Pablo Meix Cereceda
- Higher education — National identity — Decentralization
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
A. Preliminary Considerations
1. Before the subject of this entry is discussed, it may be necessary to briefly explain which legal systems have been selected and justify why they have been deemed relevant.
2. It should be acknowledged that the author’s legal culture of origin is the continental European, and in particular Spain. Much of the thinking in this piece is therefore influenced by this cultural background. Beyond this subjective importance—and specifically considering higher education—Spain may be interesting given the influence of three major principles: public higher education, territorial decentralization, and institutional autonomy. Germany’s complex and extremely rich educational system also deserves particular attention. And the concept of école républicaine encapsulates France’s important history of political thinking on education, and thus accounts for its relevance.
3. From a different perspective, of territorial allocation of power, Germany is again considered an important exponent of the Germanic tradition of federalism and decentralization, two phenomena that are key to understanding the constitutional idea of higher education in many countries. On the other hand, the United States system embodies a different tradition of federalism, and is therefore discussed under the section on decentralization.
4. A third group of constitutions in this article are from the Latin American region. Among these, Brazil, Mexico, Peru, and Colombia’s constitutional thinking enjoy a certain prestige and thus continue to influence much of Latin American constitutionalism. Within this continent, however, three other jurisdictions are also examined: Bolivia displays great emphasis on multiculturalism as well as on higher education; the Dominican Republic’s young constitution shows significant openness to different legal traditions—of continental Europe, the United States, and Latin America; and lastly, Guatemala has established the first and so far only indigenous university.
5. Occasionally, other jurisdictions are discussed for a set of different reasons, such as regional or global political influence (Russia, Canada, Iran), or due to specific provisions that may appear illustrative in contrast with the ‘main’ legal systems (Greece).
6. In addition, international law has developed a remarkable body of legal standards concerning educational rights. In particular, the Universal Declaration of Human Rights (1948) (UDHR) has inspired the development of constitutional provisions throughout many of the world’s constitutions and is occasionally mentioned throughout this entry, if only as a useful analytical framework. Also, the European Court of Human Rights (ECtHR) has coined some interesting principles for educational law and policy. Despite this, references to international law should not be understood to assume that the UDHR or international treaties on human rights necessarily enjoy normative status in all constitutions (see international human rights law and municipal law).
B. Definition of Higher Education
(a) Education, Instruction, and Teaching
7. Education, instruction, and teaching usually refer to the school system and to how it seeks to influence young people’s development. Nevertheless, there has been some discussion as to the differences between the three concepts. These differences concern, above all, the instilling of ethical values. (See disambiguation in primary education.)
(b) Higher Education, Tertiary Education, and High School
8. The expression ‘higher education’ is equivalent to ‘tertiary education’. It commonly designates a non-compulsory educational stage, accessible for students who have completed upper secondary education or else fulfilled some specific requirements—such as having attained a certain age and either holding a professional qualification or passing a special exam—as in s 49 of Nordrhein-Westfalen’s Hochschulgesetz (Higher Education Act) (Ger). Higher education may be delivered at institutions called universities or colleges, but this is not necessarily a requirement for considering an educational program to be part of higher education. The Bolivian Constitution, possibly displaying the most comprehensive and detailed approach to higher education in a constitution, illustrates well this idea: ‘[h]igher education includes universities, higher schools of teacher training and technical, technological and artistic institutes, both public and private’ (Political Constitution of the Pluri-National State of Bolivia: 7 February 2009, Main Text, Chapter VI, Education, Interculturalism and Cultural Rights, Section II, Art. 91(III) (Bol)).
9. Additionally, higher education should not be confused with the concept of ‘high school’ which commonly refers to the upper stage of secondary education in the United States and Canada. Examples of this wording can be found in the South Carolina Code of Laws, Title 59 (US), referring to ‘high schools’ (Chapter 39) and to ‘colleges and institutions of higher learning generally’ (Chapter 101); or in the Saskatchewan Education Act, para. 145 (Can), concerning ‘access to high schools’.
2. Decentralization and Higher Education
10. In decentralized political systems, many decisions concerning higher education fall within the competence of component units—states, self-governing communities, autonomous regions, etc. (component federal units). In the case of higher education, decentralization is particularly relevant for decisions on the allocation of financial resources to educational establishments. Besides this, component units frequently have other responsibilities in the field of (higher) education, such as appointing governing bodies or establishing a system to help students pay for educational programs. Nonetheless, most political models featuring decentralization grant certain powers on higher education to the authorities of the central state.
