Academic Freedom Under Pressure?: A Comparative Perspective [1st ed. 2021] 3030775232, 9783030775230

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Margrit Seckelmann Lorenza Violini Cristina Fraenkel-Haeberle Giada Ragone   Editors

Academic Freedom Under Pressure? A Comparative Perspective

Academic Freedom Under Pressure?

Margrit Seckelmann • Lorenza Violini • Cristina Fraenkel-Haeberle • Giada Ragone Editors

Academic Freedom Under Pressure? A Comparative Perspective

Editors Margrit Seckelmann German Research Institute for Public Administration German University of Administrative Sciences Speyer Speyer, Germany Cristina Fraenkel-Haeberle German Research Institute for Public Administration German University of Administrative Sciences Speyer Speyer, Germany

Lorenza Violini University of Milan Milan, Italy

Giada Ragone University of Milan Milan, Italy

ISBN 978-3-030-77523-0 ISBN 978-3-030-77524-7 https://doi.org/10.1007/978-3-030-77524-7

(eBook)

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

The following essays spring from the research project “Academic Freedom Under Pressure? New State and Social Challenges in a German-Italian Comparison”, conducted in 2020 between the University of Milan La Statale and the German University of Administrative Sciences Speyer. They are an interdisciplinary contribution to comparative research in higher education. The idea of publishing this book arose at two international meetings on academic freedom held on 6th and 7th February 2020 in Speyer and on 24th and 25th September 2020 (online) in Milan, where the many key points of academic freedom were highlighted and analysed. The editors thank the authors for their commitment to this volume, Helen Ampt for revising the English, Giulia Formici for coordination, text formatting and editorial requirements, the German Academic Exchange Service for funding the research project, the Schulze-Fielitz Foundation for additional support and Springer Verlag for publishing the volume. Speyer, Germany Milan, Italy Speyer, Germany Milan, Italy March 2021

Margrit Seckelmann Lorenza Violini Cristina Fraenkel-Haeberle Giada Ragone

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Contents

Introduction: The Multiple Expressions of Academic Freedom . . . . . . . Lorenza Violini, Cristina Fraenkel-Haeberle, Giada Ragone, and Margrit Seckelmann Part I

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Academic Freedom in Europe

Science and the European Dimension of Freedom of the Arts and Science . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Gianmario Demuro

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Freedom of Research and Academic Teaching in the European Union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Stephanie Schiedermair

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Freedom of Scientific Research in the European Research Area: Weaknesses and Strengths . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sabrina Tranquilli

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Academic Freedom and Cross-Border Cooperation: Conceptual Reflections and a Contextual Analysis in Relation to the South Tyrol Alpine Borderland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Elisabeth Alber Part II

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New Challenges

The State of Academic Freedom in Hungary: The Saga of the Central European University and the Research Network of the Hungarian Academy of Sciences in Light of National and European Guarantees of Academic Freedom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Petra Lea Láncos

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The COVID-19 Pandemic as a Challenge for Academia and Academic Freedom: An Italian Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Flaminia Aperio Bella

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Academic Freedom and the Use of Native Languages (the Italian “English-Only” Saga and Its Downsides) . . . . . . . . . . . . . . . . . . . . . . . . 103 Diana-Urania Galetta Part III

Threats to Freedom of Teaching and Research in the Light of a “Governance by Numbers”

Academic Freedom, University Autonomy (Work in Progress) and Striving Towards Accountability: An Italian Perspective . . . . . . . . . 119 Lorenza Violini Evaluation, Projectification, Governance by Numbers and Their Impact on Academic Research: The German Perspective . . . . . . . . . . . . 133 Margrit Seckelmann University Autonomy: Just One Step on the Long Road Ahead . . . . . . . 143 Alfredo Marra Automated Decisions, Research Quality Assessment and Step-Based Salary System: Potential Dangers for Academic Freedom in Italy . . . . . 153 Elena Buoso Part IV

The New Role of Universities and the Freedom of Science and Teaching

Private Higher Education and Academic Freedom . . . . . . . . . . . . . . . . . 165 Diana zu Hohenlohe Open Access Publication and Academic Freedom in the Field of the Social Sciences and Humanities from a Constitutional Law Perspective in Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175 Irene Pellizzone The Third Mission of Universities: Technology Transfer and its Impact on Academic Freedom . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185 Cristina Fraenkel-Haeberle Do Ethics Commissions Promote or Endanger Academic Freedom? . . . . 199 Michael Fehling Ethical Codes and Speech Restrictions: New Scenarios and Constitutional Challenges to Freedom of Teaching at University—The Italian Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Giada Ragone

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Trigger Warnings and Academic Freedom: A Pedagogic Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231 Francesco Magni Autonomy and Interdependence: The Relationship of Experts and Laypeople in Science from a Sociological Perspective . . . . . . . . . . . 245 Cristina Besio and Marco Jöstingmeier

Editors and Contributors

About the Editors Cristina Fraenkel-Haeberle Coordinator of the European Administrative Space Research Programme at the German Research Institute for Public Administration, Speyer, Germany Professor of Public Law, German University for Administrative Sciences, Speyer, Germany Giada Ragone Junior Research Fellow in Constitutional Law, Department of Italian and Supranational Public Law, University of Milan, Milan, Italy Margrit Seckelmann Executive Director, German Research Institute for Public Administration, Speyer, Germany Professor of Public Law, German University for Administrative Sciences, Speyer, Germany Lorenza Violini Full Professor of Constitutional Law, Department of Italian and Supranational Public Law, University of Milan, Milan, Italy

Contributors Elisabeth Alber Senior Researcher and Head of the Eurac Research Federal Scholar in Residence Programme, Eurac Research Institute for Comparative Federalism, Bolzano/Bozen, Italy Flaminia Aperio Bella Assistant Professor of Administrative Law, Department of Law, Roma Tre University, Rome, Italy Cristina Besio Full Professor of Sociology, Institute for Social Sciences, Helmut Schmidt University, Hamburg, Germany

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Editors and Contributors

Elena Buoso Associate Professor in Administrative Law, Department of Law, University of Padua, Padua, Italy Gianmario Demuro Full Professor in Constitutional Law, Department of Law, University of Cagliari, Cagliari, Italy Michael Fehling Full Professor of Public and Comparative Law, Bucerius Law School, Hamburg, Germany Diana-Urania Galetta Full Professor of Administrative Law, Department of Italian and Supranational Public Law, University of Milan, Milan, Italy Marco Jöstingmeier Research Assistant, Institute for Social Sciences, Helmut Schmidt University, Hamburg, Germany Petra Lea Láncos Associate Professor, Department of European Law, Pázmány Péter Catholic University, Budapest, Hungary Francesco Magni Assistant Professor of General and Social Pedagogy, Department of Human and Social Sciences, University of Bergamo, Bergamo, Italy Alfredo Marra Full Professor of Administrative Law, Department of Law, University of Milan Bicocca, Milan, Italy Stephanie Schiedermair Full Professor of European Law and Public International Law, International Law Institute, University of Leipzig, Leipzig, Germany Irene Pellizzone Associate Professor of Constitutional Law, Department of Italian and Supranational Public Law, University of Milan, Milan, Italy Sabrina Tranquilli Postdoctoral Research Fellow in Administrative Law, Department of Political Sciences and Communication, University of Salerno, Salerno, Italy Diana zu Hohenlohe Full Professor of Public Law and Public International Law, Department of Law, Sigmund Freud Private University, Vienna, Austria

Abbreviations

AAUP ABH AG AGCOM AIFA ANVUR

AQ Austria ARWU ASN ASt BGBl BVerfG BVerfGE BvR

CEU CFR CiD CNR CoR CRUI D.M.

American Association of University Professors Decision of the Hungarian Constitutional Court (Alkotmánybírósági Hatarozatai) Advocate General Authority for Communications Guarantees (Autorità per le garanzie nelle comunicazioni) Italian Pharmaceutical Agency (Agenzia Italiana del Farmaco) Italian National Agency for the Evaluation of Universities and Research Institutes (Agenzia Nazionale di Valutazione del Sistema Universitario e della Ricerca) Austrian Accreditation Authority (Agentur für Qualitätssicherung und Akkreditierung Austria) Academic Ranking of World Universities National Scientific Habilitation (Abilitazione Scientifica Nazionale) Autonomy Statute Federal Official Journal (Bundesgesetzblatt) Federal Constitutional Court (Bundesverfassungsgericht) Judgments of the Federal Constitutional Court (Entscheidungen des Bundesverfassungsgerichts) File number of a violation of fundamental rights complaint to the Federal Constitutional Court (Aktenzeichen beim Bundesverfassungsgericht) Central European University European Charter of Fundamental Rights Considering in Law (Considerato in Diritto) National Research Council (Consiglio Nazionale delle Ricerche) Committee of the Regions Conference of Italian University Rectors (Conferenza dei Rettori delle Università Italiane) Ministerial Decree (Decreto ministeriale) xiii

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D.R. DPCM ECJ ECHR ECtHR EEA EGTC ELKH EMEPA ENQA ERA EUREGIO FFO FIRE GATS GDP GEV GG G.U. HEIs HRG ICCPR ICESCR ICT IFRC ISTAT ITU LERU MCU MID MTA MUR NGO NSM NUV OA OECD OJ OJS OPALE PatG

Abbreviations

Rectoral Decree (Decreto Rettorale) Decree of the President of the Council of Ministers (Decreto del Presidente del Consiglio dei Ministri) European Court of Justice European Convention on Human Rights European Court of Human Rights European Economic Area European Grouping for Territorial Cooperation Eötvös Loránd Research Network (Eötvös Loránd Kutatási Hálózat) Executive Master Euregio in European Public Administration European Network for Quality Assurance in Higher Education European Research Area European Region Ordinary Financing Fund (Fondo di Finanziamento Ordinario) Foundation for Individual Rights in Education General Agreement on Trade in Services Gross domestic product Groups of evaluating experts (Gruppi di Esperti della Valutazione) Basic Law, German Constitution (Grundgesetz) Official Journal (Gazzetta Ufficiale) Higher education institutions University Framework Act (Hochschulrahmengesetz) International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Information and communication technologies International Federation of Red Cross and Red Crescent Societies Italian National Institute of Statistics (Istituto Nazionale di Statistica) International Telecommunication Union League of European Research Universities Magna Charta Universitatum Ministry for Technological Innovation and Digitization (Ministero per l’innovazione tecnologica e la transizione digitale) Hungarian Academy of Sciences (Magyar Tudományos Akadémia) Ministry of Universities and Research (Ministero dell’Università e della Ricerca) Non-governmental organizations New Steering Model (Neues Steuerungsmodell) Internal evaluation body (Nucleo di Valutazione) Open access Organisation for Economic Co-operation and Development Official Journal Open Journal System Open Process Automation Library Patent Act (Patentgesetz)

