Summary

§ 37 of the Constitution of the Republic of Estonia provides: “Everyone has the right to education.“ The question is whether this right also includes the right to higher education and, if so, to what extent. In looking for an answer, the author resorts to both classical arguments of interpretation as well as to the so-called practical arguments, not widely known in the Estonian case law. The author examines the right to higher education in the German and Italian Constitutions and case law. Special attention is paid to issues concerning the limitation of the right to higher education as every right provided for in the Constitution forms its final shape only together with the limitations prescribed by the Constitution. The author relies on the classical control scheme of limitations to fundamental rights.

The analysis shows that the right to higher education as a fundamental right is derivable from the Constitution, i.e. everyone has the right to free and equal access to higher education. Nevertheless, the state has the right to establish limitations to the right for financial-economic and social-political considerations as well as based on the right to effective higher education. The right to have access to higher education may be regarded as realised if the state ensures that everyone can taken part in the enrolment procedures, whose main criteria are provided by law. In addition, such limitations must be necessary in a democratic society, i.e. pass the classical proportionality test of limitations to fundamental rights.