11. Because of their significance as exponents of different political philosophies of federalism (political philosophy of federalism), the United States and Germany will be primarily considered. In addition, other states will be mentioned which do not fall under the category of federal but which nevertheless present a certain degree of decentralization: in Europe, Spain—non-federal but yet politically decentralized; and Greece—a model of administrative decentralization (see also devolution).
12. Concerning the United States, a discussion solely focused on the United States Constitution and US state constitutions would provide a very limited view of competence and power allocation. According to constitutional provisions, higher education policy would be expected to fall mainly within the scope of state action. Indeed, the United States Constitution includes no provision whatsoever concerning higher education. Conversely, states’ constitutions often display detailed provisions on the duties of the state, the establishment of institutions, loan programs, etc. A good example of how states’ constitutions refer to education can be found in the Constitution of the State of Ohio 17 June 1851 (as Amended to 3 November 2015) (Main Text, Art. VI §2–6 (US)), which lays down the duty of the legislature to regulate the ‘organization, administration[,] and control of the public school system’ (§3) and to organize a state board of education (§4). Moreover, the Ohio constitution is particularly concerned with educational funding (§2), and with helping residents pay for higher education (§5 directs the legislature to establish a guaranteed loans program for residents attending colleges and universities and §6 creates a tuition credit program).
13. However, in contrast to what constitutional provisions might suggest, federal authorities have offered financial support and, in exchange, demanded that many specific policy requirements be met. The power of federal authorities to legislate and regulate on higher education has been the object of an important debate since 1965, when President Johnson’s ‘war on poverty’ and ‘Great Society’ agenda encouraged the United States Congress to pass the Elementary and Secondary Education Act (ESEA) (PL 89–10) (US) and the Higher Education Act (HEA) (PL 89–329) (US), both of which have been reauthorized on numerous occasions. The United States Congress thus establishes requirements for students and institutions to have access to federal aid, and it is precisely through such requirements that federal legislation exerts its influence on how higher education is provided. Nevertheless, it is probably the United States Department of Education that faces the strongest criticism. Indeed, in 2015, a task force of college and university presidents and chancellors, created by a bipartisan group of United States senators, found that many of the Department of Education’s regulations were:
unnecessarily voluminous and too often ambiguous, and that the cost of compliance has become unreasonable. Moreover, many regulations are unrelated to education, student safety, or stewardship of federal funds—and others can be a barrier to college access and innovation in education (Task Force on Federal Regulation of Higher Education 1).
14. Turning to Germany, federal legislation in specific aspects of higher education and federal funding in education are expressly accepted by the Basic Law. Concerning legislating powers, the Basic Law allows that both the federation and the states regulate access to higher education and graduation requirements (Basic Law for the Federal Republic of Germany: 23 May 1949 (as Amended to 13 July 2017), Main Text, Title, Arts 72(3)(6) and 74(1)(33) (Ger)). If there is a difference between federal and state legislation, then the Basic Law mandates that the most recent piece of legislation be applied. But a federal law on these matters cannot enter into force earlier than six months after being voted on, which in theory gives state parliaments the opportunity to issue a different law if there is a sufficient majority of state legislators that disagree with the new federal law.
15. Germany is also interesting because of two important constitutional amendments of the federal system which were passed in 2006 and 2009. These amendments aimed, inter alia, at excluding—or strongly limiting—the possibility of federal funding in education. The 2006 amendment thus included a prohibition for federal authorities to fund any state project unless the federation had a legislative power on the matter. However, the Basic Law was amended again in 2014 in order to allow the federation to fund part of the costs of higher education (Art. 91b(3)).
16. Furthermore, it may be useful to briefly examine the approach to higher education in other countries with different degrees of decentralization: Spain has a model of concurrent legislation, with national legislating powers and political decentralization; while in Greece the national parliament’s legislation on education is often implemented through administrative decentralization.
17. Spain features significant political decentralization, but cannot exactly be considered a federal model. In the field of education, the self-governing communities, Comunidades Autónomas (‘Communities’), may enact laws, but such laws are bound to respect national legislation—concurrent legislating powers. Moreover, the Constitution of the Kingdom of Spain: 29 December 1978 (as Amended to 27 September 2011) (Title I, Chapter II, s 1, On fundamental rights and public freedoms, Art. 27(10) (Spain)) also enshrines the principle of institutional autonomy for universities. In practice, however, the use by the Communities of their legislating powers in the field of higher education has been scarce or non-existent. National authorities, in turn, are fully responsible for decisions on academic and professional diplomas (requirements, equivalence, etc.) and for a common minimum standard for fundamental rights in the sphere of education (Constitution of the Kingdom of Spain, Title VIII, Chapter III, On self-governing communities, Art. 149(1)(xxx)). This clearly grants national authorities the power to exert significant influence on all other actors.