Abbreviations

PhD R&D R&I S. SMEs SSH STM TAR TEC TEU TFEU UN UNAIDS UNDP UNESCO UNICEF UNIMI UrhG VQR WHO WTO

xv

Doctor of philosophy Research and development Research and innovation Senate (Senato) Small and medium enterprises Social sciences and humanities Scientific, technical and medical Regional Administrative Court (Tribunale Amministrativo Regionale) Treaty establishing the European Community Treaty on European Union Treaty on the Functioning of the European Union United Nations Joint United Nations Programme on HIV/AIDS United Nations Development Programme United Nations Educational, Scientific and Cultural Organization United Nations International Children’s Emergency Fund University of Milan (Università degli Studi di Milano) Copyright Act (Urheberrechtsgesetz) Research Quality Evaluation Procedure (Valutazione della Qualità della Ricerca) World Health Organization World Trade Organization

Introduction: The Multiple Expressions of Academic Freedom Lorenza Violini, Cristina Fraenkel-Haeberle, Giada Ragone, and Margrit Seckelmann

1 Premise Academic freedom is currently under pressure. The most obvious cases in Europe are those of Hungary and Poland, where the state interferes directly in core academic issues by changing the laws.1 More generally, research and teaching are at risk in European democracies. Except in Hungary and Poland, this is not only due to political constraints: society itself seems to have lost its trust in science. Scientific results are declared “fake news” and students and lecturers are not allowed to discuss social, gender or integration issues (keyword: “trigger warning”).2 Such threats to research and teaching curb scientific autonomy directly and indirectly. Attacks on academic freedom come from different quarters. Academia, in particular, is fighting on several fronts. To spark socio-political exchange between the German University of Administrative Sciences Speyer and the University of Milan La Statale, two “symmetrical” two-day events were organized in Speyer and Milan, respectively. The aim was to compare and discuss threats to academic freedom caused by institutional and social constraints in Germany and Italy. The ensuing scientific results are published in this volume, under four main headings. The first section concerns the European dimension of freedom of the arts and sciences. The second includes comparative studies of some new challenges 1 2

See the contributions of Stephanie Schiedermair and Petra Láncos in this volume. See the contributions of Francesco Magni and Giada Ragone in this volume.

L. Violini · G. Ragone University of Milan, Milan, Italy e-mail: [email protected]; [email protected] C. Fraenkel-Haeberle (*) · M. Seckelmann German Research Institute for Public Administration, German University of Administrative Sciences Speyer, Speyer, Germany e-mail: [email protected]; [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_1

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to academic freedom. The third deals with current developments in higher education and new forms of university governance, as well as the light and dark sides of some future scenarios. The fourth section is devoted to the new role of universities and freedom of research and teaching, exploring inter alia current developments, such as the significance of private higher education and the evolution of open access publication. The implications of externally imposed evaluation procedures, ethics commissions and new academic duties like the “third mission” of universities are also discussed.

2 Academic Freedom in Europe Since the Maastricht Treaty (1992), new provisions have established the legal basis for an EU right of action in the area of academic freedom. The contribution by Gianmario Demuro explores the complexity of freedom of artistic and scientific expression, focusing on different “bills of rights” (The European Convention of Human Rights ECHR, the Charter of Fundamental Rights CFR of the EU, and national Constitutions) and on their interaction. He highlights the fact that freedom of art and freedom of scientific research, though not expressly protected by national Constitutions, are deemed to exist as universal freedoms in the European legal system and appear to be founded on the value of the human person and on a common core of fundamental rights.3 This gives the commitment to respect academic freedom and the rule of law a supranational and constitutional dimension. It is part of the constitutional identity of EU member states and is based on their common constitutional traditions. In higher education, according to Article 6 Treaty on the Functioning of the European Union (TFEU), the EU only has competence to support, coordinate or supplement the actions of the member states. Higher education is therefore traditionally a domestic issue.4 However, the Europeanization of higher education relies on several pillars, which are highlighted in the present volume by Sabrina Tranquilli. With the Lisbon Strategy, the choice of the open method of coordination left the states free to align national policies on the basis of indicators and benchmarks, without limiting their autonomy. This method aims to “Europeanize” areas within the competence of the member states (mainly by soft law instruments): it affects national policy processes “bottom-up” and stems from the member states themselves, not from the EU. Tranquilli examines the European Research Area (ERA) from two perspectives: as a space where EU researchers can move freely 3

The connection to the ECHR is also given by Art. 52(3) CFR, which establishes a link to the meaning and scope of the rights enshrined in European Convention on Human Rights. 4 According to Art. 165 TFEU, the European Union contributes “to the development of quality education by encouraging cooperation between Member States [. . .] fully respecting the responsibility of the Member States for the content of teaching and the organization of education systems [. . .]”.

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and as a tool to promote research.5 The main goal of ERA is to make the EU more competitive and attractive as a research and innovation centre. The author highlights the pros and cons of this strategy, including making EU policies functional for economic development without parallel implementation of national systems or attention to the social aspects of research. The ERA is designed to promote a new method of “knowledge production” through transnational collaboration in disciplines with a stronger national character and inclusion of a “European dimension” in scientific reflection. EU programmes have fostered a “project-shaped” research model, which ensures the “portability” of funding, while also giving priority to research with concrete objectives and a short-term dimension. Another crucial aspect of academic freedom in Europe concerns the rule-of-law crisis and the massive threat to academic freedom in EU member states such as Poland and Hungary. Stephanie Schiedermair scrutinizes the mechanisms available at European level to protect freedom of research and teaching in the hotspots of the democratic crisis. In Hungary, for example, the new attitude towards the famous University for Theatre and Film Arts in Budapest, increasing pressure on the Hungarian Academy of Sciences and expulsion of the Central European University (CEU), which was ranked the best university in Hungary, are instances of major erosion of academic freedom. A key issue discussed in the paper is how Article 13 CFR can be enforced effectively, given the weak competence of the EU in this field. In the very recent decision of the ECJ (6th October 2020, Case C-66/18 Commission v. Hungary) also the institutional and organizational dimension of academic freedom has to be interpreted broadly, and connected to the autonomy of academic institutions (in this case the CEU). This leading case in the supranational jurisprudence on academic freedom, highlighted by Gianmario Demuro and Stephanie Schiedermair, underlines the constitutional dimension of this right, including the meaning of freedom to establish higher education institutions and to conduct business. The cross-border cooperation dimension of academic freedom is explored by Elisabeth Alber who shows that cross-border cooperation can transform a national boundary from a barrier to a space of bilateral and multilateral cooperation, also in the field of higher education. It can also help to effectively implement specific borderland policies and to achieve a critical mass for scientific activity in regions characterized by small academic institutions. The starting point is the idea that European integration has fostered a new perception of borderlands and has focused attention on how areas under the authority of different states can deploy concrete cross-border activities. The contribution examines the nexus between the autonomy of the constituent units and the institutional autonomy of higher education institutions. It investigates the trigger question of the capacity of institutional autonomy, an essential dimension of academic freedom, to promote cross-border cooperation and the ways in which such cooperation takes place.

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See the contribution of Sabrina Tranquilli in this volume.

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Under the technical and financial support of the EU, the number of Euregios, conceived as laboratories of subnational integration and a platform to overcome administrative obstacles, has increased sharply in the last 30 years. The political autonomy of the participating political entities and the concept of borderlands as “soft spaces”, interfaces that attenuate state borders, are at the core of the paper. Borderlands allow regional, national, supranational and international integration.

3 New Challenges This section focuses on some very recent cases that concerned freedom of teaching and research in universities. The cases illustrate the variety of threats to academic freedom today. The challenges include an institutional crisis (the Hungarian degeneration into an illiberal democracy), a pandemic (COVID-19) and a cultural phenomenon (increasing “anglophone monolingualism”6 among academics). The first contribution by Petra Lea Láncos provides a broad and detailed analysis of the state of academic freedom in a country, Hungary, currently facing a rule-of-law crisis. The Hungarian Academy of Sciences case and the CEU saga, already discussed in essays of the previous section, are contextualized in the broader framework of authoritarian rule. After outlining the constitutional, international and European sources of law relevant to the Hungarian academic landscape, the author describes the laws passed by the ruling party in the last few years (e.g. those restructuring many state funded research institutions), and the restriction of liberties in the Hungarian academic arena. Some possible developments of the cases considered are outlined, and interesting reflections on the meaning of academic autonomy are expressed. The second essay by Flaminia Aperio Bella shows that academic freedom is one of the liberties and rights threatened by the current SARS-CoV-2 pandemic. The global health crisis is highlighting the crucial role played by experts in evidencebased policymaking, with profound consequences for society, which will hopefully rouse new awareness of the importance of research (and investment in research) in our societies. On the other hand, the pandemic is also having negative effects on academic freedom. Aperio Bella focuses on two specific risks: monopolization of scientific debate, and the obstacles to achieving research objectives posed by lockdown. In the first case, it stands to reason that COVID-19 is monopolizing scientific debate, not only in the field of medicine, and it is therefore predictable that most forthcoming research products will be devoted to this subject, marginalizing other topics and curiosity-driven research (so-called “pure research”). Moreover, the importance and high media exposure of academics could lead to the politicization of scientific and technical information. With reference to lockdown measures, there is no doubt that “social distancing” and limited access to universities, labs and

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See the contribution of Diana-Urania Galetta in this volume.

