HIGHER EDUCATION
Twenty-nine percent of all petitions concerned the field of higher education, which is similar to the situation of the previous years. Their number and ratio show an increasing trend.
ENTRANCE INTO HIGHER EDUCATION INSTITUTIONS
The legal basis of the entrance into higher education institutions is the rule laid down in Section c) of Paragraph (2) of Article 64 of the Higher Education Act. Pursuant to the Act, specification of the admission criteria is a specific case of the manifestation of the autonomy of higher education institutions. Institutions establish on their own authority their target intake, and select future students from the group of candidates at their own discretion. Naturally, these must take place within the framework provided by the applicable laws. Autonomy does not mean, however, that institutions are not required to respect the general legal principles and the provisions laid down in legislation concerning the admission procedure. In addition to the Higher Education Act, another fundamental legal source of rights in this field is Government Decree 269/2000. (XII. 26.) laying down the general rules for the admission procedures of higher education institutions (hereinafter referred to as 'Admission Decree').
The admission-related institutional (and faculty) regulations of the individual higher education institutions have to be mentioned as well, although the provisions of these are not construed as provisions of legal source. They do bind the participants of the admission procedure, however: the candidates and the institutes themselves. Although it is not construed as a legal source, the publication 'Higher Education Admission Guide' of the Ministry of Education (hereinafter referred to as the 'Admission Guide') is of immense importance. The Admission Guide is the primary source of information for the candidates, it is rightly called 'the Bible of applicants'. It is important that it should contain only accurate information exactly because of its significance. Hence the deficiencies and inaccuracies of the Admission Guide were investigated every year in an official inquiry by the Office. Similarly to the previous years, the Office received complaints in which the petitioners were disadvantaged because they trusted the data of the Admission Guide, yet those did not comply with the legal regulations (K-OJOG-539/2003.). Yet in autumn 2003 we could not conduct our, almost traditional, inquiry about the contents of the Admission Guide. The reason for this was the above mentioned change in authority.
It follows from the institutional autonomy granted by the above quoted provisions of the Higher Education Act that investigating and evaluating the fulfilment of admission criteria does not fall within the competence of the Commissioner for Educational Rights. The Office can only examine whether the educational institution in question has complied with the requirements laid down in the law and the institutional regulations concerning the admission procedure, which has the significance of a guarantee.
The admission procedures start with the submission of the application forms. Filling in the application forms could represent difficulty for some applicants last year through no fault of their own.
| One petitioner graduated from secondary school in 2002, when he took a joint written school-leaving/entrance examination in chemistry and biology. He would have liked to apply again in 2003, however he was helpless in connection with filling in Section 5 of the institutional application form, since in the column 'school-leaving examinations' there was space only for one foreign language and one selected subject. The petitioner did not take any school-leaving examination in a foreign language.
The Office established that in the case of some candidates the application form was not suitable for recording the secondary school results. According to the position of the Office the difficulties of filling in the application forms are especially worrisome since, in lack of clear guidance, some candidates may make the conclusion that they cannot request the credit of scores calculated on the basis of secondary school performance.
As a result of our note, the Deputy State Secretary for Higher Education of the Ministry of Education established the position that 'a solution for the problem may be that the applicant writes the subjects from which he/she took the school-leaving examination, as well as the grades received, in the blank space below the table'.
The applicants are liable under criminal law to fill in the application form accurately. Our position is that it is not sufficient to assume that the applicants will deviate from the table (in knowledge of their liability under criminal law!), if they experience that it cannot be applied to their case.
The Office established that the above endanger the constitutional right to study in higher education for some applicants. Consequently, the Office turned to the Minister of Education with an initiative to terminate the violation of the law and arrange for the legal and exact presentation of application forms issued by the Ministry of Education in the future. The minister accepted the initiative and said that information was published at the Web-site of the Admission Office about the problem and the higher education institutions were as raised in a letter that if the candidates did not stipulate their grades, the issue has to be clarified in the framework of a deficiency supplementing procedure. Moreover the minister made steps about revising the relevant part of next year's application forms. (K-OJOG-8/2003.) |
The application forms have to be posted until the deadline determined by the Minister of Education. The deadline is of forfeiting nature, in general no exemptions can be made.
| A petitioner outlined that he had posted the application forms in time, but they did not arrive to their destination because of the fault of the Hungarian Post Office. He requested that we accept his application on the basis of equity. We informed him that the authority of our Office does not encompass making decisions of equity. The authority of our Office does not include the acceptance of applications to higher education institutions either.
The application forms have to be submitted to the National Office for Admission to Higher Education or to the higher education institutions, which register whether the application occurred in time or not. The deadline of submitting the application forms is of forfeiting nature, thus according to the practice of procedural law it is of no importance who was at fault for the application forms not having arrived to the addressee. The application cannot be made validly after the expiration of the forfeiting deadline. We informed the petitioner that if he thinks that all of this had occurred because of the fault of the Hungarian Post Office, he may step up against it with a claim for indemnification at a court. However, this does not change the fact that he did not have a valid application. (K-OJOG-410/2003.)
