The Higher Education bill: a general assessment


On the 26th of July, the University of Chile in full got together at its headquarters in order to start an internal reflection process on the implications of the educational reform put forward by the government. On the occasion, the academic Fernando Atria referred in detail to what, in his opinion, are the central aspects to debate. Below is an edited version of his presentation

By Fernando Atria, Professor at the Law Faculty of the Universidad de Chile

The higher education bill intends to correct deficits in the Chilean Higher Education system, but without changing the market structure that characterizes it. The false assumption is that these are two different things. Said in the government program’s own words, deficits are manifestations of the fact that the system treats education as a commodity, when it is actually a social right. This is the basic incoherence that pervades the project from beginning to end. 

If the project were approved as it is, it would be a step backward in my opinion. But, at the same time, we must recognize that its content does not limit, but rather opens up perspectives. The project is not the end of the discussion on Higher Education, and it’s not even the beginning of the end of the discussion. It is the end of the beginning. With this bill, the discussion about the neoliberal model of Higher Education has just begun.

The arrival point and aimless transit

Maybe part of the problem lies in the way reforms are conceived of. They are planned from the perspective of transition, without giving much thought to where it is that they need to arrive. This is evidently the wrong way to proceed. The rational alternative is the opposite: first, it is necessary to specify the expected arrival point. Once this is done, you will have to ask yourself how this point and the current situation can be connected, and then make the necessary adjustments. It is no use discussing transition measures without clearly specifying the point you want to reach.
  But this is exactly what the project contains, and one could even argue that this is the Nueva Mayoría’s trademark: their reforms have not been able to show what things would be like if the intended reforms were successful, because their peculiar way of understanding “realism” and “gradualism” amounts to transiting for the sake of transiting.

The public, the private, the state

On this, one of the central issues under discussion, some say that ‘public’ is the same as ‘state’, and that this is the reason for why public universities are the same as state universities. Others contend that ´public’ and ‘state’ are obviously different categories and that ‘public’ is more important.

Both positions are incorrect, in my opinion, but not equally incorrect: the statement that what is public is the same as state-owned has a stronger and more plausible starting point, even if only a starting point. It is necessary to explain what relationship there is between public and state without assuming that the latter immediately implies the former.

This starting point avoids turning the issue of defining what the public is into an excuse to empty the notion of all of its content, which is precisely what those who deny any relationship between public and state do. For them, the concept is so empty that even the president of a pontifical and confessional university, controlled by the Catholic Church, and who recently witnessed how a professor in the Faculty of Theology was forbidden to teach by the local archbishop, can bring himself to claim that his university is “public.”

Why it is important to wonder about the relationship between ‘public’ and ‘state’

Today, it is not so much the existence of private universities that has fractured the relationship between what is public and what is state-owned, but rather the fact that state entities are compelled to act as if they were private. This is the legacy of decades of neoliberalism: the privatization of the State, which is the consummation of the negation of the ‘public.’ 

This is no exaggeration: state universities are financed mainly with fees paid by their students; the state television channel sells advertising in order to survive, and the state bank, apart from being embarrassed by its condition to the point of changing its name to conceal it, relates to its clients with the same abusive practices as private banks.

So, the fact that a bank or a television channel is state-owned does not imply that they are public. But we need to have a criterion that makes it possible for us to denounce the privatization of the State and say: we need the State, at least, to be public!


Public is what is not subjected to the regime of private property

In the sense in which I believe that this is important, “public” is what does not have an owner, that is, what is not subject to the regime of private property.  Such a regime is defined as a thing that belongs to somebody; that somebody, referred to as “owner”, has the right to decide what to do with it without owing anybody an explanation (that is why the Civil Code in art. 852 says that the owner can act “arbitrarily” as regards to his thing). If the owner has decided that his thing must serve a certain purpose and somebody demands an explanation, he is in a position to say: “because it is mine and I want it this way.”

In this sense, the university is intrinsically public (which is why the expression “public university” is a redundancy). On this basis, we can already refer to what is special about a public university, bank, or television channel. Additionally, this helps us to specify why the very idea of a university is public.

A public university, for the reasons stated above, would be one in which nobody has the right to decide unilaterally, and without explaining to anybody, what interests it must serve. A private university, in turn, would be one in which somebody does have the right to make that decision. If the owner wants it, the university will be at the service of a religious, political, or economic orthodoxy. In this case, the institution will not be an institution that is subject to the ideals of free research and open discussion, at least with respect to certain matters. But this is precisely what defines a university. Therefore, there is something essentially public (that is to say, essentially incompatible with the private sphere) in the very idea of a university. 

 In Chile, nowadays, only state universities are, in this sense, public (the universities of the so-called G-3 are obvious candidates to be public non-state universities; but answering this question calls for a discussion of their structure and organization, which is not possible to do in detail here). That is an observation about the institutional regime of universities and does not suppose nor imply that only state universities are of good quality, or interesting, or well intentioned, etc.  It only means that this system leaves private universities in the hands of their owners or controllers.  Some owners use this prerogative, while others have decided to give it up, but every one of them can, in theory, use it.

