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Bialystok Legal Studies
Białostockie Studia Prawnicze

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Białystok Legal Studies vol. 25 nr 4

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Articles:

Agnieszka Bednarczyk-Płachta
The Constitutionality of Regulations Regarding Professional Supervision of Universities in Poland under the Law on Higher Education and Science

DOI: 10.15290/bsp.2020.25.04.01

Abstract: The Polish Accreditation Committee (Polska Komisja Akredytacyjna – further as „PKA”) is an entity authorised to conduct control activities supporting the minister’s supervisory competencies. The institution aroused great controversy from the very beginning. The procedures and operating principles, as part of professional supervision, have been declared as unconstitutional. Despite the fact that the decisions issued by the Constitutional Tribunal are generally applicable, it’s not known why the legislator feels he is released from his obligation to comply with the Tribunal’s decisions, putting into legal circulation regulations which are already considered unconstitutional. In the field of regulations on professional supervision over universities the presented situation not only undermines the fundamental rights of universities, as entities external to public administration, but also has the direct impact over citizens’ rights – students studying in controlled universities.
The presented study discusses the law regulations of higher education and science in the scope of the procedures and competences given to the PKA in terms of their compliance with the Constitution. Comparing previously applicable higher education law before and after Constitutional Tribunal’s passed verdict from 2013 (which stated the unconstitutionality of regulations in the scope of the control procedure carried out by PKA) with applicable law allows to support the thesis about the unconstitutionality of new regulations introduced in this respect and depriving universities of the right to an effective defence. Derived conclusions clearly indicates that the new law, which in its assumptions was to be better and revolutionize higher education in Poland, is another legal act requiring a thorough change from the very beginning, which does not improve the legal situation of universities in Poland in the examined scope, and in some aspects makes the situation much worse.

Keywords: Universities, changes in law about higher education, PKA qualifications, supervisory competences, constitution

Page range:15-33

Przemysław Brzuszczak
Education in Doctoral School and Fees

DOI: 10.15290/bsp.2020.25.04.02

Abstract: This article discusses the issue of fees that may be charged to doctoral students at doctoral schools. In compliance with Article 198 par. 8 of the Act – the Law on Higher Education and Science: “Doctoral education shall not be subject to fees.” This regulation may be prima facie interpreted as excluding the possibility of charging any fees to doctoral students at doctoral schools. However, this is an oversimplification. Whereas, indeed, any activities directly related to the education of doctoral students should be free of charge, doubts arise with regard to other types of fees enumerated in Article 79 of the referred Act. And so, in literature there is a consensus that three admissible types of fees potentially paid by doctoral students are those referred to in Article 79 par. 2 points 1-2 and 6 that is those charged for conducting the recruitment process (point 1), carrying out the verification of learning outcomes (point 2), using student dormitories and canteens (point 6). The interpretation of the regulations concerning fees in the entities running doctoral schools should not have an extensive or implicit character. Thus, in this context the objective scope of these regulations seems to be relatively narrow. In the practice of doctoral schools’ functioning, a certain problem, although potentially probably small, may prove to be the legislator’s waiver as of 1 October 2019 (as opposed to the fees charged at the hitherto doctoral studies) of fees due to repeating by a doctoral student of classes due to unsatisfactory academic performance and while issuing copies of certain documents. A lack of relevant provisions at a statutory level excludes charging fees in a situation when a doctoral student achieves unsatisfactory grades from taken classes or repeatedly loses such documents as, for instance, a doctoral student’s ID card, a student book, diplomas and copies thereof, supplements to diplomas. Therefore, the author postulates de lege ferenda relevant legislative amendments.

Keywords: fees, doctoral school, the Law on Higher Education and Science

Page range:35-44

Paweł Dańczak
Decision on Exemptions for Educational Services Provided by the University under the New Legal Regulation

DOI: 10.15290/bsp.2020.25.04.03

Abstract: Higher education in Poland has been constantly reformed for over a decade so that Polish universities can effectively compete with foreign counterparts, and their graduates are attractive to employers. The possibility of learning may depend on paying the appropriate fees. This can put a heavy burden on the student’s budget, but the student may apply for an exemption from these fees under the conditions set by the university. Existing regulations were imprecise in this respect, which is why the adoption of the new law gave the opportunity to solve many related problems. One of the main issues requiring legislative intervention was to clarify what fees universities can charge their students and in what form they should decide to exclude these fees. This goal has only been partially achieved. The catalogue of fees has been defined, but it has not been determined whether the exemption from the obligation to pay them should be made by an administrative decision or any other act of the university body. The analysis of the new provisions leads to the conclusion that the principle should be the adoption of an administrative decision granting exemption from fees for educational services, whereas in the case of other fees referred to in art. 79 § 2 p.w.sz.n., the appropriate decision should be in a different form.

