On some problems of the implementation of the constitutional right to higher education in Russia

Slanov Oleg Taimurazovich ORCID: 0009-0002-9876-078X Postgraduate student, Department of Production Organization and Industrial Economics, North Caucasus Mining and Metallurgical Institute (State Technological University) 44 Vatutina str., Vladikavkaz, Republic of North Ossetia-Alania, Russia, 362025 slanov_oleg@inbox.ru Other publications by this author     Dzodzikov Zelim Uruzmagovich Graduate student; Department of Public Law and Government; North Caucasus Mining and Metallurgical Institute 44 Nikolaeva str., Vladikavkaz, Republic of North Ossetia-Alania, 362021, Russia Dzodzikov90@mail.ru Hugaeva Rimma Grafovna PhD in Law Associate Professor; Department of Public Law and Government; North Caucasus Mining and Metallurgical Institute 44 Nikolaeva str., Vladikavkaz, North Ossetia-Alania region, 362021, Russia Demos2003@mail.ru

Bekoeva Tat'yana Aleksandrovna Doctor of Pedagogy Professor; Department of Pedagogy and Psychology; K.L. Khetagurov North Ossetian State University 362025, Russia, North Ossetia-Alania region, Vladikavkaz, Vatutina str., 44-46 t.a.bekoeva@yandex.ru

Article 43 of the Constitution of the Russian Federation (hereinafter – the Constitution of the Russian Federation) enshrines the fundamental right of everyone to education. In turn, Part 3 of this article defines the possibilities of obtaining higher education: "Everyone has the right to receive higher education free of charge on a competitive basis at a state or municipal educational institution and at an enterprise."

It is difficult to overestimate the importance of higher education and it hardly needs any additional justification. A State with an effective system of higher education institutions and providing citizens with ample opportunities for higher education is always an economically successful state that achieves success in various spheres of public life and occupies a leading position in the international arena. In difficult geopolitical conditions and taking into account the task of ensuring the technological sovereignty of the Russian Federation, the value of higher education is more obvious than ever, which determines the relevance of the topic of this study.

The novelty of this study lies in the fact that the problems under consideration in the field of the implementation of the constitutional right to higher education are considered historically with the justification of socially significant vectors of their development.

The subject of consideration in this article is the nature, meaning and content of the constitutional right to higher education in the sense given by the Constitution of the Russian Federation, legislation and law enforcement practice. The object of the study is the experience of the development of the domestic higher education system.

The methodological basis of this study is based on general scientific and private research methods. The methodological apparatus consists of the following dialectical methods of scientific cognition: abstraction, induction, deduction, hypothesis, historical, sociological, axiological, comparative legal and formal legal research methods.

The analysis of the constitutional aspects of the right to education and its implementation was carried out by such domestic scientists as N.S. Bondar, M. V. Baglay, V.D. Zorkin, S.S. Kravchuk, O.E. Kutafin, E.A. Lukasheva, G.V. Maltsev.

The issues of the content and specifics of the constitutional right to higher education in the modern period were considered in the works of S. N. Bratanovsky, E. D. Volokhova, I. F. Nikitina, E. P. Pichugina, T. S. Rumyantseva, V. M. Syrykh, V. I. Shkatulla, D.A. Yagofarov, etc.

V.I. Shkatulla interprets the right to education as "a fundamental and natural right aimed at satisfying human needs for information and directly in education itself" ^[1].

E.D. Volokhova wrote that the right to education is the freedom to receive education "in accordance with the beliefs of parents, their own desires and capabilities" ^[2].

D.A. Yagofarov defines the right to education as "legal obligation", which is understood as a set of rights and obligations. He wrote: "The very concept of the right to education inherently contains elements of a duty (legal obligation), and not only opportunities. In other words, the right to education is also an obligation to receive (have) education" ^[3].

I.F. Nikitina draws attention to the fact that the content of the right to education consists of legal opportunities that should be provided by the state to its citizens, namely: the obligation to receive primary education, as well as the right to receive secondary education, vocational and higher education ^[4].