18. Lastly, in countries featuring administrative decentralization of education, such as Greece, the principle of autonomy, or ‘self-government’, of educational institutions becomes particularly important. The idea of autonomy of universities is common to many other jurisdictions, irrespective of the degree of territorial decentralization. Nevertheless, this autonomy is often limited by the same constitution that proclaims it, as in the Greek case. The Constitution of the Hellenic Republic: 11 June 1975 (as Amended to 27 May 2008) (Main Text, Part II Individual and social rights, Art. 16(5) (Greece)) calls universities ‘fully self-governed public law legal persons’ but immediately warns that ‘these institutions shall operate under the supervision of the [s]tate and are entitled to financial assistance from it’. The autonomy of institutions is discussed in more depth below.
19. To sum up, irrespective of how robust political and administrative decentralization in higher education may be, it is often followed by local demands that national authorities supply additional funding. In exchange, this kind of funding is used as an argument to influence a component units’ policy on higher education in many respects. As has been illustrated, the balance between decentralization, budgetary sufficiency, and national intervention is a variable one, not only across jurisdictions but also over time.
3. Core Elements of the Concept of Higher Education across Positive Constitutional Law
(a) Equal Access to Higher Education
20. Concerning access to higher education, the UDHR enshrined the principle of equality for all on the basis of merit (Art. 26(1)). Equal access is a rather common requirement when constitutions or any other laws refer to the right to education. But, given the compulsory nature of primary education and even of some stages of secondary education, equal access in those stages poses only part of the problems that can be found in the case of higher education. In fact, equality in access to higher education becomes even more crucial when considering the absence of universal availability in the higher education system and the high cost of educational programs for individuals unless these are publicly funded.
21. The French Declaration of Rights of Man and Citizen: 24 June 1793, Art. 22 (Fra) established a precedent for this idea when it required ‘society’ to ‘put education within all citizens’ reach’. The UDHR clause ‘on the basis of merit’ means, in this respect, that states must ensure that financial difficulties—and of course sexual, racial, religious, status-related etc. obstacles or biases—do not prevent talented and hard-working students from accessing, and completing, a higher education program. This idea can also be found in the Constitution of the Russian Federation: 12 December 1993 (as Amended to 21 July 2014 (Main Text, s I Chapter 3, The Federal Structure, Art. 43(3) (Russ)), which nevertheless uses a different wording: ‘[e]veryone shall have the right to receive on a competitive basis a free higher education in a state or municipal educational establishment and at an enterprise’. According to this interpretation, equal access to higher education is more likely to be construed as an equivalent to equal opportunities, rather than to universal or even general access.
(b) Establishment of a School System by Public Authorities, and Free-of-Charge Higher Education
22. Some constitutions create an obligation for public authorities to establish higher education facilities. In Germany, this can be found in particular in state constitutions, such as the Constitution of the Free State of Bavaria 2 December 1946 (as Amended to 10 November 2003) (Main Text, Third Part, Chapter 2, Education, School, Protection of Nature and Cultural Tradition, Art. 138 (Ger)). In some cases, it is even required that such facilities be ‘sufficient’, which does not necessarily exclude the existence of private schools or universities—for example, the Constitution of Sachsen-Anhalt 16 July 1992 (as Amended to 5 December 2014) (Main Text, Second Part, Chapter 2, Institutional guarantees, Art. 31(1) (Ger)): ‘[t]he state (Land) must establish, sustain and promote institutions of higher education … Other owners are admissible’.
23. Nevertheless, some jurisdictions limit or at least regulate the possibility of creating private universities. The Bolivian Constitution (Main Text, Chapter VI, Education, Interculturalism and Cultural Rights, s II, Art. 94(I)) requires private universities to ‘observe policies, programs[,] and authorities of the education system’ and subjects their authorization to a governmental decision that must verify the fulfilment of legal requirements. There are even extreme cases, such as the Greek prohibition of private universities; pradoxically, the same constitution that guarantees teachers’ freedom against any political interference also includes the following provision: ‘[t]he establishment of university level institutions by private persons is prohibited’ (Constitution of the Hellenic Republic, Main Text, Part II, Individual and social rights, Art. 16(8)).
24. Returning to the establishment of publicly-owned institutions of higher education, this idea is sometimes linked with free-of-charge education in such facilities. The Preamble to the Constitution of the French Republic: 27 October 1946, Preamble (Fr), still in force, considers public, free-of-charge and secular education in all stages as a duty of the state; and the Constitution of the Dominican Republic: 13 June 2015, Main Text, Title II, Chapter I, s II, On Economic and Social Rights, Art 63(3) (Dom Rep) directs the state ‘to ensure free-of-charge public education’ and proclaims that ‘public higher education will be funded by the state’.
