The cap on English-language courses of study won’t hold up, warns lawyer
A numerus fixus on the English-language track of degree programs makes an indirect distinction based on nationality. And that is not allowed, warns Job Buiting, a former lawyer at the Ministry of Education.
Everyone knows the ban on discrimination in the Constitution: discrimination because of religion, race, sex, or “any ground whatsoever” is not allowed. Distinction based on nationality is also prohibited. Even indirect discrimination is not allowed, and if you do discriminate, you must carefully explain why.
The latter was not done with the recent change in the law to allow universities and colleges to exclude foreign students. The legal text did not explain why the indirect distinction between Dutch and foreign students is necessary.
Inapplicable
That makes the amendment basically inapplicable, Job Buiting thinks. A university that refuses foreign students on this basis will most likely fail in court.
Buiting was a legislative specialist at the Ministry of Education for several years and is now doing the same work at the Ministry of Health. He will soon receive his doctorate from Radboud University on teacher autonomy and regularly writes about education law on his platform.
“If you provide a good reason for it, you can make distinctions,” Buiting explains. “That also happens with tuition fees for students who are not from Europe. They pay more and that is explicitly stated in the law. This amendment says nothing about the difference between Dutch and foreign students.”
The legal basis for this “seems to have been forgotten,” says Buiting. He is surprised that no one has sounded the alarm about this, not within the legislative office of the House of Representatives nor within the Ministry of Education.
Bizarre
It did not help that the discussion in the House was mainly about the dubious procedure followed by the VVD. The party came up with the legislative amendment during the budget debate, while the proposal itself is about an entirely different education law. That is not allowed by the rules of the House. Minister Dijkgraaf therefore advised against the proposal and the D66 wanted it declared inadmissible. A majority voted against that last week. Moments later, the amendment was still passed with almost two-thirds of the vote.
Amidst all the consternation, the content of the amendment remained undiscussed. Bizarre, thinks Buiting. The VVD’s procedural shortcut prevented the Council of State from advising on it. “And normally a law that makes such a distinction would also have gone to the Human Rights Board. Then this mistake could have been corrected.”
The State Council advised on a similar student freeze for English-language course variants in 2019. The advisory panel had no comments on legality then. The difference, says Buiting, is that the bill before it explicitly regulated the distinction between Dutch and foreign-language training variants.
That bill was passed by the House of Representatives at the time. Before the Senate could vote on it, the then-recently appointed Minister Dijkgraaf withdrew it. He wanted to improve the law first.
Irritation
The fact that the minister has been improving it for two years is now causing irritation in the House of Representatives. In January, during the discussion of the budget of the Ministry of Education, the VVD took over the initiative. The party wanted to give educational institutions the legal means to bar foreign students as soon as possible.
Last week, a day after the vote in the House of Representatives, Dijkgraaf warned that the VVD’s proposal would not save time. Adjusting Studielink’s systems will take time, so the new numerus fixus cannot take effect until 2026.
The question now is what the Senate will do with the amendment. The Senate, when all is said and done, looks critically at the quality of legislation. But voting down this amendment won’t happen overnight. Because the VVD took such a convoluted path for passing the state law, the amendment hinges on the Department of Education’s budget. It is not very likely that the Senate will reject it, says Buiting.
If the Senate does object, the minister will have to go back to the House of Representatives to amend the budget bill. But then the House of Representatives would have to vote on it again. That will take time.
