20.08.2019 | KPMG Law Insights

The new regulation of the higher education framework law

The new regulation of the higher education framework law

The regulations of the federal framework law on higher education and the state treaty of 05.06.2008 concluded between the federal states lose their validity as of 01.01.2020. Based on the ruling of the Federal Constitutional Court of 19.12.2017 (Az 2 BvL 3/14, 1 BvL 4/14), which we have already reported on in this year’s January 01/2018 issue, the admission procedure is to be optimized and, with a new state treaty and the future higher education pact, which is still awaiting the approval of the last, still missing state parliaments, grant applicants better admission opportunities from next year. The new “Zukunftsvertrag Studium und Lehre stärken” (Strengthening the future contract for studying and teaching) also entails amendments to the Hochschulrahmengesetz (Higher Education Framework Act).

Criticism of the old approval procedure

Criticism of the rigid central allocation of study places in human medicine was intensified by two judge submissions of the VG Gelsenkirchen on federal and state regulations for the allocation of study places. At times, study places were allocated centrally on the basis of the 2008 state contract. Not only did the Abitur grade have a large share in the first main quota at a whopping 20%, but in practice it also played a major role in the university’s internal selection procedures at 60% and is both crucial and decisive. Last but not least, high school graduates with lower grades had at least a chance of admission by way of waiting semesters, with a share of 20%. Now, two applicants have filed a lawsuit because they were not admitted, despite the waiting semester. Doubts about the regulations of the Higher Education Framework Act and the Länder for the allocation of study places came to a head with these facts.

In particular, the long waiting period was deemed unconstitutional by the Federal Constitutional Court, among other things because this long period, which most recently amounted to 14 semesters, is on the one hand not in relation to aptitude and performance for medical studies and on the other hand disproportionately disadvantages applicants who are not financially secure and well off. Better-off applicants can financially better endure such a long waiting period.

It also seems questionable whether the Abitur grade, as a value-deciding factor, should and may generally qualify students for the course of study in human medicine. In this framework, individual competencies of applicants, such as social communication and practical experience, remain considered insufficient for the profession of human medicine.

Based on empirical research, a waiting period longer than four years was judged to be dysfunctional and unconstitutional because applicants are profoundly constrained and thus disadvantaged in both motivation and learning attitudes, which can end in unlearning. These negative prospects of success as a consequence of the current or previous admission system do not stand up to the fundamental rights standard.

The Karlsruhe judges also objected to the Abitur grades as a decisive criterion. There could be no nationwide comparison, both in terms of the proportion of Abitur grades with an average of 1.0 (only 0.8% in Lower Saxony and up to 3.1% in Thuringia), and in terms of average grades overall (2.16 in Thuringia to 2.59 in Lower Saxony). However, there is not only a lack of nationwide comparability of Abitur grades – there is also a lack of usability for study suitability within the states. Thus, depending on the region or district, the quality of schooling and thus the final grade may vary.

Amendment of the Framework Law for Higher Education

The BVerfG ruling particularly affects the regulatory content of Section 32 HRG. Together with § 31 HRG, which regulates the central allocation of study places, this determines the selection procedure for places with restricted admission, for which there are fixed admission numbers. Most recently, in the 2018/19 winter semester, there were 9,232 study places for every 43,631 applicants – a recurring debate about the scarcity of study place numbers and an appropriate distribution procedure. The year before, 43,184 applicants applied for a total of 9,176 study places to be awarded.

In response to the ruling, Section 32 of the HRG is to be repealed as part of the Eighth Act to Amend the Framework Act for Higher Education of May 29, 2019, thus giving the states the opportunity to create uniform regulations for applicants and students. On June 26, 2019, the Committee for Education, Research and Technology Assessment deliberated on the government draft and on the motions of the FDP and the Left for “A modern capacity law for future university teaching” and “Open up university admission and make it fair” – not least, supportive feedback also came from the representatives of the CDU/CSU, SPD and Bündnis 90/Die Grünen.

Comments/criticisms of the parties

The representative of Bündnis 90/Dier Grünen echoed the praise of the CDU/CSU and SPD for the draft law, saying that “a patchwork of 16 different regulations by 16 federal states has thus been avoided”. He described the Higher Education Framework Act as a shadowy existence since the 2005 federalism reform, but said it is still good that the act still exists because it provides a uniform federal framework. Due to the clear, shared responsibility of the federal government and the states, the bill also met with approval and welcome from the FDP. This was also supported by the representative of the AfD.