25. Concerning sufficiency of funding for higher education, one of Brazil’s state constitutions, that of Rio Grande do Sul, displays a highly original obligation for the state: ‘[t]he state shall allocate 75 [per cent] of the resources of the aforementioned (State Fund for Social Development, financed with federal allocations from gas exploration) to public education’ (Constitution of the State of Rio Grande do Sul: 3 October 1989 (as Amended to 6 April 2016) Main Text, Title V, Chapter II, On public finances, Art. 148-A (Braz)).
26. Other Latin American jurisdictions have come up with more open formulations, such as the Bolivian obligation to ‘sufficiently’ fund public universities without taking into consideration any other resources they may receive—which, however, does not necessarily imply free tuition for students (Constitution of Bolivia, Main Text, Chapter VI, Education, Interculturalism and Cultural Rights, s II, Art. 93(I) (Bol)). The wording of the Colombian constitution, on the other hand, seems more ambiguous: ‘education shall be free in state schools, but tuition fees will be charged to those who can afford them’ (Constitution of the Republic of Colombia: 20 July 1991 (as Amended to 31 July 2012, Title II, Chapter 2, On Social, Economic and Cultural Rights, Art. 67 (Colom)). Lastly, in the case of Mexico, the state shall merely ‘promote and attend to every kind and form of education—including pre-primary education and higher education—which are necessary for the development of the nation’ (Political Constitution of the United Mexican States: 5 February 1917 (as Amended to 24 February 2017), Main Text, Title I, Chapter I, Fundamental Rights, Art. 3(V) (Mex)).
(c) Higher Education, Freedom of Scientific Research, and Freedom of Teaching
27. Freedom of teaching may refer to the possibility of private individuals to start and manage schools, and also to the relationship between teacher and pupil. This second meaning is close to a broader right such as freedom of expression and is an equivalent to the Spanish libertad de cátedra or the German Freiheit der Lehre. The German conception reveals that freedom of teaching is deeply connected to freedom of scientific research; indeed, freedom of teaching has been proclaimed in the same sentence as freedom of scientific research and artistic freedom (Weimar Constitution 11 August 1919, Main Text, First Part, First Chapter, Empire and states, Art. 10(1) No 2 (Ger)).
28. Freedom of teaching is enormously relevant for educational and political pluralism, but also as an important manifestation of general freedom, especially within the ‘constitutional state’ model. Democracy is not merely an organizational structure, but a whole political system rooted in each polity’s specific cultural values, perhaps with some common features such as a certain comprehension of the right to freedom or the recognition of legal equality. Hence, freedom to study, research, learn, and teach are key to the health of any democratic system. This link was brilliantly established by the European Court of Human Rights in the case of Kjeldsen, Busk Madsen and Pedersen v Denmark (ECtHR) (1976), when it stated that:
[t]he second sentence of Article 2 aims in short at safeguarding the possibility of pluralism in education[,] which possibility is essential for the preservation of the [‘]democratic society[‘] as conceived by the Convention. In view of the power of the modern [s]tate, it is above all through [s]tate teaching that this aim must be realised (para. 50).
29. The importance of protecting teachers’ freedom to study and teach from political repression is well established in the Constitution of the Hellenic Republic (Main Text, Part II, Individual and social rights, Art. 16(6)) (Greece): ‘[p]rofessors of university level institutions shall not be dismissed prior to the lawful termination of their term of service, except in the cases of the substantive conditions provided by [A]rticle 88, para. 4[,] and following a decision by a council constituted in its majority of highest judicial functionaries, as specified by law’.
30. The judiciary has dealt with this kind of conflicts in many jurisdictions, which have given rise to significant rulings that define the relationship between democracy, on one hand, and free speech and scientific research on the other—for example, the Greek leading case on denial of Holocaust (Ruling No. 3/2010 by the Areios Pagos (Supreme Civil and Criminal Court) (2010) (Greece)); the US Supreme Court Sweezy v New Hampshire (1957) (US); or the case of Professor Sérgio Cidade de Rezende during the Brazilian dictatorship (HC 40910 (Supreme Federal Tribunal of Brazil) (1964) (Braz) (Calabria 337–342)).