Keywords: fees for educational services, exemptions and reliefs from fees, administrative decision

Page range:45-56

Katarzyna Górak-Sosnowska, Lidia Tomaszewska
Role of Dean’s Offices in Developing Internal Normative Acts at HEIs

DOI: 10.15290/bsp.2020.25.04.04

Abstract: Dean’s Offices are administrative units of a wide scope of tasks with particular focus on managing students affairs. Their work is regulated by ordinary law, as well as internal normative acts developed at their respective HEIs. In our article we analyse the role of the Dean’s Offices in creating such acts in regard to a) their inclusion in this process; b) their ability to initiate such process; c) a wider framework of legal knowledge that they have access to. Our source material are 15 structured interviews with heads of Dean’s Offices at public and non-public HEIs. Our results indicate that the inclusion of Dean’s Offices in developing internal normative acts varies and seems to be an indication of HEI’s dominating organisational culture. In case of role-oriented cultures, there might be some channels that enable the Dean’s Offices to participate in developing the regulation. However, it depends on the power relations between the Dean’s Offices and central administration of the HEIs. Much more rarely are the HEI effect-oriented and including all relevant stakeholder (regardless of their position in the HEI’s hierarchy) into designing the regulation.

Keywords: Dean’s Office, internal normative act, HEI

Page range:57-68

Aleksander Hyżorek
The Role of the President of the Republic of Poland in Conferring
the Academic Title of Professor – Selected Issues

DOI: 10.15290/bsp.2020.25.04.05

Abstract: This article presents selected issues related to the conferring scientific titles by the President of the Republic of Poland. It was pointed out that The Council of Scientific Excellence was the body competent to carry out the procedure for granting the academic title, and the President merely conferred the academic title. Such an act of the President is a conventional act – an official act of the President, which requires a countersignature of the Prime Minister. The article indicates that the President must confer a scientific title if the Council of Scientific Excellence submits such a request. There is no legal basis for the head of state to check the activities of The Council of Scientific Excellence. The example of receiving the vow by the President from newly appointed judges was used, the procedure in this regard was indicated, the date of picking up the oath and the judgment of the Constitutional Tribunal was presented. In the summary, it was indicated that the President should immediately submit the request of The Council of Scientific Excellence to be awarded, i.e. in the order of receipt of the applications. It was also noted that there were no legal grounds for the President’s refusal to confer an academic title.

Keywords: Giving the title of professor, competence of the President, conferring the academic title, official act

Page range:69-84

Mateusz Kupiec
Protection of Students’ Personal Data in Times of Development of Biometric
Technologies as a Challenge for Universities in Poland

DOI: 10.15290/bsp.2020.25.04.06

Abstract: Biometric technologies have been gaining popularity lately. An increasing number of enterprises and public entities worldwide are using them for security measures. Many universities in the European Union have also begun to recognise the benefits of implementing biometric systems in their organisations, and it is just a matter of time before universities in Poland join them as well. However, biometric data used by such systems are especially sensitive as they may reveal intimate information about data subjects. As such, they are counted among special categories of personal data, the processing of which is in principle prohibited by art. 9 (1) GPDR. Furthermore, the processing of students’ personal data demands special care from universities as they are vulnerable data subjects. Students are namely subordinate to university authorities, which significantly limits their scope of autonomy. Therefore, the use of biometric technologies poses a challenge for universities in Poland. The following article aims to present the main reasons why students are vulnerable data subjects and which legal grounds provided by GDPR are most suitable for processing their biometric data by universities.

