ENTRANCE TO HIGHER EDUCATION INSTITUTIONS

As stated in our earlier reports, the legal basis for the admission procedures of higher education institutions is set forth in Article 64 (2) (c) of the Higher Education Act. Pursuant to the Act, the specification of admission criteria is a specific case of the manifestation of the autonomy of higher education institutions. Universities and colleges establish the number of admissible students within the scope of their competence and select their future students from among the candidates at their own discretion. Naturally, this takes place within the framework provided by the applicable laws. Autonomy does not mean, however, that higher education 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 (hereafter as the 'Admission Decree').

The admission-related institutional (and Faculty) regulations of the individual higher education institution have to be mentioned as well, although the provisions of these are not construed as provisions of legal source. Nevertheless, they do bind the participants of the admission procedure: the candidates and the institutions themselves. Although it is not deemed as a legal source either, the publication 'Higher Education Admission Guide' of the Ministry of Education (hereinafter as the 'Admission Guide') is of immense importance. The Admission Guide is the primary source of information for the candidates, so it is important that it should contain only accurate information exactly because of its significance.

It follows from the institutional autonomy granted by the aforementioned provisions of the Higher Education Act that our Office is only entitled to examine whether the higher education institution in question has complied with the requirements laid down in the law and the institutional regulations concerning the admission procedure, which serve as a guarantee.

In some of the complaints we received, the petitioners inquired about such admission-related issues to which they could have found the answer in the Admission Guide. Even in these cases we provided the petitioners with information and called their attention to the fact that they could find detailed information in the Admission Guide.

One group of petitioners inquired about the conditions that have to be fulfilled in order to qualify for the admission procedure, in other words, what are the requirements one has to meet to be able to submit a valid admission application.

The petitioner applied for a programme for which the higher education institution stipulated an advanced school-leaving examination as a precondition. However, apart from submitting the standard application form, he failed to apply for a school-leaving examination. We informed him that in the new baccalaureate/admission system - as the school-leaving examination and the entrance examination are now one and the same - higher education institutions and the National Higher Education Information Centre (OFIK) do not regard admission applications as a simultaneous application for the entrance examination. Where admission to higher education requires that a school-leaving examination be taken for the calculation of one's scores, application for the school-leaving examination can and should be done totally independently of the admission procedure. This is because the school-leaving examination will always be valid for admission to higher education, i.e. the date of passing the school-leaving examination does not necessarily coincides with that of applying for a higher education institution. Therefore, in the course of the admission procedure the institutions and the OFIK don't even know whether the individual candidates have passed a school-leaving examination in the subject they are taking an entrance examination for, and if so, whether they have passed the examination of the required level. Each candidate should therefore apply, if they are required to do so, for the school-leaving examination separately. Consequently, the petitioner's application for admission to higher education in 2005 is valid but merits zero points, since he has not passed the examination of the required level on the basis of which his admission scores could be calculated. (K-OJOG-518/2005.)

As mentioned earlier, investigating whether the scores achieved by a candidate truly reflect his or her performance at the examination does not fall within the competence of our Office. Nonetheless, we can examine if there have been any irregularities during registration.

The petitioner contacted our Office complaining about a fault in administration. In the course of the admission procedure she was called on to supply a missing document, which she fulfilled by submitting a copy of her baccalaureate certificate. Nonetheless, on 28 July 2005 she received a notification from the student registry in which she was informed that she had been disqualified from the admission procedure for having failed to pay the HUF 3000 that was due. As the petitioner had a copy of the postal cheque certifying the payment, she filed an application with the National Office of Admission to Higher Education, in which she stated that she had paid the procedural fee of admission and had sent the pertaining cheque. Following the procedure by the OFIK, the higher education institution concerned informed the candidate that she could only enrol in fee-paying training. After that the petitioner contacted our Office. We addressed a letter to the higher education institution as a result of which it reconsidered its former position and admitted the petitioner as a state-financed student. (K-OJOG-774/2005.)

As from 2005 onwards, the separate entrance examination has been replaced by the school-leaving examination. In the new system admission scores are calculated on the basis of the grades awarded for the school-leaving examination. But what about those who did pass a school-leaving examination but hold no certificate in the subjects that are compulsory for the school-leaving examination today, or those who do have the relevant certificate but no grade as at the time they were given a textual evaluation? The new system has to accommodate them as well.

