German Basic Law and Admissions

Question

My question is mainly a follow-up on this answer.

I understand and know that it is unconstitutional in Germany to restrict access to universities without necessity and that it is hard for a university to prove that it can only accept 132 students next semester and not 133.

On the other hand, the following two things are not challenged by the courts

fail rates of 80-90% in the first semester, often encountered in mathematics. One could argue that is also a restriction on the "freedom of profession" because the courses and exams are too difficult and it is not necessary to fail that many students.
failure to provide the necessary funds. The states could easily enlarge the study programs e.g. for medicine by giving more money to the universities. But I never heard that a court ordered another million EUR for a university so that the university can accept all students that want to come.

So my question is: What exactly is the legal idea of "freedom of profession" and how does it apply to universities?

I consider this too broad as the answer can be subject to an entire legal dissertation. I think useful ways of narrowing this down would be focussing on one of your particular examples (but then I concur that [law.se] is better suited) or focussing on what are the practical effects for somebody involved in teaching at a university. — Wrzlprmft, May 16 '23 at 21:11
Not an answer, but it might be worthwhile to mention that restrictions regarding the fail rates in exams might conflict with the following part of article 5(3) of the constitution: "Kunst und Wissenschaft, Forschung und Lehre sind frei" (my translation: "The arts, sciences, research and teaching are free"). This is typically interpreted in a way that includes giving a lot of leeway to individual professors in teaching. [...] — Jochen Glueck, May 16 '23 at 21:43
[...] So even if one interprets high failure rates to be in conflict with the freedom of profession (article 12(1)), this might constitute of a conflict between two rights granted by the constitution (which is, of course, a very common phenomenon, but probably makes the situation much more complicated from a legal point of view). — Jochen Glueck, May 16 '23 at 21:43
In fact, much of this is covered by this recent Law.SE post. — cag51, May 16 '23 at 21:48
Info for readers not familiar with the idiosyncracies of German constitutional law: the "German Basic Law" is simply the German constitution (which, for historical and political reaons, was called "Basic Law" in 1949 and has kept this name since then). Link to the text (in German): Grundgesetz — Jochen Glueck, May 16 '23 at 21:52
"One could argue that is also a restriction on the "freedom of profession" because the courses and exams are too difficult and it is not necessary to fail that many students." The freedom to choose ones own profession does not preclude the requirement of proper qualifications. If you cannot attain those qualifications, you cannot work in that profession. That is completely constitutional. — Polygnome, May 17 '23 at 00:11
Arguing that in court will be a very hard sell, because one would need to argue that having such high failures rates on a large scale is indicative of a unnecessary filtering to prevent students from doing their needed professions, while arguing that it is unreasonable to use the complaint procedures in place for the individual exams. Oh, and while at the same time, students could switch to a university of applied science which are said to be somewhat easier to graduate from in maths, which also confer legally valid B.Sc. degrees. And all that on top on the "grundgesetzlich ... — DCTLib, May 17 '23 at 07:29
... garantierte Freiheit der Forschung und Lehre" which gives professors a lot of freedom which can essentially only be overruled (in the respective committee) if they behave in an unreasonable way, which needs to be proven. Hard to imagine defending such a claim in court. — DCTLib, May 17 '23 at 07:31
@Polygnome But couldn't it be unconstitutional to define unreasonable "proper qualifications"? I mean, if I would require a law student to know every law by heart to graduate, couldn't she maybe argue that this requirement to become a lawyer is unreasonable? — J Fabian Meier, May 17 '23 at 07:40
@JFabianMeier Sure, you can try to argue that. But the bar for lawyers is already quite high. You can make every argument if you input silly parameters like "knowing everything". That is not how reality works, though. The law explicitly says that the right to choose ones profession is subordinate to further regulation, including qualifying exams. — Polygnome, May 17 '23 at 12:08
@Polygnome I mean, the courts are already playing silly games in telling universities that they have not proven that it is impossible to take one further student for medicine, opening up the door for rich people who sue several universities until they succeed. — J Fabian Meier, May 17 '23 at 17:01
@JFabianMeier: In this case it seems like the people who sue are playing silly games, not the courts. (It is, by definition, the purpose of a court to judge situations where people find themselves unable to agree.) — Jochen Glueck, May 17 '23 at 17:22
@JochenGlueck A reasonable court would decide that the maximal number of students to admit can only be an estimate. The burden of proof that lies on the universities is obviously silly. — J Fabian Meier, May 17 '23 at 18:14

score 4 · Answer 1 · answered May 17 '23 at 05:18

Courts will be very reluctant to assume a problem solving competency over the experts in the field. In your instance, prescribing to Mathematicians what basic competency is for a B.A. in Mathematics is left to the Mathematicians to define. Finding a way how to provide them is also beyond the courts competency, especially since there is a constitutional right to freedom of teaching. Besides, university mathematicians will claim bad preparation and just blame the high schools for not developing Mathematical skills with resulting bad numbers in the first classes. How could a court decide that since Mathematical skills are not developed sufficiently in the Gymnasium, the minimum competency of professional mathematicians would have to be reduced. This would violate the constitutional rights of all who have to rely on the certification.

Constitutional rights are never absolute because sometimes nature restricts them. Blind people cannot obtain driver's licenses and Germany has never recognized my right to a profession as the nation's teenage girl heartthrob.

score 1 · Answer 2 · answered May 17 '23 at 13:59

There is a misconception here. The law is in place to give everyone who has the aptitude for a certain profession the opportunity to become that profession---and not just those that went to specific schools, have more money, have connections, etc. It is not meant in a way that everyone can become everything, even though they aren't able to do it (for wathever reason).

If it were like that, all professions would have to be so easy to learn that every conceivable person could learn it, which would completely devaluate any profession. I wouldn't like to live in a house planned by an engenieer who only learned the most basic of math so that noone failed the test, build by a mason whith two left hands with a color concept designed by a colorblind interior designer and then when said house comes crashing down on me I would not want to got to the hospital where the doctors did'nt have to learn all the bones in body and all the diseases, because otherwise not everyone would have passed the test.

German Basic Law and Admissions

2 Answers2