Keywords: students, biometrics, GDPR, right to privacy, personal data protection

Page range:85-95

Karol Piwoński
Violation of the Regulations in Force at the University as a Ground
for the Student’s Disciplinary Liability

DOI: 10.15290/bsp.2020.25.04.07

Abstract: Violation of the regulations in force at the university is one of the basis of student’s disciplinary liability. The law does not specify a catalogue of these regulations, which contributed to discrepancies in the scientific works and jurisprudence of disciplinary commissions. The article aims to determine the normative content of this basis. The considerations include changes introduced by the Higher Education and Science Act, as well as statements of the representatives of science and jurisprudence. The analysis leads the author to the position that the considered basis includes the abovementioned Act, as well as the internal law of the university issued on its basis, in particular its statute and study regulations. Although internal acts can not be indicated exhaustively, in order to establish the disciplinary offence it is necessary to determine that the infringed obligation was legally binding for the student.

Keywords: students’ disciplinary liability, regulations in force at the university, grounds for the disciplinary liability, disciplinary offence, Higher Education and Science Act

Page range:97-109

Agata Pyrzyńska
Selected Problems Regarding the Status of PhD Student

DOI: 10.15290/bsp.2020.25.04.08

Abstract: The Act of 20 July 2018 Law on Higher Education and Science modifies the system of education of PhD students in a significant way. In this act, the doctoral studies model was abandoned in favor of the doctoral school system. Along with the indicated change, the status of PhD students as a separate academic group was also ordered. Thus, the practice of treating PhD students as quasi-students has been broken. The new education model also provides for a number of institutional guarantees, which should have a pro-quality impact on the education system of future academic staff. The paper discusses selected solutions in this area, paying special attention to the universal scholarship system, the social security system of PhD students and mechanisms of parenthood protection among doctoral students.

Keywords: PhD student, doctoral school, higher education, reform

Page range:111-124

Krystian Ryś
Social Insurance for Doctoral Students of Doctoral Schools

DOI: 10.15290/bsp.2020.25.04.09

Abstract: The reform of the doctoral student education system, resulting in a departure from conducting third degree studies in favour of doctoral schools, resulted in changes in the field of social security law. The status of a doctoral student receiving a doctoral scholarship has become independent grounds for compulsory retirement, disability and accident insurance. At the same time, it is the basis for voluntary sickness insurance. The author criticises the granting of doctoral students the right to acquire cover under this type of insurance. Their actual situation when receiving a doctoral scholarship is far different from the situation of other persons (grounds) covered by sickness insurance. The author also discusses the issue of coincidences of grounds for social insurance of doctoral students. The legislator categorised the collection of a doctoral scholarship in the group of absolute grounds for insurance. Unfortunately, it omitted in the regulation of Art. 9 sec. 1a of the Act on Social Insurance System a reference to the basis of the contributions on the received scholarship, which in extreme cases may lead to a significant extension of the doctoral student’s social insurance obligation.

Keywords: doctoral student, social insurance, doctoral schools, stipend

Page range:125-135


Magdalena Sieniuć
Granting the Academic Title of Professor. Some Refl ections on the Regulations Contained in Law on Higher Education and Science

DOI: 10.15290/bsp.2020.25.04.10

Abstract: The Law on Higher Education and Science of 20 July 2018, entered into force on 1 October 2018, introduced changes concerning the prerequisites for the acquisition of the academic title of professor and the procedure for awarding it. The stage of proceedings before the board of an organisational unit (e.g. Faculty Council) was also abandoned, which in fact led the procedure beyond the ‚walls of the university’ and limited it to the stage of proceedings before the Council of Scientific Excellence. The author considers selected issues relating to the Professor’s academic title, concerning the premise for awarding it, the course of the proceedings in this subject and the entities taking part in them, as well as the role played by the President of the Republic of Poland in these proceedings. As a result of the considerations conducted, the author assumed that the most far-reaching change was the legislator’s resignation from the stage of proceedings before the council of the entity from which the candidate for the title of professor had come from, assuming that the role of the President of the Republic of Poland in this process had not undergone any significant changes. He remains bound by the opinions of the reviewers appointed by the Council of Scientific Excellence and its position expressed in the administrative decision issued on the application for the academic title. In accordance with the viewpoint of the author, due to the resignation of the legislator from the stage of proceedings before an individual’s council, the opinions of the reviewers expressed in the justification of the Council of Scientific Excellence decision are now, in principle, the only emanation of the assessment of the scientific community expressed in this procedure.

