ACADEMIC AND EXAMINATION MATTERS
Several university and college students contacted our Office protesting
the decisions of higher educational institutions adopted in academic and
examination matters.
We received a number of complaints in connection with the class registration
and examination signing-up procedures of higher educational institutions,
which are an indispensable framework and a prerequisite for exercising
the rights and fulfilling the obligations of students. We often found
that the deficiencies of regulations and organisation in this subject
area jeopardise the educational rights of students, and may even lead
to their negative discrimination and to the infringement of their human
dignity.
| With reference to the
above, we launched a comprehensive investigation in this subject
area in the Year 2001 ex officio. In the course of this investigation
we requested written information from every higher educational institution
in Hungary on the regulation of class registration and on the practice
of their organisation. In addition, we paid personal visits to several
universities and colleges, conducted investigations in metropolitan
and rural institutions operated by the state or other entities.
We met the heads of institutions, tutors, students, representatives
of students' governments, and employees of the institutions involved
in the administration of signing up. This investigation is still
underway. (K-OJOG-247/2001) |
In connection with the evaluation of examinations, we always stressed
that, pursuant to Section c) of Paragraph (2) of Article 32 of the Act
on Higher Education, the assessment of students' work and achievement
is the tutor's right, thus the assessment of examination performances
may not be reviewed by the Commissioner for Educational Rights. This autonomy
of the tutor is, however, limited by the procedural provisions stipulated
in legislation and in institutional regulations. Our Office may investigate
the violation of the latter rules.
| A student complainant
stated that they were unable to take advantage of the examination
paper review option provided for in the study and examination regulations
of a higher educational institution since at the time of inspecting
the paper in question, they were not given an actual opportunity
to review its assessment and was denied a copy thereof even after
an explicit request. According to the statement of the head of the
particular higher educational institution, the complainant was presented
with an actual and true opportunity for inspecting their paper and
for the review of its assessment on the basis of the marking scheme
displayed; the complainant asked a question in the course of this
inspection, which were answered and explained by the teacher in
charge of the subject. The Director also informed our Office that
the college refused to issue a copy because the assessment of students'
academic work and achievement was the tutor's right, thus it may
not be reviewed by anybody else and since examination papers were
regarded as "confidential in-house material".
Since the complainant and the Director gave conflicting statements
to our Office with regard to the method of inspection, we could
not establish the infringement of the student's educational rights
in this respect. However, with regard to the copy of the paper,
the two parties gave concordant statements: the college refused
to issue it even at the student's explicit request. According to
the study and examination regulations, students are entitled to
inspect tests, in-class assignments and essays, while the tutor
is obliged to review the marks given in case of any mistakes made
during the marking. Students may word an application for the said
review on the basis of the inspection. In order for the students
to be able to word such application after adequate preparation,
in possession of the required tools and time, the said inspection
may not be limited to the mere reading and examining of the paper
and its assessment in college premises within the set timeframe.
Such inspection must necessarily extend to the possession of the
paper, i.e. the rendering of a copy available. According to the
statement of the Director, the issuing of a copy was refused, on
the one hand, because the assessment of students' academic work
and achievement was the tutor's right, thus it may not be reviewed
by anybody else. Tutor's autonomy, however, does not preclude access
to a paper by third party, including another tutor, assisting the
students in writing the application aimed at the review of marking
errors. Papers written by students may not be regarded as "confidential
in-house materials" either. They are the personal data of the students
involved, which the students dispose of. The college, as data manager
is obliged to inform the students in accordance with Articles 12
and 13 of Act LXIII of 1992 on Protection of personal data and on
publicity of data of public interest. On the basis of the above,
we established that the college acted illegally when it refused
to issue a copy of the paper to the student and thus denied the
student the right to word an application on its merit for the review
option provided for in the study and examination regulations. With
a view to the above, we initiated an action that the college issue
a copy of the paper to the student complainant and ensure the opportunity
for the student to take advantage of the review opportunity provided
for in the study and examination regulations. We also initiated
that the college issue copies of papers to the students within the
scope of inspecting their papers in the future, if they so request.