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libraries is limiting freedom of research. Striking a balance between this liberty and the right to public and individual health does not seem easy to achieve. The paper by Diana-Urania Galetta discusses the widespread use of English in universities and its implications for freedom of teaching. The chapter starts with the case of the Milan Politecnico, where in 2012, the Academic Senate decided that master’s degree and PhD programmes would be taught exclusively in English. The ensuing judicial saga exposed the clash between individual academic freedom (freedom of teaching) and its institutional dimension (university autonomy): to what extent is it legitimate to impose the use of a foreign language on lecturers (and students)? Is a university’s ambition to become more international reason enough to justify such restriction of Lehrfreiheit? According to the author, the balance between the rights and interests at stake needs to undergo a strict ex ante proportionality test.

4 Threats to Freedom of Teaching and Research in Light of “Governance by Numbers” Since the basic question of the two seminars and the project at the origin of this volume was to identify threats to academic freedom, this section of the book focuses on the difficulties inherent to the process of modernization of higher education systems in Europe. The Italian case, explored in the three chapters by Lorenza Violini, Alfredo Marra and Elena Buoso, can be considered seminal in highlighting these threats. The discussions held during the seminars in Speyer and Milan, as well as the contribution by Margrit Seckelmann, confirm that the same threats afflict the German university environment (albeit to varying degrees). A preliminary research question was to define the meaning of academic freedom by interpreting the provisions of the Italian and the German Constitution. To do so, the Charters and the legislative implementation in the two legal systems were compared, as was the definition of competences, in Italy mainly enacted by the national government, whereas in Germany, the federate states (Länder) each have their own legislative framework for higher education. The chapter by Margrit Seckelmann opens with an analysis of the German understanding of academic freedom, which is as broad and multi-dimensional as the one designated by the Italian constitutional framework and outlined in the essays of the Italian authors. There are minor differences, the German rules being more closely related to freedom of speech (Article 5, German Constitution, GG), whereas the Italian rules (Article 33, which protects the freedom of science, freedom of teaching and the principle of university autonomy) are drawn from the fundamental principle of Article 9, which defines the duty of the Republic to promote culture, as well as scientific and technical research. There are also some differences in the case law of the two constitutional courts, as highlighted by Seckelmann. In Germany, the court clarified that the state has the duty to predispose adequate organization

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(constitutional judges therefore have the power to check the corresponding legislation), which is not the case in Italy, where the discretionary power of the government in defining a general framework for the implementation of university autonomy is almost unrestricted. Regarding the “subjective” impact of constitutional guarantees for academic freedom, the Bundesverfassungsgericht first upheld the rights of individuals (chairholders) against the institution. In the period 2004 to 2010, it was more concerned with organizational autonomy, and finally it shifted back to the personal side of constitutional guarantees. Seckelmann’s paper then focuses on the organizational autonomy of German universities, the design of which was strongly influenced by the New Steering Model (NSM), the German version of New Public Management, which was also followed in Italy. Central to the model was the strengthening of university autonomy, cutting links between university and government, and creating more transparency and accountability through quality assurance. Unfortunately, the result has been an increase in university bureaucracy under the slogan “government by numbers”. The papers of Alfredo Marra and Elena Buoso indicate that the same is happening in Italy. Moving from the same starting point, namely the constitutional provisions regarding academic freedom, the chapter by Lorenza Violini traces the history of several attempts by the Italian government to modernize the Italian higher education system, up to Law no. 240/2010. The aim was to implement the concept of university designated by the Constitution, but unfortunately it has not always been successful. In Italy, academic freedom is in theory guaranteed by granting universities autonomous status, independent of state and market, putting academics and scientists in a “safe” environment, where in theory they can decide how they are governed, their budget, procedures and products. Freedom of the arts and sciences and freedom of research and teaching come under this umbrella. It emerges from the three “Italian” contributions that the implementation of university autonomy has been a long process, which they trace through developments in Italian laws relating to universities. In contrast with the German legal system, where competences for universities belong to the Länder, in Italy this competence belongs to the central state. Only minor issues (such as financial support for students from low income families, the so-called diritto allo studio universitario) are left to regional legislation in the framework of national laws. Seckelmann’s essay illustrates the far-reaching consequences of the different constitutional division of competences in Italy and Germany: “the German way seems to be softer than the Italian model: more a form of indirect governance than direct steering”, and has for instance prevented establishment of a national evaluation agency, as happened in Italy. Moreover, excellence initiatives (the Italian Dipartimenti di Eccellenza and the German Exzellenzinitiative), fully designed and decided at central level in Italy, in Germany are based on an intra-federal arrangement between the Bund and the Länder, thus avoiding violation of the Constitution. Last but not least, funding for universities is negotiated in Germany between the Land government and the universities, whereas in Italy it is decided entirely by state

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law and the state annual budget. Coordination and pluralism therefore seem to be much better protected in a federal state, where division of competences between different levels of government favours decentralization of decisions, autonomy and academic freedom. In support of this conclusion, Seckelmann remarks in closing that the threat posed by “government by numbers” (i.e. “projectification” of university activities and its side-effects) has not yet eventuated. The regulator is warned to be aware and vigilant so as to avoid consequences that could seriously impair academic freedom. The Italian situation seems to be more problematic. The threat created by centralization of decisions by the national Parliament and the National Agency for the Evaluation of Universities (ANVUR) becomes evident when one considers developments in Italian laws touching the question. Not by chance the laws are named after the different Ministers for Education, whose ministry was split in 2010 to create two ministries, one competent for schools and the other for universities. In fact, the major pieces of legislation on university organization and governance, enacted in 1989 (granting Italian universities some autonomy, such as the power to draft their own statutes and regulations), 1999 (introducing an Ordinary Finance Fund), 2006 (creating the evaluation agency, ANVUR) and 2010 (the current law), were drafted by the central government and approved by the national Parliament. Though purportedly aimed at creating academic autonomy, as required by the Constitution, the disappointing effect of these laws was to centralize control over Italian higher education (Marra). Moreover, for a long time these laws were unable to break academic self-referentiality, which harks back to before the student revolution of 1968 (Violini, Marra). The laws regulating the legal status of universities are described in the three “Italian” contributions. Each offers a specific point of view for evaluating the process. The authors have different purposes and describe different aspects of the Italian legislation. After some introductory remarks on the changing legislative landscape of higher education and the increasing role of the state—a phenomenon known in all European countries—Alfredo Marra focuses on the organizational aspects of evaluation and accreditation according to the standards enacted by ANVUR. The Agency was created in 2006 and only became fully effective in 2011, thus making Italy a latecomer in the field of academic evaluation (Buoso). Marra’s accurate description of the structure and procedures of ANVUR underlines a lack of independence of the agency from the Ministry for Universities and its pervasiveness in all aspects of academic activities, from research, teaching and accreditation of courses to procedures for National Scientific Qualification and distribution of funding. These conclusions are shared by Elena Buoso in her contribution on the standards enacted by ANVUR for evaluation and accreditation. The activity of ANVUR is thoroughly explored in all its functions, from research quality assessment exercises, which take place every 5 years, to national scientific habilitation and the salary increment procedure for academics, based on quantitative-qualitative evaluation. These procedures are criticized on the basis of the international literature and their downsides are highlighted, for example pressure to turn research into “research

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products” and curbs on new research topics. The criteria on which these procedures are based presage threats for academic freedom. Returning to the essay by Lorenza Violini, the author takes a close look at the efforts of the Italian legislator to strike a balance between academic freedom, autonomy and accountability. The essay centres on the attempt to dismantle the traditional understanding of “academic freedom” and “academic autonomy” as academic self-referentiality and to shift the balance towards accountability. In describing the process, Violini and Buoso agree that implementation of the constitutional value of autonomy has sometimes led to unacceptable privileges and misconduct among academics. Regarding the latest reform (law no. 240/2010), which drew heavily on ideas from New Public Management, over-regulation and over-bureaucratization of universities have become a major threat to academic freedom in Italy and Germany alike, though in different measures. One may therefore ask if the attempt to modernize the university system according to these principles is a reasonable approach to the new challenges and threats in the sphere of European higher education.

5 The New Role of Universities and Freedom of Science and Teaching The landscape of European higher education is also moulded by new tasks (or “missions”) facing universities. For instance, universities have to provide transparency (by open access and clear and rapid communication of new insights), accountability (by ethics commissions), participation (by including citizens in their research) and “safe spaces” (signalled by “trigger warnings”). Diana zu Hohenlohe analyses how academic freedom can be ensured under the special conditions of private universities (with special reference to Austria and Germany). Firstly, she states that private institutions of higher education are not exempt from the duty to ensure academic freedom. Although the state cannot interfere in private institutions, it can protect academic freedom by regulating its context. At least four pillars are required: (1) institutional academic freedom of the university itself; (2) individual academic freedom of the teaching staff; (3) collective academic freedom of the teaching staff; (4) corporate academic freedom of faculties and university departments. This institutional arrangement is not fundamentally different from the indirect context-steering by which public universities are regulated in Germany, as also in that case, the state cannot interfere directly in core academic affairs. Zu Hohenlohe then investigates the differences between public and private universities and analyses typical constellations in which the rights of the owners of private universities can conflict with the academic freedom of the university members. Finally, she proposes specific instruments to solve such conflicts and safeguard academic freedom in private universities.