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In the case of application forms filled in inappropriately the institutions may conduct a deficiency supplementing procedure. Thus, it may happen that the application otherwise construed as invalid does indeed evoke the targeted legal effect. However, it may occur that the institution incorrectly concludes that the applicant filled in the application form incompletely.
| The petitioner graduated from secondary school in 1998 and intended to apply for a tuition-fee programme by doubling his scores calculated on the basis of secondary school performance. In March 2003 he received a letter from the Study Office of the university, according to which he had filled in application form B incompletely, since he had not stipulated which entrance examination subject he had chosen. As justification the institute told that the scores calculated on the basis of his secondary school performance did not reach 48, therefore he cannot exercise the option of exemption from the entrance examination (by doubling the scores he had). According to the petitioner no such conditions can be set to the candidates, since there is no reference to this in the legal regulations and in the Admission Guide.
The institution cited the following rules on page 510 of the Admission Guide, under title 'Exemptions from the entrance examination': 'The following candidates are exempt from examination subject on all full-time and correspondence degree programmes and double degree programmes:
- those whose scores calculated on the basis of the secondary school performance are at least 48 (...): within three years after the secondary school-leaving examination, and within five years in the case of tertiary level vocational training of tourism managers:'
The institute cited the following from the title 'Specific rules related to tuition-fee programmes' on page 512: '... On correspondence programmes the institution organises the admission procedures within its own authority. In general, it organises one written examination from a subject on its own. The total score is calculated on the basis of the entrance examination or by doubling the scores calculated on the basis of secondary school performance in the year of the secondary school-leaving examination and the five subsequent years.'
According to the Admission Decree the total entrance score has to be determined by adding the scores calculated on the basis of the secondary school performance to the scores obtained at the entrance examination, or by doubling the scores obtained at the entrance examination, or (on the basis of the decision of the council of the higher education institution) by doubling the scores calculated on the basis of the secondary school performance.
The Office established that in the case of application for initial training based on the rules of the Admission Decree, in the year of the secondary school-leaving examination and the three subsequent years - in the case of existence of an institutional decision about the possibility of doubling the scores calculated on the basis of the secondary school performance - the total entrance score may be calculated with three calculation methods and the one most favourable for the candidate has to be taken into account. In the case of fee-based initial tuition programmes the Admission Decree amends the three year rule to five years. The same amendment is included on page 512 of the Admission Guide, under title 'Specific rules related to tuition-fee programmes'.
The higher education institutions had to apply the above legal regulation. The institution could decide to calculate the score of candidates in two ways: according to the first calculation method the total score is the sum of scores calculated on the basis of the secondary school performance plus the scores obtained at the entrance examination, whereas according to the second calculation method the total score is double the scores obtained at the entrance examination. Moreover a decision could have been made whereby a third calculation method may join the previous ones, with the application of this the total score may be calculated by doubling the scores calculated on the basis of the secondary school performance.
In its announcement published in the Admission Guide, the institution against which the complaint was filed disclosed that in the three / five years after graduation from secondary school, those applicants whose scores calculated on the basis of their secondary school performance reached 48 were exempt from the entrance examination. With this it essentially permitted the third calculation method, but only to those whose scores were at least 48. The position of the Office is that this restriction is not in accordance with the Admission Decree.
The reason for this is that the Admission Decree does not allow higher education institutions to set any preconditions to the doubling of scores. Under the legal regulation, the decision of the institution may be about whether the doubling of scores is possible or not. If it is possible, it should be possible for all applicants. The Office established that the institution had exceeded its regulatory sphere of competence when it set a precondition to the doubling of scores calculated on the basis of secondary school performance.
Since in the phase of the admission procedures at the time (April-May), complete ignorance of the third calculation method would have disadvantageously affected those candidates whose score calculated on the basis of secondary school performance reached 48, it would have deprived them of an already obtained right, the institution could not legally selected the possibility to not double the scores for anybody, therefore the Office proposed an initiative to the institution to terminate the violation of the law by providing the applicant with the opportunity to double its scores. The institution has accepted the initiative. (K-OJOG-242/2003.)
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The admission procedure is often identified with one of its parts, the entrance examination itself. It is true that the entrance examination and the entrance examination requirements represent the tangible challenge for the applicants. This is why it is a very important issue which examinations specific institutions provide exemption from and on the basis of what reasons.
| A petitioner wrote that he had not been exempted from sitting an entrance examination despite the fact that he was placed number three at the Print Section Group of the National Competition for Secondary Vocational Education (hereinafter referred to as 'OSZTV', in accordance with its Hungarian abbreviation), announced by the Ministry of Education and organised by the National Institution of Vocational Education (hereinafter referred to as 'NSZI', in accordance with its Hungarian abbreviation). Indeed the certificate issued by the NSZI about the third place of the student did not mention the exemption from the entrance examination to higher education institutions.