The institution accepted our initiative. (K-OJOG-338/2001 ) |
The students contacting our Office mostly identify complaints related
to the completion of their studies. Our Office was contacted primarily
in instances when the proceedings or measures of a higher educational
institution jeopardised their obtaining a degree. Several students contacted
our Office with the assessment of their thesis or an application concerning
the course of their final examination. Similarly to last year, we received
a large number of applications this year identifying complaints or questions
related to the language requirements stipulated as conditions for entering
the final examination. The language examination requirements needed for
the obtaining of a degree may have two sources. On the one hand, the qualification
requirements set forth in Government Decrees resolve language examination
requirements, in a bottom-up system, as conditions for entering the final
examination; while, on the other hand, the higher educational institutions
may also set language requirements stricter than the stipulations of the
qualification requirements(4). We believe
it is important to reiterate that the introduction of language examination
requirements alone has not injured the educational rights of students.
| It may not be regarded
as discriminating nor does it cause any infringement of educational
rights that the Government Decrees specifying the qualification
requirements resolve different language examination requirements
for the students of different majors since the legislator's intention
indeed took the specific features of each major and area of science
and the different extent of the necessity of the command of a language
into account. (K-OJOG-49/2001) |
This year, we concluded in two cases that the threat of the infringement
of educational rights are posed by the Government Decrees specifying the
qualification requirements themselves. We identified a legislation proposal
in both cases.
| Students protested that
they were required to pass a language examination in order to enter
the final examination. With respect to students majoring in foreign
economy, Government Decree 4/1996 (I. 18.) stipulates that "the
condition of entering the final examination is a comprehensive language
examination in at least two foreign languages with specific-purpose
extension or equivalent language examination certificates, one of
which can be replaced by a higher level Type C state or equivalent
language examination certificate". The students protested that they
did not have the opportunity to fulfil language requirements within
the institution in the form of a comprehensive examination. We established
that the equivalence of a comprehensive language examination with
a language examination certificate was resolved in MM Decree 3/1980
(X. 25.) of the Minister of Culture, which, however, was annulled
by Government Decree 71/1998 (III. 8.). Thus the language requirements
stipulated as the condition of entering the final examination may
not be fulfilled in the form of a comprehensive examination any
more, only by obtaining a language examination certificate recognised
by the state. However, Government Decree 4/1996 (I. 18.) still uses
the term "comprehensive language examination", which could have
given rise to the wrong assumptions being made by the students.
Thus the requirement for the drafters of the application to obtain
a language examination certificate causes no infringement of a right,
however, the improper use of terminology in the legislation may
result in the infringement of the educational rights of students
of higher educational institutions. Therefore we brought a proposal
to the Minister of Education to review the Government Decrees on
the qualification requirements of various areas in order to make
the legal regulations unambiguous after the necessary amendment
of legislation. The Minister accepted our finding. (K-OJOG-122/2001)
Our Office received a number of complaints and questions in connection
with the interpretation of Government Decree 157/1996 (X. 22.).
Section 5.3.1 of Appendix 1 to Government Decree 157/1996 (X. 22.)
on the qualification requirements of the undergraduate majors of
higher education in technical sciences resolves the conditions of
entering the final examination in the undergraduate majors of higher
education in technical sciences. According to Sub-section a), an
intermediate-level Type C state or equivalent language examination
certificate in at least one foreign language is required at university
level. According to Sub-section b), a foundation-level Type C state
or equivalent language examination certificate in again at least
one foreign language is required at the college level. Paragraph
(3) of Article 5 of the Decree stipulates that "The conditions of
entering the final examination at college level, as defined in Sub-section
b) of Section 5.3.1 of Appendix 1 shall be applied with regard to
the equivalence requirement of language examination certificates
in foreign languages in line with the stipulations of Sub-section
a) of Section 5.3.1 as of September 1st, 1998."
It follows from the above that until September 1st, 1998, the Decree
regulated language requirements differently depending on whether
the training was offered at university or college level. In case
of university training, an intermediate-level, in case of college
training, a foundation-level language examination certificate was
required. However, the Decree introduced new rules as of September
1st, 1998: the conditions of entering the final examination at college
level must be applied with regard to the equivalence requirement
of language examination certificates in foreign languages in line
with the university level. It follows clearly from the above that
after September 1st, 1998, the previous college-level requirements
are not applicable anymore since the legislation stipulates a different
requirement with reference to these. It is, however, also certain,
that the legislation does not fully replace the condition set forth
in college training with the requirements of university-level training
since it stipulates the application of university-level requirements
with regard to the equivalence requirement only. The scope of the
term "equivalence requirement" may, however, not be established
on the basis of the legislation. The Decree specifies no further
rule in this regard, therefore the language requirements resolved
for college level after September 1st, 1998 may not be determined
unambiguously.
