Enrolment cap for English-taught tracks won’t survive, warns lawyer

The Dutch Constitution prohibits discrimination on the grounds of religion, race, sex or “any other category whatsoever”. This means that discrimination based on nationality is prohibited too. Even indirect discrimination is forbidden unless clear and precise grounds can be provided.

That's not the case with the recent legislative amendment, which aims to give research universities and universities of applied sciences the power to exclude international students from certain programmes. The wording used in the amendment does not explain why it would be necessary to discriminate indirectly between Dutch students and international students.

Inoperable
This renders the amendment inoperable, according to Job Buiting. A university that excludes international students on this basis will most likely lose any case brought before the courts.

Formerly a law specialist at the Ministry of Education, where he worked for several years, Buiting now fulfils the same role at the Ministry of Health. He is soon to receive a PhD from Radboud University on teacher autonomy. He also regularly writes about education law on his website.

“It is possible to discriminate, provided you can offer a valid explanation or rationale as justification”, Buiting explains. “That is what happens in the case of tuition fees for non-EU students. They pay more, which is expressly set out in law. This amendment does not refer to the difference between Dutch and international students.”

The legal basis for this distinction “seems to have been forgotten”, says Buiting. He is surprised that no one has raised the alarm about this, neither within the legislative office of the House of Representatives nor within the Ministry of Education.

Bizarre
The emphasis on VVD’s questionable procedure during the debate held at the House of Representatives would not have been helpful in this context. VVD introduced the legislative amendment during a debate on the budget, although the proposal itself concerns an entirely different education law. That is not allowed under the rules of the House. This led the Minister of Education, Robbert Dijkgraaf, to advise against the proposal. His party, D66, wanted it declared inadmissible. The amendment was nonetheless passed shortly afterwards by an almost two-thirds majority.

Amidst all consternation, the substance of the amendment was overlooked, which Buiting considers bizarre. VVD’s procedural shortcut prevented the Council of State from issuing its advice on it. “Normally, a law which discriminates in this way would also have been weighed by the Netherlands Institute for Human Rights. This error could have been rectified.”

The Council of State did advise on similar enrolment restrictions for English-taught programmes in 2019. At the time, the Council of State had no comments regarding the legality of the measure. The difference, says Buiting, is that the bill that was submitted at the time explicitly regulated the distinction between programmes taught in Dutch and other languages.

That bill was passed by the House of Representatives at the time. Robbert Dijkgraaf, who had just been sworn in, withdrew it before the Senate had an opportunity to vote on it, saying he wanted to improve the bill first.

Irritated
The House of Representatives is getting more and more annoyed by Dijkgraaf’s efforts at improvement, which have already taken two years. Last January, during the debate on the budget for the Ministry of Education, VVD decided to take the initiative. It aims to give educational institutions the legal means to exclude international students at the earliest opportunity.

Last week, a day after the vote in the House of Representatives, Dijkgraaf warned that VVD’s proposal would not save any time. The time needed to adjust Studielink’s systems means that the new student quota cannot take effect before 2026.

The question now is what the Senate will do with the amendment. The role of the Senate includes carefully scrutinising the quality of legislation. But rejecting this amendment is no straightforward matter. Due to the constitutionally circuitous route taken by VVD, the amendment is attached to the Ministry of Education’s budget. It is unlikely that the Senate will vote it down, says Buiting.

If the Senate does object, the minister will have to go back to the House of Representatives to fix the budget bill. That would mean the House of Representatives would have to vote on it again, which takes time.