Facts
The complainant A. (born 1964) suffered an accident in 1995 that led to cognitive impairments. According to medical confirmations, his ability to work or study is around 20 %. In January 2018, he completed a degree in Biology at the University of Bern. With a decision dated 27 August 2019, he was admitted to the Master’s degree programme in Environmental Sciences at the Swiss Federal Institute of Technology Zurich (ETH Zurich).
On 1 October 2019, the complainant applied to ETH Zurich for the appointment and funding of personal assistance for technical-administrative tasks that do not directly serve knowledge acquisition. He justified this by stating that activities such as gathering, organising and printing course materials and registering for courses would require a workload of 20 %. ETH Zurich rejected the application with a decision dated 20 November 2019. The appeal lodged against this decision was dismissed by the ETH Appeals Commission on 10 February 2021. The Federal Administrative Court upheld this decision with a judgment dated 14 March 2023.
The complainant then filed an appeal in public law matters with the Federal Supreme Court and requested that the contested judgment be set aside. He sought the organisation and payment of assistance for technical-administrative tasks during his Master’s degree programme at ETH Zurich. In the alternative, he requested the organisation of such assistance, and in the further alternative, the referral of the matter back to the lower court for reassessment, possibly with an order for a neuropsychological assessment. The Federal Supreme Court dismissed the appeal.
Considerations
The Federal Supreme Court first examined whether the Disability Equality Act (DDA) grants an entitlement to the appointment and funding of assistance for technical-administrative tasks within the framework of a Master’s degree programme at ETH Zurich. As a public-law institution of the Confederation, ETH Zurich is subject to the DDA; however, neither the ETH Act nor the relevant ordinances contain specific provisions on assistance. The lower courts denied such an entitlement on the grounds that the appointment of assistance would lead to an impermissible lowering of the academic requirements of the degree programme.
The Federal Supreme Court conducted a comprehensive interpretation of Art. 2 para. 5 lit. a DDA, taking into account international law, in particular the Convention on the Rights of Persons with Disabilities (CRPD), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the case law of the European Court of Human Rights (ECtHR). It concluded that while the DDA does provide for a positive obligation to eliminate disadvantages faced by disabled persons in the field of education, this is limited by the principle of proportionality (Art. 11 para. 1 DDA). Assistance may only be granted if it is suitable, necessary and reasonable and does not constitute an impermissible privilege.
In the specific case, the Federal Supreme Court denied an entitlement to assistance because the requested measure would lead to an impermissible lowering of the academic requirements of the Master’s degree programme. The degree programme at ETH Zurich aims to enable students to work…