The constitutional complaint of the Humboldt University was unlawful. On the one hand, the members of the Academic Senate (AS) of the HU should have been involved “according to the applicable university law provisions” before the submission. On the other hand, it was not legal to refuse the AS members the requested inspection of the brief to the Federal Constitutional Court.
This emerges from an e-mail from the Senate Department for Science to the complainants in the Academic Senate, which is available to the Tagesspiegel. The church historian Reinhard Flogaus, one of two spokespersons for the academic middle faculty in the AS, and four other representatives of the non-professorial status groups had submitted a legal supervisory complaint to Senator Ulrike Grote (Greens) in early February.
At the end of last week, the AS members received an answer from the Senate Administration, which had already been communicated to the HU Presidium.
The constitutional lawsuit in question is directed against the postdoctoral regulation of the Berlin Higher Education Act, which was amended in September 2021. Sabine Kunst, President of the HU at the time, announced her resignation at the end of the year because she considered the requirement to offer a certain group of post-doctoral researchers a permanent position after the end of their first temporary position to be unworkable and harmful to Berlin science.
Concerns under constitutional law, which have already been expressed in various expert opinions, relate to academic freedom: guaranteed permanent positions in mid-level faculty would impede the fluctuation of young academics, on which the universities are dependent.
As the last official act, Kunst filed the lawsuit at the end of December 2021, without a corresponding decision by the HU Executive Committee and without informing the Academic Senate in advance. In the opinion of the complainants, however, according to the Higher Education Act and the HU Constitution, “in matters of fundamental importance that affect the university as a whole” they must have the right to comment.
The HU Presidium saw it differently. The complainants were informed that the right to comment relates only to academic matters and not to the filing of a constitutional complaint. The demand to at least be able to read the brief of the law firm commissioned by Kunst at a later date was also rejected.
On the other hand, the Presidium argued that the brief was subject to the copyright of the commissioned law firm, as Reinhard Flogaus reported to the Tagesspiegel when asked. In the meantime, however, the tide has turned here, albeit under curious accompanying circumstances.
As early as May, a month before the legal information was now issued, the Senate administration had asked the HU management under its acting head Peter Frensch to settle the conflict with the AS and, if desired, to give access to the brief. The Presidium bowed to this, albeit under a strict condition.
Anyone who wants to read the law firm’s brief to the Federal Constitutional Court must undertake to maintain silence – or pay a contractual penalty of 5,001 euros. It should also be forbidden to take notes while reading. “So far, none of this has really contributed to defusing the conflict between individual members of the Senate and the university management,” Flogaus told the Tagesspiegel.
The ban on notes was then lifted after a renewed protest by the AS members. However, the legal information provided by the science administration has no direct consequences for the constitutional complaint.
In response to a request to the HU, it was said on Monday that the previous legal opinion was maintained: “The review of a legal norm for its constitutionality does not affect an academic matter on which the AS has the right to comment or decision-making authority.” In addition, “a senate administration has taken a position , which is itself a party to the proceedings of the constitutional complaint”. A HU spokesman confirmed that Kunst filed the lawsuit without a decision by the presidency, but the presidency “supports the submission in its entirety”. No formal decision was required. The HU also confirms the threat of a contractual penalty against AS members.
In addition to the specific case, Flogaus, who represents mid-level faculty, sees the decision by the senate administration that has now been made public as “an important strengthening of the rights and competencies of the academic senates in the state of Berlin”.
