the municipal BoE notifies the prefectural BoE (Shikōrei Article 11, Paragraph 1). Subsequently, the prefectural BoE typically issues an enrollment notice (tsūchi – 通知) to the parents for a prefectural special needs school (Shikōrei Article 14, Paragraph 1). If the child is not so designated, the municipal BoE issues an enrollment notice for the local municipal school.

Challenging a Placement Decision: What Administrative Actions Can Be Targeted?

Consider a scenario: Child A, who has physical disabilities, successfully completed elementary school in a mainstream setting with support staff. Child A and their parents (B) wish for A to enroll in the local municipal junior high school (T Junior High). However, the municipal BoE, citing physical barriers at T Junior High (e.g., multi-story building with stairs, limited accessible toilets), designates A as a "recognized special needs school enrollee." Consequently, the parents receive an enrollment notice from the prefectural BoE for U Special Needs School, not T Junior High.

To challenge this outcome, several administrative acts (or omissions) could be targeted:

  1. The Prefectural BoE's Enrollment Notice for U Special Needs School: This is a formal, external act directly affecting the child's placement.
  2. The Municipal BoE's Designation of A as a "Recognized Special Needs School Enrollee": This is the substantive decision by the municipal BoE that leads to the prefectural BoE's action.
  3. The Municipal BoE's Failure to Issue an Enrollment Notice for T Junior High School: This omission is the flip side of the designation for special needs school.

Are These Actionable "Dispositions"?

  • The Enrollment Notices: The School Education Act itself (Article 138) and the Shikōrei (Article 22-2) refer to enrollment notices under Shikōrei Articles 5(1) (for municipal schools) and 14(1) (for special needs schools) as "dispositions" when discussing exemptions from certain chapters of the Administrative Procedure Act. This strongly implies that the legislature views these formal enrollment notices (or the lack thereof for the desired school) as administrative dispositions (行政処分 – gyōsei shobun) that can be challenged.
  • The Municipal BoE's Internal "Designation": While this designation might not be communicated to the parents as a separate, formal written disposition distinct from the eventual prefectural notice, it is the core decision made by the municipal BoE. Given its determinative effect on the child's educational path and the statutory requirement to hear parental opinions before making it (Shikōrei Article 18-2), its character as an actionable decision (even if challenged via the subsequent notice) is arguable. The Supreme Court, in a case concerning the abolition of specific daycare centers by ordinance (Judgment of November 26, 2009, Minshu Vol. 63, No. 9, p. 2124), found that even an ordinance could be a disposition if it directly and specifically impacted the legal status of identifiable individuals. This suggests a functional approach to dispositionality.
    It's important to distinguish this from cases like school consolidations where the Supreme Court denied dispositionality to an ordinance because parents were not deemed to have a right to a specific school within a generally accessible system (Judgment of April 25, 2002, Hanrei Jichitai No. 229, p. 52). The placement of a child with disabilities involves a choice between qualitatively different educational systems and support structures, impacting the child's fundamental right to an appropriate education.

Parents B, seeking Child A's enrollment in T Junior High, have several litigation options under the Administrative Case Litigation Act (ACLA).

1. Revocation Suits (取消訴訟 – torikeshi soshō)

Parents could file a revocation suit against:

  • The prefectural BoE's enrollment notice for U Special Needs School (defendant: the prefecture).
  • The municipal BoE's underlying designation of A as a "recognized special needs school enrollee" (defendant: the municipality), if this designation is considered an externally effective disposition or if its illegality can be raised in a challenge to the prefectural notice (under the doctrine of succession of illegality – 違法性の承継, ihōsei no shōkei).

2. The Core Strategy: Direct-Type Mandatory Action Litigation (直接型義務付け訴訟 – chokusetsu-gata gimuzuke soshō)

Often, the most effective means to achieve the desired outcome (enrollment in T Junior High) is to file a direct-type mandatory action suit under ACLA Article 3, Paragraph 6, Item 1. This suit would seek to compel the municipal BoE to issue an enrollment notice for T Junior High School.

  • Why Direct-Type? In Japan's compulsory education system, parents do not "apply" for a specific public school in the same way one applies for a permit. The BoE identifies eligible children (e.g., based on residency) and makes placement decisions largely ex officio, albeit after hearing parental opinions in cases involving disabilities. Thus, there isn't a prior "application refused" scenario that would lead to an application-based mandatory action suit.
  • Key Requirements (ACLA Article 37-2):
    • "Grave harm that will be caused by the absence of the disposition" (処分がされないことにより生ずる重大な損害を生ずるおそれ): This is a crucial hurdle. It can be argued that denying a child access to an appropriate and desired inclusive educational setting, or delaying such access, causes irreparable harm to their academic development, social integration, and overall well-being. The right to education is time-sensitive.
    • "No other appropriate means to avoid such harm" (その損害を避けるため他に適当な方法がないとき): If revocation suits against other related acts (like the notice for the special needs school) are deemed insufficient to secure enrollment in the desired mainstream school, this condition may be met.