The petitioner passed his school-leaving examination in 1979. In that year - similarly to other years - history was not a compulsory subject of the school-leaving examination, hence he doesn't hold a certificate in that subject. We informed him that in this case the school-leaving examination passed in another subject could not be recognised in place of history, but he could be sure that he would be eligible for taking part in the admission procedure. Just as if another subject required for the entrance examination was missing, he would have to pass an examination in history now, and his scores would be calculated on the basis of the results of this examination. (K-OJOG-374/2005.; K-OJOG-462/2005.; K-OJOG-463/2005., K-OJOG-471/2005., K-OJOG-484/2005., K-OJOG-492/2005., K-OJOG-1266/2005.)

Those who have passed a school-leaving examination in a subject required for admission, but were not awarded a grade in the baccalaureate certificate but only a textual evaluation stating 'passed' are not required to sit for an examination. (In 1974 students were not awarded grades for their school-leaving examination, rather they received a rating in the form of textual evaluation.) Their results are compatible with the current system, i.e. 'excellent' can be converted to 'excellent' (5) (100%) of the current standard school-leaving examination, whereas 'passed' reads as 'good' (4) (79%) in the standard examination. (K-OJOG-73/2005., K-OJOG-422/2005.)

As part of the transition to the new system, a certificate in a foreign language could for the last time be accepted as a school-leaving examination in 2005. Such certificates are completely valid for the purpose of the school-leaving examination, but not for admission to higher education.

A parent turned to our Office with the following complaint. Her child obtained a certificate in a foreign language and was thus exempted from the early school-leaving examination in a foreign language, but higher education institutions did not accept the certificate as an entrance examination. According to the parent, this practice was discriminative. We informed the parent that Article 61 (10) of Government Decree 100/1997. (VI.13.) on the Issuance of the Examination Regulations for the School-Leaving Examination stipulates the following :

"A student who holds a state-accredited 'C' category - either monolingual or bilingual - certificate of at least an intermediary level in a foreign language or any equivalent certificate shall be regarded as having passed the school-leaving examination in a foreign language in the examination periods in the years 2002 to 2005. In this case the knowledge of the examinee shall merit a grade of excellent (5) until 2004, and in 2005 it shall merit a grade of excellent (5) (100%) awarded for the advanced school-leaving examination. For the purpose of the higher education admission procedure, the requirement of an advanced baccalaureate certificate in a foreign language stipulated as a precondition of admission may not be fulfilled by way of a baccalaureate certificate issued on the basis of a language exam certificate as defined in this paragraph. Students who are required to pass an advanced school-leaving examination in a foreign language in order to qualify for the pursuit of higher education studies and who have formerly passed the early advanced school-leaving examination in a foreign language by presenting a state-accredited language exam certificate, may apply for an advanced school-leaving examination in the same foreign language during the validity of their student status."

The above legal regulation clearly states that higher education institutions cannot recognise an early school-leaving examination passed on the basis of a language exam certificate for the purpose of their admission procedure, this exemption applies only to the school-leaving examination with the primary aim of easing the burden on examinees during the school-leaving examination. However, granting advantage in the admission procedure is not an objective of this arrangement. In our view, discrimination could be suspected exactly if a baccalaureate certificate obtained this way could be converted into admission points. The child of the petitioner suffers no disadvantage as according to the last sentence of the cited provision, she can still apply for the school-leaving examination needed for admission during the validity of her student status - or for that matter, at any subsequent time - and thus she will be in the same position in the admission procedure as any other candidate. (K-OJOG-983/2005., K-OJOG-1327/2005.)

Several petitioners inquired whether introducing and applying the two-tier school-leaving examination in the admission procedure of higher education institutions qualified as discrimination. The 'master case' was filed under the number K-OJOG-22/2005., but later on we had to consolidate it with several other petitions as we subsequently received a vast number of petitions on the same issue. The major question in the case, which was echoed in the press at the time, was whether students passing their school-leaving examination and sitting for their entrance examination in 2005 would be at a disadvantage compared with their peers who took the entrance examination in the same year but had already passed their school-leaving examination.

As the petitioners - students, teachers, and heads of institutions - claimed, by introducing the two-tier school-leaving examination students taking their baccalaureate in 2005 would be at a disadvantage in the admission procedure when compared to those who had passed the school-leaving examination before. According to the petitioners, dozens of those students who passed their baccalaureate before - primarily in 2004 - and were granted admission to an institution other than the one they designated in the first place, could now benefit from this opportunity, whereas those sitting the school-leaving examination in 2005 became desperate and demoralised when recognising that they indeed had a 'handicap' compared with the peers who already held a baccalaureate certificate.

