A limit on the number of students enrolling for English-taught tracks leads to indirect discrimination based on nationality. And that is not permitted, warns Job Buiting, who previously served as a lawyer for the Ministry of Education.

Everyone is aware of the prohibition of discrimination enshrined in the Constitution: discrimination on the grounds of religion, race or sex or “on any other grounds whatsoever” shall not be permitted. Discrimination on the grounds of nationality is also prohibited. Even indirect discrimination is also forbidden, unless clear and precise grounds can be provided.

The latter is not the case with the recent legislative amendment, which aims to give research universities and universities of applied science the power to exclude international students. The wording of the amendment does not explain why it is necessary to discriminate indirectly between Dutch and international students.

Inoperable

That effectively renders the amendment inoperable, Job Buiting believes. A university that excludes international students on this basis will most likely lose any case brought before the courts in this matter.

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 his PhD from Radboud University on teacher autonomy and regularly writes about education law on his own platform.

‘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, and that is expressly set out in law. This amendment makes no reference 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 the VVD’s questionable procedure during the House of Representatives’ debate on the matter will not have been helpful in this context. The VVD introduced the legislative amendment during the budget debate, although the proposal itself concerns an entirely different education law. That is not allowed under the rules of the House. This led Education Minister Robbert Dijkgraaf to advise against the proposal and D66 wanted it declared inadmissible. The amendment was nonetheless passed shortly afterwards by an almost two-thirds majority.

In all the consternation, the substance of the amendment was overlooked, which Buiting considers bizarre. The VVD’s procedural shortcut prevented the Council of State from issuing its advice on it. “And normally, a law which discriminates in this way would also have been weighed by the Netherlands Institute for Human Rights. Then 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 that time did explicitly regulate the distinction between programmes taught in Dutch and in other languages.

That bill was passed by the House of Representatives at the time. The freshly sworn-in Education Minister Robbert Dijkgraaf withdrew it before the Senate had an opportunity to vote on it, saying he first wanted to make improvements to the bill.

Irritated

The House of Representatives is growing irritated 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, the VVD decided to take the initiative. It wanted 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 the 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 the 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 raise an objection, the minister will have to go back to the House of Representatives to fix the budget bill. That would mean the House of Representatives having to vote on it again, which will take time.