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Central European University’s Complicated Legal Geographies

Please note that an edited version of this is available on Inside Higher Ed – this version is more easily shared and printed, if so desired.

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As has been reported widely, including in Inside Higher Ed, Central European University (CEU) (registered officially under the names Central European University and Közép-európai Egyetem, KEE) is facing some major challenges regarding its future existence. The 4 April 2017 legislative move by the government led by Prime Minister Viktor Orbán was widely condemned by CEU, as well as by numerous parties across Europe and North America. As the European University Association, with 850 members across 47 countries (serving 17 million students), put it in a press release:

04 April 2017
EUA is extremely shocked and deeply concerned by the decision taken on 4 April 2017 by the Hungarian Parliament to adopt the recently proposed amendments to the Hungarian Education Law, targeting the Central European University.
The bill was passed apparently without taking into consideration the many statements of support from politicians and academics underlining the important achievements of the Central European University in the past 25 years.
Should this amendment be signed off in law, it will make further operations of the CEU in Hungary almost impossible. CEU is a long-standing EUA member and the Association stands by its colleagues and friends, willing to help them in any way as this process moves forward.
In Budapest, Chargé d’Affaires ad interim of the Embassy of the United States to Budapest, David Kostelancik, issued the following statement:

The United States is disappointed by the accelerated passage of legislation targeting Central European University, despite the serious concerns raised by the United States, by hundreds of local and international organizations and institutions, and by thousands of Hungarians who value academic freedom and the many important contributions by Central European University to Hungary.

The Central European University is a successful and prestigious American-Hungarian institution and has been an important component of the U.S.-Hungarian relationship for 26 years.  The United States will continue to advocate for its independence and unhindered operation in Hungary.

In the United States, Leon Botstein (President, Bard College), Carol Christ (Provost and Chancellor-designate, University of California at Berkeley) & Jonathan Cole, Professor and former Provost, Columbia University) had this to say in the Washington Post:

If we allow CEU to be controlled exclusively by the Hungarian government and lose its international status and autonomy, all universities in Hungary will suffer. For this to take place within the European Union is unthinkable. It will set a precedent that will prevent higher education from flourishing. Take away a university’s right to select its students and the most qualified faculty, contest the received wisdom of our time, be a critical voice against existing social and economic arrangements, and you no longer have a free university in a democratic society. The purging of the basic features of academic freedom at CEU would create a wasteland out of a fertile intellectual soil. Hungary would no longer attract great faculty minds, nor would exceptional students from around the world want to come to Hungary to learn. There is therefore much to be lost if CEU is forced to defend academic principles of freedom by becoming a university in exile.

The legislation proposed by the Orban government has implications far beyond Hungary. Governments with authoritarian tendencies that stoke intolerant nationalist sentiments tighten their grip by repressing the freedom of universities, suppressing a press committed to free expression and violating the autonomy of its legal systems. Many of us have been there before — Europe under fascism, the United States during the McCarthy period.

It’s worth noting that Cole is author of The Great American University: Its Rise To Preeminence, Its Indispensable National Role, Why It Must Be Protected (Public Affairs, 2009), one of the seminal texts about state-society-economy conditions and associated policies and programs that enabled U.S. universities to become world-class producers of scaleable high-impact knowledge.
CEU itself released a series of detailed responses in rapid fashion, while doing an exemplary job of disseminating their views in two languages (Hungarian and English) in a highly sophisticated, professional, and honest way. [as a close observer of how universities communicate amidst crises, I think CEU has now set the crisis ‘comms’ standard universities worldwide should strive to match – it will be difficult, I assure you!]
Reactions to the legislative news are still rippling across Hungary, Europe, the United States (including because the CEU is accredited by Middle States Commission on Higher Education and holds an “absolute charter” from the Board of Regents of the University of the State of New York, “for and on behalf of the New York State Education Department)”, and North America more broadly (given that the CEU president equivalent is Michael Ignatieff, a well know Canadian public intellectual and former candidate for prime minister in 2011).
The ‘what’s next’ stage for CEU is filled with considerable uncertainty. Will this legislation be vetoed like those who filled the streets late on 4 April hope?
Or will CEU be forced to close given that operating conditions under this new legislation generate some very challenging demands and discriminatory provisions, as designed by a government antagonistic to all things associated with George Soros (CEU’s founder). These demands and discriminatory provisions include:
  1. Violation of the rules on the legislative process
  2. Violation of the freedom of academic research, studies and education
  3. New requirement to conclude a binding international agreement
  4. New requirement for foreign higher education institutions to provide higher education programs in their country of origin
  5. New provision terminating the current structure of cooperation between the US (CEU) and the Hungarian university (Közép-európai Egyetem)
  6. New provision requiring CEU to change its name
  7. Insufficient time ensured by the law to prepare for compliance with its new provisions
Central European University’s Complicated Legal Geographies
Several of the above demands and provisions unsettle, deeply, CEU’s place in the national, regional (European) and global higher education landscapes. Items 3-7, for example, will require engagement between the national governments in Hungary and the USA via a formal “binding international agreement,” which will defacto provide the Hungarian Government the right to approve or rescind the agreement with little to no justification. The Hungarian Government will also require international universities (in this case the CEU) to open a branch campus in “their country of origin” (the United States in the CEU case). Finally, the new legislation creates conditions where the Hungarian Government will force the termination of “license-programs” for higher education institutions having their seat in OECD vs member states (i.e. the United States). As CEU put it to Hungary’s Members of Parliament on 3 April:
KEE, the Hungarian university, could no longer deliver the programs of the American university as it is allowed to do under Section 77 (4) of the HEA, as Hungarian universities could only deliver programs of European universities and not of countries from the OECD. Based on this current Section 77 (4) of the HEA, CEU operates in Hungary through the Hungarian University and the Hungarian University issues the CEU’s (U.S.) diplomas on behalf of CEU. The proposed new Section 77 (4) does not include the OECD countries (such as the United States of America) anymore. Consequently CEU would not be able to offer U.S. academic programs through KEE.
If these harsh new conditions are not met, “CEU would be banned from enrolling new students after Jan. 1, 2018, and would have to conclude its educational activities by 2021.”
Given the above, it’s no surprise the #IstandwithCEU Twitter hashtag has gone global apart from in Murdoch papers: an innovative and highly ranked university’s future is at serious risk. And why? Because PM Orbán’s government has successfully reworked and made far harsher the legal geographies that CEU needs to navigate to exist, let alone thrive. The Government has upgraded it’s governing power over CEU’s operating conditions, thereby reducing the university’s autonomy, as well as making its capacity to succeed subject to many more factors, decision-makers, and structural contexts (including demand for educational services in the deeply saturated NY/US higher education market).
The power-politics dimension of these reworked legal geographies is worth considering. As Renáta Uitz, Chair of the Comparative Constitutional Law Program,of CEU put it in Verfassungsblog (5 April):

