Students can face serious consequences from their educational institution. In cases of ‘serious fraud’, a university or college can even expel students. But is this a punishment or an attempt to teach the student something?
The Council of State has formulated a new legal answer to this age-old question. Last Wednesday, the highest education court ruled that sanctions from educational institutions should now be regarded as a ‘restorative’ measure and therefore not as a punishment. This occurred in a case involving Fontys University of Applied Sciences against a fraudulent student, which was first reported by the Fontys magazine Bron.
'Pedagogical'
In its ruling, the Council of State states that the regulations of educational institutions have a ‘formative and educational character’. They are not part of criminal law, and thus any sanctions are more ‘pedagogical and disciplinary’ in nature.
This has implications for the legal protection of students, say various education lawyers. Until now, the Council of State believed that fraudulent students should be treated as if they were involved in a kind of criminal case, with all the procedural safeguards that entails.
For instance, students had the right to all legal documents, and the educational institution had to explain in understandable terms what they were being accused of. Additionally, examination committees had to warn their students that they had the right to remain silent and were not obliged to cooperate in their own conviction.
Overboard
These are all principles from criminal law that are now being cast aside in higher education, says education lawyer Job Buiting in response to the ruling. Endowed professor of education law Pieter Huisman also points this out in a response on LinkedIn.
“Educational institutions had become accustomed to approaching students in a more criminal law manner due to earlier rulings by the Council of State”, says Job Buiting. “Based on this ruling, they will adjust their practices.”
Character formation
The Council of State is making this shift in a ruling regarding a student who fabricated positive feedback from his internship supervisors. While it was not disputed that he committed fraud, the student argued that the examination committee at Fontys did not inform him of his rights in a timely manner and that he did not receive all the legal documents.
The old Council of State would have ruled in his favour, as the judgement states explicitly. However, the court has reassessed European law and concluded that disciplinary measures at school should be viewed as a contribution to the learning process and character development of students. Criminal law standards regarding the right to remain silent and such are not applicable.
This applies even in cases of fraud with the harshest possible sanction: expulsion. “While the definitive termination of a student’s enrolment is a significant decision, the student can follow the same or a similar programme at another educational institution.” Therefore, even this sanction has more of an educational rather than a punitive character, according to the court.
Not fair game
This new insight doesn’t turn students into fair game. The Council of State warns that the ‘general principles of proper governance’ continue to apply. These stipulate that an educational institution must follow a ‘careful’ procedure when there’s a suspicion of fraud. Students still have the right to be informed in a timely manner of which rules they are suspected of violating according to the examination committee.
The burden of proof has not changed either, emphasises the court. Educational institutions must still establish ‘beyond reasonable doubt’ that students have violated the rules before they can impose sanctions. These sanctions must then be justifiable and proportionate to the violation.
Fontys
The ruling could potentially give examination committees more leeway to engage with fraudsters, writes Bron, the magazine of Fontys University of Applied Sciences. Marlies Hesseling-Hertsenberg, a legal expert for Fontys who secured this victory at the Council of State, states that the institution prefers not to treat students as ‘suspects’, but as future professionals.
“When we impose a measure, it is always with the intention of prompting the student to reflect on their behaviour, so that they can learn from it and improve their conduct”, the lawyer asserts.
