Dutch tuition scheme discriminatory

That will be €12 please. Thank you!

That will be €12 please. Thank you!

“Nobody would tolerate a frituur that charged €1,72 for friet to persons of some nationalities, and then €12 for others!”

Universities in the Netherlands currently charge €1672 tuition to master’s students who are Dutch, EU, or Surinamese. Other persons pay over seven times as much (about €11.500), and the Universities assert complete discretion to set whatever tuition fee they like for these groups. This tuition scheme is illegal. It has been challenged in the courts several times recently, with judges ruling both ways.

This article recently appeared in Krantje Boord Nr. 3 October 2010

by Robert Weaver

The discriminatory tuition rates are illegal under Dutch law as well as multiple binding treaties. Under the Dutch Anti-Discrimination Law, which explicitly covers educational services, direct distinctions on the basis of nationality are illegal unless a specific textual derogation is provided for.

The same approach is taken by multiple binding international treaties. For example, Article 14 of the European Convention on Human Rights in conjunction Protocol 1, Article 2 bans discrimination on the basis of nationality in educational services, as does Protocol 12 of the same convention, as does Articles 1(1) on discrimination and 5(e)(5) on educational services of the Convention on the Elimination of Racial Discrimination, as well as Article 24 of the International Covenant on Civil and Political Rights. As if it could not be clearer, the International Covenant on Social, Economic and Cultural Rights goes on to specifically address educational fees and bans distinctions on the basis of nationality. The only exception given is for developing countries so that they can protect their limited resources. The Netherlands is a rich country and its leaders continue to act miserly, immorally, and illegally.

The best argument presented in the court cases was based on treaties between the Netherlands and specific countries. Recently, Turkish nationals have used non-discrimination clauses in a treaty between the EU and Turkey to strike down discriminatory aspects of Dutch immigration law and tuition rates. The Netherlands also has many such bilateral treaties with other countries as well. For example, the Dutch American Friendship Treaty with the US provides for what is known as ‘most favored national status’ in the assessment of all government fees, which means that the Netherlands is not allowed to charge US nationals or companies higher fees than domestic persons. This agreement specifically covers educational fees. Article XI(1) states: “Nationals of either Party residing within the territories of the other Party…engaged in… educational… activities… shall not be subject… to fees or charges… more burdensome than those borne by nationals.”

After learning how easy it is to bully foreign students, the Dutch educational leaders enjoyed it quite a lot, and so they decided to start treating Dutch citizens the same way. University leaders and European banks dream of a world where all Dutch students are enslaved by ten, or even hundreds, of thousands of Euros in college debt like the Americans. Thus, the higher fee for a second masters now applies, and there are new master’s programs at universities like Utrecht that charge the higher tuition rates (about €12.000 per year) to all students. This is in violation of Article 7.43a(1) of the Dutch Higher Education Law (WHW) which allows for such specialty master’s programs, but caps the tuition rate at five times the domestic rate.

There are basically two ways to look at educational services. Knowledge is either the possession of all of humanity, or it is merely a commercial product. The KSU opposes the commercialization of education, and we desire to be more than simultaneous consumers and products of a knowledge factory. From this first approach, which is supported by the relevant binding international treaties, it is absurd for one country to assert that they own knowledge and can sell it at whatever rate they want when the majority of the knowledge disseminated came from researchers outside of the Netherlands, subsidized by foreign tax dollars.

However, if one views education as a normal commercial service, then the market rules apply. Nobody would tolerate a frituur that charged €1,72 for friet to persons of some nationalities, and then €12 for others! The best argument the frituur could make, and Dutch universities have made, to defend such a situation would be that some nationalities incur higher costs. For example, some may tend to dine-in instead of eat to-go as compared to Dutch people, and thus allegedly there are higher costs involved for the frituur. To comply with market rules on non-discrimination and fair competition, the frituur would have to implement this higher fee in a way that is not directly based on nationality, such as charging a small extra amount on dine-in orders.

Further, if that rate was indirectly discriminatory on the basis of a prohibited classification by burdening one group more frequently than others, they would have to show that their fee is reasonable by showing their fee is proportional to the actual costs incurred by people who dine-in versus take their friet to-go. There is no way that certain nationalities are over seven times more expensive to educate. Further, arguments about greater costs for educating some nationalities because of subsidies on the basis of nationality from the central government only worsens the discrimination by showing how widespread and systematic it is.

Robert M. Weaver. Robert Weaver (RobertMWeaver@gmail.com) is a lawyer working for Weaver & Henderson On Point Legal in Utrecht. He specializes in human rights, immigration and anti-discrimination law.

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