Higher education vs competency. Separate opinion of a judge of the Constitutional Court of the Russian Federation on the state of higher education

In accordance with the Resolution on the case on checking the constitutionality of the provisions of paragraphs 1 and 2 of Article 3 of the Law of the Russian Federation “On Employment in the Russian Federation” in connection with the complaint of citizen M.V. Tchaikovsky, I consider it important to note the following.

Upon receiving the status of unemployed, a citizen is no longer required to present a diploma of higher education, in particular, education in evidence of professional qualifications. This is not the first time that the Constitutional Court of the Russian Federation has terminated the direct dependence of the exercise of rights on the presentation of a diploma. In the Decree of November 14, 2018 No. 41-P, the Constitutional Court of the Russian Federation concluded that even the right to pedagogical activity (of certain types) cannot be strictly determined by the presence of a diploma if it is successfully carried out by a person who corresponds to his position.

The decision of the Constitutional Court of the Russian Federation could probably take place in a slightly different content, if the educational documents had a different reputation than now. If professional education confidently guaranteed the qualifications of diploma holders, then in the constitutional balance of interests and values ​​this would probably have a different weight, which would give more reasons to maintain the credibility of the diploma, so that possessing it would be a condition for exercising freedom of work and related rights .

The refusal of the education system to privilege the certification of professions is difficult not to associate with its state, when there are so many dynamics in it that one cannot count on the stable quality of the educational product. So, some time ago, an interdepartmental group under the Government of Russia started work, which was supposed to lead to the next revision of the rules of accreditation of universities and to their distribution into three categories: basic, advanced and leading. Basic universities had to switch to online courses, which would make them educational and consulting points with distance learning, probably, like online points where the cost of the service would include a diploma. These peripheral cell universities would enter the pyramidal structures as ordinary members and would practice coaching, instill “competencies”, as instill leadership and compliance at master classes and trainings in the spirit of network marketing. Leading universities, if that were all, would have to prepare educational products for distribution in the future through the network through "advanced" middle-level universities. Then, of course, universities would reduce costs due to the scale and resources of the network while reducing the staff of teachers. Such undertakings invariably enjoy support in the administrative class and among activists; they constantly ripen there and sometimes get realization.

Not everyone, however, sees in them the progress of enlightenment. Someone will decide that the continuous risk of structural changes, not to mention the real implementation of them, deprives science and professional education of the opportunity to maintain quality at a decent level. So, not everyone considers the introduction of the Bologna system useful, and many would prefer to do without it, as German universities, for example, did. Not everyone is convinced that the introduction of undergraduate and graduate programs according to Bologna standards has increased the quality of education and that now Russian diplomas are recognized according to international standards, as expected. The innumerable resources that were spent on this could be spent for the benefit of science and for a decent payment for teaching work. Improvements in education last about thirty years, and their results are still controversial, so now that there is so much spent and trust in diplomas, there is no reason to continue to rely on ministerial decisions, the initiative of the administration and the enthusiasm of activists.

It is possible that now we will have to wait until the diplomas of most universities and technical schools (lyceums, colleges, etc.) become convincing. Then it will probably be possible to discuss again how much vocational education certifies access to professions and whether the exercise of certain rights should be associated with diplomas. So far, however, administrators and activists cannot provide the educational standards stipulated by the Constitution of the Russian Federation itself (part 5 of Article 43) except in the documents and reports prescribed by their department, although university autonomy and academic freedom presuppose, rather, prevailing orienting pattern.

Until recently, the privilege of issuing diplomas has guaranteed the vocational education system protected by law incomes, including budget ones. Leaving her such guarantees, probably, is already imprudent without the certainty that they will benefit the education itself. During the time spent in the reforms, the system allocated resources in such a way that this hardly affected the professionalism, well-being and dignity of the teachers, i.e. on the quality of training. The system pays meagerly if the teacher does not receive the paid role of administrator, performer, or activist enthusiast in her managerial sector. Sometimes it allows the teacher to increase his poor earnings a little, but not for work, but for good statistics and reporting, for demonstrating competency-based approach instead of academic methods, for grants and for ratings, monitoring with schedules and everything else that is expensive for the administration’s services and departments. For this, the teacher needs to cultivate the skills and abilities to write resumes and applications, place them in funds and departments, draw up accreditations, and form citation indices.

In such an environment, it is not teaching and learning that are valued, but educational and methodical complexes that are needed not by students and teachers, but by services, so that they feel good and remain in important positions at important positions. It is unlikely, however, for the sake of this, it is necessary to preserve the privileges of the system, ensured by the obligatory diplomas. Its interests and values ​​are unconvincing, and for their sake it is impossible to limit the freedoms of citizens, the possibilities of social statehood contrary to the provisions of Articles 2, 7, 17, 18, 21, 34, 37, part 3 of Article 55 of the Constitution of the Russian Federation.

Subordination and reporting under the supervision of administrators inhibits teaching and science, when universities give up their self-government, academic freedom, style and maintain a system that issues permits for the profession. Autonomy is a prerequisite for the activities of the university, and if we assume that Russian universities are not capable of it, then the calculations for a good education and diplomas are unrealistic, of course.

