Facts
The dispute concerns a dyslexic candidate who, starting from the 2014/2015 school year, attended the training course for heating installer at a Ticino vocational school, benefiting from accompanying measures. In June 2017 he sat the qualification examinations for the federal certificate of capacity. Having passed the written tests, he obtained the insufficient mark of 3.6 in the practical work test and was not promoted. The negative result was communicated to him on 14 July 2017, with an invitation to repeat the test in the following session.
On 18 July 2017 the candidate requested a meeting with the Division of Vocational Training of the Department of Education, Culture and Sport of the Canton of Ticino and, as a precaution, on 24 July 2017 he filed a complaint. The meeting took place on 23 August 2017 in the presence of the candidate, an acquaintance, the employer, the examination inspector and the chief of the experts. By letter of 7 September 2017 the candidate contested the conduct of the experts during the practical test, claiming that he had been misled by misleading indications and not adequately supported, and contested the assessment. By decision on complaint of 24 October 2017 the Division rejected all the objections. The appeal to the Council of State and then to the Cantonal Administrative Court, by judgment of 29 August 2019, was dismissed.
By subsidiary constitutional appeal of 16/19 September 2019 the appellant requests the annulment of the cantonal judgment, the referral to the cantonal court for a new decision and the granting of legal aid. The Division requests confirmation of the cantonal judgment, while the Council of State defers to the judgment of the Federal Supreme Court.
The appellant particularly complains of four procedural defects: (1) arbitrariness of the Administrative Court for having confirmed a decision of the Council of State adopted without all the elements and without full transmission of the file, with reference to Art. 292 SCC; (2) failure to establish the actual state of health, with failure to consider the request for an expert report by the cantonal physician in violation of Art. 26 LSan; (3) violation of the right to be heard for the failure to question the experts; (4) failure to consider the medical reasons that would have prevented him from physically carrying out the examination.
On the merits, the cantonal court had noted that the health problems had been raised only before the Council of State, and therefore belatedly; that the accompanying measures decided in 2015 did not provide for longer times for the practical test and had not been contested; that there was no evidence of discrimination compared with another student; that review of the adequacy of the assessment was precluded; and that hearing the experts was not necessary.
Considerations
The subsidiary constitutional appeal is admissible against a decision concerning the outcome of professional qualification examinations, pursuant to Art. 83 let. t FSCA which excludes the public law appeal for such decisions. The remedy has therefore been correctly lodged, the cantonal judgment is final and of last cantonal instance, the appeal is timely and the appellant has an interest in appealing (Art. 113 et seq., 115, 117 and 100 para. 1 FSCA).
Only violations of constitutional rights may be raised in the subsidiary appeal (Art. 116 FSCA). Such rights are not examined ex officio, but only if the appellant has precisely substantiated their violation (Art. 106 para. 2 FSCA). The establishment of the facts may also be challenged only if carried out in violation of constitutional rights (Art. 118 para. 2 FSCA). The Federal Supreme Court has noted that the objections of the appeal comply only in part with these reasoning requirements and that those directed against decisions of prior instances, and not against the judgment under appeal, escape substantive review.
The prohibition of arbitrariness (Art. 9 Cst.) does not arise when a different solution appears merely possible or preferable, but only when the decision is manifestly untenable or offends the sense of justice. In examination matters the Federal Supreme Court exercises particular restraint and intervenes only if the assessment is based on reasoning lacking relevance to the test or manifestly untenable, recognising wide discretion of the prior instances.
As to the first defect, the objections do not demonstrate arbitrariness: they consist of a free presentation of facts and considerations on cantonal law, lacking reasoning compliant with Art. 106 para. 2 FSCA. The Administrative Court, which has full cognitive power, nevertheless ruled on a complete picture. The reference to Art. 292 SCC is irrelevant, since the provision does not have constitutional rank and does not apply, no decision or…