The petitions approached discrimination in two ways:

Students having passed their school-leaving examination before 2005 and applying for a higher education institution this year could get their baccalaureate grades recognised as a standard school-leaving examination for which they were awarded the maximum percentage points in the admission procedure. This means that a former baccalaureate grade of excellent equalled 100% irrespective of the percentage points for which the grade had been awarded. On the other hand, students taking both their baccalaureate and entrance examinations in 2005 could receive 100% only if they made no mistakes at all in their baccalaureate test and earned the maximum number of points, or else even if they were awarded the same grade as those who passed their baccalaureate earlier (e.g. excellent), this earned them 2-3 points less in their admission scores. In assessing entrance examinations, 2 to 3 - if doubled 4 to 6 - points could mean an enormous advantage.
Students having passed their school-leaving examination before 2005 are entitled to sit for an advanced school-leaving examination in 2005. If they achieved at least 33% at the examination then they were granted 7 extra points that were due for the advanced baccalaureate certificate. At the same time, they could get their old baccalaureate grades better than satisfactory (3) recognised, i.e. for the calculation of the acquired points they could request that the better former results be validated, while since they passed the advanced school-leaving examination they also received the extra points due for the advanced baccalaureate grades if these were satisfactory or better. In other words, if a student got excellent (5) for his or her school-leaving examination taken before 2005 and in 2005 achieved 33% at the advanced school-leaving examination, then she or he received the maximum points plus 7 extra points (per subject), while students taking their baccalaureate in 2005 could only achieve the same admission scores if they earned the maximum points in 2005 for their advanced school-leaving examination.

Based on the relevant legal regulations, we arrived at the following conclusion. Each of the two approaches outlined under the two points implies the infringement of educational rights in itself, but their combined effect indeed jeopardised the rights of that group of students applying for admission to higher education institutions who sat their school-leaving examination in 2005, i.e. the suspicion of discrimination against those taking the school-leaving examination in 2005 was a just one. At the same time it was obvious that during that stage of the baccalaureate/admission procedure (spring 2005, well after the end of the school-leaving examination and of the submission of admission applications) the predetermined rules could no longer be fully modified, as this would have meant such a serious violation of the constitutional requirement of legal certainty, that would have caused more harm than the prevalent constitutionally absurd situation. Legal certainty, however, could be endangered only by such a regulation with retrospective effect as would have put the subjects of law in a disadvantageous position. An amendment of the rules that would not be detrimental for the persons concerned was feasible.

We concluded that, first and foremost, with a view to the following years, the problem could be remedied through the amendment of the legal regulation that governed the admission procedure, and in respect of the candidates applying for admission to higher education in 2005 the Ministry of Education could invent ad hoc way/ways of eliminating the lack of equal opportunities.

We presented the above to the Minister of Education and requested him to act promptly.

The Minister of Education was aided in his decision by the status report done by the Minister of Justice. The Minister of Justice gave an account on his position concerning the problem detailed under point 1 herein to the Prime Minister.

In his note, the Minister of Justice underlined the fact that those taking the school-leaving examination in 2005 and those having already passed such examination before were awarded admission points according to different rules. He also pointed out that this difference in rules would give rise to constitutional concerns only if it resulted in the discrimination prohibited under Article 70/A of the Constitution. According to the position consistently maintained by the Constitutional Court , not every type of discrimination violates the Constitution. Based on the practice of the Constitutional Court the Court establishes discrimination only if it persists within a group of similar people (homogeneous group) within the same regulatory concept and there are no sufficiently grave (i.e. directly related to the given situation and reasonable) constitutional grounds for a different regulation.

According to the evaluation of the Minister of Justice, in respect of the potential modification of the system of the school-leaving examination or, in conjunction with this, that of admission to higher education, those who had passed their school-leaving examination earlier and those sitting for their baccalaureate in 2005 for the first time did not form a homogeneous group with regard to the calculation of admission points. These two groups of those applying for admission to higher education institutions could not be treated completely as a single group because through the introduction of the new school-leaving examination a new system essentially different from the old one was set up, which allowed students to take a two-tier (standard and advanced) school-leaving examination. The former and the current systems differ greatly from each other and so in the context of modifying this system, the positions of these two groups cannot be compared, and consequently, in terms of constitutional law, we could not talk of discrimination.

