Academic Freedom in the Federal Republic of Germany

Abstract

Within the past three or four years, a series of developments has taken place in the university system of the Federal Republic of Germany and in West Berlin that has created grave concern in the minds of many observers as to the condition of academic freedom, and civil liberties more generally, in that society. These developments go by the terms Berufsverbot (job ban) or, sometimes, Radikalen-Erlasse (dismissal of radicals), expressions which are themselves highly controversial and, depending on one's view of the matter, legitimate if nonlegalistic interpretations, or Inflammatory and irresponsible labels which themselves bring doubt on the scholarly objectivity, if not the loyalty, of the user. In West Germany and West Berlin (which is technically not part of the Federal Republic since the city is still under the control of the FourPower Pact), some 15 percent of the employed labor force, or some three and one-half million people, including all railway and postal employees, and all employees of all school systems (including all of the universities of the separate states or Lander, and West Berlin), are civil servants. These include Arbeiter (workers), Angestellte (employees), and Beamte (generally, but not always, tenured civil servants). About 21.2 percent of local government employees, 58.8 percent of state employees, and some 27.6 percent of federal employees, are Beamte. Whether one is an Angestellte or a Beamte depends upon such things as promotion (into Beamte status), choice (of which insurance program one desires), or job classification (certain jobs are traditionally Beamte; but this has little to do with level of job there are also relatively low-level Beamte positions). The rights of all civil servants are constrained by certain traditions that go back in some measure at least to Frederick II of Prussia, if not further.1 One of those traditions is the obligation of the civil servant to a hierarchical relationship to the State-as-employer (Dienstherr), a relationship involving obedience and loyalty (Treuepflicht). The traditions of the civil service are protected specifically in the 1949 German Constitution, although they are not spelled out. Further, all civil servants are required, according to a high court decision of May, 1975, framed in the light of the Constitution, to guarantee that they will stand up for the free and democratic foundations of the society (freiheitliche demokratische Grundordnung, or FDGO), and Beamte are required to do so actively and at all times (with an implication that this guarantee extends into the future). This requirement has been interpreted to mean that all civil servants, especially Beamte, must clearly distance themselves from political activities and groups which appear to attack or defame the State and its constitutional organs, even though groups labelled verfassungsfeindlich (enemies of the constitution; under Hitler the term was enemies of the state) may not have been declared illegal. West Berlin, the federal government, and the separate states have incorporated in their laws and/or civil service regulations provisions barring employment in the civil service to anyone not able to guarantee his or her ability to stand up for the FDGO, that is, loyalty. Constitutional guarantees of protection for academic freedom do not, according to recent court decisions, extend to such criticisms of the state that cast doubt on the loyalty of a professor, for Article 18 of the Constitution denies the rights of that Constitution, including