(d) Autonomy of Institutions
31. The principle of autonomy of universities and other institutions of higher education is often linked with the debate on scientific freedom. The autonomy of higher educational institutions has been recognized as a fundamental right in some cases, as in the Constitution of the Kingdom of Spain (Title I, Chapter II, s 1, On fundamental rights and public freedoms, Art. 27(10)). Setting aside the dogmatic debate on the legitimacy of conferring fundamental rights to institutions, and not only to individuals, autonomy has been claimed to reinforce moral independence from political power: ‘[i]t is a tremendous historical achievement to have institutionalized such an elusive and impersonal norm, one that so often violates tradition, challenges authority, and constrains personal impulse while abnegating any particular moral creed or political belief’ (Alexander 465).
32. However, it should be considered that state funding has traditionally been crucial to most institutions of higher education (Volkwein 525). Indeed, returning to Spain’s consideration of autonomy as a fundamental right, autonomy has been depicted as a ‘myth’ by Sosa Wagner, who considers that emphasis on the rights of institutions promotes provincial attitudes and disciplinary fragmentation of the epistemic community, and instead suggests to focus on the individual freedoms of scientific research, teaching, and expression.
33. In more practical terms, it might be interesting to consider what the scope of autonomy can be vis-à-vis governments or parliamentary bodies. Different Latin American constitutions provide interesting elements in this respect. The powers granted by such autonomy are certainly subject to parliamentary acts on higher education, as required by the Political Constitution of the Republic of Peru: 29 December 1993 (as Amended to 5 April 2005) Main Text, Title I, Person and Society, Art. 18 (Peru). But the fact of being mentioned in constitutions does not even necessarily keep universities completely independent of government regulations, though it may encompass significant powers, as some constitutions illustrate.
34. Indeed, the Constitution of the Republic of Colombia (Title II, Chapter 2, On Social, Economic and Cultural Rights, Art. 69 (Colom)) is helpful in this respect: ‘[t]he autonomy of universities shall be ensured. Universities may pass their own regulations and they shall be governed according to their own bylaws, in conformity with the law’. The Bolivian Constitution (Main Text, Chapter VI, Education, Interculturalism and Cultural Rights, s II, Art. 92(I)) is in turn particularly rich:
[p]ublic universities are autonomous and equal in hierarchy. Autonomy includes free management of their resources; appointment of academic authorities, teaching staff and administration staff; drafting and passing its own bylaws, teaching programs and annual budget; accepting bequests and donations as well as signing contracts for the fulfilment of the university’s aims and to maintain and improve its institutes and schools.
35. But it is the Political Constitution of the United Mexican States (Main Text, Title I Chapter I Fundamental Rights, Art. 3(VII)) that appears to have captured the essence of autonomy when it states that:
[u]niversities and other higher education institutions … shall achieve their aims to educate, research[,] and spread culture in conformity with the provisions of this article and with respect to freedom of teaching [libertad de cátedra] and research[,] and to the free examination and discussion of ideas.
C. Historical Evolution of the Concept of Higher Education in Comparative Constitutional Perspective
37. The history of higher education, and specifically that of universities, has been one of a continuing struggle for both independence and support from political power. This is a complex relationship, where political and academic forces have sometimes helped but at the same time tried to influence or even control each other.
38. The origins of the current idea of university can be traced to the eleventh, twelfth, and thirteenth centuries in the European territories. It has even been said that the university is ‘the European institution par excellence’ and ‘the only European institution that has preserved its fundamental patterns and its basic social role and functions over the course of history’ (Rüegg, vol. 1, xix). The universities of Bologna, Oxford, and Salamanca are commonly believed the first to have started teaching, around the end of the eleventh century or the beginning of the twelfth, although they only received royal or papal recognition much later (Oxford and Salamanca, for instance, in 1254).
39. Nevertheless, the first constitution to mention universities was the Constitution of Pennsylvania: 28 September 1776, Main Text, s 44 (US): ‘[a]nd all useful learning shall be duly encouraged and promoted in one or more universities’. A few decades later, the Political Constitution of the Spanish Monarchy (Spanish Constitution of 1812) 19 March 1812, Main Text, Title IX, Public Instruction, Arts 367 and 368 (Spain) mandated the following: ‘it shall be arranged and established a relevant number of [u]niversities and other instruction institutions that are judged convenient for the teaching of all sciences, literature and fine arts’ and that this ‘[p]olitical [c]onstitution of the [m]onarchy shall be taught in all [u]niversities and literary establishments where ecclesiastical and political sciences are taught’. These two constitutions already showed a clear understanding of the significance of universities for social development and welfare; indeed, they linked the establishment of universities to the promotion of ‘convenient’ or ‘useful learning’, but at the same time the 1812 Spanish Constitution seemed well aware that its own fate could depend on gaining acceptance among the future clergy and bureaucracy of the Spanish monarchy.