Considering the available information and analyses the Minister of Education adopted the following position. He accepted the position of the Minister of Justice and declared that the problem presented under point 1 did not constitute discrimination between the candidates. Therefore, he decided that in this respect no amendment of the legislation or any other measure was necessary.

We maintained our position with regard to this issue. Contrary to the position of the Minister of Justice, we believed that applicants inevitably constituted a homogeneous group. Article 70/F (2) of the Constitution stipulates as a fundamental right the right to higher education available to all persons on the basis of their ability. The aim of the entrance examination system is exactly that candidates with the best ability are admitted to higher education. At the same time, in assessing abilities it is essential that the performance of candidates be comparable and that, based on this, they are ranked in a standard manner. In case applicants cannot be regarded as a homogeneous group in terms of ranking, the very principle underlying the admission system will fail to operate.

In connection with the problem under point 2, the Minister of Education resolved to present an initiative to the Government for the amendment of Gov. Decree 269/2000. (XII.26.). Pursuant to the decision of the Government, through the amendment the following Paragraph (12) was added to Article 20 of the Admission Decree which came into force on 27 April 2005:

"(12) Within the powers granted under Article 74 (1) (g) of the Higher Education Act, the Minister of Education - in conjunction with the introduction of the new system of the school-leaving examination and with a view to managing the differences arising from the method defined for calculating the points of those who had passed the school-leaving examination before 2005 and to ensuring equal opportunities - may decide within the limits set by the position delivered by the Higher Education and Scientific Council to increase the admission quotas of state-financed students for certain programmes of the individual higher education institutions in a way so that it compensates for the potential disadvantages - that may stem from the method defined for the calculation of the admission score of candidates who had passed the school-leaving examination before 2005 - applicants passing their school-leaving examination in the new system may suffer. In the case of higher education institutions maintained by the church the Minister of Education may decide on the increase of the admission quotas in accordance with the procedure specified in the second sentence of Article 74 (1) (g) of the Higher Education Act."

We established that the decision of the Minister of Education taken in line with the aforementioned authorisation could compensate for the disadvantages certain applicants may suffer. (K-OJOG-22/2005.)

The Constitutional Court also expressed its opinion with regard to this issue, and in its Resolution no 168/B/2005 AB refused to establish that certain rules of score calculation were contrary to the Constitution. The Constitutional Court stated that the regulation of Government Decree 269/2000. (XII.26.) on the General Rules of the Admission Procedures of Higher Education Institutions, does not make any distinction as to when (before or as from 2005) and how (in the old one-tier system or a standard or advanced examination in the new system of the school-leaving examination) the candidates applying for admission to a higher education institution had passed the school-leaving examination when calculating the admission scores on the basis of the results achieved at the school-leaving examination. These rules are equally binding to all applicants. In addition, it also established that the effective regulation in itself did not restrict the right to higher education, it merely influenced the chance a student passing the school-leaving examination had for admission to the selected higher education institution in the given year, and therefore the regulation could result in a difference only between chances but not between rights. Based on the above, the Constitutional Court refused to annul the provision concerning the students who took their school-leaving examination in 2005, and did not stipulate any obligation for the legislator to amend the legislation in the given period.

On the other hand, the Constitutional Court stated that the legislator had the general obligation stemming from the Constitution to create rules that not only ensure equal rights but also equal opportunities to the greatest possible extent. In determining the basic operational principles of the admission system the legislator formulated rules which although ensure the equal rights of one group of those concerned (those having passed the school-leaving examination in the old system), adversely affect the chances another group of those concerned have for admission to a higher education institution. On the grounds of this the Constitutional Court called on the legislator, i.e. the Government, and the Ministry of Education in a resolution to review by 31 December 2005 the regulation and create rules that serve the prevalence of equal opportunities.

Afterwards the Ministry of Education amended several legal regulations which we, naturally, monitored. The following problem emerged when amending the Admission Decree. As a result of the amendment the number of extra points awarded for a language exam certificate would decrease. The original intention of the Ministry of Education was to introduce this modification as from the year 2006. As this entailed the risk that this instant modification would be detrimental to those candidates who were preparing for the entrance examination on the basis of the old method of calculating the points, and this situation would violate the constitutional requirements regarding legislation, we proposed that this new system for calculating extra points be introduced no earlier than 2008. The Minister of Education accepted our proposal.

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