Constitutional Law, Japan and EdTech
AI is disrupting the Japanese approach to education. Constitutional law may be the bulwark they (and all of us, really) need.
Thanks to the formidable Haluna Kawashima, who not only organized everything but also seamlessly live-translated an hour and a half of content (anyone who has ever done live-translation knows that this is a real feat!), I had the pleasure of attending Goro Horiguchi's thought-provoking lecture on "Education, AI, and Constitutional Law".
Broadly speaking, Professor Horiguchi's talk had two main goals: (1) to stimulate discussion about AI and education among legal scholars and (2) to advocate for the inclusion of jurists into discussions about AI and education. The overarching idea behind these two goals was that the use of AI in education raises specific constitutional issues that are currently being overlooked by both jurists and those involved in the development and implementation of AIED—and that we should do something about that.
For Professor Horiguchi, the issue is pressing: if AIED becomes widespread before legal scholars enter the conversation, children risk being negatively impacted in ways that are difficult to reverse. Moreover, if we wait for lawsuits to arise before involving jurists, it may be too late to course-correct the way the technologies are designed and ensure that they do not cause such harms. Professor Horiguchi therefore advocates for a human-rights-by-design approach to AIED.
He, himself proposes such an approach, which delves into the specific constitutional implications of AI for education rather than simply applying the same right-based approach that we're used to applying to all other applications of AI in real life.
Privacy
His approach is really interesting. When he talks about privacy, he talks about privacy in the specific context of education. He wonders whether students can consent to the processing of their data, whether they're old enough to make such decisions and if the fact that there's a power imbalance between them and the school prevents them from freely consenting… He questions whether it is appropriate for parents to consent to the processing of their children's data given that this data is becoming increasingly sensitive and that some children grow up in families where there is domestic violence and parental abuse. To illustrate this point, he cites the example of a government experience in Shiga Prefecture that processes data collected by a special webcam to help teachers better understand the emotional state of their students.
He also talks about how the fact that such technologies now exist is disrupting the Japanese approach to education. Japanese education is not limited to what we colloquially call « book smarts » Japanese schools also aim to build good character. In Japan, for example, students, not janitors, are responsible for cleaning the schools; and students are responsible for serving lunch to their peers; and they spend a lot of time organizing festivals for their communities, and so on. However, in order to instill good character in students, teachers need to know more about their students than what teachers typically do in the West, and AI and its ever-increasing capacity to collect and process data shakes the balance Japan has historically struck between knowing just enough and knowing too much.
Right to Education
But while the way Professor Horiguchi talks about privacy is interesting, his human-rights-by-design approach becomes even more interesting when he moves on to other constitutional rights such as the right to education. The right to education is well developed in Japan, much more so than in any other country I've studied. Article 26 of the Japanese Constitution provides that « all people shall have the right to receive an equal education correspondent to their ability, as provided by law », but unlike most provisions protecting the right to education internationally, Article 26 is not limited to protecting the children right of access to education, It also touches on the content of education, guaranteeing the right to receive an education that allows students to reach their full potential. In other words, the Japanese Constitution protects not only the right to set foot in a classroom but also the right to receive, in that classroom, the kind of education best suited to one's individual development and growth.
This is, to my knowledge, the best example of what the phrase « the full development of the human personality and the sens of its dignity » in Article 13(1) of the International Covenant on Economic Social and Cultural Rights should mean.
And there is a body of case law on what the provision means in practice. The sum of these rulings can serve as a compass to guide us in the responsible development of AIED. It can teach us interesting lessons about what quality education looks like and how AI can promote that vision of education. Take, for instance, the "Amagasaki Municipal High School Trial" from 1991. In this case, a disabled student fought in court for his right to attend a regular high school, even though a specialized school appeared better suited to his needs.
The principle that follows from this ruling is that students have the right to choose the kind of education they want to receive, even if their choice may not seem like the most appropriate decision to an outside observer. In the context of AIED, this principle can guide how we use algorithms for school admissions—an algorithm shouldn't force someone into a program they don't want to be in just because it seems best for them. And in the context of personalized learning, this principle invites us to shift perspective, or at least look at things through a different lens. While the fact that AI allows us to tailor education to meet students at their exact level may seem like a positive development, we shouldn't overlook the fact that it may end up preventing students from pushing their limits. As the saying goes, they didn't know it was impossible, so they did it. Rather than assuming that personalized learning is always good, we should adopt a nuanced vision that recognizes that some students are motivated by what they find intellectually challenging...and tend to disengage if they're not challenged enough.
Pedagogical Freedom
Finally, Professor Horiguchi also discussed how Japanese constitutional law can teach us valuable lessons about how to deal with the influence of the private sector on education. The Japanese constitution was adopted after WWII, and as a result, the relationship between students and the state is a constitutional issue that Japan has carefully thought through. Over the years, the country came up with ways to ensure that the state does not have too much power over what students are taught. One of these ways is to give teachers a significant amount of pedagogical freedom so that they can act as a bulwark to protect children in their formative years. Concretely, this means that the state can set quality standards for pedagogical material, but it can’t dictate content. This wariness of outside influence, and the trust that Japanese place in their teachers is something we should remember as we develop and implement AI tools for schools. AI should not disempower teachers by over-automating their work, or we risk losing a valuable intermediary that protects children from undue influence, whether it's from the state or from tech giants.
Professor Horiguchi concluded his talk by mentioning that very few scholars are thinking about AIED through a human rights-by-design (or constitutional law-by-design) framework, and he expressed a desire to see this change. I hope that his call will be heeded. I think he makes an important point. I, for one, am planning to take a deep dive into Japanese case law, as I am quite convinced that it holds potential for the development of a framework that defines what quality education looks like and can guide the responsible development of AIED.