40. During the nineteenth century, Napoleon’s government took important steps toward the control of education by the state. To this aim, a brand new teaching corps was organized under the name of Université impériale, also known as Université de France, and regulated in the Act on the Establishment of an Imperial University and on the Specific Obligations of the Members of the Teaching Corps 10 May 1806 (Fra), the Imperial Decree on the Organization of the University 17 March 1808 (Fra), and the Imperial Decree Containing the Bylaws for the Imperial University 17 September 1808 (Fra). This new corps was conceived as an instrument for major social and political change in the country, as the report submitted to the Emperor by Minister Champagny together with the bill proposal shows: ‘[t]here shall be no stable [fixe] political state if there is not a teaching corps with stable principles’, and ‘the teaching corps being one, the spirit that shall guide it shall necessarily be one and, hence, the new teaching corps shall necessarily prevail over the old corporations’.
41. Some decades later, the Parliament of the United Kingdom passed an Act to make further Provision for the good Government and Extension of the University of Oxford, of the Colleges therein and of the College of Saint Mary Winchester (7 August 1854) (UK). The Oxford University Act is another interesting example of how the state sought to influence universities, although clearly less authoritarian than the French laws on the Université impériale—indeed, it empowered the university to make statutes regulating ‘private halls’, licensed denominational institutions within the university, as well as other matters (s XXVII). Nevertheless, the Act also required that ‘[a]ll [r]egulations, [o]rdinances[,] and [s]tatutes which shall be so published in the London Gazette as aforesaid shall be at the same [t]ime laid before both Houses of Parliament’ (s XXXVI).
42. It was not until the twentieth century that the Weimar Constitution (1919), (Constitution of the German Empire: 11 August 1919, Main Text, First Part, First Chapter Empire and states, Art. 10(1) No 2 (Ger)) brought a much more flexible conception of the relationship between universities and political power. Indeed, Art. 10 allowed the Empire to enact principles (Grundsätze) for ‘the school system, including higher education and scientific libraries’ but at the same time Art. 142 proclaimed that ‘art, science and the teaching thereof are free’ and that ‘the state grants them protection and will participate in supporting them’ (Constitution of the German Empire: 11 August 1919, Main Text, Second Part, Fourth Chapter, Art. 142(1) (Ger)).
43. The Weimarian idea of scientific freedom and freedom of teaching has been received in the Basic Law in almost identical terms, stressing only that ‘freedom of teaching does not rid of loyalty to the Constitution’ (Art. 5(3)). This may certainly be a logical reaction to the connivance of much of academia in the 1930s with national socialist policies, as described by Abendroth and other German professors in an important book edited by Tröger in 1984.
44. Indeed, despite this advanced understanding of academic freedom in the Weimar Constitution, German universities suffered one of the most horrible purges in world history during the Nazi regime, which targeted both professors (Grüttner and Kinas 123) and students. Among students, the White Rose movement and the Scholl siblings are particularly famous for standing up against the Nazis in 1942 and then facing repression and even death (Scholl 11). These purges were preluded by the burning of thousands of books considered ‘un-German’ on the night of 10 May 1933, perpetrated by a crowd of students in the presence of the Minister of Propaganda Joseph Goebbels (Tress 122).
45. After the Second World War, the second half of the twentieth century brought widespread constitutional acceptance of the principle of university autonomy, as has been aforementioned. However, beyond formal recognition of university autonomy, the scope of this legal concept may largely vary from one jurisdiction to another.
46. Lastly, the bond between higher education, freedom of teaching, and cultural inheritance has recently developed into new forms. Indeed, the government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca—a political party representing the country’s four major guerrilla groups—signed an Agreement on Identity and Rights of Indigenous Peoples on 31 March 1995 (Guat). Part III of this agreement comprises several ‘cultural rights’ and, in s G para. 3, the parties agree to ‘promote the establishment of a Mayan [u]niversity’. It took nearly two decades to accomplish, but in February 2014 the first thirteen technicians in Community Rural Development graduated from the Universidad Ixil, thus ensuring that ancient Mayan knowledge has been preserved at least for another generation.
D. Present Role of the Concept of Higher Education
47. Democracy and human rights exercise a decisive influence on how the complex relationship between political power and higher education is nowadays understood.
48. Firstly, the inclusion of human rights in constitutions has provided the theoretical conception of higher education with a new impetus. Higher education and universities now serve, in theoretical terms, the idea of individual freedom at some of its highest expressions. As has been illustrated in previous sections, freedom of conscience and religion or belief, freedom of expression, freedom of scientific research, freedom of teaching, and the free development of personality constitute both the aim and the inspiration of contemporary higher education systems, at least in democratic societies. Nevertheless, every historical moment has its own difficulties, and hence universities and higher education institutions currently face specific challenges in practice, as will be explained later.