Students fulfilling the conditions of entering the final examination
are entitled to take the final examination and to obtain a tertiary
degree if passing it successfully. Pursuant to the Decree, the conditions
of entering the final examination cannot be determined unambiguously
and this results in the direct threat of the infringement of the
above students' rights. The legislator is authorised to resolve
this conflict. The scope of the subjects of the legislation is twofold,
the legislative process must settle the situation of both. The first
group includes students falling under the scope of the Decree in
the future, the second group includes those obliged to fulfil language
requirements under the scope of the current regulation. The room
for manoeuvre of the legislator with respect to the first group
of students is limited by the legal principle of providing an adequate
amount of preparation time if imposing new obligations or extending
existing obligations for the students. This adequate amount of preparation
time is usually provided for in law sources regulating qualification
requirements by using the bottom-up approach. With respect to the
students in the second group, the legislator is obliged to eliminate
an uncertain legal situation. Several alternative solutions present
themselves within this scope, of course, the legislator is again
bound by the requirement of providing an adequate amount of preparation
time. As the Constitutional Court stated in its AB Decision 28/1992
(IV. 30.), the requirement of providing an adequate amount of preparation
time passes the following partial obligations onto the legislative
bodies: the date of entry of the legislation coming into force must
be determined in a way which allows a sufficient amount of time
to obtain the wording of the legislation, for the law applying bodies
to prepare for the application of the legislation, and for the persons
and entities concerned by the legislation to decide how to adapt
to the provisions of the legislation and to ensure the personal
and material conditions of voluntary compliance with the law.
We suggested that the Minister of Education take the necessary measures
in order to amend the language requirements stipulated as a condition
of entering the final examination at college level in Government
Decree 157/1996 (X. 22.) on the qualification requirements of the
undergraduate majors of higher education in technical sciences.
The case is still underway. (K-OJOG-362/2001 ) |
If a higher educational institution stipulates additional language requirements
beyond the specifications of Government Decrees, then is must resolve
this in its regulations.
| Dance pedagogy students
protested that the higher educational institution demanded a language
examination certificate from them. The institution confirmed that
they demand a foundation-level Type C language examination certificate
from the students in spite of the fact that the provisions resolved
in Government Decree 105/1998 (V. 23.) on the qualification requirements
of the undergraduate majors of higher education in arts concerning
dance pedagogy majors do not include the requirement of a language
examination certificate as a condition of entering the final examination.
The institution justified this requirement by the specification
of the requirement of a language examination certificate for all
majors in the Government Decree, therefore they assumed that the
requirement missing for dance pedagogy students was a result of
a legislative error. Moreover, the institution informed the students
on this requirement orally and in writing on several accounts. It
is our position that there is no room for extending the interpretation
of the legislation, therefore a language examination certificate
may not be demanded from dance pedagogy students on the basis of
the Decree with a mere reference to informing of students orally
and in writing. With a view to the above, we initiated an action
that the college proceed in line with Government Decree 105/1998
(V. 23.) with respect to the stipulation of a language examination
certificate. The institution accepted this initiative. (K-OJOG-14/2001.)
Thus, though the regulations of the institution
may stipulate language requirements, the drafting and amendment
of these regulations as norms within the institution are also governed
by the requirement of allowing an adequate amount of preparation
time for the students concerned to fulfil additionally introduced
stricter obligations.
Senior students contacting our Office protested
that the Faculty Council amended the provisions of the study and
examination regulations (study and examination regulations) governing
the conditions of entering the final examination with immediate
effect on February 6th, 2001 by tightening the regulations through
the stipulation of two language examination certificates. The former
study and examination regulations in effect did not stipulate any
language requirements as conditions of entering the final examination,
but regulated it only as a prerequisite of issuing the diploma.
Pursuant to Paragraph (4) of Article 95 of the Act on Higher education,
the conditions of entering the final examination include, among
others, the demonstration of obtaining the command of a foreign
language as specified by the higher educational institution. Considering
the fact that the rules set forth in Government Decree 54/2000 (IV.
13.) on the qualification requirements of the undergraduate majors
of higher education in law are first applicable to first-year students
in the 2000-2001 academic year, the specification of language requirements
as prerequisites of entering the final examination or issuing the
diploma are within the scope of the institution's autonomy for the
time being, and as such, the amendment of the study and examination
regulations stipulating them.
It is our position that the higher educational institution must
comply with the general requirement in the course of its decision-making
process that an adequate amount of preparation time must be available
to the students. The duration between the announcement and the entry
into force of the decision amending requirements regulated in the
study and examination regulations must be determined in a way which
ensures that new requirements be introduced in a foreseeable and
predictable manner for the students and the students have the chance
to plan the method of their fulfilment and to fulfil them.
We established that the protested provision of the study and examination
regulations causes a direct threat of the infringement of students'
educational rights since students fulfilling all other conditions
of entering the final examination are deprived of the possibility
of taking the final examination. With a view to the above, we recommended
that the faculty amend the protested provision of its study and
examination regulations in a way rendering an adequate amount of
preparation time available to the students concerned, and accordingly,
refrain from stipulating additional obligations for students in
their senior year such as entering the final examination without
the provision of such an amount of time. We, furthermore, recommended
that, in the future, the university consider in its decision-making
the necessity of ensuring sufficient preparation time.
