I. Non-Profit Purpose of Private Universities
Every private university is a foundation university and has legal personality. Foundation universities operate under the supervision of the state and are required to act in accordance with the Council of Higher Education.
In Article 4 of the Foundation Higher Education Institutions Regulation, it is stated that “Foundation Higher Education Institution: University, high technology institute, faculties, institutes, schools, vocational schools, conservatories, research application centers established by foundations with the condition that they do not pursue profit.” It is emphasized in the regulation that foundation higher education institutions shall not pursue profit.
Private universities are not allowed to pursue profit. Pursuing profit is explicitly prohibited in the regulations. They cannot obtain income, profit, or rights in any way from the higher education institution they have established. They are established solely for education and training purposes, and if they act with the aim of making money, they would be acting contrary to the Constitution and the regulations.
II. Warning from the Council of Higher Education to Foundation Universities
In 2023, due to the high inflation experienced in our country, private universities also raised their tuition fees. However, the amount of this increase is significantly higher than the Consumer Price Index (CPI) announced by TURKSTAT. Some students were unable to cover their school expenses and had to freeze their studies, while others had to drop out. For all these reasons, on May 27, 2023, the Council of Higher Education sent a letter to universities.
On May 27, 2023, the Council of Higher Education warned foundation universities not to increase tuition fees above the inflation rate. In the letter titled “Tuition Fees,” sent by the Council of Higher Education to foundation higher education institutions, it was mentioned that there were complaints about some foundation higher education institutions increasing tuition fees above the inflation rate. In the letter, it was emphasized that the Foundation Higher Education Institution Boards of Trustees should take into account the students’ requests and complaints, and care should be taken in this regard. It was requested that the increase in tuition fees should not exceed the inflation rate.
According to TURKSTAT data, the July 2023 CPI rate is 57.45% (according to 12-month average increases). Private universities should raise their fees by a maximum of 57.45%. Therefore, if private universities increase fees above the CPI (inflation) rate, you can file a lawsuit against them to reclaim the amount you paid above the CPI rate or, if you haven’t paid the fee yet, you can file a lawsuit for the adjustment of the contract to avoid paying the amount above the CPI rate.
III. Right to Education
Article 42 of the Constitution states, “No one shall be deprived of the right of education. The extent of this right shall be determined by law and regulation.” Article 2 of Additional Protocol No. 1 to the European Convention on Human Rights states, “No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.“
Excessive fee increases by foundation universities will limit education in an unpredictable manner and violate the right to education. The right to education, according to the decisions of the Constitutional Court and the European Court of Human Rights, also includes higher education. Since it will not be possible for students to afford a fee increase significantly above the inflation rate, they will be deprived of their right to education.
It is the obligation of the state to provide access to education to the people living in its country. For these reasons, the excessive fee increases by universities are against the Constitution, and adjustments must be made because they pursue profit.
IV. How Can Students Sue Private Universities?
Article 138 of the Turkish Code of Obligations states, “If an extraordinary situation that was not foreseen by the parties at the time of conclusion of the contract and could not have been foreseen occurs, which is not due to the debtor, and if this situation changes the existing facts to the detriment of the debtor to such an extent that the performance of the obligation would be against the rules of honesty, and if the debtor has not yet performed the obligation while reserving his rights arising from the excessive difficulty of performance, the debtor shall be entitled to request the adaptation of the contract to the new conditions from the judge; if this is not possible, he may also rescind the contract. In continuous performance contracts, the debtor shall generally exercise the right of rescission instead of the right of rescission. This provision shall also apply to foreign currency debts.”
University education lasts for 4 years. The increase in fees above the inflation rate is an unforeseeable and extraordinary situation for students and their families. Furthermore, private universities, which should not pursue profit, increasing fees above the inflation rate is against the rules of honesty, and students can demand the adaptation of the contract to new conditions due to the excessive difficulty of performance.
Students will be considered consumers when receiving educational services from private universities. According to Article 3 of Law No. 6502 on Consumer Protection, “Any real or legal person who provides services to consumers for commercial or professional purposes or acts on behalf or account of the service provider” is defined as a service provider.
Based on the Law on Consumer Protection, it can be argued that the unilateral increase in tuition fees is an “Unfair Term,” and the terms stipulated in the contract cannot be changed to the detriment of the consumer.
If the university administration does not decide to change the rate of increase, only the student who initiates the lawsuit can benefit from the court’s decision.
Requesting a Provisional Measure Before Filing a Lawsuit
Almost all private universities do not allow course selection through the online system until the registration process is completed. Before filing the main lawsuit, a “provisional measure” decision can be requested from the court. With this decision, the student’s semester registration and course selection can be ensured.
Do you need legal assistance? Resolve your concerns.
The right to education is not only emphasized in our Constitution and basic laws but is also explicitly mentioned in the European Convention on Human Rights as one of the most fundamental human rights. As BAL Law Firm, we provide legal services that our clients need due to the excessive fee increases introduced by private universities.
Ece Deniz Vardar
Lawyer / Attorney in Turkey
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