Higher education and restricted access

April 4th, 2013 by Edward Capewell

What kind of restrictions can higher education institutions permissibly impose on prospective students? Clearly academic achievement must be one. But is it permissible to combine academic achievement with an overall cap on the number of places available for a particular course? In Tarantino v Italy the Strasbourg court decided that such a cap did not contravene the right to education in Article 2 of the First Protocol (A2P1).

Italy imposes numerical caps on various university courses such as medicine and dentistry based partly on Italian society’s need for members of those professions and partly on the resources of the universities which teach the relevant subjects. The applicants in Tarantino had unsuccessfully applied for medical and dentistry courses, both subjects which were very heavily over-subscribed. They challenged the cap on the basis that it disproportionately interfered with their right to an education.

The ECtHR, applying familiar principles concerning the inherent limitations on the A2P1 right and states’ margin of appreciation, found that the restrictions imposed by Italy were a proportionate means of achieving a legitimate aim and did not therefore violate A2P1. An interesting sub-issue was as to the compatibility of the ‘societal-requirement’ criterion with the principle of free movement of persons enshrined in Article 45 TFEU. The ECtHR seemed to think the criterion a little suspect in EU law terms (whilst obviously not making any finding on the issue) but nevertheless held that the Italian government was “entitled to take action with a view to avoiding excessive public expenditure”. Welcome words in these straitened times no doubt.

On the subject of higher-education restrictions, readers may recall the case of Damien Shannon who sued St Hugh’s College Oxford for refusing him a place on the grounds that he could not demonstrate that he had sufficient means to live in Oxford during his period of study. The case has now been settled with Mr Shannon being offered a place on the MSc in Economic and Social History and the university agreeing to review its existing financial guarantee policy.

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