Academic freedom as a source of rights\u2019 violations: a European perspective

Monika Stachowiak-Kudła

doi:10.1007/s10734-021-00718-3

Abstract

The application of academic freedom may lead to a violation of individual rights, such as the right to respect private life or institutional rights such as university autonomy, or the right of the religious community to self-determination. These collisions between rights are resolved by constitutional courts either according to the proportionality test or by balancing the rights. This paper investigates cases from Czechia, Germany, Italy, Poland, and Spain, where academic freedom collided with other constitutional rights, in order to determine methods for resolving these types of conflicts. This analysis demonstrates the way in which proportionality allows the construction of the content of academic freedom. It also shows the reasons why academic freedom could become a weak right and why sometimes it is a strong right.

Highlights

Academic freedom has many definitions and is understood differently (Altbach 2001)
This article strives to determine how constitutional courts resolve conflicts of rights by using the principle of proportionality to justify limitations of academic freedom. It is researched by checking how the courts consider the three elements of the proportionality principle sensu largo in the five cases where academic freedom collided with other constitutional rights
Academic freedom protects the individual from unjustified interference from public authority and/or university

Summary

Introduction

Academic freedom has many definitions and is understood differently (Altbach 2001). In the 1997 Recommendation Concerning the Status of Higher-Education Teaching Personnel, signed by all countries included in this study, academic freedom is equated with “the right, without constriction by prescribed doctrine, to freedom of teaching and discussion, freedom in carrying out research and disseminating and publishing the results thereof, freedom to express freely their opinion about the institution or system in which they work, freedom from institutional censorship and freedom to participate in professional or representative academic bodies” (UNESCO, 11 November 1997). Academic freedom is a defensive right, and one that protects scientific and teaching activities against the interference of the state and other authorities, including university and faculty authorities. It is researched by checking how the courts consider the three elements of the proportionality principle sensu largo (suitability, necessity, and proportionality in narrow sense) in the five cases where academic freedom collided with other constitutional rights Based on this analysis, the paper demonstrates the way in which proportionality helps to define the content of academic freedom. In Hungary, the Act on National Higher Education does not include an academic freedom guarantee at all In those countries where there is no legal definition of academic freedom, the content of this right in the event of a dispute is determined by the court. These steps concern suitability, necessity, and proportionality in its narrow sense

Belgium

Concluding remarks