Amsterdam ‘experiment’ with language caps ‘legally risky’

A groaning university wants ministerial permission to impose separate English- and Dutch-language course caps

September 21, 2022
A woman peeks through the fence at the Royal Palace, Netherlands to illustrate Amsterdam ‘experiment’ with language caps ‘legally risky’
Source: Getty

The University of Amsterdam (UvA) wants language-specific student number caps on two of its most popular programmes, but experts warn of legal risks from discrimination lawsuits.

Dutch universities have long asked for new laws to allow limits on international students, with some coordinating course offerings as they try to manage ever-growing demand.

Current rules allow universities to put student number caps on courses, but not separate limits on Dutch- and English-language tracks, prompting some to complain that Dutch students are being muscled out.

In June, education, culture and science minister Robbert Dijkgraaf withdrew a draft bill that would have allowed caps on English-language courses only, telling parliament that he wanted to “develop a clear vision” and that legal tools to manage flows would form part of a bigger package of reforms, due early next year.

In September, local media reported that UvA, one of the universities struggling most with its international popularity, would go ahead with language-specific caps on two of its most popular programmes without waiting for new legal footing.

In response the schools minister, Dennis Wiersma, told parliament that language-specific caps were “not allowed and therefore it cannot be done”, warning that the regulator could intervene if UvA acted anyway.

A day later, UvA president Geert ten Dam reportedly said that the university would “enter into discussions with the ministry to see if there is room to carry out an experiment after all”, adding that the “trial” would apply only to the Dutch- and English-language tracks for political science and psychology.

Legal experts have warned that the institution faces considerable risks if it goes ahead with the plan.

“We have jurisprudence from the European Union Court of Justice concerning equal treatment and anti-discrimination, and this kind of experiment is in danger with those rules,” Paul Zoontjens, a former professor of educational law at Tilburg University, told Times Higher Education.

“People from Germany, from France, from other countries of the EU, they will indirectly be discriminated [against] because they are dependent on those kinds of courses,” said Professor Zoontjens, who also chairs UvA’s examination appeals board.

In addition, students from outside the EU could bring lawsuits using Dutch law. Miek Laemers, professor emeritus of constitutional and administrative law at Vrije Universiteit Amsterdam, said the cap could fall foul of the first article of the Dutch constitution.

“Discrimination on the grounds of language is forbidden. In the case of UvA, there is no question of direct discrimination, but possibly indirect discrimination of English-speaking students,” she said.

Students blocked by the cap could bring a complaint to the Netherlands Institute for Human Rights, where the university’s defence would need an objective justification for discriminating.

“That means that the requirements have a legitimate aim, and do not extend further than needed to reach that aim. It is important that less incriminating alternatives are not possible,” said Professor Laemers.

A UvA spokesman said that selection was “never on nationality”. “The process of the selection would still be based on readings of material, doing some lectures, and then doing a test and seeing how you score,” he said. The spokesman said the university would hold talks with the ministry in due course, but that no date had been set for discussions.

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