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Irene Pellizzone’s contribution evaluates whether (and how far) mandatory “online first” and “open access” publication of public-funded research affects academic freedom, taking the situation in Italy as an example. She points out that at least in the Humanities, this rule is a mixed blessing. While the author benefits from immediate circulation of his or her idea, the publication practices and strategies change fundamentally, so that researchers can no longer choose “autonomously” where to publish. Cristina Fraenkel-Haeberle outlines the transfer of research (i.e. clear and rapid communication of new insights) as a new mission for universities. Research (first mission) and teaching (second mission) are now flanked by a third mission: technology transfer. This new requirement, imposed in Italy and Germany alike, is in many ways critical for academic freedom. But a crisis can always be a chance: a much broader understanding of the third mission, not aimed solely at the economic dimension of university engagement, has been gaining ground. If not only economic outcomes but also the “social contribution” of universities is included in the third mission, innovation can be the result. Michael Fehling analyses whether ethics commissions foster or endanger academic freedom. Fehling answers this question in a nuanced way. He observes that, generally speaking, the involvement of ethics commissions threatens academic freedom, since these bodies are tasked with making more or less binding decisions on issues that touch the core of academic freedom, namely balancing the risks and benefits of proposed clinical trials. But then he hints at possible positive aspects of ethics commissions, which to a certain degree may even work to promote academic freedom, as for example when approval by such a commission helps to create a degree of legal certainty and protects legitimate expectations of the researchers involved. These commissions can uphold the rule that scientific projects can only be assessed on a legal basis. Their margin of appreciation must be defined narrowly, but when combined with the margin of appreciation enjoyed by researchers, it may promote, rather than constrain, academic freedom. The next two articles in this section, written by Giada Ragone and Francesco Magni, analyse current threats to academic freedom from universities themselves: speech restrictions and trigger warnings. Ragone looks at the phenomenon of “trigger warnings” used on many US and Canadian campuses to signal speech considered politically controversial that could be a source of harassment or “micro-aggression”. This elicits a system of self-censorship with students demanding formal investigations when faculty members publish papers whose contents are considered offensive. In Italy and Germany, the (sometimes understandable) sensitivity to “microaggression” still plays a rather marginal role but is gaining followers. What are the implications for academic freedom? For example, does the fact that members of state administrations (including universities) are required to use gender-fair language limit freedom of expression (as stated by Article 21 of the Italian Constitution)? And are such regulations in line with the freedom of teaching under Article 33? Ragone proposes a culture-sensitive, pluralist approach to these questions that also emphasises freedom of expression and teaching.

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Francesco Magni takes an educationalist’s approach. He looks at the boon and bane of the Free Speech Movement founded at the University of California, Berkeley, in 1964. Paradoxically, student rights to freedom of expression, demanded in the 1960s, were successful, only to be disregarded today as students fight for respect of their vulnerability. Finally, Magni asks how universities as institutions can balance demands for freedom of expression and for limits on speech. The last contribution deals with the interaction of experts and laypeople in the field of “citizen science” as a kind of “magic formula” to heal estrangement of the general public. Cristina Besio and Marco Jöstingmeier introduce the concept of “citizen science”, which has raised expectations. Deans encourage university teachers to engage laypeople in their research. As Besio and Jöstingmeier explain, experts and laypeople play different roles in the production of knowledge. Although criticized, science remains a specific logic, which cannot be replaced by lay knowledge. Besio and Jöstingmeier plead for a combination (not a mixture) of both approaches: experts bring theories, tested methods and results controlled by peerreview systems to the forum; laypeople bring live experience, everyday evidence and practical views. Finally, the papers of the young panellists at the international conference in Milan, regarding threats to academic freedom mainly related to COVID-19 and to scientific evaluation, have already been published online.7

6 Conclusions In a pioneering study of 1966 (Autonomy and academic freedom in Britain and in English-speaking countries of tropical Africa), Sir Eric Ashley identified academic freedom as an “internationally recognized and unambiguous privilege of university teachers” that must be protected “whenever and however challenged”. Inspired by this statement, the present book tackles the task of identifying the challenges some university systems face in our time. Where do the major challenges for academic freedom lie today? The results we draw from our research show several aspects under pressure. The most important and far-reaching ones are witnessed by the essays dealing with the Hungarian and Polish systems. Here, threats to academic freedom recall ghosts of the European past, when the dictatorships that ruled certain countries in the 1930s hegemonized education and attempted to eliminate any possible cultural alternative to the one promoted by the government.

7 The contributions by Lavinia del Corona, Nannarel Fiano, Emanuela Furiosi, Murtaza Mohiqi, Mahammad Mustafa Mohiqi, Beatrice Rabai and Elias Wirth can be found in issues 1 and 2 (2021) of the online scientific journal of the Università degli Studi di Milano (CERIDAP), https://ceridap. eu/en/issues/.

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Beyond these extreme cases, the volume deals, in the different sections, with other real or potential threats, most derived from recent attempts made by governments to modernise higher education, while others come directly from societal trends and developments. All these challenges must be part of our scholarly reflections to warn the legislators, governments and independent agencies involved in university governance, as well as university governance itself. Such reflections are crucial for stimulating discussion and avoiding taking the threats for granted. As scholars and responsible members of the university community, we should not overlook our fortune to live in countries, such as Germany and Italy, where academic freedom and academic autonomy are deeply rooted in our Constitutions and in our legal tradition: we have a fundamental responsibility towards present and the future generations to protect them “whenever and however challenged”. Although these challenges are difficult to erase, it is important that they do not erode the basic values and meaning of our academic communities.

Part I

Academic Freedom in Europe

Science and the European Dimension of Freedom of the Arts and Science Gianmario Demuro

Abstract Freedom of scientific research and the closely related academic freedom exist in European legal systems as universal freedoms. Such freedoms appear to be founded directly on the value of the human person, irrespective of EU citizenship, and on the common law tradition of freedoms and fundamental rights in Europe. The European dimension of academic freedom is a clear hermeneutical parameter of constitutional identity. A shared European constitutional identity can only be built by political choice. Keywords Freedom of scientific research · Academic freedom · European Charter of Human Rights · Constitutional identity · Political constitutionalism

1 Freedom The European dimension of freedom of the arts and science is written in Article 13 of the European Charter of Human Rights: “The arts and scientific research shall be free of constraint. Academic freedom shall be respected.” The historical origin of the freedoms guaranteed by Article 13 of the Nice Charter are not immediately recognizable, because such freedoms are not regulated in the European Convention of Human Rights. Nevertheless, we can generally refer to Articles 9 and 10 of the European Convention of Human Rights that regulate freedom of thought, conscience and religion, and freedom of expression.1 Regarding freedom of expression, the European Court of Human Rights has in fact included freedom of artistic expression as one aspect of the freedom to receive and

1 ECHR Judgement (23.6.2006) Sorguç v. Turkey is the first inclusion of academic freedom under the protection of Article 10 of the Convention, as observed by Bieter et al. (2016), p. 606.

G. Demuro (*) Department of Law, University of Cagliari, Cagliari, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_2

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communicate ideas. According to the Court,2 freedom of artistic expression is a way artists participate in public exchange of information and ideas, thus contributing to democratic growth of the state. This, in turn, obliges the state not to interfere with the exercise of this form of expression.3 With respect to other sources of EU law, EU jurisdiction covering matters of scientific and cultural research has always been construed judicially from general treaty provisions and has continued to expand, culminating in the Maastricht Treaty, in which a series of provisions established the legal basis for a EU right of action in this area, in particular Articles 151 and 163 and the subsequent Treaty establishing the European Community (TEC).4 The freedom guaranteed by Article 13 of the Charter is present in almost all European Constitutions.5 It is protected by constitutional provisions relating to freedom of thought and of the press,6 or is protected by express provisions, such as those which regulate the freedom of cultural creativity.7 Even where the freedom of the arts and sciences is not expressly guaranteed, it is construed judicially by Constitutional Courts. In France, for example, freedom of scientific research and the arts has been entirely interpreted by the Conseil Constitutionnel on the basis of Article 11 of the Declaration of Rights of 1789. In summary, freedom of the arts and freedom of scientific research, as well as the closely related academic freedom, exist in European legal systems as universal freedoms. Irrespective of EU citizenship status, such freedoms appear to be founded directly on the value of the human person and on the common law tradition of freedoms and fundamental rights in Europe.

2 Subjects The subjects entitled to exercise freedom of the arts are in first place those who are active in the field of art. However, this does not exclude the existence of an individual right to express oneself by means of art.

2 ECHR Judgement (24.5.1988) Müller v. Switzerland, para. 133, discussed in Van Dijk and Van Hoof (1988). 3 See also ECHR Judgement (11.12.1997) Hüseyin Karatas v. Turkey, para. 49, discussed in EU Network of Independent Experts on Fundamental Rights (2006), p. 134. 4 Now articles 179–190 of the Treaty on the Functioning of the European Union. 5 Indeed, more than two thirds of member state Constitutions include provisions similar to that expressed in Art. 13, and most also refer to freedom of the arts and artistic expression. See in this regard Toggenburg (2020). 6 Grundgesetz of the Federal Republic of Germany, Art. 5(3). 7 The Constitution of the Portuguese Republic, Art. 42 and Art. 73(3). The latter sets out the obligation of the state to “promote the democratisation of culture by encouraging and ensuring access by all citizens to cultural enjoyment and creation”. As observed by Toggenburg (2020), this makes it unique among European Constitutions.

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The subjects entitled to exercise freedom of scientific research and the corresponding academic freedom include those who are active in the fields of scientific research and academic teaching. However, this is intended to be interpreted broadly to include not only lecturers and researchers who require academic freedom to pursue their work, but also scientists working outside universities, by virtue of their role in contributing to the advancement of knowledge. The exact scope of application of this freedom to scientists employed in industry or for-profit academic settings remains to be determined, in light of the conflicting interests involved.

3 The Object More complex problems arise from the extreme difficulty of defining the object protected by Article 13 of the Charter. First of all, in relation to freedom of the arts, the general problem is how to define “arts” and the subjects entitled to exercise freedom of the arts. The terms “art” and “culture” do not have an acceptably specific meaning in the field of law. The legislator borrows the terms from ordinary language without assigning them a specific meaning for the purposes of legislative discourse. The Charter appears to share this general approach, protecting culture in a wider sense, which includes artistic and scientific expression. Thus, the Charter appears intended to make a synthesis of traditional literary-humanist and scientific-technical culture. The express words of the Charter “the arts [. . .] shall be free”, assuming that the essence of the “arts” is creativity, imply that the arts must not be interfered with by the public powers. The words preclude the possibility of imposing censorship on the arts, making distinctions between them or influencing the methods, content and styles of artistic expression. Problems also arise concerning the definition of the object in relation to freedom of scientific research and academic freedom. Freedom of scientific research and academic freedom are an integral whole. One cannot speak of academic freedom in the absence of freedom of scientific research. With respect to the definition of the object, freedom of scientific research is held to manifest in freedom to define the principles and the methods of research, as well as the means of disseminating its results, while academic freedom manifests in the right to express scientific opinions and to contribute to the advancement of knowledge through teaching.8 Given these definitions of the object, Article 13 of the Charter clearly does not expressly limit issues involving the constitutional and legal duties of the European states in promoting the arts, scientific research and academic freedom. Likewise,

8 According to Advocate General Kokott (2020), the freedom of the arts and sciences expressed in Art. 13 “includes not only substantively autonomous research and teaching that is free from state interference, but also its institutional and organisational framework”, Opinion of Advocate General Kokott (5.3.2020) Case C-66/18 Commission v. Hungary, para. 146.

