Dismissed unjustly – now what?

It has happened to hundreds of students: receiving a negative binding study advice (bsa) in the second year when they should not have been dismissed at all. What are their options now?
By Thereza Langeler / Translation by Sarah van Steenderen

Norbert van der Kamp (24) is still upset. He was highly motivated when he started his studies in business administration, earned 45 ECTS and received a positive study advice. But there was one course that kept tripping him up, even in his second year. In January 2012, it was clear that there was no way he was going to get his propaedeutic diploma, so he had to quit after all.

It was because the RUG, like several other research universities and universities of applied science, uses the ‘p-in-2’ rule: if you do not pass your propaedeutic in your second year, you have to quit, even if you received a positive advice in your first year. The letter that minister of Education Bussemaker sent to the Lower House and all the universities on Friday says that this is not allowed.

Too late

Following the letter, the RUG will cease applying the p-in-2 rule. This is good news for the students that started in the 2015-2016 academic year: they will only receive a binding study advice in their first year.

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Norbert van de Kamp is still upset that he couldn’t finish his studies in business administration. ‘I didn’t even know the CBHO existed. If I did, I would have pursued this.’

But for students like Norbert, the policy change comes too late. At the time, he did everything he could to avoid having to quit. ‘I still have the email correspondence with the course lecturer, the study advisor, the exam committee. They all told me there was nothing they could do. My study advisor told me the faculty board would let me know how I could appeal at the end of the year. But that would take another six months. A delay of eighteen months was enough for me.’

So Norbert dropped the issue, convinced he had no chance. As minister Bussemaker’s letter points out, Norbert was unjustly dismissed. But what can he and potentially hundreds of other students who suffered the same fate do?

The Landelijk Studenten Rechtsbureau (National Student Law Office, or LSR) will not let the matter rest and wants to go to court. The LSR is calling for all the victims of the rule to come forward. And that call to action is being heard, concludes board member Ardine Siepman: ‘We’ve received approximately 80 emails over the past few days.’

Gor Gabrelian with the attorney’s office Honoré Advocaten, who are collaborating on the case with LSR, thinks that the students can win a suit. ‘The RUG should absolutely have known that they were breaking the law.’ Dennis Heemstra, attorney at DAS, agrees: ‘You could definitely say that the RUG acted counter to the law’, he says.

Next round

Aart Korten, head of legal affairs at the RUG, sees it differently. ‘The minister and the CBHO (Appeals Tribunal for Higher Education – ed.) interpreted the law in a certain way, namely that an educational institute is only allowed to give advice once. The RUG would give a provisional positive recommendation at the end of the first academic year if a student got 45 ECTS. They were through to the next round, so to speak.’ Korten emphasises that the definitive advice came later.

Ben Olivier, retired educational judge at the CBHO, admits: ‘The educational ministry’s legislation has never been overly clear. So I can imagine that the RUG initially interpreted the law differently.’ But he does think the RUG is late in changing their policy. In a 2014 case, the CBHO decided that advice that comes with a binding rejection can only be given once. ‘It is strange that it then took so long for other institutes to follow that judgment.’

Reprehensible

Gabrelian, attorney: ‘The fact that educational institutes didn’t make any changes after 2014 is particularly reprehensible. After all, they were informed by the judgment. But they apparently decided to continue as they were until they finally felt the pressure from both the political side and the student organisations.’

Korten disputes this. ‘In a few specific cases, the CBHO determined that certain educational institutes were not abiding by the rules. But a pronouncement like that was never made against the RUG.’ It was perfectly fine for students to object if there was something they disagreed with, he says. ‘All our letters say so.’

Nonsense, says attorney Gabrelian. ‘If you study at a professional education institute, surely you can assume that they abide by the law?’

That is what Norbert thought when he desperately tried to stave off his negative advice. ‘That’s just not something you question. I didn’t even know the CBHO existed. If I did, I would have pursued this.’

Compensation

A lot of the students who were dismissed unjustly do not want to re-enrol: they have moved on to other things. ‘But we do hope to get some kind of compensation’, says Ardine Siepman at the Landelijk Studenten Rechtsbureau (National Students Law Office).

Heemstra at DAS also thinks that something can be done on the basis of the personal injury directive for study delay. ‘If you’ve suffered a delay in your studies, that directive says you can link that to a cash amount. But then you do have to prove that you would have finished the programme from which you were dismissed.’ A student can do this by finishing a programme similar to the one they were removed from. ‘If you don’t, you don’t have a great case.’

Pessimistic

Former judge Ben Olivier is pessimistic: ‘Students who unjustly received a negative bsa in the past do not have a great case. They could’ve appealed at the time of the advice, but they didn’t. That means that the decision from the educational institute is considered to be legitimate.’ In legal terminology, that is called a formal appeal on an issue of law, and it is binding – even when it later turns out that the decision was incorrect.

Yet Gabrelian at Honoré Advocaten is hopeful. ‘Legally, it’s very tricky. But we don’t think it’s impossible. There is a large moral issue behind the whole thing. These institutes have crossed the line so clearly that you have to wonder if the formal appeal on an issue of law will even stand up. Moreover, it concerns such a large group of students that it’s definitely worth discussing with the educational institutes. And if we can’t work it out, it might be worth presenting it to the court.’

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