49. Secondly, on a collective level, higher education is expected to serve many political and economic purposes. Among those of a more political nature, the preservation and improvement of democracy holds a prominent position, although this relationship is not always made explicit. The Constitution of the Dominican Republic (Main Text, Title II, Chapter I, Section II, On Economic and Social Rights, Art. 63(9)) includes the following statement among its provisions on the right to education: ‘[t]he state shall define policies to promote and encourage research, science, technology[,] and innovation that favour sustainable development, human wellbeing, competitiveness, institutional strengthening[,] and the preservation of the environment’. Important as they are, these ideas only express a more collective perspective on the dialectic relationship between freedom and higher education.
50. More generally, some constitutions expressly mention, or at least imply, the notion of ‘social development’. The Bolivian Constitution (Main Text, Chapter VI, Education, Interculturalism and Cultural Rights, Art. 91(I)) is again very rich:
[h]igher education develops processes of vocational training, of generation and dissemination of knowledge oriented to a comprehensive development of society. To this aim, it shall take in consideration universal knowledge and collective wisdom of indigenous aboriginal peasant peoples and nations.
51. Less explicit, the Constitution of the Islamic Republic of Iran: 24 October 1979 (as Amended to 28 July 1989) (Main Text, Chapter III, The rights of the people, Art. 30 (Iran)) seems, however, aware of the importance of higher education for a country’s progress and political independence: ‘the government … must expand free higher education to the extent required by the country for attaining self-sufficiency’.
52. Concerning economic development, the Political Constitution of the Republic of Peru (Main Text, Title I, Person and Society, Art. 18) proclaims that ‘the aims of university education are vocational training, the promotion of culture, intellectual and artistic creation[,] and scientific and technological research. The state guarantees freedom of teaching and rejects intolerance’. The significance of higher education as training and preparation for future workers is also stressed in other jurisdictions: the Constitution of the Russian Federation (Main Text, s I, Chapter 3, The Federal Structure, Art. 43(2)), for instance, speaks of general access to ‘high vocational education’; and the Bolivian Constitution emphasizes that the mission of higher education is to provide ‘comprehensive training of human resources with a high qualification and professional skills’ (Main Text, Chapter VI, Education, Interculturalism and Cultural Rights, Art. 91(II) (Bol)).
E. Assessment of the Concept of Higher Education and its Impact on the Political and Legal Order
53. Among the many features and aims of current higher education systems, at least three controversial areas of tension should be mentioned: internationalization versus national and local needs; competition and utilitarianism versus scientific freedom and freedom of teaching; and democratization of knowledge versus reproduction of inequalities.
54. Internationalization is a relatively new term for a phenomenon that has been inherent to universities from their very beginnings. Nevertheless, the ways universities, individuals, and governments engage in international activities are changing (Olson 95). The number of international agreements between universities grows every year, with various motivations: research networks, student mobility, or teaching exchanges are likely the most important among them. The European Union’s very successful Erasmus program is one of the best examples, now including not only students but also teachers, postgraduates, and internships. This growing interest in international mobility has also given rise to multiple different international rankings, allegedly trying to inform the public about the best universities worldwide, but nonetheless often motivated by the desire to impose a specific model and hence attract investment, students, or both, to a certain kind of university fulfilling the criteria favoured by that particular ranking. Internationalization of higher education certainly helps create a global community (demos), but it can also reinforce a specific social, economic, and political model over others which could be equally—or even more—valid for different regions and societies. ‘Brain drain’ is a powerful example of these risks.
55. Competition is partly a consequence of internationalization, but also of the growing number of universities around the world. Higher education is often believed to be a means for individual ascent in society, and hence students and companies increasingly expect and demand high practicality of the educational capital that universities provide. Universities thus tend to favour market demands, by including new teaching programs and prompting their teaching staff to constantly adapt their methods and syllabi. This trend clashes with the traditional ideas of humanistic knowledge and the ‘pursuit of truth’, but also with scientific freedom and freedom of teaching, two fundamental rights of those who spend a great part of their lives studying and researching.
56. Nevertheless, competition and internationalization do not suffice to understand how higher education systems work. The impact of human rights—general and equal access to education, non-discrimination, etc.—and a global rise of (public) expenditure in higher education may lead to progressive ‘democratization’, which certainly has at least two extremely desirable effects: supplying the market with highly qualified workers, and at the same time raising the educational and cultural capital of the population and generally boosting the possibilities for individual freedom.
