Dutch court defers decision on English in universities
What seemed on the surface as a ‘win’ for the University of Twente and Maastricht University was really a move by the court to reserve final judgment in a case where the law itself was unclear, the underlying facts were not yet fully resolved, the evidence presented was not sufficiently detailed to support the claims and the political process seemed to be working towards a resolution.
To understand the court’s reasoning and its implications, you need to first look at the political backdrop and the events leading up to the litigation over the course of several years.
Universities throughout the world are increasingly moving towards teaching in English in the name of internationalisation. Perhaps nowhere has this movement been more pronounced than in the Netherlands where 74% of masters and 23% of bachelor degree programmes are now totally taught in English, a move which intentionally draws students from across the globe.
Close to 90,000 or upwards of 17% of the overall student population in Dutch universities is now made up of international students. The postgraduate numbers are considerably higher, close to 50% for PhD students. At Maastricht University where all masters programmes are offered only in English, 58% of the student population is from outside the country.
These figures may not sound cataclysmic in a country where 90% of the population reports that they speak English fluently. Yet the more international students these programmes attract, the more compelling the justification to further expand them has become. The further the programmes expand, the larger the numbers of international students flocking to the Netherlands.
This seemingly endless cycle has raised concerns, given budgetary constraints, as to the accessibility and quality of higher education offered to Dutch students and the loss of the Dutch language as a vehicle for intellectual engagement and knowledge production.
Calls to protect the Dutch language
At the heart of the issues raised in the recent litigation is Article 7.2 of the Higher Education Law, adopted in 1991, which states that teaching and examinations must be conducted in Dutch except if the training is related to another language or in the context of a lecture given by a foreign teacher, or if the specific nature, organisation or quality of teaching or the nationality of the students so requires, according to a code of conduct adopted by the university’s executive board.
Over the past three years, concerns over English-taught programmes in the Netherlands and their relation to internationalisation have provoked a vigorous debate that has captured the press and spread from campus to parliament.
A prime mover in that debate has been the association Beter Onderwijs Nederland (Better Education Netherlands), popularly known as BON. In June 2015, BON issued a ‘manifesto’ or ‘call to action’ for universities to comply with Article 7.2 and more vigorously protect the Dutch language. The document gathered close to 6,000 signatures and set in motion a series of actions.
The following December, adding fuel to the fire, a poll of 269 Dutch university students found that 60% of those questioned had encountered lecturers whose English was incomprehensible and who said that they learned less in English-taught classes than if the lecture were in Dutch.
That same month the Dutch House of Representatives addressed the question in a hearing attended by student groups and dozens of professors, scientists and writers, but apparently nothing tangible came of it.
As the debate continued to heat up, the minister of education, culture and science commissioned the Royal Netherlands Academy of Arts and Sciences (KNAW) to conduct a study on language policy in Dutch higher education.
KNAW’s final report, submitted in July 2017, recommended that the decision to provide instruction in a particular language be based on “good subject-specific evidence-based reasons”. It must be a “conscious choice” and “firmly anchored in a supportive language and internationalisation policy”.
The report also noted that both students and lecturers “must have a good command of the language of instruction”. KNAW was even more direct in a subsequent report on language in the Netherlands where it criticised the government for failing to develop a national language policy that upholds the Dutch language, looks beyond English and mobilises the multilingual skills of the Dutch people.
In May 2018, the Association of Universities in the Netherlands (VSNU) issued a joint paper in which members agreed to place an upper limit on English-taught courses in order to take control of the number of international students and thereby protect the quality and accessibility of education for Dutch students. They also agreed to coordinate their language decisions.
The following month, the Dutch minister of education, culture and science, building on the KNAW reports and the VSNU joint paper, sent a letter to the House of Representatives echoing themes of quality and accessibility while calling on universities to take responsibility for balancing their Dutch and English course offerings.
Most importantly, the minister proposed revisions to Article 7.2 whereby institutions, when choosing a language other than Dutch, would have to consider the “added value for the quality” and the “accessibility” of education for Dutch students.
She further ordered the Dutch Inspectorate of Education, which she heads, to examine the codes of conduct that universities must develop under Article 7.2 and determine the appropriate action for individual institutions. The initial findings will inform a wider investigation into internationalisation in higher education in 2019.
It was against this yet evolving political landscape that BON brought a lawsuit, using the University of Twente and Maastricht University and their all-English psychology bachelor degree programmes as extreme examples in what also was intended to be a broader challenge to English-taught programmes and the perceived failure of the government to enforce the law.
BON claimed that the programmes impaired both the quality of teaching and the accessibility for Dutch students to higher education. It also asked the court to declare a moratorium on English-taught programmes for at least one year while the government developed a new language policy.
After addressing procedural matters and dismissing claims against the inspectorate, the court took a measured and narrow approach in weighing the interests and arguments on both sides. That weight, at least for the purposes of this lawsuit, fell on the side of the universities.
The essential problem for BON was that it failed to counter the evidence presented by the universities that their decisions were not driven solely or mainly by revenue considerations, as BON claimed, but rather by factors demanded under Article 7.2, including the international character of the field of psychology where the academic literature is largely in English and the universities' diverse student bodies for whom English is a common language.
That being said, the court reserved judgment on the larger question of whether the codes of conduct and the method of implementing them complied with Article 7.2 since the article itself does not indicate the requirements such a code must meet.
As the court noted: “It is not up to the judge to take a position in the debate on the importance of Dutch-speaking education for the quality of education.”
That task the court left to the inspectorate in completing the investigation it had already started. This clear exercise of judicial restraint is not uncommon in education cases where courts recognise their limited capacity and legitimacy in deciding education matters, especially where the political actors appear to be acting in good faith.
While the two universities now claim victory, it might be short lived. The court in fact warned that once the inspectorate's investigation is completed and clearer standards for compliance with Article 7.2 are established, Dutch universities, including the University of Twente and Maastricht University, may still find themselves subject to legal claims of offering English-taught programmes “without any need”, however defined in the law.
BON, on the other hand, can take credit for having energised the debate with its 2015 ‘manifesto’ and having maintained the momentum for a political response with its repeated threats of litigation. At the same time, by deferring to the political actors, the court has implicitly placed pressure on them to keep to their word and find a workable solution to a policy problem with broad implications for higher education and for Dutch society.
It is now left to the legislature and the minister of education, culture and science to respectively clarify and update the legal standards under Article 7.2 and enforce the law in a way that more thoughtfully addresses the quality and accessibility of education offered to Dutch students and preserves the intellectual integrity of the Dutch language, while recognising the cultural and economic benefits of maintaining a diverse and international student body.
As they say, “It’s not over ‘til it’s over.” This is a case that demands continued attention as it unfolds, not just for how it ultimately affects universities in the Netherlands but for what it may generally reveal about process and substance in resolving the many issues surrounding internationalisation and English-taught programmes.
Rosemary Salomone is the Kenneth Wang Professor of Law at St John’s University School of Law, USA, where she teaches constitutional and administrative law. She is the author of True American: Language, identity, and the education of immigrant children (Harvard University Press) and is currently completing a book on global English, identity and linguistic justice for Oxford University Press.