The importance of the right to higher education was also emphasized by the Constitutional Court of the Russian Federation. Thus, in the Definition dated 02/13/2024 No. 243-O, the constitutional control body noted that the proclamation of the right to education among the basic constitutional rights determines the duty of the state, based on the constitutionally significant goal of ensuring (on the basis of equality and depending on the abilities of each) to ensure the widest possible access of citizens to higher education, to take the necessary measures for the fullest realization of this right, to create socio-economic conditions, to ensure legal guarantees for the free functioning and development of the education system, and for citizens to receive not only basic general and secondary vocational, but also higher education.

The norms of the Constitution of the Russian Federation have direct effect, which, however, does not negate the need for legislative regulation of the forms of their implementation. In other words, in order for a particular constitutional right to be realistically feasible, and not to have the features of a formal declaration, specific legal mechanisms are needed. With regard to the constitutional right to higher education, these legal mechanisms are in the context of a number of unresolved issues that have become topical ^[5]. This includes dividing higher education into bachelor's and master's degrees, ensuring equal opportunities for admission to universities, providing benefits to certain categories of applicants and students, protecting the rights of a teacher, and much more. In this regard, this article aims to consider in detail some problematic and relevant issues of the implementation of the constitutional right to higher education.

General characteristics of Part 3 of Article 43 of the Constitution of the Russian Federation. For all the value and significance of the constitutional right to higher education, the corresponding norm of the constitutional text (Part 3 of Article 43) has not been analyzed in detail so often. As a rule, either scientists describe the general system of education for a person in Russia (which is also important) ^[6], or issues of higher education are considered inseparably from other levels of education ^[7]. It seems necessary to give a more nuanced characterization of the constitutional right to higher education within the meaning of the current Russian Constitution.

First of all, let us note that the norm on the right of everyone to receive free higher education (on a competitive basis) is in the second chapter of the Constitution, which is not subject to any changes except through the adoption of a new Constitution. This underlines the fundamental nature of the law in question, which is the basis of the Russian socio-economic system.

Nevertheless, there are still references to the education system in the constitutional text:

- paragraph "e" of Article 71 of the Constitution of the Russian Federation indicates that education issues are under the jurisdiction of the Russian Federation;

- paragraph "e" of Article 72, in turn, refers general issues of education to the general jurisdiction of the Russian Federation and its subjects;

- paragraph "b" of Article 114 refers to the powers of the Government of the Russian Federation as a unified state policy in the field of education.

It is important to note that articles 71 and 72 of the Constitution of the Russian Federation previously did not focus on education issues. The current version of these norms was introduced in connection with the introduction of amendments to the Constitution of the Russian Federation in 2020. The Co–Chairs of the working group on the preparation of proposals for amendments to the Constitution of the Russian Federation T.Ya. Khabrieva and A.A. Klishas note that clarifying the powers of the Russian Federation in the field of education is "a guarantee of a coordinated state policy in matters directly affecting every Russian citizen, regardless of the subject of the Russian Federation, where he is located or lives" ^[8].

Let's make a small addition to this justification. From the point of view of the general theory of law, each right of one subject corresponds to the duty of another subject. If there is no such relationship, then the subject's right becomes declarative and exists only on paper. The meaning of the amendments to the Constitution of the Russian Federation in 2020 is not only to strengthen the social functions of the Russian state, but also to specify the interrelationships between individual rights and the corresponding duties of the state. Therefore, it is extremely important that the Constitution of the Russian Federation now more clearly delineates the responsibility of the levels of state (public – in terminology, which appeared in the constitutional text from 2020) authorities for the realization of the individual's right to higher education.

The word "everyone" begins part 3 of Article 43 of the Constitution of the Russian Federation, which defines the range of subjects covered by the guarantee of higher education. The overwhelming number of articles in chapter 2, which enshrines the fundamental rights and freedoms of man and citizen, begins with the same word. This approach is dictated by the prohibition of discrimination established in Part 2 of Article 19 of the Constitution of the Russian Federation. But in relation to the right to higher education, the word "everyone" still has special meanings.

