De vrijheid van het bijzonder onderwijs - pagina 239

the time of the foundation of the two high schools economics was not yet

recognized by the law as a subject for study; recognition by the legislature

came in 1937, the two high schools being granted effectus civilis in 1939.

After the Constitution formally recognized freedom of education as a

fundamental right subsidising of private education became a politically

sensitive issue for almost half a century. In 1917 this issue was decided by

yet another revision of the Constitution. From that time the Constitution

stipulated that public and private primary education which reached a certain

standard were to be financially on a par. It also granted that other forms of

private education could be subsidized by the State.

During the first half of the twentieth century private universities and high

schools enjoyed various subsidies from the communities, the provinces and

even from the State. In 1948 a law introduced by Gielen put subsidies for

private higher education on a legal basis. This in practice led to a vicious

circle. Financial support from the State on a grand scale encouraged in no

small measure the expenditure of the private institutions and thus led them

to overexpend. The deficits which arose could only be covered by further

increases in the State subsidies. In the end this meant that the cost of private

higher education had to be fully met by the State. This has been the position

since 1970.

The rights both to award degrees having effectus civilis and to receive State

subsidies have been subjected to certain conditions by the law. There are in

effect two sets of conditions. The aim of conditions connected with the right

to award degrees having effectus civilis is to ensure proper academic

standards. The Constitution remained silent about the possibility of the legis-

lature imposing such conditions, the 1917 Constitution empowered the law

however to require private educational institutions to meet proper educa-

tional standards as a condition for subsidising. For private higher education

such standards are in effect governed by the law of 1905, so that the condi-

tions and standards the State requires in connection with subsidising touch

principally on accountability and efficiency of management.

Although the Constitution provides for freedom of private universities and

high schools the legislature in seeking to ensure proper standards in return

for the right of effectus civilis does not violate the Constitution as long as

these standards are obviously related to the right to award degrees having

effectus civilis. If these standards are unrelated to this right then they are in

violation of the Constitution. This problem was solved by the concept of

voluntarily accepted restrictions of the constitutional freedom.

With regard to subsidies the Government's authority to make stipulations

is limited in the same way. Subsidies are a tool of management whose effect

must be to stimulate or expand certain private activities or encourage them.

Interference by the State through conditions for subsidising must at all times

respect private initiative and its aims however. Whether a certain stipulation

or condition threatens private initiative is to be judged either by the Council

of State or the Crown.

Within this framework the fundamental freedom of private higher educa-

must be noted however that there is no standard procedure for acceptance of

proposed stipulations by private universities and high schools. The need for

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