The Constitutional Court of the Russian Federation sees in the autonomy of universities the fundamental beginning of their activities, which determines their relations with the state and state policy in the field of education (Decision No. 19-P of December 27, 1999); he states that autonomy has justified itself historically in the pan-European university tradition, and connects it with the goals of the social state, the freedom of scientific, technical and other forms of creativity, teaching, everyone’s right to education and other constitutional values ​​that follow from the provisions of articles 7, 17, 18, 43 (parts 1 and 5), 44 (part 1) of the Constitution of the Russian Federation; it allows limitations on the autonomy of state and municipal universities by public authorities only for constitutionally significant purposes and insofar as these bodies, as the founder, control the compliance of the university with its statutory goals (Decision No. 767-O-O of June 7, 2011). The autonomy of educational institutions — with academic freedom in the search for truth, with its free presentation and distribution under the professional responsibility of teachers without the care of superiors — was recognized in Article 3 of the Federal Law “On Higher and Postgraduate Professional Education”. Article 3 of the Federal Law “On Education in the Russian Federation” proceeds from the same principle, classifying the freedom of the teacher in determining the forms and methods of training and education, the autonomy of educational organizations, the academic rights and freedoms of teachers and students as principles of education (paragraphs 7, 8, 9) . The implementation of these provisions is doubtful if the system puts the participants in the educational business at the service of their interests. Even Peter I did not doubt that “the sciences of submission cannot tolerate,” and N.I. Pirogov insisted even more so that administrative uniformity is incompatible with an “autonomous university,” [1] that “autonomy and bureaucracy go together” and that “science has its own hierarchy; having become bureaucratic, it loses its significance ”[2].

Now, a lot has come to the point that it will soon be necessary, perhaps, in the most diverse legal relations, to wait with the strict obligation of diplomas, until there is strong evidence that universities are restoring autonomy. But this is unrealistic if the administrative part in the education system does not become underpopulated due to the reduction of staff and services, the loss of their functions and methodological guidelines. It is also necessary to make sure that structural changes in education are reduced mainly to the elimination of dying institutions, and existing institutions have lost interest in reorganization and change of titles, and that enthusiasts will no longer succeed in their initiatives to create a department the size of a faculty or to establish “schools” instead and “directions”.

While the administrative part, together with the activists, behaves as the organizer and owner of the education, determines its architecture and fate, it is futile and unnecessary to spend the force of law on the compulsory nature of diplomas, which in this case loses constitutional and legal grounds. The foregoing does not differ from the Resolution adopted in the present case.

[1] See: University issue // Bulletin of Europe. T. 1 (237). St. Petersburg, 1906.P. 1, 15.
[2] See: Kropotova N.V. Nikolai Ivanovich Pirogov on university culture: What has changed over a century and a half? // Modern scientific research and innovation. 2016.No7 // web.snauka.ru/issues/2016/07/70077 .

“The scope of constitutional (statutory) justice in its territorial aspect extends only to the territory in which the relevant state authority is created and operates, in terms of subject matter - to the special sphere of public public law relations regarding the“ complicity in the overall process of constitutional review in the Russian Federation".

“The institute of dissenting opinion is legally enshrined in many democracies, including the USA, Russia, Canada, Germany, England and others. In some countries, a dissenting opinion is published together with a court decision (USA, Russia), in others it is included in the text of the reasoning part of the decision (Germany). But there are democratic countries with a developed judicial system where there is no such judicial institution at all. Among them, for example, France, Belgium and Italy. The main reason for the lack of a dissenting opinion institution is, obviously, an enduring fear of revealing the secret of the deliberation room and undermining the authority of the court decision. The absence of this institution in a number of judicial systems is also explained by the legal traditions of the state. ”

“For Anglo-American lawyers, the institution of dissent is a typical attribute of a lawsuit. Moreover, it is the pride of American justice. The dissenting opinions of US Supreme Court Justice O. Holmes are rightfully considered, as American researcher E. Dumbold notes, “treasures of legal thought” [7]. US Chief Justice A. Scalia notes that dissent is a product of independent and deep thinking; they are of interest to the legislator for their constructions and attention to the nuances of the case, serve as evidence of the complexity of the legal issues under consideration, requiring a balanced approach; naturally turn the court into a body where legal disputes are being conducted, and legal thought is developing. ”

“In the Anglo-Saxon tradition, dissenting opinions are an institution speaking in three guises — prophecy, dialogue, and the guarantor of honesty [6]. Although, it is worth noting that the initial attitude towards the institution of dissenting opinions in the United States was negative. The author of one of the first dissenting opinions, Judge William Johnson, wrote to the then President of the United States, Thomas Jefferson, that after expressing his dissenting opinion, he only heard moral advice about the indecent behavior of judges who lunge against each other [10]. Nevertheless, the percentage of decisions made by the US Supreme Court, to which at least one dissenting opinion was attached, subsequently grew steadily [8]. So, as an example of the prophetic role of a dissenting opinion, we can recall the dissenting opinion of the judge of the Supreme Court of Canada Laskin, who in Murdoch v. Murdoch opposed the old system of property law by upholding the right of divorced women who were married to do housework and raise children to a portion of the property. Later in the Rathwell v. The Rathwell court, chaired by Dickson, ruled in support of Laskin's dissenting opinion. Thus, it became a kind of forerunner of changes in legislation aimed at protecting the rights of women. ”

“In China, a dissenting opinion was first attached to the decision of the Shanghai Arbitration Court No. 2 in September 2003. This institution has long been alien to Chinese justice. Chinese judges are used to drafting short, “unfounded” acts.
...
The possibility of including dissenting opinions of judges in court decisions reflects the reformist trend in the Chinese justice system, makes judges more responsible, and also helps to change the practice of drawing up court decisions. Until recently, the decisions of the Chinese courts were short acts of up to six pages in which only the factual side of the case and the court ruling itself were summarized. There was no argumentative part, the legal justification of the decision, the assessment of evidence, the arguments of the parties were not mentioned in the text of the decision. Among the shortcomings of this form of decision, Chinese critics called the non-transparency of the trial. Only in the late 1990s did calls for reform take effect. Courts of various levels, including the Supreme People’s Court, demanded that judges substantiate their decisions in the texts of decisions. So, in July 2004, the Foshan Arbitration Court of Guangdong Province issued a decision of more than 100 pages. ”

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