Academic freedom not only protects individual academics, it also has an institutional side. This guarantee is based on the historical experience that free science unfolds in institutions created for this purpose – for the common good. In Germany, but ultimately far beyond, this is inextricably linked to Wilhelm von Humboldt’s university reform. The academic freedom of the university as an institution is still reflected in constitutional texts today. For example, some constitutions of the German Länder expressly guarantee university self-governance, and the Charter of Fundamental Rights of the European Union from 2000, which became part of binding European law in 2009, states, “Academic freedom shall be respected.” The Court of Justice of the European Union has already brought this guarantee into play against Hungary when the Orbán regime there attempted to deprive the Central European University of its basis for operation.

While constitutional law at the level of the federal state does not always explicitly mention the self-governance of universities– as in Berlin for example, it is derived from academic freedom, which is enshrined in Article 5.3 of Germany’s Basic Law (and in Article 21 of the Berlin Constitution with the same wording). The German Federal Constitutional Court set the tone here at an early stage and stated already in 1973, “Article 5 Paragraph 3 of the Basic Law is [...] a fundamental norm regulating the relationship between science and the state. According to this provision, the state must take appropriate organizational measures to ensure that the fundamental right to free academic activity remains untouched in the area of academic activities established and maintained with public funds to the extent that this is possible, taking into account the other legitimate tasks of the academic institutions and the fundamental rights of the various parties involved.” The court adds, “Organizational norms must ensure the widest possible scope for free academic activity for university members, in particular university teachers, and must also guarantee the functionality of the academic university and its bodies.” (unofficial translation, Bundesverfassungsgericht 1973) The court has repeatedly emphasized these guiding principles to the present day.

But what are “appropriate organizational measures”? If legislation creates the organizational law of universities, what should it be bound by? The subsequent case law from Karlsruhe has developed the criterion of “scientific adequacy.” Organizational law and ultimately all regulations affecting universities must be measured by whether they serve the academic community. If they do not, they require a justification, a public good of constitutional rank that is to be protected in a proportionate manner and in accordance with the competencies of the lawmaking institution. Some regulations have not survived constitutional court scrutiny, such as a Hamburg law that disempowered faculty committees in favor of Dean’s Offices. Even today, there are regulations whose constitutional validity must be questioned. Sometimes this can be determined by a quick glance at the case law of the Federal Constitutional Court, as in the case of the much-discussed intervention in the job structure of universities through the Berlin Higher Education Act (Berliner Hochschulgesetz). In fact, the author of these very lines here is currently lawyering an application for a judicial review against this regulation. Sometimes the interventions are more subtle, as with the “Higher Education Strengthening Act” (unofficial translation, Hochschulstärkungsgesetz) currently being discussed in the federal state of North Rhine-Westphalia. The act would allow the state government to introduce a “University Security Law” (unofficial translation, Hochschulsicherheitsrecht) with its own offences and sanctions because the criminal and disciplinary law is supposedly not sufficient. It is not yet clear whether the so-called “quarter parity,” i.e., the equal participation of all groups including non-academic staff in university committees, is constitutional; proceedings are pending in Karlsruhe. Some of the excesses of staff representation law could also be considered in this context. After all, a university is not a factory nor the administrative office for an urban district.

If a constitutional case is lost because university policy has gone astray, this is regrettable, but can be corrected – as long as the Constitutional Court does not itself pronounce the correction with the force of law. The “stroke of the legislator’s pen” (Federstrich des Gesetzgebers), which can change everything in one fell swoop – and sometimes even for the better, is a common metaphor in the German legal profession. However, the loss of scientific reputation and excellence due to misguided developments in science law policy is much more difficult to remedy – and the remedy is not something politics can do. It can only be done by science.