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Article 13 does not expressly limit issues involving the individual’s right to culture, which usually manifests when the state provides public education of the arts and sciences to its citizens. Further, Article 13 does not expressly address the state’s power, which implies that European states are free to promote the rights of the arts, scientific research and academic freedom.

4 Limits In the absence of any express limit, the limits of such freedoms are found in systematic interpretation of the Charter. The first limit, in line with the directives of the Presidium, is that freedom of the arts and of scientific research must be exercised observing human dignity which is guaranteed by Article 1 of the Charter. Since freedom of the arts and of scientific research are part of a system of fundamental values that includes human dignity, and both are in fact closely bound to human dignity, a balancing test would be necessary to establish which right prevails in the event of conflict between the two. Even Article 3 of the Charter can be considered a limit to scientific research, in the case of certain types of research regarding the “integrity of the person” in biological and medical sciences.9 Finally, according to the directives of the Presidium in version 4473/00, Convent 49, the freedoms guaranteed by Article 13 “can be subject to the limitations authorised by Article 10 of the European Convention of Human Rights”, i.e. all the limits applicable to freedom of expression.10 Such limitations must raise further questions, since freedom of the arts and of scientific research are regulated differently in the European Convention of Human Rights than in the Charter, and since it is well established that freedom to express oneself through the arts traditionally enjoys greater protection. Thus, for example, the standards used to judge artistic language are different from those used to judge the language of daily life.

5 The European Dimensions and Counter-Limits of Academic Freedom. European States Cannot Limit Academic Freedom We discuss this issue in terms of the questions arising from the recent Hungarian experience. First of all, let us recall that the “tracks” of ECHR case law also have to be used to interpret academic freedom. The first important case is ECHR Judgement (23 June 2009) Suruc v. Turkey, where it is written: “academic freedom [. . .] comprises academics’ freedom to freely express their opinion about the institution 9

EU Network of Independent Experts on Fundamental Rights (2006), p. 140. Ibid, p. 140.

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or system in which they work and freedom to disseminate knowledge and truth without restriction.”11 Another important statement can be found in ECHR Judgement (28 November 2017) Antovic and Mikovic v. Montenegro. In the concurring opinion of Vucinic and Lemmens, we read: “It seems to us that at least in an academic environment, where both the teaching and the learning activities are covered by academic freedom, the said expectation of privacy can be considered a ‘reasonable’ one. Surveillance as a measure of control by the dean is, in our opinion, not something a teacher should normally expect.” Since academic freedom is something that also has to be respected “in an academic environment”, the “right to a private life” is also a right to “academic freedom” in a public room like a University lecture hall. The first case before the European Court of Justice (6 October 2020) is in the same area of reasoning. It gives a clear definition of academic freedom in Europe for member states. We can start with the Press release of CJ Judgement (6 October 2020) Case C-66/18 Commission v. Hungary, “The Grand Chamber of the Court of Justice upheld the action for failure to fulfil obligations brought against Hungary by the European Commission. The Court held that by making the exercise, in Hungary, of teaching activities leading to a qualification by higher education institutions situated outside the European Economic Area (EEA) subject to the existence of an international treaty between Hungary and the third country in which the institution concerned has its seat, Hungary has failed to comply with the common relation to national treatment given under the General Agreement on Trade in Services (GATS), concluded in the framework of the World Trade Organization (WTO).” The constitutional dimension of the decision is clear from the press release: “The provisions of the Charter of Fundamental Rights of the European Union [. . .] relating to academic freedom, the freedom to found higher education institutions and the freedom to conduct a business. Second, the Court held that, by making the exercise, in Hungary, of the activities of foreign higher education institutions, including institutions having their seat in another member state of the EEA, subject to the condition that they offer higher education in the country in which they have their seat, Hungary has failed to comply with its national treatment commitments under the GATS and with its obligations in respect of the freedom of establishment, the free movement of services and the above mentioned provisions of the Charter.” Starting with this statement we can say that academic freedom and the European scientific community now have European borders that were not so evident in the past.12 In the press release, the Court clarifies that it “examined whether the requirements at issue, introduced by the 2017 Law on higher education, were consistent with Articles 13, 14(3) and 16 of the Charter.” So “the Court stated, first of all, that Hungary was bound by the Charter as regards the disputed provisions, since performance of its obligations under an international agreement that is

11 12

Marciante (2018), p. 1157. Sigrist (2017), p. 203 ff.

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an integral part of EU law, such as GATS, on one hand, and the restrictions placed by those provisions on the fundamental freedoms, which it sought in vain to justify, on the other, are part of the implementation of EU law within the meaning of Article 51 (1) of the Charter.”13 Under the binding provisions of the Charter, “the Court emphasised, in relation to the exercise of the activities of higher education institutions, that academic freedom did not only have an individual dimension in so far as it is associated with freedom of expression and, specifically in the field of research, the freedoms of communication, of research and of dissemination of results thus obtained, but also an institutional and organisational dimension reflected in the autonomy of those institutions. The Court held that the measures at issue were capable of endangering the academic activities of the foreign higher education institutions concerned within the territory of Hungary and, therefore, of depriving those universities of the autonomous infrastructure necessary for conducting their scientific research and for carrying out their educational activities; consequently, those measures were such as to limit the academic freedom protected in Article 13 of the Charter. Furthermore, the founding of those institutions is covered by Articles 14(3) and 16 of the Charter and, for reasons similar to those just outlined, the measures at issue constitute an interference with the rights enshrined in those provisions. Since the various interferences could not be justified under Article 52(1) of the Charter, the Court held that Hungary has failed to comply with the provisions of the Charter cited above.”14 We can now go deeper into the legal reasoning of the decision. As we wrote before, the first important statement is that academic freedom “is enshrined in general terms in the second sentence of Article 13 of the Charter, according to which ‘academic freedom shall be respected’”15 and “[u]nder Article 52(3) of the Charter, rights enshrined therein which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘the ECHR’) must be given the same meaning and, at the very least, the same scope as those laid down by that convention.”16 For the Luxembourg Court it is also true that “the text of the ECHR makes no reference to academic freedom. However, it is apparent from the case law of the European Court of Human Rights that freedom is associated, in particular, with the right to freedom of expression enshrined in Article 10 ECHR (ECHR Judgement, 15 April 2014, Hasan Yazıcı v. Turkey, CE:ECHR:2014:0415JUD004087707, § 55 and 69, and ECHR Judgement, 27 May 2014, Mustafa Erdoğan and Others v. Turkey, CE:ECHR:2014:0527JUD000034604, § 40 and 46), as is also confirmed by the comments on Article 13 of the Charter in the Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17). From that specific perspective, academic freedom in research and in teaching should guarantee freedom of 13

Court of Justice of the European Union, Press Release no. 125/20, 6.10.2020, p. 13. Ibid, p. 14. 15 CJ Judgement (6.10.2020) Case C-66/18 Commission v Hungary, para. 222. For further background information please refer also to the contributions of P L Láncos and S Schiedermair in this volume. 16 Ibid, para. 223. 14

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expression and of action, freedom to disseminate information and freedom to conduct research and to distribute knowledge and truth without restriction, although it should be made clear that that freedom is not restricted to academic or scientific research, but that it also extends to academics’ freedom to freely express their views and opinions (ECHR Judgement, 27 May 2014, Mustafa Erdoğan and Others v. Turkey, CE:ECHR:2014:0527JUD000034604, § 40).”17 As we wrote before, academic freedom “is not, however, restricted to mere communication” but is to be understood “broadly”, as Advocate General Kokott wrote, since “the Charter, unlike the ECHR, contains a fundamental right to freedom of the arts and sciences which is autonomous of the general freedom to hold opinions. This includes not only substantively autonomous research and teaching that is free from state interference, but also its institutional and organisational framework. Affiliation with a state or private university is, in practice, an essential condition for academic research. The university serves as a platform for academic discourse and a network and infrastructure for teaching staff, students and donors. The freedom to found educational establishments, enshrined in Article 14(3) of the Charter, protects only part of that institutional framework, namely in so far as private educational establishments are concerned. A requirement which, if not fulfilled, means that no teaching or research activities can take place at a university or must be ended thus also falls within the scope of protection offered by the second sentence of Article 13 of the Charter.”18 Furthermore, “it should be noted that the second sentence of Article 13 of the Charter, in so far as it also protects the institutional and organisational framework for research and teaching, does not guarantee the continued existence of each individual educational institution. Nevertheless, a rule which results in the closure of a higher education institution must be proportionate, as is already evident from Article 52(1) of the Charter.”19 The Charter therefore has a clear significance that could be integrated by “the content of Recommendation 1762 (2006), adopted by the Parliamentary Assembly of the Council of Europe on 30 June 2006 and entitled ‘Academic freedom and university autonomy’, from which it is apparent that academic freedom also incorporates an institutional and organisational dimension, a link to an organisational structure being an essential prerequisite for teaching and research activities.”20 Finally, the Court states that “endangering the academic activity of the foreign higher education institutions concerned within the territory of Hungary”, and therefore depriving “the universities concerned of the autonomous organisational structure that is necessary for conducting their academic research and for carrying out

17

Ibid, para. 224. Opinion of Advocate General Kokott (5.3.2020) Case C-66/18 Commission v Hungary, para. 146–147. 19 Ibid, para. 149. 20 CJ Judgement (6.10.2020) Case C-66/18 Commission v Hungary, para. 227. 18