It is common and often advisable to file a revocation suit (e.g., against the notice for U Special Needs School) and a mandatory action suit (to compel issuance of a notice for T Junior High School) concurrently.

3. Interim Relief: Preliminary Mandatory Order (仮の義務付け – kari no gimuzuke)

Given the urgency of school enrollment timelines (e.g., the school year starting in April), interim relief is almost always essential. Parents should apply for a preliminary mandatory order under ACLA Article 37-5, Paragraph 1, seeking a temporary order compelling the municipal BoE to allow Child A to enroll and attend T Junior High School pending the outcome of the main litigation.

  • Requirements:
    • "Irreparable harm to avoid which there is an urgent necessity." The loss of educational opportunity and the negative impact on a child's development by being placed in an undesired setting can constitute such harm.
    • "Prima facie grounds for the main claim" (本案について理由があるとみえるとき – hon'an ni tsuite riyū ga aru to mieru toki). The parents must show that their substantive arguments (discussed below) have a reasonable prospect of success.
      Courts have shown some receptiveness to granting such interim relief in school enrollment disputes, recognizing the time-sensitive nature of education (e.g., a Tokushima District Court Decision of June 7, 2005, concerning kindergarten enrollment).

Substantive Arguments for Enrollment in the Municipal Junior High School

The core of the parents' case will be that the municipal BoE's decision to designate Child A for a special needs school was illegal or an abuse of discretion.

  1. The Shift in Legal Presumption and Duty of Consideration: The post-2013 Shikōrei makes mainstream schooling the default. Designation for a special needs school requires a specific, reasoned decision by the municipal BoE based on a comprehensive consideration of factors including the child's disability, necessary support, the local educational environment, and, significantly, the guardian's opinion (Shikōrei Article 18-2). A decision that dismisses the guardian's preference for inclusive education without compelling reasons may be flawed.
  2. Principles of Inclusive Education and Non-Discrimination:
    • Act for Persons with Disabilities (障害者基本法 – Shōgaisha Kihon Hō): Article 16 emphasizes the right of disabled children to receive education with non-disabled peers "to the greatest extent possible," obligating authorities to provide necessary support, improve the educational environment, and "respect as much as possible the intentions of the disabled person and their guardians." Article 4 prohibits discrimination on the basis of disability and mandates "reasonable accommodation" (gōriteki hairyo – 合理的配慮) where it does not impose an "excessive burden" (kajū na futan – 過重な負担).
    • Act for Eliminating Discrimination Against Persons with Disabilities (障害を理由とする差別の解消の推進に関する法律): Article 7 explicitly prohibits unfair discriminatory treatment by administrative agencies and mandates the provision of reasonable accommodation.
  3. Challenging the BoE's Justification for Exclusion (Physical Barriers):
    • The municipal BoE in the scenario cited physical barriers at T Junior High (multi-story building, stairs, limited accessible toilets on the 4th floor where 1st-year classrooms were supposedly located).
    • Counter-Argument (Reasonable Accommodation): These are precisely the types of barriers that the principle of reasonable accommodation is designed to address. Potential accommodations could include:
      • Relocating Child A's first-year classroom to the ground floor.
      • Modifying class schedules to minimize inter-floor movement.
      • Providing human assistance (support staff – 特別支援教育支援員, tokubetsu shien kyōiku shien'in), for which national subsidies are often available.
      • Phased installation of ramps or an elevator if deemed not an "excessive burden" in the longer term.
    • The BoE's decision must be based on a genuine, individualized assessment of whether providing necessary accommodations constitutes an "excessive burden," not on a blanket refusal due to existing infrastructure. The fact that Child A successfully navigated elementary school with support is strong evidence of their capacity for learning in an inclusive setting and the feasibility of providing support.

The parents would argue that the BoE failed to adequately consider these inclusive education principles, failed to properly explore or offer reasonable accommodations, and gave undue weight to infrastructural limitations without sufficiently respecting their well-informed preference for mainstreaming, especially given the child's prior successful inclusion.

Conclusion

Litigating for inclusive school placement for children with disabilities in Japan involves a careful navigation of the School Education Act's Enforcement Order and an assertive invocation of broader disability rights legislation that mandates non-discrimination and reasonable accommodation. While Boards of Education possess a degree of discretion in placement decisions, this discretion is not absolute and must be exercised in line with the national policy shift towards inclusion. Mandatory action litigation, often coupled with urgent applications for interim relief, provides a key legal pathway for parents to challenge placement decisions they believe are inappropriate and to advocate for their child's right to an education in the most integrated setting possible, supported by the necessary accommodations.