Freedom to teach and face-to-face teaching

Art 17 StGG

In an interview with the Presse on 19 August 2020, Austrian Minister of Science Fassmann explained that the freedom to teach gives teachers the right to teach students in a face-to-face setting – even in light of the COVID-19 pandemic. In view of the various efforts made by Austrian universities to ensure teaching can take place in a safe environment, this statement will be critically examined below from a legal perspective. If the statement proves to be true, individual teachers could relatively easily torpedo the efforts of the universities.

The freedom to teach is constitutionally enshrined, together with academic freedom, in Article 17 of the Basic Law. Its primary purpose is to protect academics and scientists against unwanted state intervention. Furthermore, the notion that the fundamental right has "institutional content" is consistent and in line with current case law on the subject insofar as organizational requirements must not lead to a violation of the fundamental right (for example, the Constitutional Court was of the opinion that academic freedom requires that habilitated members must have a majority of votes in habilitation committees).

Undoubtedly, Article 17 of the Basic Law in this context protects teachers from the state (or even the university) bringing influence to bear on their teaching content, but also on teaching methods. Whether Article 17 of the Basic Law also protects face-to-face teaching (as a teaching method) is not to be inferred from the case-law of the Constitutional Court. In fact, however, almost every teaching method that can be used in the classroom will also be applicable to online teaching (except for certain group-dynamic exercises). In this respect, the request to teach lessons online will certainly not interfere with the freedom to teach. It would merely need to be guaranteed that the teacher has the freedom to choose a method: A person who likes to stand at the front of the classroom to teach a lesson will have the right to teach students via a web cam and cannot be forced to include interactive or asynchronous elements. Cross-check: Can teachers force their classes to be held in the largest lecture theatre (the Audimax), irrespective of the number of students? Probably not.

However, even if one assumes that the freedom to teach is also inherent in the right to teach students face to face, it is still true that the freedom to teach is not unconditional: According to the prevailing doctrine, its limits can be found in the so-called general laws: it is permissible to establish a regulatory framework so long as it is not intentionally aimed at restricting the freedom to teach.

Irrespective of their theoretical contextualisation, curricula represent in any case a restriction on the freedom to teach in that they lay down specifications with regard to the nature and scope of certain courses. In this respect, it would be conceivable for universities to make corresponding regulations by issuing general standards (ordinances).

It is, however, also recognized that health protection, for example, can be a barrier to the freedom to conduct research. This will be easily transferable to the freedom to teach. It will be permissible to restrict face-to-face teaching so long as the lecture hall situation is highly likely to result in an increased risk to health.

With regard to the abovementioned curricula, it is argued that restrictions are permissible for compulsory subjects and, in addition, the right to offer any course should be granted, especially to those who have a postdoctoral qualification enabling them to teach in higher education. But even in this context, face-to-face teaching cannot be forced: As mentioned above with regard to restrictions, the same applies for reasons of health protection.

What remains: An interview that – without necessity – causes unrest at universities, which are very concerned about adequate regulations. At least in this context, the ministerial legal view is not without an alternative.