Students can receive severe disciplinary action from their programs. In cases of “serious fraud”, a college or university may even expel students. But is that punishment or an attempt to instill something in that student?

To that old question, the Council of State has formulated a new legal answer. Last Wednesday, the highest education judge ruled that from now on, sanctions of an institution should be seen as a “restorative” intervention and thus not as a punishment. That happened in a case brought by Fontys University of Applied Sciences against a fraudulent student, which Fontys magazine Bron was the first to report on.

“Pedagogical”

In its ruling, the State Council said that the rules of training have a “formative and educational character.” They are not part of criminal law and therefore any sanctions are rather “pedagogical and disciplinary” in nature.

This has implications for the legal protection of students, several education lawyers say. Until now, the State Council, on the contrary, thought that fraudulent students should be treated as if they were involved in some sort of criminal case, with all the procedural safeguards that this entails.

For instance, students were entitled to all court documents and the program had to explain to them in understandable language what they were suspected of. Also, examination boards had to warn their students that they had the right to remain silent and did not have to cooperate in their own conviction.

Overboard

These are all principles from criminal law that are now going overboard in higher education, says expert in education law Job Buiting in response to the ruling. Endowed professor of education law Pieter Huisman also points this out in a comment on LinkedIn.

“Educational institutions had gotten used to approaching students in the more punitive way due to previous rulings by the Council of State,” said Job Buiting. “Based on this new ruling, they will start adjusting their practice.”

Character development

The Council of State reached its new view in a ruling on a student who made up the positive feedback of his internship supervisors. That he committed fraud was not in dispute, but according to the student, he had not been made aware of his rights in time by the Fontys examination board and had not been given all procedural documents.

The old Council of State would have agreed with him, the ruling states in so many words. But now the administrative law judge has taken another look at European law and it emerges that disciplinary measures at school should be seen as contributing to the learning process and to the character development of students. That does not involve criminal law standards about the right to remain silent and the like.

This applies even to fraud cases with the harshest possible sanction: deregistration. “It is true that permanently terminating enrollment is a drastic decision for the student, but the student can follow the same or a similar program at another educational institution.” Therefore, even this sanction has a learning rather than punitive character, according to the judge.

Not outlaws

This new insight does not make students outlaws. The Council of State warns that the “general principles of proper governance” continue to apply as usual. These stipulate that a program must follow a “careful” procedure when fraud is suspected. Students still have the right to timely hear what rules they have violated according to the examination board.

The burden of proof has not changed either, the judge stressed. Programs must still establish “beyond a reasonable doubt” that students have violated the rules before they can impose sanctions. Those sanctions must then be explainable and proportionate to the violation.

Fontys

The ruling could give exam boards more room to talk to fraudsters, writes Bron, the magazine of Fontys. Lawyer Marlies Hesseling-Hertsenberg, who won this victory for Fontys at the Council of State, says that the university prefers to treat students not as “suspects,” but as future professionals.

“When we impose a measure, it is always with the intention of having the student reflect on his behavior so that he can learn from it and improve his behavior,” the lawyer said.