First, the word "everyone" implies that guarantees of higher education apply not only to citizens of the Russian Federation, but also to foreign citizens, as well as stateless persons. This nuance is especially important to emphasize, since Decree of the President of the Russian Federation dated May 7, 2024 No. 309 "On the National Development Goals of the Russian Federation for the period up to 2030 and for the future up to 2036" (hereinafter referred to as the Decree on National Development Goals) in subparagraph "b" of paragraph 3, the following goal was established: "increase By 2030, the number of foreign students enrolled in educational programs of higher education in Russian educational institutions of higher education and scientific organizations will reach at least 500 thousand people." In other words, the President of the Russian Federation, after entering into the next term of office, the possibility for foreign citizens to receive higher education in the Russian Federation was identified as a national priority. It should be noted that the task of activating the work on attracting foreign citizens to the Russian student body is not new in itself. It was first formulated in the Concept of the state Migration Policy of the Russian Federation for 2019-2025 (as can be seen, certain results will have to be summed up in a year) and has already been analyzed by scientists ^[9]. Nevertheless, it has been considered a national priority since 2024.

Secondly, the use of the word "everyone" implies the absence of age restrictions for applicants. As a rule, applications for admission to higher education programs at universities are submitted by young people who have just graduated from school or college. However, there are no obstacles to entering universities at a more mature age.

Thirdly, socially vulnerable groups of the population, for example, people with disabilities, also have equal access to higher education. Indeed, for such applicants, certain specialties may be unavailable for objective reasons (for example, disability of the first group is an obstacle to admission to military specialties). However, in other respects, applicants with disabilities have equal rights to higher education along with other applicants. Moreover, universities, as a rule, pursue a socially oriented policy and allocate special quotas for socially vulnerable groups of the population (as a rule, this is 10% of the total number of places funded from the federal budget). Such a policy fully complies not only with the Constitution of the Russian Federation, but also with Article 71 of the Federal Law "On Education in the Russian Federation" [Federal Law No. 273-FZ of December 29, 2012 "On Education in the Russian Federation" - hereinafter – the Law on Education].

Fourth, another idea of the Decree on National Development Goals is to create conditions by 2030 for at least 30 percent of students to simultaneously master several qualifications in vocational education (subparagraph "k" of paragraph 5). It is not yet clear exactly how, from a legal point of view, the achievement of this goal will be formalized. However, it is obvious that the right to higher education is not limited to the possibility of obtaining it only once, and the intellectual potential of our country is realized when citizens have the opportunity to receive subsequent higher education.

Part 3 of Article 43 of the Constitution of the Russian Federation contains a clause regarding guarantees of higher education – "free of charge on a competitive basis." Let's make some clarifications about it.

First of all, it should be noted that the mention in the constitutional text of the "competitive basis" of higher education essentially means the obligation of the Russian state to legislate this competition, to conduct a clear and distinct policy regarding it, to establish understandable, transparent and fair criteria. The system of the Unified State Exam, for all its controversial constitutional and legal nature, is a form of implementation of the constitutional obligation of the Russian Federation to create a competitive basis for admission to universities.

The failure of an applicant to enroll "on a budget", however, does not mean an absolute defeat in the right to free higher education. In accordance with paragraph 14 of part 1 of Article 34 of the Law on Education, a student has the right, subject to a number of conditions, to transfer to free forms of higher education. Since 2023, the said norm provides for two such forms. Firstly, it is training at the expense of the federal budget (as well as the budget of the subject of the Russian Federation or the local budget, although the latter is rare in practice). Secondly, this is education at the expense of the university's own funds [Federal Law No. 124-FZ dated 04/14/2023 "On Amendments to the Federal Law "On Education in the Russian Federation"]. In both cases, the student no longer pays anything, and thus realizes his constitutional right to access free higher education on a competitive basis. It should also be noted that transfer to study at the expense of the university's own budget is often practiced immediately after enrollment in the higher education program for the most successful applicants, who, however, did not have enough competitive points to fill places funded by the state budget.