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their educational activities”, limits the academic freedom protected in Article 13 of the Charter.21 We can therefore conclude that the provision of Article 6 TEU, which recognises the Charter of Nice as having the same rank as the Treaties, is momentous. The commitment to respect fundamental rights and the rule of law is anchored in the supranational and constitutional dimension of the rights themselves. By becoming a European unitary right, this dimension becomes the true constitutional dimension of the Treaty of Lisbon. In fact, in acknowledging that Constitutions in the traditions of constitutionalism guarantee democracy, and accordingly rights, we must also acknowledge that the Treaty of Lisbon has this characterising purpose.22 In such a spontaneous system, the existence of a written Constitution is not essential as the fact that the EU recognises the key importance of the supranational and constitutional dimension of fundamental rights, a dimension that oscillates between constitutional pluralism based on judges’ decisions and on policies decided in Parliament.23 Of all the choices concerning the issue of coexistence in the Union, recognition of the Charter as a legally binding text is the most important, due among other things to the clear ties thus achieved with the constitutional models of most member states. Integration through rights has therefore also reached a further level in the language of the rights themselves, providing a definitive contribution to the construction of a judicial doctrine on fundamental rights, capable of establishing a constitutional identity. The first European Court’s decision on academic freedom helps the European Charter of Rights be a defining element of European constitutional identity and a defining part of the common principles of European democracy in a historical-political community that shares common values. Since Lisbon, the European Union has anchored the construction of the European decision-making process in the common dimension of values written in the European dimension of the Charter of Rights. In its original form of government defining common values of European constitutionalism, this reconstruction is analogous to other federalizing processes. However, even common constitutional traditions may contrast with constitutional identities, especially in periods of lasting economic crisis, originating from economic imbalances between different areas in Europe. Indeed, while the circulation of European rights has certainly entailed wider protection, on the other hand it has also had repercussions on the socio-economic system, and in a broader sense, on the constitutional system. The academic rights in Constitutions are generally supported by shared constitutional values. In the case of European rights, what values are shared by everyone? Now we can say that there is an untouchable European dimension of academic freedom, because the Charter of Nice is a clear hermeneutical parameter of every constitutional identity, towards construction of a shared European constitutional

21

Ibid, para. 228. Schauble (2008). 23 Goldoni (2012). 22

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identity that may be strengthened by political choices. So, if we believe in academic freedom, we need European policies on academic freedom.24

References Bellamy R (2007) Political constitutionalism: a republican defence of the constitutionality of democracy. Cambridge University Press, Cambridge Bieter KD, Karran T, Appiagyei-Atua K (2016) “Measuring” the erosion of academic freedom as an international human right: a report on the legal protection of academic freedom in Europe. Vanderbilt J Transnatl Law 49:597–691 EU Network of Independent Experts on Fundamental Rights (2006) Commentary of the Charter of Fundamental Rights of the European Union, Article 13. Liberté des arts et des sciences. https:// sites.uclouvain.be/cridho/documents/Download.Rep/NetworkCommentaryFinal.pdf. Accessed 20 Nov 2020 Goldoni M (2012) Constitutional pluralism and the question of the European common good. Eur Law J 3:385–406 Marciante M (2018) Videosorveglianza nei luoghi di lavoro. Recenti sviluppi in tema di videosorveglianza nei luoghi di lavoro in ambito Cedu. Giurisprudenza italiana 5:1157–1161 Schauble W (2008) Il Trattato di Lisbona come espressione dell’unità culturale dell’Europa. In: Bassanini F, Tiberi G (eds) Le nuove istituzioni europee. Commento al Trattato di Lisbona. Il Mulino, Bologna, pp 461–477 Sigrist R (2017) The rise of “academic” science in Europe, 1700-1870: a demographic and geographic approach. Annali di Storia delle università italiane 2:203–244 Toggenburg G (2020) The 13th of all EU-rights: the freedom of arts and sciences and how the Charter contributes. https://beta.eurac.edu/en/blogs/eureka/the-13th-of-all-eu-r-rights-the-free dom-of-arts-and-sciences-and-how-the-charter-contributes#_ftnref2. Accessed 20 Nov 2020 Van Dijk P, Van Hoof GJH (1988) Theory and practice of the European Convention of Human Rights. Kluwer, The Hague

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Bellamy (2007).

Freedom of Research and Academic Teaching in the European Union Stephanie Schiedermair

Abstract The rule-of-law crisis in Europe has been accompanied by a massive threat to academic freedom. In September 2019, the Central European University had to cease operations and move from Budapest to Vienna, due to adoption of the Hungarian “Lex CEU”, subsequently the basis of the European Commission infringement procedure against Hungary. In this case, the ECJ issued its first fundamental ruling on academic freedom in Europe, analysed here in the context of the ongoing crisis. Keywords Rule-of-law crisis · CEU · Judgement of the Grand Chamber of the CJEU (6th October 2020) · Mechanisms of protection · Different actors in the field

1 Introduction: Academic Freedom Under Fire A rule-of-law crisis has struck the heart of the European Union.1 It has been called a “watershed moment” for European Constitutionalism2 and indeed consensus on the rule of law with an independent judiciary is a pillar of the house of Europe. The many efforts made to overcome the rule-of-law crisis range from political dialogue procedures within the EU3 and the Council of Europe4 to legal procedures before the

1

See Franzius (2018), p. 381; Wunderlich (2019), p. 557. Kustra-Rogatka (2019). Müller calls what is happening in Hungary “constitutional capture”, see Müller (2015), p. 142. 3 See Uitz (2020a). 4 For the central role of the Venice Commission in this process see https://www.venice.coe.int/ WebForms/pages/?p¼02_Rule_of_law&lang¼EN, last accessed 31.10.2020. The Commission’s Rule of Law Checklist can be found at https://www.venice.coe.int/images/SITE%20IMAGES/ Publications/Rule_of_Law_Check_List.pdf, last accessed 31.10.2020. 2

S. Schiedermair (*) International Law Institute, University of Leipzig, Leipzig, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_3

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ECJ.5 For its Presidency of the Council of the European Union, Germany announced that strengthening the rule of law was a priority and launched a new peer review mechanism.6 The rule-of-law crisis has been accompanied by a massive threat to academic freedom. Examples of increasing threats to academic freedom in Europe are numerous.7 In Poland, the rule of the PIS Party since 2015 has turned the country upside down, targeting the judiciary, the media system and schools.8 The consequences for academic freedom have not yet been as systematic as in Hungary, yet the first refusal of President Duda to sign the letter of appointment of sociologist Michał Bilewicz, an expert on anti-Semitism and hate speech at the University of Warsaw, confirms Polish researchers’ fears of not being able to obtain government funding for research that is not compatible with the PIS party line.9 The most notable examples of a threat to academic freedom in Europe come from Hungary. Expulsion of the Sorosfounded Central European University from Budapest is just the tip of the iceberg.10 Viktor Orbán’s grip on academic institutions is tightening. Last year, a law was passed re-organising the Hungarian Academy of Sciences: it closed down institutes and massively increased government influence on the Academy.11 The Rector’s conference of the universities of Germany, Poland and Austria immediately objected to the law.12 In December 2019, the Hungarian parliament passed a law that introduced a National Culture Council charged with the task of “centralized strategic steering of cultural sectors”.13 The new Culture Council is supposed to issue guidelines and recommendations in the field of culture. This means strategic government control of the cultural sector, especially control of theatres that rely on state subsidies: new funding rules will also ensure more government influence on theatres.14 Protests from the cultural scene have been massive: a petition against the law was signed by 50,000 people in a matter of days. The new target of the government’s cultural strategy is Hungary’s famous University for Theatre and Film Arts in Budapest. The government transferred ownership of the public university to a private foundation and appointed a new board of trustees without giving the university any say in nominating candidates. In August, the board introduced new rules 5

See infra fn 31 and 32. See German Federal Foreign Office (2020). The procedure shall be based on the first annual Rule of Law Report that the Commission presented in September and shall initiate regular discussions on pan-European developments and on country chapters in the Council. 7 Regarding threats to the rule of law worldwide, see Stockemer and Kim (2020) and Pils and Svensson (2019). 8 Mijnssen (2018). 9 Frehse et al. (2019). 10 See Ziegler (2019). 11 Schmidt (2019a). 12 See Ungarn soll Akademie-Gesetz zurückziehen, 17.7.2019, https://www.forschung-und-lehre. de/politik/ungarn-soll-akademie-gesetz-zurueckziehen-1963/, last accessed 3.10.2020, and the contribution of P L Láncos in this volume. 13 Schlagwein (2019). 14 Karasz (2019). 6

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governing the university, effectively stripping its Senate of its right to decide key budget and management questions. The university’s entire Senate and the bulk of its administration resigned in protest. The students blocked the university entrance in protest against the measures of Viktor Orbán’s autocratic government.15 These examples show that academic freedom cannot be taken for granted anywhere in the world,16 even in the comparatively homogeneous setting of the European Union.

2 Freedom of Research and Academic Teaching in European Union Law Although the current situation of academic freedom in the EU is unsatisfactory,17 freedom of research and teaching is protected as an independent fundamental right in Article 13 of the EU Charter of Fundamental Rights (CFR).18 Article 13 guarantees protection for academia and art,19 which are connected by the creative process necessary to both. For students, the right to education in Article 14 is relevant as long as they are not involved in research,20 while Article 11 of the Charter regulates the right to freedom of expression and covers free expression of academics.21 The fact that Article 13—in contrast to the European Convention on Human Rights22— has an independent provision for freedom of research and academic freedom in general shows that they are core values of the EU. The norm also shows that academic freedom is not just a principle, but a legally enforceable right.23 Beneficiaries of the right are natural persons engaged in scientific activities, regardless of their nationality. Legal persons or associations, such as universities and higher education institutions, also come under the protection of Article 13, even if they

15

Löwenstein (2020) and Novak (2020). Regarding the protection of academic freedom worldwide, see Beiter et al. (2016), p. 261 ff. 17 The reality of academic freedom in EU member states is also described by Beiter et al. (2016), p. 282 ff. 18 For the discussion accompanying the creation of Art. 13, whether academic freedom is already enshrined in the right to education (Art. 14) and freedom of expression (Art. 11) or will be protected in a separate article, see Thiele (2017), para. 1; Kempen (2016), para. 1 ff. In some member state constitutions, academic freedom is guaranteed (as in Art. 5(3) of the German Constitution); in others it is just a simple law, for examples see Thiele (2017), para. 4. 19 “The arts and scientific research shall be free of constraint. Academic freedom shall be respected”. The difference in the wording ( free of constraint and respected) does not create any difference in the level of protection, see Bernsdorff (2019), para. 13. 20 See Jarass (2016), para. 4. 21 Jarass tends to see Art. 13 as a lex specialis in this respect, see Jarass (2016), para. 4. 22 The ECtHR takes freedom of expression in Art. 10 European Convention on Human Rights as a starting point for guaranteeing academic freedom, see Jarass (2016), para. 1. 23 Jarass (2016), para. 2. 16

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are bodies governed by public law.24 The first obligation falls to the European Union. Member states are obliged under Article 51(1) first sentence CFR to apply the CFR and therefore also Article 13, solely when implementing EU law. Private individuals are not bound directly by Article 13, but only indirectly, as Article 13 has an impact on the interpretation of civil law norms.25 The term “sciences” used in the title of Article 13 CFR covers research and academic teaching. Basic and applied research carried out inside or outside universities comes under the protection of Article 13 CFR.26 That includes all research activities, from preparatory and support activities to the publication of research results. Regarding the protection of academic freedom envisaged by Article 13, the urgent question is how Article 13 CFR can be effectively enforced. A persisting problem of the EU, which is also felt here, is lack of competence. Under the principle of conferral in Article 5(2) TEU, the EU can only act within the limits of the competences conferred on it by member states in the treaties. Culture, arts and academia have remained with member states and their different cultural traditions. According to Article 167(1) TFEU, the EU shall therefore only contribute to the flowering of the cultures of the member states, while respecting their national and regional diversity and at the same time bring the common cultural heritage to the fore. However, since the European Union has pledged to uphold academic freedom, it therefore has a duty to ensure its application, otherwise Article 13 CFR would evaporate into a political program and no longer be a fundamental right.