The Office established that the affected higher education institutions are entitled to decide about the exemption from the entrance examination, not the organisers of secondary school competitions. Pursuant to Paragraph (4) of Article 83 of the Higher Education Act, the higher education institution may tie admission to other requirements (within the framework of the admission procedures) beyond the conditions determined in Paragraphs (1) and (2), for example results achieved at secondary school competitions. According to Section c) of Paragraph (4) of Article 2 of the Admission Decree, the Admission Guide issued annually by the Ministry of Education include the scope of vocational and secondary school competitions providing exemption from entrance examination. Pursuant to Paragraph (10) of the same Article the Admission Guide disclose every year the benefits that can be provided on the basis of the secondary school competitions recommended by the Minister of Education.
In the Admission Guide of 2003 the institution targeted by the petitioner informed under title 'Exemption from entrance examination' that 'the contestants of given place at the OKTV and OSZTV recommended by the Minister of Education will be admitted' to the institution. In accordance with the contents of pages 29-30 of the Admission Guide, the Minister of Education recommended the exemption of contestants achieving place by the petitioner at the National Competition for Secondary Vocational Education. Since according to the information of the institution the persons recommended by the minister are admitted, the petitioner could be exempted from the entrance examination at the institution on the basis of his place. The student could enforce the exemption from the entrance examination according to the contents of page 32 of the Admission Guide by notifying the competent office of the specific higher education institution immediately, but at the latest until the start of the entrance examinations, and request the enforcement of the benefit, since he obtained his place after submitting the application form.
In accordance with the above, thus, NSZI did not violate any laws when it did not stipulate the exemption of the student from the entrance examination in the certificate issued about the place obtained at the secondary school competition, since on the basis of the relevant legal regulations the respective higher education institutions always decide about that based on the recommendation of the Minister of Education. (K-OJOG-327/2003.)
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According to Section i) of Paragraph (4) of Article 2 of the Admission Decree, the higher education institutions are obliged to disclose the date of the entrance examinations in the Admission Guide. Similarly to previous years, the Office received a complaint in 2003 as well about the fact that several higher education institutions held entrance examinations at the same time.
| The Office informed the petitioner that the legal regulations on higher education did not prohibit that the institutions announce their date of entrance examination to the same day. In such cases the institutions may provide another date for a missed entrance examination, but it is not their obligation to do so. The applicants could be informed about the date of the examinations from the Admission Guide and they could take this information into account when submitting their applications. (K-OJOG-444/2003.)
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In some degree programme groups the candidates also have to comply with special requirements, in addition to the general admission requirements. Such special requirements include the so-called 'aptitude criteria'. In the program of the Hungarian Television entitled 'Lawyer of TV', secondary school students complained that the higher education institutions formulated it as a medical aptitude requirement that diabetes is a reason for exclusion in the course of the admission procedures for the training of teachers and kindergarten teachers. The Office initiated a procedure in the case because of the danger of infringement of lawful rights.
| The Office established that the Admission Guide of 2003 included the following under the main title 'General information about some groups of institutions' and title 'Training of teachers and kindergarten teachers', on page 132.
'Medical aptitude examination
The result of the examination has to be certified by the general practitioner. The higher education institution requests a written statement from the applicant that he/she does not have a concealed illness.
Reasons for exclusion on medical grounds:
- functional anomalies of the upper limbs and severe deformations of the static system (in calm status as well), because of which the deterioration of health condition is expected as a result of practising the occupation,
- all types of mitral disease in the decision of which the opinion of the specialist of outpatient surgery has to be requested as well,
- other anomalies of the heart, blood circulation and the respiratory system that hinder the work of educators in kindergarten and the first four school grades that entail physical burden,
- skin conditions on an uncovered part of the body,
- illnesses of the epithelium-forming organs,
- hearing lower than 30 decibels in the speech zone,
- deficiency of vision to the extent that it disturbs communication,
- colour blindness revealed with anomaloscopic examination,
- restricted spatial sight,
- epilepsy, mental illnesses, severe asthma and diabetes.
Certificate of the obligatory pulmonary screening of less than a year has to be presented.'
Under the main title 'Conditions of admission by institutions' most higher education institutions refer to the above general rules and do not stipulate their own conditions, yet some institutions set further requirements.
Applicants who do not meet the listed aptitude requirements cannot be admitted. The exact and prudent definition of the admission requirements is extremely important since the suspicion of infringement of lawful rights may arise in connection with two fundamental constitutional rights - the right to study in higher education and the right to free selection of employment - if the requirements apply unjustified discrimination or are inaccurate. Moreover, of the above mentioned disqualifying aptitude requirements, many seem to be unjustified already at first glance (for example diabetes, skin condition on an uncovered part of the body, mitral disease, etc.). However, even if it can be assumed that the listed 'anomalies' may be reasons for exclusion in occupying the job of teachers and kindergarten teachers (which, incidentally, they are not), it is unjustified that the people suffering from these diseases are deprived of the opportunity to obtain a teacher degree and possibly find a job in another field.
The Admission Guide is issued by the Ministry of Education. On the basis of the Higher Education Act the Minister of Education performs supervision of lawfulness over the affected higher education institutions, thus the Office contacted the Minister of Education. As a result of the notification of the Office, the minister initiated the revision of and rewriting the aptitude requirements at the affected higher education institutions. (K-OJOG-457/2003.) |
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