As for the conditions themselves, the idea that foreign universities can only operate in Hungary based on an international agreement deserves special attention. This condition in and of itself introduces the sovereign to the picture with its might and doubles its weight. It is not only that the sovereign sets a condition, but it also takes the sovereign’s benevolence for a foreign university to be able to meet this condition. If the Hungarian government were not in the mood to compromise with a foreign government on the principles of establishing a university, this statutory condition cannot be met by the organization to which it applies.

Furthermore, a last minute rider to the bill further specified this requirement: for federal entities the Hungarian government is expected to conclude an international agreement with the federal unit in which the university had been accredited, based on the prior approval of the respective federal government. Now, in case such a legal construct (i.e. a state-level treaty with prior federal consent) does not exist in the foreign jurisdiction in question, the condition for the operation of a foreign university set by Hungarian law simply cannot be met. [my emphasis]

The challenges CEU faces have multiplied in two weeks to include those of political, fiscal, regulatory, organizational, and mission-related natures. And while CEU has been, as noted above, very assertive in analyzing and communicating about these challenges, I’d like to leave readers of this blog entry with several questions to ponder.

First, what are European universities, funding councils, organizations (incl the EU), and national political leaders, really doing to help resolve this matter. I’ve been following this debate since it erupted in late March, and have been struck by the relatively more assertive (and immediate) public representations made by the US and Canadian governments, including Chargé d’Affaires ad interim of the Embassy of the United States to Budapest David Kostelancik.

There are clear signs that EU representatives and key national political leaders (esp Chancellor Angela Merkel) are finally speaking up. But given that the Hungarian Ambassador to Washington is being recalled over her handling of the communications side of this higher education bill, that, according to the Hungarian Government:

“The election of the Trump administration means that Hungarian diplomats must pursue new political and economic duties,” Tamás Menczer, the foreign ministry’s press officer, told Magyar Hírlap.

and that David Kostelancik is an Obama-era appointment, time is tight to put pressure on and shape the bilateral Hungary-US government relationship about this issue (recognizing, though, that US states vs the federal government have authority over higher education institutions). In short, what European-scale solutions exist to resolve this crisis? Enacting Article 7 of the European Union Treaty, perhaps given the attack on CEU but also in association with other human rights related transgressions?

Second, what will supportive people, programs, departments, universities, organizations do to help support CEU once the flurry of news about this crisis recedes from view, as it will. As we’ve learned here in Wisconsin, higher education-related crises generate plenty of good will at first (people associated with universities are easily stirred, after all), though months and years later the petitions and letters are but distant memories; mere data for someone’s PhD dissertation, a New York Times Magazine article (with spectacular photos of Budapest slipped in), etc.

Third, and on a related note, while the hope is that this harsh legislation will be revoked, what will happen if it is not? Plenty of people on social media platforms have flagged attempts to welcome CEU to other cities in Eastern Europe (e.g., Prague). But, instead, are any universities in the US thinking about how they might be able to help CEU establish, quickly, a US-based branch campus? Bridging typically takes 1-2 years and it takes a full 4-5 years to establish a purpose-built campus. For example, are relevant National Resource Centers (NRCs) based at US universities discussing this issue? While NRC staff and faculty are, no doubt, consumed with the Trump budget proposal, including developing provisional lay-off plans if things fall apart this year, there may be a creative way to host a CEU campus if the future of Central European University (and Közép-európai Egyetem) depends upon it. Indeed, it might be a vehicle to develop a win-win solution in the era of aggressive nationalism, Orbán/Trump style.

Kris Olds

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