Keywords: science, scientific degree/ title, higher education, professor

Page range:137-157

Marcin Skinder
The Bologna Process and the Law on Higher Education and Science

DOI: 10.15290/bsp.2020.25.04.11

Abstract: The subject of the study is the Bologna Process, its assumptions and course. The article contains an analysis of the Act on university education and science in order to indicate solutions for the harmonization in Poland under the Bologna movement. This movement is characterized as an example of European integration (harmonization) in the sphere of higher education, which was initiated by the Bologna Declaration of 19 June 1999. The main idea behind this declaration was the joint creation of the European Higher Education Area. The process initiated then goes beyond the scope of activities undertaken only by European Union governments. The analysis covers the following parts: The scope of the Bologna Process, Further European actors and the Sorbonne Declaration, The Bologna Process today, Implementation barriers was well as criticism. An integral part of the work is the Bologna Process and the Constitution for Science (Law on university education and science).

Keywords: Bologna Process, harmonization, university education, European Higher Education Area

Page range:159-171

Robert Tabaszewski
The Status of an Academic Teacher as a Public Officer. Comments in the Context of the Law on Higher Education and Science

DOI: 10.15290/bsp.2020.25.04.12

Abstract: The subject of this article is the legal status of an academic teacher as a person discharging a public function under the applicable Law on Higher Education and Science of 20 July 2018. It examines whether and to what extent the current regulation has affected the sphere of rights and obligations of an academic teacher who is a public official in special situations. In particular, the legal status of academic teachers and the status of public school teachers are compared. The author shows that the Law on Higher Education and Science does not contain a provision explicitly granting an academic teacher the status of a person performing a public function. This status is recognised in the rulings of common and administrative courts. Lawyers also recognise that an academic teacher, as a person employed at a university, that is, a unit with public funds, performs public functions. The article also describes the degree of legal responsibility of an academic teacher towards other entities.

Keywords: higher education, academic teacher, person performing a public function, public officer, rights and obligations, legal liability

Page range:173-186

Stacey L. Edmonson, James W. Hynes
Higher Education in Texas: a Brief Overview

DOI: 10.15290/bsp.2020.25.04.13

Abstract: Institutions of Higher Education in Texas develop, support, and enhance the economic, cultural, and social wellbeing of the state and the country. These institutions offer courses and degrees in all disciplines. They are strategically located across the state to support the economic activity while reflecting on the historical and cultural makeup of the region. There are both public and private institutions. The primary focus of this article is on the public university systems in Texas. An overview of the processes of accreditation and governance is presented.

Keywords: Higher education systems, public education, governance, accreditation

Page range:187-194

Liubou Krasnitskaya, Yuliya Khvatsik
The Theoretical and Practical Aspects of Distance Learning in Higher Education: Case Study of Belarusian Law Schools

DOI: 10.15290/bsp.2020.25.04.14

Abstract: The right to education is a fundamental human right making possible the realisation of other rights of human beings. The authors starts the research with the core characteristics of the human right to education. Human rights law prescribes that education of all types and at all levels should be accessible for everyone and adaptable to respond to the changing world order. In these uncertain times distance education is considered an appropriate form of education that ensures the access to knowledge and professional skills to a broad group of learners. The researchers pay attention to the legal regulations and practical aspects of the provision of distance education in the times of the pandemic. Distance learning in Belarus is analysed in the context of higher education in general and in realm of legal education in particular. The article is enriched by the findings of the empirical research carried out among the academic staff of the Belarusian law school. The survey makes an attempt to assess the capacity of law teachers to provide online legal education.

