Federal Constitutional Court - Press office -

Press release no. 53/2010 of 27 July 2010

Order of 13 April 2010 – 1 BvR 216/07 –

Decision regarding the pedagogic freedom of a professor
at a university of applied sciences


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. 


This press release is also available in the original german version.