The Court of Appeal of Concepcion has accepted the protection appeal filed by a student of the mixed graduate program of the University of Concepcion, expelling her from the course.
The appellant explained that she entered a master’s degree in kinesiology taught by a university professor and did not encounter any difficulties at the beginning. However, her personal situation changed dramatically in the face of various events that put a great burden on her body and mind. They were suffering from Covid 19 and were getting worse, which was why he was unable to carry out project activities on time.
She added that she faced a lot of stress, such as her husband’s appendicitis surgery and her 10-year-old son being attacked by a Siberian dog, causing severe injuries to his skull and face, so she had to assume that as a mother and A supporter of the family’s finances, it’s an exhausting recovery process.
He explained that due to the circumstances described, he had fallen behind on some payments, which resulted in him being banned from the student platform, unable to access study materials or accurately understand the progress of assigned tasks.
Even so, he noted, he struggled to make the monthly payments and finance a trip from Colombia to Concepcion to complete the field internship and manage to stay on track for the third semester of his master’s degree.
She added that she achieved very good results in several subjects, with the exception of the cognitive ergonomics subject, where her final grade was not a 5.0 but a 4.7 and she was the only student to receive this grade assessment , and the reason for the grade was not explained because when asking for the assessment guide it was noted that the teacher of the subject had provided feedback but this had not actually happened.
Later, according to the rules she only knew at the time, she was eliminated from the Magister because her score did not reach 4.7.
She argued that the university breached the guarantees of equality before the law and the principle of non-discrimination because, she claimed, its treatment of her changed when she fell into arrears with university fees; and also breached his psychological integrity because no complaint was made to him. He provided corrective guidelines for both assessments of the subject, resulting in his elimination from the program, resulting in a depressive state, neurasthenia, and depressive symptoms.
The university said in the report that teachers who failed the subject provided prompt feedback on Resume Test 1 and made the test available on the project platform.
He added that in accordance with the requirements of the General Regulations for the Master of Kinesiology, students are responsible for checking the information on the student platform.
It mentioned that the appellant underwent her first reinstatement test in early March 2023 when her colleagues were undergoing their final reinstatement test, and that after the first attempt in early March failed, she had to Perform a second and final recovery test. Third semester. As a result, he noted, the university made special considerations so that he could be evaluated for reinstatement on a different date than his peers.
He added that the minimum score to pass ergonomics was 5.0, but when the appellant obtained scores of 4.2 and 2.9 in recovery tests 1 and 2, he did not achieve the minimum score.
The appeal for protection was accepted by the Court of Concepcion. The ruling refers to the type of analysis that must be carried out in this case, “the gender approach cannot be ignored because she is a woman, a student, an occupational therapist, a foreigner of Colombian nationality, the mother of two children under the age of 1”. She was studying for a postgraduate course in Chile, for which she had to travel alone from her country of origin, Colombia, to Concepción, Chile, indicating an even more vulnerable situation in which she had to assume the responsibility of caring for him. family, physical recovery, financial contribution and continuing to meet student requirements and commitments. “
He added, “From this point of view, we cannot ignore that the relevant medical information proves that the plaintiff is still on leave and suffers from pneumonia (…) and therefore she is unable to carry out the activities of childbirth that are always communicated, which brings to her The consequences lasted for several months; “She suffered from depression, which affected her physical and mental health as well as the health of her family members, which undoubtedly caused her to experience significant stress and conflict while trying to comply with her corresponding academic load. . “
He added, “However, despite all these difficulties besetting him, he was able to pass other subjects for the postgraduate degree he was pursuing, as stated in the course report issued by the Director of Postgraduate Studies on 19 April 2023. from the University of Concepcion”.
He then noted that “Among the recognition of special treatment is the system of maternity protection, which derives from the principles and provisions that constitute our legal system and is also recognized in international instruments and is reflected in different countries and regions. It covers an area of law that establishes the rights to maternity and paternity leave. Pursuant to the Order and linked to the Labor Code, Articles 195 and 201 of Law No. 20,545 provide for the protection of maternity, fatherhood and family life. As far as education is concerned, Article 11 of the General Education Law (Law No. 20,370) states: Pregnancy and motherhood shall not under any circumstances constitute an obstacle to admission to and retention in educational institutions at any level. Provision must be made to enable the achievement of both objectives academic and administrative facilities.”
For the Court, “the defendant’s conduct (…) did not reflect acceptable standards with regard to the protection and promotion of the principles of equality and non-discrimination in relation to reproductive rights. In this sense, it should be noted that the defendant did not Demonstrate that she has been afforded special treatment and protection, which is her duty, and that as a woman, a professional student, a foreigner, a mother of two minor children, she needs to continue to do so and has completed postgraduate studies at university, nor aware of the health and parenting problems he had to face. On the contrary, the antecedents show that the general regulations are applied to other students without distinction according to their circumstances, in order for the rights to equality and the rights to motherhood and education to be valid and real.
In this sense, it adds, “Although the student informed the interviewee of the health condition that troubled her and her precarious financial situation (…) the interviewee did not show a genuine understanding of her situation. and substantive concerns, however, the requirements of the Constitution and law make it appropriate.”
In view of the above circumstances, the court accepted the appeal and ordered the university to take relevant measures to reinstate the appellant’s master’s degree in kinesiology and give her the opportunity and conditions to take rigorous examinations in the subjects she failed, which must be promptly informed and provided with corresponding evaluation guidelines.
See the decision of the Concepcion Court of Justice