This concept of ‘public’ makes it possible for us to say two things: first, it is reasonable for the State to draw a distinction between public universities (without an owner) and private ones (with an owner); second, that, in principle, it is possible to have a public regime (without an owner) which universities that are currently private can aspire to, as long as their institutional development leads them to achieve autonomy from their owners.

For-profit education

Today, providing education for a profit is prohibited with respect to universities, but permitted in the professional institutes and in the technical training centers. The current prohibition on profit making, then, is a prohibition imposed on universities as a whole, whereas in some cases it is a prohibition (when it exists) linked to institutions that are specifically non-profit organizations.  So, when a university withdraws revenue as profit, it is, in fact, violating the legal conditions required to be a university in the first place.  When a professional institute or technical training center profits, it acts legally (if it is organized as a company), but illegally if it is registered as a non-profit corporation or foundation.

It is clear that these two cases of profit making must be treated differently by the law, but the reform project assumes that they are the same, and so has specific rules about institutions “that are set up as non-profit organizations,” overlooking the fact that, in one case, they are legally prohibited from profiting, and in the other, are voluntarily giving up their right to do so.

The solution, of course, should be to prevent profit-making altogether (allowing for an adequate system of transition), or to simply maintain the prohibition for universities only. In the first case, it would make sense to establish an enforcement mechanism applicable to all private institutions; in the second, enforcement should be applicable to universities only. 

Tuition-free education

Tuition-free education became the demand that summed up all the other demands expressed in 2011. Because of this, there has been a considerable effort to distort it and caricaturize it.  An attempt should be made in order to clarify several of these confusions about the rules contained in the project.

The concept of tuition-free higher education can be understood as the need to finance education for those who cannot afford it, or in the claim that education is a social right. The right way to understand the demand for free education is the second one, but the project opts for the first.  And as ideas have a system, once this has been decided on, there is a whole series of further questions that are also decided on.

If it is a question of financing someone who cannot pay, gratuitousness will be a focused benefit. That is, in fact, the way it is treated in the project. It has been said that eventually tuition-free coverage will reach 100%, but this is politically impossible, because the conditions to get to 100% (art. 48 trans.) are not real, and also because financing charged against general income will mean that every step taken towards 100% coverage is going to make the following step even more difficult, given opportunity costs.  100% tuition-free coverage is only politically viable if the resources used have no alternative uses; to that effect, it would be necessary for gratuitousness to be a social security system (a “tax on graduation”).

Surprisingly, there is always somebody who says this would not be gratuitousness, thus showing a peculiar incapacity to distinguish taxation from credit contributions. The question is whether this is gratuitousness in the relevant sense. If at least part of the tuition-free coverage were financed by the contributions of those who had attended university, this would be a safe social security system analogous to a pay-as-you-go pension system, in which those who have already studied would contribute to financing those who are currently studying.

Gratuitousness by way of agreements

The second sense in which gratuitousness is not universal in the project has to do with the fact that only state institutions and some private ones “will be entitled” to it.  This is supported by the unusual idea that the law cannot force institutions, and can only offer them a contract, which they can decide to accept or not.  But if it is the student’s right to a free education that justifies gratuitousness in the first place, it seems absurd that such a right could be neutralized by the institution’s unilateral declaration.

If gratuitousness is partial, then there is no decommodification. If there is no decommodification, then there is no acknowledgement that education is a right. Today, genuinely universal gratuitousness faces a strange alliance: it is criticized from the right (which defends the neoliberal model), and from the left (which demands that gratuitousness should only apply to state institutions, and that financing it with some special tax or a contribution would amount to gratuitousness “with fine print”). 
Therefore, the probable outcome of all this will be a scenario of partial gratuitousness: for only some institutions and for students of the last five, six, or seven income brackets. This will consolidate the concept of gratuitousness as a “benefit”, as a voucher, 
which will not eliminate, but rather strengthen the market.

The treatment of state higher education

The project also fails to challenge the neoliberal idea that has led to the privatization of the State: that it must act in accordance with the same regime of the private sector, that any difference in treatment constitutes, in principle, “unfair competition.”

As before, there is here something in the project that can also be highlighted.  It is true that it doesn’t directly challenge that idea, but it also makes it impossible for that challenge not to come up in the discussion surrounding the project. But what the project gives in one sense, it takes away in the other.

By creating a special fund for state institutions (art. 188), the project introduces the idea that state institutions are different from private ones. But the fund in question has no content (this will be determined yearly by the budget law) and it must coexist with the “fund for development and improvement of research functions and artistic creation” (art. 187). This second fund is available for all institutions, public or private, that apply for gratuitousness.

At this point, the fact that public resources belong to all Chileans becomes relevant; why should they, then, be used to finance the activities of institutions that have an owner?

Expanding enrollment

The vacancies of the institutions that have applied for gratuitousness will be determined by the undersecretary, which establishes the criteria that must be considered to do so (art. 178). Whether or not an institution is state-owned is not specified by these criteria. This is another noticeable wasted possibility: that of implementing a policy that seeks to progressively expand enrollment in state institutions, so that, over time, these may come represent a substantial percentage of the total enrollment.  To that effect, however, the project should have established the progressive expansion of public enrollment as a goal, to be pursued by the undersecretary when determining enrollment vacancies or, at least, when specifying the criteria to include whether the institution is private or state-owned.  Which it does not.


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