In Carter case, Department of Education to argue that no right to higher education exists

The question of whether access to higher education is a right, a privilege or a necessity is now coming to the fore in Ireland, as the Department of Education prepares to appeal a High Court ruling from last September.

The question of whether access to higher education is a right, a privilege or a necessity is now coming to the fore in Ireland, as the Department of Education prepares to appeal a High Court ruling from last September.

Rebecca Carter, a Leaving Cert student whose points were inaccurately added up, won a landmark case in the High Court last year and has taken her place to study veterinary medicine at University College Dublin.

The right of individuals to access higher education is provided for in international law, however, in the Irish Constitution, there is no specific right to higher or further education. Mr Justice Richard Humphreys found that the right of access to higher education is directly related to the right to earn a livelihood in Irish constitutional law.

In his ruling, Mr Justice Humphreys said “the recognised Constitutional right to earn a livelihood would be meaningless without the concomitant recognition of a right of reasonable access to available higher education and vocational training, commensurate with the ability of the citizen.”

“In the modern world, it is difficult and in some cases impossible to earn one’s livelihood without access to higher education and vocational training,” he added, concluding that “the latter right must be regarded as a constitutional right that flows from the former right.”

The question of whether the right of access to education should be recognised as a stand-alone right was also raised. The Minister for Education is to argue that no such right exists in his appeal of the High Court ruling.

Appeal documents filed on behalf of Minister McHugh state that “the findings of the High Court, as appealed, have broad implications and will most likely result in others initiating proceedings in reliance on those findings.” Students who were unable to enter the course of their choice in the past would have legal grounds to take their case to court if the right to access higher education was provided for in Irish law.

The minister has commented that the appeal will not affect Carter’s place at UCD, but expressed that the appeal intends to address the broad constitutional matters and issues that may arise due to the findings of the High Court case.

The document further states that “the Minister is anxious to bring legal clarity to the issues he has sought to appeal... in advance of the allocation of places for higher education or vocational training for the academic year commencing in autumn 2019.”

The appeal is due to be heard in the Court of Appeal in April 2019. It has been deemed a priority case. The National Plan for Equity of Access to Higher Education 2015-19 states that equity of access to higher education is a “national priority” for the Department of Education and Skills and the Government as well as a matter that is “fundamental to the role of the Higher Education Authority (HEA).”

The plan asserts that “as a country we have everything to gain and nothing to lose by increasing levels of participation in higher education among all Irish citizens. It makes sense socially and it makes sense economically.” The plan also acknowledges that there are still groups in society which are largely underrepresented in higher education, including those from disadvantaged socio-economic backgrounds, people with disabilities, Irish travellers and mature students.

It is unclear how the government plans to continue to promote access to higher education and bring about sustainable change whilst appealing a High Court decision that defends the right to access of higher education. Nor has the government revealed a solid plan as to how to fund an increase in the number of students in higher education.

Under the terms of the Free Fees Initiative, the Irish Exchequer will pay tuition fees on behalf of students registered for the first time on full-time undergraduate degree programmes. Students are then responsible for paying the student contribution fee unless they qualify for a higher education grant.

The following options have been proposed to accommodate an increase in higher education numbers: a fully State-funded system; income-contingent student loans; or a major increase in public funding alongside the current student contribution. It is likely that these options will be discussed at the appeal of the Carter case in April.

Following Ms Carter’s successful High Court case, the Leaving Certificate appeals system is being altered for 2019 in order to improve the speed of the process, with an aim to reduce the waiting period from eight weeks to five weeks.