3 Mechanisms to Protect Freedom of Research and Teaching in European Union Law The rule-of-law crisis has been an experimental field for the wide variety of enforcement mechanisms in the EU and the Council of Europe. Since the rule of law is a fundamental pillar of the EU (Article 2 TEU), the EU is desperately fighting to enforce it by legal and political means. As regards the Council of Europe, the Venice Commission issued its final opinion on 9 October 2017, stating that the new rules imposed by Hungary on foreign universities are “highly problematic from the standpoint of rule of law and the fundamental rights principles and guarantees to foreign universities which are already established in Hungary and have been lawfully operating there for many years.”27 The EU procedures most closely linked to

24

Thiele (2017), para. 8. Thiele (2017), para. 3. 26 Kempen (2006), para. 12. 27 Opinion 891/2017 (9.10.2017), Hungary Opinion on Act XXV of 4.4.2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education, European Commission for Democracy through Law (Venice Commission), para. 123, https://www.venice.coe.int/webforms/documents/default. aspx?pdffile¼CDL-AD(2017)022-e, last accessed 26.1.2021. 25

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politics are the Dialogue procedure of the EU28 and the Procedures according to Article 7 TEU.29 These procedures encounter the problem that the political structure of the Union, as an international organisation with the international law principle of unanimity, has favoured Hungary and Poland, who have fought side by side and have therefore been able to block political measures effectively. This has brought legal mechanisms into focus. The sharpest sword is Article 258 TFEU, infringement procedures before the European Court of Justice. The Commission started an infringement procedure in 2019, arguing that the new disciplinary regime in Poland undermines the judicial independence of judges and does not ensure the necessary guarantees to protect judges from political control. On 10 October 2019, the Commission referred the procedure to the Court of Justice of the EU.30 In the rule-of-law crisis in Poland, the referral procedure under Article 267 TFEU has also proven to be an interesting tool. Three requests for a preliminary ruling led to the ECJ judgement of 19 November 2019.31 In the judgement, the Grand Chamber of the Court ruled that the provisions of Polish law amending the law on the organisation of the ordinary courts, lowering the retirement age of ordinary court judges and setting a different retirement age depending on their gender, were contrary to EU law and criticised the newly created Disciplinary Chamber of the Polish Supreme Court, which has the power to discipline judges for their conduct and for the content of their rulings. The ECJ rulings were followed by a ruling of the Polish Supreme Court, which in an unequivocal judgment of 5 December 2019, held that the National Council of the Judiciary did not guarantee standards for effective judicial protection outlined by the Court of Justice, as it was neither impartial, nor independent of the legislature and the executive.32 The referral procedure also gives national courts the chance to support their colleagues in Poland and Hungary, as shown by the example of the District Court of Amsterdam. The Court requested a preliminary ruling of the ECJ concerning whether extradition to Poland pursuant to a European arrest warrant can be refused on account of structural deficiencies of Polish courts.33 The Court had already dealt with the question before, on account of various requests for preliminary rulings.34

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Uitz (2020a). See Franzius (2018), p. 381. Franzius is sceptical of the Art. 7 TEU procedure and rather calls for support for domestic actors in their fight for democracy and rule of law. Regarding the situation in Hungary, see Hummer (2015), p. 625. 30 See European Commission (2019). 31 CJ Judgement (19.11.2019) Joined Cases C-585/18, C-624/18 and C- 625/18 A. K. and others v. Sąd Najwyższy; see ECJ Press Release no. 145/19 (19.11.2019); Berendt (2020); Pech (2020). 32 Supreme Court of Poland Judgement (5.12.2019) Case ref. III PO 7/18. 33 See Vollstreckungsverbot für Haftbefehle aus Polen, 5.8.2020, https://www.lto.de/recht/ nachrichten/n/vorlage-amsterdam-eugh-unabhaengigkeit-justiz-polen-vollstreckung-haftbefehl/, last accessed 6.10.2020. 34 CJ Judgement (25.7.2018) Case C-216/18 PPU; Pech and Wachowiec (2019). 29

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4 The Case of the Central European University The threat to academic freedom in Hungary also led to an infringement procedure before the ECJ. It concerned the Central European University (CEU), which has been ranked in the top 100 universities worldwide.35 In September 2019, the CEU had to cease operations and move from Budapest to Vienna. The move was due to the Hungarian “University (teaching) law” (“Lex CEU”), a law promulgated in 2011 for the specific case of the CEU, and amended in April 2017.36 The law stipulates the mandatory conclusion of bilateral agreements between Hungary and non-European Economic Area (EEA) countries regarding higher education institutions operating in Hungary. It obliges said institutions also to provide higher education services in the relevant institutions of the country of origin (USA in the case of CEU) along with special registration and approval of higher education services operating in Hungary. Because the bilateral contract was signed by the New York education authority and not the Hungarian government, the CEU had not been allowed to offer Americanaccredited courses in Hungary since September 2019. The Hungarian Constitutional Court had to deal with constitutional complaints concerning the “Lex CEU”, but did not start the review procedure for one year and then decided to suspend it to await the ECJ judgment.37 The European Commission and the Parliament protested, so did the Venice Commission of the Council of Europe.38 Meanwhile the European Commission initiated an infringement procedure against Hungary, stating that the “Lex CEU” constituted a violation of academic freedom, the right to education and freedom to conduct a business enshrined in the Charter of Fundamental Rights of the European Union.39 The Advocate General Juliane Kokott issued her opinion on 5 March 2020, arguing that the “Lex CEU” constituted a violation of the General Agreement on Trade in Services (GATS) and Articles 13, 14(3) and 16 of the Charter of Fundamental Rights.40 The Grand Chamber of the ECJ rendered its judgement on 6 October 2020, confirming that the conditions introduced by Hungary impeding foreign higher education institutions to carry out their activities in its territory were incompatible with EU law.41

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Central European University (2019). For the amendment process see Uitz (2017). 37 Halmai argues that in so doing, the Court de facto helped the government to force the CEU out of the country, see Halmai (2018). 38 See Uitz (2018). 39 European Commission (2017). 40 See Opinion of Advocate General Kokott (5.3.2020) Case C-66/18 Commission v. Hungary. 41 See CJ Judgement (6.10.2020) Case C-66/18 Commission v. Hungary. 36

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5 The Judgement of the Grand Chamber So far freedom of science has only played a marginal role in ECJ case law.42 The judgement of the Grand Chamber is the first fundamental judgement regarding academic freedom in the EU.43 The fact that the Hungarian government is massively increasing pressure on the Hungarian Academy of Sciences44 and on the University for Theatre and Film Arts in Budapest45 shows that this is just the beginning of a cultural clash in Hungary, but which has impacts on the whole European Union, as has been the case in the rule-of-law crisis. The judgement of the Grand Chamber is therefore a first milestone in the fight for protection of academic freedom in the EU. In its judgement, the Grand Chamber found that by imposing the envisaged conditions on foreign higher education institutions, Hungary failed to fulfil its obligations under Article XVII of the General Agreement on Trade in Services46 and freedom of establishment according to Article 49 TFEU.47 The Grand Chamber also declared that Hungary had failed to fulfil its obligations under Articles 13, 14 (3) and 16 CFR.48 After confirming applicability of the Charter,49 the Court turned to academic freedom in Article 13. Acknowledging the fact that the European Convention on Human Rights does not contain a specific provision for academic freedom and referring to ECtHR case law concerning Article 10, the Court stressed that academic freedom in the Charter must be interpreted more broadly and must also incorporate institutional and organisational dimensions.50 Thus the Court connected its decision to the jurisprudence of the ECtHR, yet developed its own line on the basis of Article 13 CFR. Other than that, the Court stated that the freedom to found educational establishments, whether public or private, is guaranteed as one of the aspects of the freedom to conduct a business, which is why the Court examined

42

See, for example, Bernsdorff (2019), para. 5. See also Opinion of Advocate General Kokott (5.3.2020) Case C-66/18 Commission v. Hungary, para. 142; Uitz (2020b). 44 See Schmidt (2019b). 45 Szirtes (2020). 46 CJ Judgement (6.10.2020) Case C-66/18 Commission v. Hungary, para. 128–139 and 152–156. 47 Ibid, para. 167–190. The Court also found an infringement of Art. 16 of Directive (EU) 2006/123/ EC of the European Parliament and of the Council of 12.12.2006 on services in the internal market, OJ L 376, para. 203–207. 48 See CJ Judgement (6.10.2020) Case C-66/18 Commission v. Hungary, para. 208–243. 49 Ibid, para. 213–215. Sceptical towards the applicability of the Charter Boor (2020). 50 CJ Judgement (6.10.2020) Case C-66/18 Commission v. Hungary, para. 226 ff. At this point, the Court refers to Recommendation 1762 (2006) ‘Academic Freedom and University Autonomy’, adopted by the Parliamentary Assembly of the Council of Europe on 30 June 2006 and to point 18 of the Recommendation concerning the status of higher-education teaching personnel, adopted on 11 November 1997 by the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO), which both articulate the obligation of member states to protect the autonomy of higher education institutions. 43

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Articles 14(3) and 16 together.51 For all three Articles, the Court was not convinced by the Hungarian argument that a prior international treaty was justified on the grounds of maintenance of public order or prevention of deceptive practices.52 The decision of the Court and the opinion of the Advocate General sent a clear message: academic freedom is a fundamental value of the Union and an enforceable right of the CFR. By interpreting it broadly and incorporating institutional and organisational dimensions, the Court made Article 13 CFR a legal fortress against further attacks on academic freedom.

