Constitutional court decision puts reform goal in doubt

Chile’s constitutional court has ruled that article 63 of the new higher education reform law that bans for-profit individuals or entities from controlling or owning universities and technical institutes breaks the Constitution as it ignores the basic rights to education and organisation.

The ruling was immediately criticised by opposition MPs for blocking a ‘democratic decision’ to prohibit for-profit education, a key part of the long-struggled-for reform guaranteeing free education that was approved by parliament in January this year.

The constitutional court’s ruling on 27 March “distorts the democratic decision (by parliament) to eliminate profit from higher education”, tweeted former left-wing president Michelle Bachelet, who finished her term of office on 11 March and was succeeded by right-wing entrepreneur Sebastián Piñera.

The higher education reform passed in January firms up a 1980 rule, made under the Augusto Pinochet dictatorship, allowing the establishment of private universities that could offer higher education for a fee provided they were not for-profit.

The tighter provisions in the new higher education reform law included the article that prohibited controllers or owners of higher education institutions from seeking profits.

Ironically, it was Pilar Armanet, a minister in Bachelet’s first government, who asked the constitutional court to rule on article 63. She did so in the name of the Corporation of Private Universities (CUP), with the argument that banning universities from having for-profit controllers or owners went against the higher education principles of autonomy, diversity, freedom of association and education and nondiscrimination.

The six constitutional court magistrates that voted in favour of CUP’s arguments (four voted against) added that lawmakers cannot interfere “in the right to open, organise and maintain educational establishments” and that Article 63 also goes against the constitutional principle of legal equality.

Chile Vamos, Piñera’s right-wing coalition, says that the constitutional court’s ruling does not lift the prohibition of making money with higher education institutions. Raúl Figueroa, under secretary of education, explained: “The higher education law rules out profit and this is the only valid interpretation as it includes a series of regulations and demands for ensuring that profits are not withdrawn from universities.”

He added that the new superintendence and undersecretariat of education that are being set up under the higher education reform law will monitor the implementation of the non-profit rule.

But Adriana del Piano, former education minister under Bachelet, is not so sure. “A controller is somebody who can take key decisions in a university, support or name rectors, etc. Therefore it is very complex for an institution or business group to own a university that cannot turn a profit, or cannot be for-profit, given that we know from history that they have found ways of circumventing this,” she told La Tercera, a national daily.

Carlos Peña González, rector of the large, private and renowned Universidad Diego Portales, adds that the court’s decision “contradicts a key principle of university life: universities are not governed, even in part, according to who owns them, something that will now be possible”.

Ruling heavily criticised

The constitutional court’s ruling was heavily criticised by opposition politicians, mainly on the grounds that it blocks a democratic decision by parliament.

Students showed their disagreement by chaining themselves to the bars of the constitutional court’s windows and later organising a street demonstration that was violently repressed by the police and ended up with 17 students taken into custody. They were holding placards that read: “Chile has already decided, no more for-profit in education.” They announced they will go on strike in mid-April.

“The constitutional court has fired against the democracy it says it stand up for. By in effect eliminating for-profit prohibition in education, it scraps in one go a social and legislative debate that has gone on for years,” said Gabriel Boric, former student leader and now a deputy.

The Chilean State Universities Consortium (CUECh) published a statement that rejects the constitutional court’s decisions and urges the authorities to ask parliament to reinstate article 63 of the higher education law. It declared that the constitutional court’s ruling was “absurd” because “apparently it is said that making profit is forbidden but that for-profit institutions can take part. It doesn’t make sense”.

CUECh’s statement noted that “Quality of education, a basic right in our society, implicitly includes the condition of being a non-profit activity.” It also warned that with the constitutional court’s ruling, government and student resources would end up in the pockets of private, national or international individuals and institutions.

CUECh’s president, Ennio Vivaldi – who is also rector of Universidad de Chile, the country’s largest university – argued that the constitutional court’s verdict reflected two views on the non-profit theme, the view of those that define education as the place where individuals “mature as human beings”, and of those for whom education is “an investment that the student makes for himself, using many arguments that, in our view, distort what a university is”.

The Laureate International Universities group that owns three Chilean universities investigated for making huge profits, said in a statement that it will fully abide by the higher education law’s norms and that it will reform its institutions in Chile.