The only criticism the bill encountered came from the representative of the Left Party. He said the federal government is pulling back so far on the bill that “the ball is in the states’ court,” giving universities more rights and limiting those of students. Justify it did with the request of 05.06.2019.

Motions of the FDP and the Left for a modern capacity law and fair design of university admissions

While the FDP, with its motion of 04.06.2019, primarily calls for a reform of the capacity law, which regulates the admission figures at universities, the Left Party advocates for the fair design of university admissions. To ensure equal opportunities for applicants, the current ways of admission, such as “various tests and interviews based on habitual preferences” of applicants, should be abolished because they lead to “arbitrary decisions and social selection.” They are also demanding financial support from the federal government for the expansion of universities.

The FDP contends that the capacity law, which governs university admission numbers, despite multiple modifications, does not significantly increase investment in quality improvements. The allocation of study places and the funding strategy of the universities are still based on the specifications of the 1970s and do not meet the requirements of today. The right to free choice of profession demanded by the Federal Constitutional Court could be guaranteed in this way with the rapidly growing student numbers. In its motion, the FDP suggests that “federal funds can be channeled into effectively improving the quality of teaching and, in particular, improving the student-teacher ratio at universities.”

Representatives of the left attribute the scarce availability of study places to admission restrictions and the imbalance between supply and demand. In addition, the admission requirements of any undergraduate degree program, thus not just human medicine, should require only a relevant degree; all other requirements should be dropped, as such requirements lead to the “expansion of a private market for coaching and pre-qualifications that are socially exclusionary.” The schools and universities are responsible for the academic education and not the parents who are liable to pay maintenance. In the case of admission for human medicine, where not every applicant can be considered due to lack of capacity, preference should be given to those who have applied in the previous semester on the one hand, and for rejected applicants with hardship cases on the other. School grades should not play a role.

This motion met with granite from the representatives of the FDP – all admission requirements cannot be independent of school grades. This in turn would lower motivation to perform very well and be unfair to hardworking students. Other groups have joined this line of argument. They agreed that the various criteria should be in relation to each other and lead to approval after balanced consideration.

The new regulation

With the new admission law as a new regulation in conformity with the constitution, which is subject to the constitutionally developed standards of Article 12 I iVm Article 3 I GG and was developed in the light of these by the individual federal states, the equal participation in the educational offer of study places is to be ensured for the applicants. In order to be able to guarantee this, he said, the suitability of the applicants must be taken into account.

In the future, the length of the waiting semesters is to be limited in order to avoid disadvantages for applicants. Also, the preliminary quota is to come to a share of up to 20%, in which the vocationally qualified applicants without university entrance qualification are already included in this. However, the Abitur best quota has been increased by 10% and will thus hold a share of 30% with the new admission procedure. This can be explained by the fact that the Abitur grade is considered by the Federal Constitutional Court to be a meaningful selection criterion overall, especially for the preclinical part of the study program. It could be inferred from her cognitive abilities that the high school graduate meets the essential requirements, such as diligence, exceptional work attitude and motivation for the study of human medicine. The proportion of the internal university selection procedure remains the same at 60% and is expanded with additional criteria – of which two are grade-independent, one of which is to be of considerable weight.

Due to the lack of a nationwide comparison, applicants will only compete within the state. State quotas are formed for all study places, both in the high school graduation quota and in the internal university selection process. The country quotas can then be used to determine the applicant’s rank compared to other applicants from the same country.

An additional eligibility criterion that did not exist in the previous three university pacts is the aptitude quota, which has a 10% share and replaces the previous waiting period quota. In this new quota, all qualifications and individual skills of the applicants are to be taken into account – all completely independent of school grades. In particular, decisive aptitude tests and selection interviews are conducted here. In addition, applicants’ specialized professional training is also taken into account.

So-called rural doctor quotas, in which students commit to working in certain medically underserved regions, are also to be kept free for a certain contingent of study places – although this is up to the Länder. Moving forward, North Rhine-Westphalia was the first state to pass such a rural physician law. Patient care is designated as an allowable selection criterion.

New regulation = old regulation?

Critics of the new higher education pact criticize the fact that high school graduates with very good grades continue to have the best chances of being admitted to medical school, especially since the quota has been increased by 10%. The remaining applicants may qualify for medical school through pre-qualifications, study skills tests, and oral procedures. Even though the new legal framework with new opportunities for applicants provides a solid foundation, the major issue of shortage of study places has not been solved.

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