Keywords: distance education, law teaching, Belarus

Page range:195-208

Gracienne Lauwers
The Lack of Legal Protection of Union Rights on Termination of Fixed Term Academics at Public Universities in the Flemish Community of Belgium. Admissibility Issues of an Application Based on the Framework Agreement on Fixed-term Work at public Universities in the Assessment by the Supreme Administrative Court of Belgium

DOI: 10.15290/bsp.2020.25.04.15

Abstract: The question of sufficient protection of academics employed with successive fixed-term employment contracts or relationships in the university sector had been raised in several procedures before the Court of Justice of the European union (hereafter: CJEU) . These cases deal with the substantive basis of the claims of the academics. Admissibility of their claims was not an issue. Unlike the research dealing with the substantive basis of the claims of academics based on the Framework agreement on fixed-term work, this article deals with a ruling on the admissibility of the plea based on the Framework agreement on fixed-term work encountered by academics in the Flemish Community of Belgium. The article first outlines the exception from general labour law in the Higher Education Code of the Flemish Community of Belgium that allows universities to employ academics indefinitely with fixed-term relationships through the practice of a mosaic combination of a part-time statutory employment under administrative law and a part-time contractual employment under labour law. It then discusses the impact of the exceptions on the admissibility of claims for damages, compensation and reinstatement by fixed-term academics at a Flemish public university based on the violation of Council Directive 1999/70/EC and Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP brought before the Council of State, which is the supreme administrative court of Belgium. The author argues that the Belgian Council of State incorrectly applied Directive 1999/70/EC and the Framework agreement on fixed-term work in judgment no. 247.434 of April 21, 2020, while it was – in its capacity of supreme administrative court of Belgium – under the obligation of Article 267 TFEU to refer for a preliminary ruling to the CJEU the question. The refusal by the Belgian Council of State to refer questions for a preliminary ruling to the CJEU and a wrong interpretation of Union law could result i. a. in State liability for damage resulting from breach of its obligations under Community law whereas the CJEU could have helped the Belgian Council of State in a preliminary ruling to determine the concept of ‘successive’ employment relationships, preventive measures and measures to punish abuse of fixed term contracts in Flemish universities, rule whether the articles in the Flemish Higher Education Code on vacancies and employment of fixed-term academic staff violate the Council Directive 1999/70/EC and Framework agreement on fixed-term work, and whether national Belgian procedural law makes the application for fixed-term academic staff at a Flemish public university virtually impossible or excessively difficult and therefore incompatible with the principle of effectiveness of Union law.

Keywords: union rights, Flemmish Community, admissibility, public universities

Page range:209-231

Aušrinė Pasvenskienė, Milda Žaliauskaitė
The Right to Education for Learners with Special Educational Needs in Lithuanian Higher Education

DOI: 10.15290/bsp.2020.25.04.16

Abstract: This article considers the implementation of the right to higher education for learners with special needs in Lithuania. Although this right is guaranteed by various international documents and national legal acts, the main responsibility to ensure equality in higher education for all learners is embedded in the discretion of higher education institutions. The aim of this article is to analyse Lithuanian legal regulation regarding inclusion of students with special needs into higher education institutions and to evaluate Lithuanian university policies, as institutional documents, concerning students with special educational needs. A brief overview and comparison of all Lithuanian HEI policies illustrates the institutional approach towards educating students with SEN and the level of attentiveness to realization of their right to education. The research also considers pivotal challenges of ensuring inclusive education for those students as well as presents recommendations to address these challenges.

Keywords: Inclusion, higher education, special educational needs, right to education.

Page range:233-255

Evgenii Puchkov, Nadezhda Knyaginina, Ivan Novoselov, Szymon Jankiewicz
COVID-19 and Final (State) Examination: Strategies of International and Russian Universities

DOI: 10.15290/bsp.2020.25.04.17

Abstract: COVID-19 pandemic has changed the functioning of all levels of education systems. Schools and universities had to quickly adapt and change their procedures according to conditions created by the epidemic. Long perceived as additional and backup solutions, different distance learning technologies, particularly internet-based, became the main solution for the continuation of education on all levels. Several issues have stood out particularly with this seismic change – one of those is the issue of final examinations in universities. This issue is especially crucial in Russia, where the successful passing of a state final examination, which combines majority of the topics from the study program, is a prerequisite for graduation. This paper aims to analyze and present different strategies which were used for final university examinations in different countries and universities of the world and compare it with the Russian practices.

Keywords: COVID-19, higher education, final exams, state final attestation, examination.

Page range:257-271

 

Review:

Paul McKeown
Linden Thomas and Nick Johnson (eds.), The Clinical Legal Education Handbook, University of London Press, London 2020, ss. 465.

DOI: 10.15290/bsp.2020.25.04.18

Page range:275-277

Contributors