사립여자법학전문대학원의 존재가 양성평등원칙에 반하여 위헌인가

In 2008 a graduate-level 3 year law school system was introduced in place of the four year undergraduate law program in Korea. From among many applicants, only 25 universities were nation-wide selected to have a law school on the competitive basis. Ewha Women's University Law School has been the only women law school thus selected. And there ensued a constitutional challenge to the Ewha Law School's women-only admission measure by way of a constitutional complaint filed at the Constitutional Court on the ground of gender equality. Ewha Women's University happens to be a prominent, private women university, however, which boasts her 125 year history this year in 2011 having contributed greatly to the modernization of Korean society up to now and going beyond. Consequently, Ewha Law School's women-only admission should be constitutionally justified, first of all, on the ground that she is a private, not a public, legal-educational institution; the equal protection clause does not apply directly to a private entity. Imposing of the limitation to a private entity(a private women's law school) in the form of the co-education requirement cannot be constitutionally justified without the strong rational basis such as an affirmative action for male students being proven for co-education(owing to Constitution Art. 37 Sec. 2). Secondly, Ewha's women-only admission can be justified on the ground of the state's constitutional obligation to maintain and further develop the nation's tradition. Ewha's tradition as a private women's higher educational institution is strongly believed to be the kind of tradition that the state should be required to maintain and further develope. The state's obligation to keep and further the nation's tradition functions as the public interest for a private women's law school in the balancing test of the Constitution Art. 37 Sec. 2. Even if Ewha's women-only admission is against the gender equality principle, thirdly, it may be justified on the rationale of affirmative action to remedy the past unequal realities against women that still vastly remain in the broad sections of society, especially in the legal profession's stratified structure, despite great strides made of social status in recent years. Ewha's women-only admission is an insignificant affirmative action, even if it is an affirmative action at all, however, in that law school admission is only a first gate of comparatively small wall through which to enter the legal profession; the bigger, more important wall of sex-neutral competitive bar examination awaits aspirants to the legal profession, and then the third difficult wall of advancement within the stratified hierarchy of legal profession in which gender inequality prevails. It seems that Ewha's women-only admission does not amount to a constitutionally significant unfair burden placed on men. Women-only admission of Ewha University Law School is constitutionally justified after all.