Let's pay attention to the opportunities for people with disabilities to receive free higher education. As shown above, as a rule, universities provide additional guarantees for applicants with disabilities. However, in practice, unfortunately, it is not so rare for an able-bodied citizen who has received higher education and does not have a disability to face injury, injury, disease leading to disability, and no longer has the opportunity to work in his specialty within the framework of higher education. For example, an operating surgeon who is disabled due to an injury to the upper extremities is unlikely to be able to return to active medical practice. As a general rule, the right to receive free higher education can be realized only once. However, the social vector of the Russian state's policy dictated the need to amend the legislation on education. In 2022, the Law on Education was amended, according to which the right to receive a free second higher education is granted to persons who, due to disability, have lost the opportunity to work in the specialty obtained within the framework of the first higher education [Federal Law No. 300-FZ of 07/14/2022 "On Amendments to Article 79 of the Federal Law "On Education in the Russian Federation"]. Such clarifications should certainly be supported.

In the text of Part 3 of Article 43 of the Constitution of the Russian Federation (again, not subject to any changes, except by repealing the current Constitution and adopting new ones), perhaps only two editorial flaws can be seen.

First, it would be preferable to specify "Everyone has the right to receive quality higher education free of charge on a competitive basis." The word "qualitative" in the text of the norm of Article 43 of the Constitution of the Russian Federation is not used either in relation to higher education or in the context of other levels of education, although its use would imply a certain constitutional standard of education and would obviously not be superfluous.

Secondly, the wording that higher education can be obtained in "a state or municipal educational institution and an enterprise" is striking. Such terminological usage does not seem relevant. Firstly, within the meaning of Part 1 of Article 194 of the Civil Code of the Russian Federation, an enterprise as an object of rights recognizes a property complex used for entrepreneurial activity [Civil Code of the Russian Federation (Part One) of 11/30/1994 No. 51-FZ], and then the same norm indicates that the enterprise is a type of real estate (and not a legal entity persons). This terminology is probably caused by the fact that the Constitution of the Russian Federation was adopted earlier than the development of civil legislation, and in some moments it uses the Soviet conceptual apparatus. In the modern context, the norm on the possibility of obtaining higher education in an enterprise can be read through the prism of two approaches. The first of them is that higher education can be obtained both in a state higher education institution and a non-state one, but also having the necessary licenses and state accreditations. The second approach may consist in the fact that it implies obtaining certain components of higher education outside the university, i.e. the student receives the bulk of higher education, for example, at the university, and practical skills – already in a specific legal entity as part of an industrial or pre-graduate internship. In any case, let us note that the union "and" is used, and not "or", that is, we are talking about the fact that higher education is not conducted exclusively within the framework of production activities "at the enterprise".

Such editorial nuances do not detract from the general importance of the constitutional norm on access to higher education and in no way reduce the general relevance of Part 3 of Article 43 of the Constitution of the Russian Federation.

The trend of digitalization contributes to the realization of the constitutional right to higher education. We agree that it manifests itself in different ways in different regions, but one way or another, digital technologies facilitate both the process of admission to higher education institutions and create additional opportunities in the educational process. The legality of the experiment conducted by the Government of the Russian Federation on the introduction of a digital educational environment was checked by the Supreme Court of the Russian Federation, which (when the Judicial Board for Administrative Cases of the Supreme Court of the Russian Federation issued a decision dated 04/28/2011 in case No. AKPI21-32) found no violations of the legislation on education in the relevant regulatory regulations.

The constitutional right to higher education and withdrawal from the Bologna system. In 2011, Russian universities finally switched to the approaches of the so-called Bologna system to the construction of higher education. Five-year training in specialty programs almost everywhere (with the exception of medical specialties, as well as a number of narrow-profile specialties, for example, legal support for national security) was replaced by four-year training in bachelor's degree programs with the additional possibility of two-year training in master's degree programs. The experience of the Russian Federation's participation in the Bologna process has already been thoroughly analyzed by scientists, as well as the prospects for withdrawal from it ^[10]. Let's agree that the discussion about the expediency (or lack thereof) of Russia's participation in the Bologna system boils down to political issues rather than legal issues and not even to professional and educational issues ^[11].

From the point of view of the constitutional right to higher education, the following can be stated: Russia's participation in the Bologna system has exacerbated the issue of the concept of higher education, which previously had no relevance ^[12]. The Law on Education does not provide such a concept, indicating only its purpose: "to ensure the training of highly qualified personnel in all major areas of socially useful activities in accordance with the needs of society and the state, to meet the needs of the individual in intellectual, cultural and moral development, deepening and expanding education, scientific and pedagogical qualifications."