As a result of our initiative, the Faculty Council and the students'
government reached an agreement in order to resolve the problem
according to which senior students may enter the final examination
upon demonstrating one language examination certificate, while they
must demonstrate their second language examination certificate before
the last part of their final examination. It is our position that
the above agreement did not eliminate the infringement of rights
caused by the protested amendment of the study and examination regulations.
Since the agreement set a deadline for the fulfilment of language
requirements that was later compared to the protested amendment
of the study and examination regulations but still earlier compared
to its original provision. We still found the preparation time provided
for to be sufficient.
It is our position that the legal situation may only be restored
by allowing the fulfilment of the entire final examination without
the fulfilment of language requirements, and in line with the previous
regulation, the fulfilment of language requirements being demanded
for the issue of the diploma. The university may, of course, amend
the conditions of entering the final examination with respect to
the future by prescribing the fulfilment of language requirements
within this scope as well. It is our position that this, however,
is only possible if an adequate amount of preparation time is available
to the students concerned by the amendment of the study and examination
regulations to fulfil the amended and stricter requirements. With
a view to the above, we maintained our previous initiative, which
the institution accepted. (K-OJOG-79/2001)
|
Within the scope of cases related to language examination requirements
prescribed for the obtaining of a degree, the issue of language requirements
to be fulfilled by disabled students arose as a special and extremely
sensitive question.
| Several higher educational
institutions and students requested our assistance in resolving
the problem associated with the obtaining of a degree by disabled
students. The applicants maintained that the students of higher
educational institutions with sensory, speech or other disabilities
are unable to obtain tertiary degrees because they are not able
to fulfil the language examination requirements prescribed in the
Government Decrees resolving the qualification requirements. Thus,
for example, hearing impaired students are not capable of listening
comprehension while dyslexic students encountered extreme difficulties
in reading comprehension.
Pursuant to Article 70/F of the Constitution, the Republic of Hungary
ensures the right to education and culture for its citizens; this
right, among others, is implemented through tertiary education available
to all on the basis of their abilities and through the financial
support of those receiving education. According to the position
of the Constitutional Court, "the state must provide for the pedagogical
legislative conditions enabling the exercise of this right for all,
without any negative discrimination". [AB Decision 18/1994 (III.
31.)] Pursuant to Article 70/A of the Constitution, the Republic
of Hungary ensures human and citizenship rights to all persons residing
within its territory without any discrimination based on race, colour,
gender, language, religion, political or other beliefs, national
or social origin, wealth, birth or other status. In connection with
the prohibition of negative discrimination, the Constitutional Court
explained that "if the state establishes identity between different
situations in a manner resulting in unequal treatment by neglecting
their essential inherent differences, it creates prohibited discrimination
between persons, and is therefore unconstitutional." [AB Decision
1/1995 (II. 8.)]
Thus on the basis of the above, the legislation prescribing an identical
type of language examination certificate from, on the one hand,
students with sensory, speech or other disabilities, and from, on
the other hand, fully able university or college students as a condition
of entering the final examination, violates the constitutional principle
of the prohibition of discrimination since these two groups of students
carry essentially different abilities with respect to the language
examinations demanded as a condition for obtaining a diploma.
With a view to the above, we approached the Minister of Education
with a legislative proposal to initiate the amendment of legislation
concerning the problem by ensuring the opportunity for university
and college students with sensory, speech or other disabilities
to demonstrate their command of a foreign language in a manner conforming
to their abilities, without waiving the foreign language requirements.
The Minister of Education accepted this. (K-OJOG-198/2001) (5) |
(4) The amendment of the Act on Higher
educational altered the provisions governing language examination criteria
as of January 1st, 2002. According to the text in effect, the criteria
for entering the final examination include the successful completion of
examinations specified in the syllabus and the fulfilment of other study
requirements or beyond the obtaining of specified credit points, the proof
of obtaining a language examination certificate recognised by the state
as stipulated in another piece of legislation. It is our position that
on the basis of legislation currently in effect, no clear position can
be taken as regards the language examination requirements associated with
the entering of a final examination (obtaining a degree) since, on the
basis of legislation, the scope of authority of higher educational institutions
concerning the regulation of language requirements is not clear. With
a view to the above, we launched an investigation in this regard since
our Office has received a number of similar complaints.
(5) As a result of legislative work, Act XCI of 2001
on the amendment of the Act on Higher education entered into force on
January 1st, 2002, pursuant to which the Minister of Education is authorised
to determine the conditions ensuring equal opportunities required for
the pursuit of studies by disabled students with a particular view to
entrance examination criteria, the fulfilment of the technical and practical
requirements of training, and the establishment of an unobstructed environment.
According to this statutory authorisation, the decree of the Minister
of Education to be adopted in the future may include the regulation of
special language requirements set forth for disabled students.
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