Die Lehrfreiheit: Gefährdungen eines Grundrechts durch die neuere Hochschulrechtsentwicklung?

The constitutional guarantee of the freedom of teaching as it is recognised in German and Austrian constitutional law (Article 5 paragraph (3) GG [= Grundgesetz, i.e. German Basic Law], Article 17 Austrian StGG [= Staatsgrundgesetz, i.e. Austrian Basic Law]) has always been characterised by a certain ambivalence: on the one hand, it is emphatically characterised as being »one of the highest forms of German spiritual life« and as »basic right of the German university« (Smend) and on the other, volatilisation in legal practice can be observed. The attempt to revitalise its normative content should break up the far too close interlink with the freedom of research and should accentuate the freedom of teaching as an independent basic right. In addition, the primarily subjective content of Article 5 paragraph (3) GG must be sharpened against institutional functionalist attempts at interpretation. On this basis, the freedom of teaching as an element of a multipolar normative structure of interests must be reconstructed by taking the duties that go with the civil service status and the students' »freedom to learn« into consideration.In any case, official teaching quality assessment has to be qualified as an impairment of the freedom of teaching which needs justification if the surveys and ensuing analyses follow heteronomous standards. It meets with considerable constitutional concerns if – without duties having been violated by the tutor – it is linked with explicit sanctions. In contrast, private evaluation, for instance by the students themselves (e.g. 'MeinProf. de' = a website which translates 'my professor'), is an expression of the principally legitimate freedom of opinion.