In the scientific literature, it was proposed to differentiate the right to receive higher education into the right to study in bachelor's, master's and specialty degrees, the right to study under training programs for scientific and pedagogical personnel, and even the right to study at a partner university ^[13]. However, the practical expediency of such a proposal, especially in the context of withdrawal from the Bologna system, seems far-fetched.

The question is more acute as to when the constitutional right to receive free higher education (on a competitive basis) can be considered realized. Simply put, from what point can it be stated that a person has completed higher education. This question is relevant, at least, because higher education can be obtained only once on a free basis.

Within the meaning of the Law on Education, a bachelor's degree is a form of complete higher education, and a master's degree is an additional level, which is also covered by the concept of higher education and, as is commonly believed, increases the value of a particular specialist in the labor market. Accordingly, a bachelor's degree graduate has the right to continue his master's degree free of charge on a competitive basis.

In practice, however, a number of issues remain, indicating outright confusion. Thus, Part 15 of Article 108 of the Law on Education uses the term "certified specialist". This subject of educational legal relations, unlike a "simple" specialist, has the right to continue his master's degree free of charge. As follows from the official explanations of St. Petersburg State University, the difference here is solely that these graduates have it written in their diploma. A "certified specialist" has an entry in the education document of the form "Qualified as a Lawyer" ("Economist", "Manager", etc.) in the specialty "Jurisprudence" ("Economics", "Management", etc.)."A "simple" specialist has a different entry "Qualified as a Specialist" in the specialty "Jurisprudence" ("Economics", "Management", etc.). Apparently, diplomas of "ordinary" specialists have not been widely used. Accordingly, certified specialists have the right to continue their free master's degree studies (other opportunities are added to this opportunity, for example, the right for male applicants to receive a postponement for the period of study in the master's degree).

It is known that often in practice, a graduate with only a bachelor's degree does not qualify as having a full higher education. It's not even a matter of stereotypical perceptions of Bachelor's degree diplomas by individual employers, but the fact that the requirement to obtain both levels is often provided for by legislation in relation to individual positions. For example, according to paragraph 1 of part 1 of Article 4 of the Law "On the Status of Judges in the Russian Federation", only a lawyer who has received an education in the specialty "Jurisprudence" in both bachelor's and master's degrees can become a judge. Strangely enough, this requirement is quite strict in practice, because persons with education in related specialties "Legal support of national activities" and even "Judicial and prosecutorial activities" can no longer become judges within the meaning of the Law on the Status of Judges. Scientists also emphasized the problems of qualification of education as higher education in relation to candidates for the positions of notaries ^[14].

One could, of course, argue that the discussion about the expediency of dividing higher education into bachelor's and master's degrees is a discussion about the form of higher education, and not about its content. However, practice shows that such a form of higher education (as consisting of different levels) is often in conflict with the possibility of fully mastering a particular profession. This led to the fact that even before discussions about withdrawing from the Bologna process, a number of universities introduced compromise forms of bachelor's degree (between the approaches of the Bologna system and the need to train professional graduates). For example, the National Research University Higher School of Economics introduced a five-year bachelor's degree program in Law in 2020. In June 2024, the rector of the Higher School of Economics, commenting on the current problems of building a higher education system, spoke very bluntly, saying that specialists at his university would be trained "as much as necessary to become professionals."

In May 2023, the President of the Russian Federation signed a decree providing for a legal experiment in higher education, in which several leading Russian universities participate: now it is divided into basic and specialized, and postgraduate education is understood as vocational education [Decree of the President of the Russian Federation dated 05/12/2023 No. 343 "On some issues of improving the higher education system"]. It seems somewhat premature to analyze the constitutional right to higher education through the prism of this legal experiment, firstly, due to the lack of significant and noticeable results of the implementation of the relevant pilot project (according to the said Decree of the President of the Russian Federation, it will last until the end of the 2025/2026 academic year). Secondly, the very essence of the legal experiment implies that its results may not become a common approach. Nevertheless, one thing can be stated: the Russian state continues to search for the most rational form of higher education organization.

