It is not just individual researchers who are entitled to academic freedom. Public universities also have this right under Article 5.3 of the Basic Law for the Federal Republic of Germany. This is not a matter of course, as they are ultimately founded and financed by the state. Yet the fundamental right of universities to autonomy was acknowledged even during the Weimar Republic and affirmed by the German Federal Constitutional Court at an early stage. In Germany an old narrative in which universities time and again come into conflict with political authority and have to insist on their status as a separate legal entity is thus perpetuated. The legal protection guaranteed to academic freedom as it stands stipulates that universities may independently make decisions on all issues related to research and teaching. This also implies that they are self-sufficient in terms of organization, a characteristic otherwise known as “university autonomy.” While the legislature can establish universities and determine their basic character, universities must ultimately be organized and administered by academics, for academics.

This naturally raises the question of who can invoke academic freedom within the university system: executive boards, professors, postdocs, doctoral candidates, students? The most straightforward answer to this is: anyone who engages in or furthers science. However, this includes not just professors (as the German Federal Constitutional Court initially understood it), but also anyone who conducts research as well as institutions that represent and act on the behalf of researchers. A natural consequence of university autonomy is the right to self-administration. Researchers have the right (not to mention the duty) to decide who gets to hold office at their university. However, universities are not just made up of researchers, but depend greatly on many other employees such as those involved in administration. They too have co-determination rights, but at the same time we must remember that researchers have to be responsible for deciding on questions related to academia, such as the content of research and professorial appointments. Administration is important, but it exists to serve science. This makes academic freedom somewhat complicated in practice, as this fundamental right and the state rarely stand in direct opposition to one another. Instead, different academic freedoms more often have to be carefully assessed and negotiated in relation to each other.

Academic freedom at universities in Germany as defined in the constitution is – for the time being, at least – not in jeopardy in the sense that the state is not dictating which research questions are to be addressed or threatening institutions with sanctions. This situation has frequently been called into question whenever the state has wanted to assert its vision of an upstanding – be it democratic or political – organization by assigning non-academics such as business representatives to university committees. In cases of this nature, the German Federal Constitutional Court has frequently had to remind the legislature that universities are neither companies nor administrative bodies.

Generally speaking, academic freedom is a constitutional right that has often been subject to legal disputes. There have been comparatively many rulings from constitutional and administrative courts concerning higher education law. Academic freedom has also been addressed much more rigorously within legal studies than many other fundamental rights. This is substantiated by universities’ steadfastness in the face of the political establishment.

Universities are not subject to a general obligation to political neutrality. Nowadays, neutrality is often used as an argument to remove dissenting institutions from public debates. However, higher education law sets forth two exceptions: Firstly, student body representatives do not have a general political mandate. This means that they are not allowed to release statements on political issues as a representative body, but only those that relate in some way to the university itself. This was justified by the legislature in that all students must be members of these organizations. This does not appear to be compulsory. Secondly, the Basic Law states an exception to freedom of teaching (but not to freedom of research) under Article 5.3.2 with regard to loyalty to the constitution. Professors are not permitted to stir up opposition to the democratic, constitutional state in the name of science.

Constitutional law does not defend against all threats to academic freedom. In particular, Article 5.3 of the Basic Law for the Federal Republic of Germany does not promise steady funding for universities, and it does not necessarily protect them from being shut down. The political establishment has an informal tool at hand that could be used to impede “unpopular” research in the form of potential budget cuts. This phenomenon can already be seen in the USA, but it has also reared its head in Germany in the form of the last federal minister’s controversial statements. Wherever possible, universities should invoke their fundamental right to academic freedom when faced with threats of this nature and fight the good fight in court – but when push comes to shove, this may not be enough. This is when political action and solidarity will be required from the entire scientific system.