technical and vocational education. However, in the CESCR’s opinion, these two omissions reflect only a difference of emphasis between the two levels of education. The Committee stated that:229 If higher education is to respond to the needs of students in different social and cultural settings, it must have flexible curricula and varied delivery systems, such as distance learning; in practice, therefore, both secondary and higher education have to be available “in different forms”. As for the lack of reference in article 13(2)(c) to technical and vocational education, given article 6(2) of the Covenant and article 26(1) of the Universal Declaration, TVE forms an integral component of all levels of education, including higher education. The third and most significant difference between the two levels of education is that while secondary education “shall be made generally available and accessible to all”, higher education “shall be made equally accessible to all, on the basis of capacity”. Thus, States are obligated to make higher education available only “on the basis of capacity”. The “capacity” of individuals should be assessed by reference to their relevant expertise and experience.230 The idea that higher education should be accessible on the basis of “capacity” and “merit” has been progressively interpreted and reconsidered in light of the principle of substantive equality.231 States have an obligation to ensure access to tertiary education for under- represented groups, including through the provision of financial support and, where appropriate, special entry programmes. Hence, the promotion of the rights of discriminated groups may require affirmative action to enable such groups to access higher education. Further, “merit” or “capacity” should not be used as an excuse to restrict access to higher education for the disabled or those with special learning needs. Tertiary education should have flexible curricula and a variety of delivery systems in order to meet the needs of students in different social and cultural settings. Fundamental or basic education shall be encouraged or intensified for those who have not completed primary education Article 13(2)(d) of the ICESCR states that: 229 CESCR General Comment No. 13: The right to education E/C.12/1999/10 8 December 1999 at para 18. 230 So far as the wording of article 13(2)(b) and (c) is the same (e.g. “the progressive introduction of free education”), see the previous comments on secondary education above. 231 Equality of opportunity and the prohibition against discrimination in education will be discussed in more detail under term of reference (vi), including the concept of substantive equality. 91