57. But there are also risks. Indeed, when higher education ceases to be seen as a privilege and begins to be considered an unconditional right, there is a possibility that its beneficiaries begin to undervalue the collective effort behind it. This phenomenon, together with the aforementioned fierce competition between universities, may in turn lead to universities putting pressure on teachers to lower examination standards and thus result in a general devaluation of higher education. In such cases, the democratization of higher education would, paradoxically, not reverse the ‘reproduction’ of power relations that Bourdieu and Passeron brilliantly criticized in the 1970s; instead, given that higher education diplomas would be relatively common, social stratification would happen on the basis of pre-existing connections and not of academic achievement.
58. This enormous complexity of interests impacts on the governance of higher education, which tends to adopt a formalistic approach. Thus, many decisions concerning teaching staff are made based on anonymous peer review processes of documents (Sachs and Parsell 2), rather than thorough examinations of candidates; international university rankings are often used in a simplistic manner to justify many, sometimes even contradictory, political views on education; and the ‘rhetoric of excellence’ has banished the standard of ‘reasonable’ achievements from the legal and political discourse on higher education.
- Abendroth, W, ‘Die deutschen Professoren und die Weimarer Republik’ in Tröger, J, (ed.), Hochschule und Wissenschaft im Dritten Reich (Campus 1984) 11.
- Alexander, JC, ‘The University and Morality. A Revised Approach to University Autonomy and Its Limits’ (1986) 57 The Journal of Higher Education 463.
- Bourdieu, P, and Passeron, JC, La reproduction. Éléments pour une théorie du système d’enseignement (Les Éditions de Minuit 1970).
- Buisson, F, (ed.), Nouveau dictionnaire de pédagogie et d’instruction primaire (Hachette 1911; Electronic Edition by the Institut Français de l’Éducation).
- Calabria, C, ‘University and academic freedom during the Brazilian dictatorship’ in Meix Cereceda, P, and De Groof, J, (eds), Religious and ideological rights in education. Judicial perspectives from 32 legal systems (Wolf 2017) 337.
- Grüttner, M, and Kinas, S, ‘Die Vertreibung von Wissenschaftlern aus den deutschen Universitäten 1933–1945’ (2007) 55 Vierteljahrshefte für Zeitgeschichte 123.
- Knight, J, ‘The changing landscape of higher education internationalisation—for better or worse?’ (2013) 17 Perspectives: Policy and Practice in Higher Education 84.
- Lozano, B, La libertad de cátedra (Marcial Pons 1995).
- Meix Cereceda, P, and De Groof, J, (eds), Religious and ideological rights in education. Judicial perspectives from 32 legal systems (Wolf 2017).
- Meix Cereceda, P, Derechos fundamentales y descentralización de la enseñanza. Un estudio de Derecho Comparado entre España y Alemania (Instituto Nacional de Administración Pública 2013).
- Olson, J, Biseth, H, and Ruiz, G, (eds), Educational Internationalisation. Academic Voices and Public Policy (Sense 2015).
- Rudy, W, The Universities of Europe, 1100–1914 (Associated University Presses 1984).
- Russo, CJ, (ed.), Encyclopedia of Law and Higher Education (SAGE 2010).
- Rüegg, W, (ed.), A History of the University in Europe 4 vols (Cambridge University Press 1992).
- Sachs, J, and Parsell, M, (eds), Peer Review of Learning and Teaching in Higher Education: International Perspectives (Springer 2014).
- Scholl, I, Die weiße Rose (Fischer 1993).
- Sosa Wagner, F, El Mito de la Autonomía Universitaria (Thomson Civitas 2007).
- Task Force on Federal Regulation of Higher Education, Recalibrating Regulation of Colleges and Universities (2015) www.availableatacenet.edu (13 December 2017).
- Tress, W, Wider den undeutschen Geist. Bücherverbrennung 1933 (Vorwärts Buch 2008).
- Volkwein, JF, ‘Campus Autonomy and Its Relationship to Measures of University Quality’ (1986) 57 The Journal of Higher Education 510.
- Zoontjens, PJJ, ‘Prestatiebekostiging in het hoger onderwijs’ (2014) 1 Ars Aequi 64.
- HC 40910 (24 August 1964) (Braz).
- Kjeldsen, Busk Madsen and Pedersen v Denmark (ECtHR) (7 December 1976) App 5095/71 5920/72 and 5926/72.
- Ruling No. 3/2010 (Areios Pagos (Supreme Civil and Criminal Court of Greece) Plenary Session—Criminal Law) (4 March 2010) (Greece).
- Sweezy v New Hampshire (1957) 354 US 234 (US).