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Decision regarding the pedagogic freedom of a professor at a university of applied sciences
Press Release No. 53/2010 of 27 July 2010
Order of 13 April 2010
1 BvR 216/07
The complainant is a qualified engineer in the field of surveying and since 1996 a Professor of Surveying in the Faculty of Civil Engineering at the Wismar University of Applied Sciences (Fachhochschule). In December 2005 the Principal of the University instructed the complainant by an order having immediate effect to conduct classes additionally in the foundation subject of Descriptive Geometry for the Bachelor's degree course in Civil Engineering from the summer semester of 2006. A corresponding order by the Faculty Council had been issued previously. The complainant's application for provisional legal protection against the Principal's instructions, based on the ground that descriptive geometry was not part of the subject of surveying, was unsuccessful before the Administrative Court and the Higher Administrative Court.
The constitutional complaint raised against this by which the complainant alleges a violation of his fundamental right to academic freedom was rejected by the First Senate of the Federal Constitutional Court. It is true that at a university of applied sciences lecturers to whom - as with the complainant - independent responsibility for an academic subject in research and teaching had been entrusted can appeal to the freedom of scholarship, research and teaching (Article 5.3 of the Basic Law (Grundgesetz - GG)). The administrative courts have however had sufficient regard to the fundamental-right position of the complainant within the framework of the proceedings for temporary legal protection.
In essence, the decision is based on the following considerations:
The fundamental right of academic freedom grants to lecturers in higher education in its core content the unconditionally protected freedom to be responsible for their subject in research and teaching. This right can be called upon not only by university professors but also as a rule by higher education lecturers at universities of applied sciences. This is because the essential tasks and training goals are the subject of uniform norms for all types of higher education institution. The Higher Education Framework Act (Hochschulrahmengesetz) and the Land Higher Education Acts (Landeshochschulgesetze) of the federal states do not differentiate in principle between regimes which are only valid for universities and those which apply to other types of higher education institution. The Land Higher Education Acts do not merely permit universities of applied sciences to research; research is expressly allocated to them as their mission, in part even without any functional relationship to their training mission. On the other hand training is the central mission of the universities as well, without calling into question the academic character of teaching in universities. As with universities it can also be a mission of a university of applied sciences and the professors operating within it to impart to their students academic findings and academic methods within the framework of the training mission. Teaching activities which merely impart knowledge and the passing on of the results of the institution's own research and that of others are for the most part inseparably linked to each other at universities as well as at universities of applied sciences.
Instructions in relation to teaching given to a lecturer in higher education who is appointed as an independent academic affect his right to be responsible for his subject in research and teaching and thereby his academic freedom protected under Article 5.3 GG. However, as teaching is part of the official duties of professors in higher education, decisions of the competent bodies of the institution about co-ordination in content, time and space of the teaching to be offered by the institution and about the distribution and adoption of teaching responsibilities are in principle permissible. On the other hand, unlimited opportunity for the institution's bodies to demand that the lecturer takes on teaching outside his subject would not do justice to his academic freedom as determined by the teaching of his own subject.
The issue in dispute in the present case of whether the boundaries for the allocation of duties to teach of another subject are actually exceeded is to be resolved by the administrative courts in the main proceedings. Within the framework of proceedings for temporary legal protection the administrative courts have given sufficient consideration to the complainant's fundamental right under Article 5.3 GG. Their assumption that the complainant was obliged to take on the classes transferred to him in the subject area of descriptive geometry because this was to be regarded as a foundational subject for surveying is sufficiently explained. It is not only the text of the advertisement of the professor's post at the time, according to which the teaching of surveying was to be integrated with the course in civil engineering, which has been considered here; the court has also obtained information from other higher education institutions on the question of the subject-matter of comparable courses. Within the framework of balancing the consequences it should further take into account the faculty's right and duty to maintain its own ability to function through co-ordination of the teaching. Besides this the court could deduce from the complainant's stated readiness to undertake lectures in descriptive geometry if his salary were raised that requiring him to do so is in any case not unacceptable until the decision in the main proceedings.