Obviously, great hopes were pinned on the participation of the Russian Federation in the Bologna system. According to some publications, it is noticeable that they were inherently romantic and idealistic. For example, one of the articles concluded the following: "The integration of Russian higher education into the international educational environment and the influence of international educational processes on the domestic higher education system determined the content of the subjective constitutional right to higher education" ^[15]. These conclusions seem naively erroneous: if international educational processes have "determined" anything in the constitutional right to higher education, it is only confusion and discussion. Some scientists gave more nuanced assessments: "common European interests may not always respond to the requests and needs of individual participating countries [of the international education system – approx. author]" ^[16].

Finally, we note that it is not important whether we participate in the Bologna process or not, but whether it is possible to get a really high-quality education in Russian universities. This is the primary task of the executive authorities, which carry out regulatory functions. It is no secret that a significant number of higher education institutions remain in Russia, the quality of education in which raises questions. The Government of the Russian Federation is free to implement a policy to reduce such universities. The Supreme Court of the Russian Federation, in its ruling dated 06/27/2013 No. APL13-243 "On leaving unchanged the decision of the Supreme Court of the Russian Federation dated 04.04.2013 (which refused to satisfy the application for challenging the decree of the Government of the Russian Federation dated 12/25/2012 N 2529-r"), also indicated that the liquidation of an ineffective higher educational institution when transferring students to other universities does not contradict their constitutional right to higher education.

At the present stage, on the contrary, the distinctive, unique and historically determined experience of the development of the domestic higher education system is more obvious than ever.

Conclusion and conclusions. At the end of this brief study, it seems possible to once again state the importance of higher education for the development of the potential of the Russian state and draw the following conclusions.

1. The reforms of higher education are associated by the general public with its division into bachelor's and master's degrees. However, as it was shown in this article, there are other changes in the legislation on education, perhaps even more significant than previous attempts to implement the approaches of the Bologna system. Such changes include: setting a goal to increase the share of foreign students in Russian universities; expanding opportunities for obtaining a second higher education for citizens with disabilities; expanding forms of free higher education. Taken together, these changes indicate that the policy of the Russian state in the field of higher education retains a social vector.

2. The problems of the constitutional right to higher education is a promising subject for further research. Recent trends in the judicial practice of the Constitutional Court of the Russian Federation show that new aspects are being updated in this law, in particular, the legal status of a teacher in the educational process. Already twice (in the resolution of the Constitutional Court of the Russian Federation dated 07/15/2022 No. 32-P "In the case of checking the constitutionality of parts one and eight of Article 332 of the Labor Code of the Russian Federation in connection with the complaint of citizen A.A. Podakov" // Rossiyskaya Gazeta. 2022. No. 169 and in the resolution of the Constitutional Court of the Russian Federation dated 10/24/2023 No. 49-P "In the case of checking the constitutionality of parts three and four of Article 58, part Two of Article 67 and parts one, two and nine of Article 332 of the Labor Code of the Russian Federation in connection with the complaint of citizen I.A. Alabasterova" // Rossiyskaya Gazeta. 2023. No. 260.) The Constitutional Court of the Russian Federation recognized as contrary to the Constitution of the Russian Federation the practices of individual higher education institutions on concluding a series of short-term employment contracts (instead of one long-term one), uncertainty in the regulation of the competition for vacant positions of teaching staff and other approaches that make it possible to dismiss a university teacher at any time convenient to the employer.

3. In the modern period, it is important to use the unique experience of the development of the domestic higher education system. At this stage, the design and development of the higher education system in Russia should be optimal and integrative. The requirements of the entrance tests must correspond to the educational programs and the level of knowledge received by students.

4. The criteria for evaluating applicants undergoing entrance tests should include tests not only on specific knowledge due to erudition in the subjects being examined, but also on the generalized characteristics of the cognitive (cognitive, mental) abilities of applicants, including the ability to use (apply) the acquired knowledge in practice, in everyday life and professional activities, this will make it possible to form more competitive qualities among citizens.