6 Conclusion The future challenge of protecting academic freedom in the EU also lies in effective enforcement of Article 13 CFR. The judgement of the Grand Chamber provides a first step. The rule-of-law crisis underlines the magnitude of the challenge: the existing mechanisms of political dialogue and legal procedures have so far not been able to settle the conflict. Of course, the European Union is not the only actor in the field. The Council of Europe and the European Court of Human Rights in Strasbourg will make their contribution to preserving the rule of law and academic freedom in Europe. Besides, as courts in member states are supporting their colleagues from other countries via requests for preliminary rulings of the ECJ,53 academics throughout Europe are showing solidarity as well.54 National courts may find new ways to contribute to the protection of academic freedom. For example, the German Constitutional Court took the European Charter of Fundamental Rights as a benchmark in its decision “Right to be forgotten II” and declared that it would examine the rights of the Charter itself in further cases.55 This and other new ideas may hopefully contribute to effective enforcement of the CFR and in that way, provide additional resources for the future protection of academic freedom in Europe.

51

CJ Judgement (6.10.2020) Case C-66/18 Commission v. Hungary, para. 232. The Advocate General went a step further by stressing that in her opinion the creation of an autonomous fundamental right to found private educational establishments indicates that Art. 14(3)—which in the General Advocate’s opinion is more specific than Art. 16 in this case—aims to guarantee the existence of private educational establishments alongside State colleges and universities, and ultimately to provide a diversity of education opportunities, see Opinion of Advocate General Kokott (5.3.2020) Case C-66/18 Commission v. Hungary, para. 131. 52 Ibid, para. 132, 138, 154 ff. 53 See supra fn 33 and 34. 54 See supra fn 12. 55 BVerfG Judgement BvR 276/17 (6.11.2019) Right to be forgotten II, https://www. bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2019/bvg19-084.html; jsessionid¼ADEE51FA8FA34D5A3619C76E8C8DF8DE.1_cid377, last accessed 31.10.2020.

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References Beiter K, Karran T, Appiagyei-Atua K (2016) Academic freedom and its protection in the law of European States. Measuring an international human right. Eur J Comp Law Gov 3:254–345 Berendt J (2020) E.U. Court rules Poland must suspend disciplinary panel for Judges. New York Times, 4 April. https://www.nytimes.com/2020/04/08/world/europe/poland-judges-eu-court. html. Accessed 6 Oct 2020 Bernsdorff N (2019) Artikel 13. Freiheit der Kunst und der Wissenschaft. In: Meyer J, Hölscheidt S (eds) Charta der Grundrechte der Europäischen Union. Nomos, Baden-Baden, pp 327–334 Boor F (2020) EU-Vertragsverletzungsverfahren gegen Ungarn – Zur Anwendbarkeit der EU-Grundrechtecharta über das WTO-Recht. Junge Wissenschaft, 14 October. https://www. juwiss.de/118-2020/. Accessed 20 Oct 2020 Central European University (2019) CEU ranks among the world’s top 100 Universities, 5 June. https://www.ceu.edu/article/2019-06-05/ceu-ranks-among-worlds-top-100-universities. Accessed 6 Oct 2020 European Commission (2017) Commission refers Hungary to the European Court of Justice of EU over the Higher Education Law, 7 December. https://ec.europa.eu/commission/presscorner/ detail/LV/IP_17_5004. Accessed 3 Oct 2020 European Commission (2019) Rule of law: European Commission refers Poland to the Court of Justice to protect Judges from political control, 10 October. https://ec.europa.eu/commission/ presscorner/detail/en/IP_19_6033. Accessed 6 Oct 2020 Franzius C (2018) Der Kampf um Demokratie und Rechtsstaatlichkeit in Polen und Ungarn. DÖV 10:381–389 Frehse L, Schenk A, Kurianowicz T, Grefe C (2019) Wo Forscher bedroht sind. Zeit Online, 27 November. https://www.zeit.de/2019/49/wissenschaftler-forschungsfreiheit-demokratieforscher-gefahr-bedrohung#polen. Accessed 3 Oct 2020 German Federal Foreign Office (2020) Germany: working to promote the rule of law in Europe, 2 October. https://www.auswaertiges-amt.de/en/aussenpolitik/europa/rule-of-law-europe/ 2341072. Accessed 3 Oct 2020 Halmai G (2018) The Hungarian Constitutional Court betrays academic freedom and freedom of association. Verfassungsblog, 8 June. https://verfassungsblog.de/the-hungarian-constitutionalcourt-betrays-academic-freedom-and-freedom-of-association/. Accessed 3 Oct 2020 Hummer W (2015) Ungarn erneut am Prüfstand der Rechtsstaatlichkeit und Demokratie. Wird Ungarn dieses Mal zum Anlassfall des neu konzipierten, “Vor Artikel 7 EUV”-Verfahrens? EuR 5:625–640 Jarass H (2016) Art. 13 Freiheit der Kunst und der Wissenschaft. In: Meyer J, Hölscheidt S (eds) Charta der Grundrechte der Europäischen Union. Beck, Munich, pp 153–158 Karasz P (2019) Theaters in Hungary feel the chill of Viktor Orban’s culture war. Ney York Times, 13 December. https://www.nytimes.com/2019/12/13/arts/hungary-theater-orban.html. Accessed 3 Oct 2020 Kempen B (2006) Art. 13 Freiheit der Kunst und der Wissenschaft. In: Tettinger P, Stern K (eds) Kölner Gemeinschaftskommentar zur Europäischen Grundrechte-Charta. Beck, Munich, pp 387–396 Kempen B (2016) Art. 14. Recht auf Bildung. In: Stern K, Sachs M (eds) Europäische GrundrechteCharta GRCh: Kommentar. Beck, Munich, pp 293–306 Kustra-Rogatka K (2019) The rule of law crisis as the watershed moment for the European constitutionalism. Verfassungsblog, 14 November. https://verfassungsblog.de/the-rule-of-lawcrisis-as-the-watershed-moment-for-the-european-constitutionalism/. Accessed 3 Oct 2020 Löwenstein S (2020) Wir bewundern andere Meister!. Frankfurter Allgemeine Zeitung, 10 September. https://www.faz.net/aktuell/feuilleton/debatten/gegen-orban-proteste-umbudapestertheater-universitaet-16945643.html. Accessed 3 Oct 2020

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Mijnssen I (2018) Darum geht es bei Polens “nationaler Revolution”. Neue Zürcher Zeitung, 18 December. https://www.nzz.ch/international/worum-geht-es-bei-polens-nationaler-revolu tion-ld.1358964. Accessed 3 Oct 2020 Müller JW (2015) Should the EU protect democracy and the rule of law inside member states? Eur Law J 2:141–160 Novak B (2020) Student blockade protests Viktor Orban’s reach at a top arts university. New York Times, 6 September. https://www.nytimes.com/2020/09/06/world/europe/hungary-studentsblockade-orban.html. Accessed 3 Oct 2020 Pech L (2020) 1460 Days later: rule of law in Poland R.I.P. (Part I). Verfassungsblog, 13 January. https://verfassungsblog.de/1460-days-later-rule-of-law-in-poland-r-i-p-part-i/. Accessed 6 Oct 2020 Pech L, Wachowiec P (2019) 1095 Days later: from bad to worse regarding the rule of law in Poland (Part II). Verfassungsblog, 13 January. https://verfassungsblog.de/1095-days-later-from-bad-toworse-regarding-the-rule-of-law-in-poland-part-ii/. Accessed 6 Oct 2020 Pils E, Svensson M (2019) Academic freedom is under threat around the world – here’s how to defend it. The Conversation, 7 October. https://theconversation.com/academic-freedom-isunder-threat-around-the-world-heres-how-to-defend-it-118220. Accessed 3 Oct 2020 Schlagwein F (2019) Hungary passes law tightening grip on country’s theaters. DW, 12 December. https://www.dw.com/en/hungary-passes-law-tightening-grip-on-countrys-theaters/a-51642455. Accessed 3 Oct 2020 Schmidt F (2019a) Umstrittener Altphilologe soll Ungarns neues Akademie-Forschungsnetz leiten. DW, 2 August. https://www.dw.com/de/umstrittener-altphilologe-soll-ungarns-neuesakademie-forschungsnetz-leiten/a-49427198. Accessed 3 Oct 2020 Schmidt F (2019b) Hungary: Parliament puts Academy of Sciences institutes under government control. DW, 2 July. https://www.dw.com/en/hungary-parliament-puts-academy-of-sciencesinstitutes-under-government-control/a-49440144. Accessed 6 Oct 2020 Stockemer D, Kim M (2020) Introduction. Academic freedom in danger: case studies of Turkey, Hungary and Japan. Eur Polit Sci 1:65–67 Szirtes G (2020) Hungary’s students are making a last stand against Viktor Orbán’s power grab. The Guardian, 15 September. https://www.theguardian.com/commentisfree/2020/sep/15/hungarystudents-viktor-orban-university-theatre-budapest. Accessed 6 Oct 2020 Thiele C (2017) Artikel 13 GRC Freiheit der Kunst und Wissenschaft. In: Pechstein M, Nowak C, Häde U (eds) Frankfurter Kommentar zu EUV, GRC und AEUV. Mohr Siebeck, Tübingen, pp 1187–1194 Uitz R (2017) Academic freedom in an illiberal democracy: from rule of law through rule by law to rule by men in Hungary. Verfassunsblog, 13 October. https://verfassungsblog.de/academicfreedom-in-an-illiberal-democracy-from-rule-of-law-through-rule-by-law-to-rule-by-men-inhungary/. Accessed 3 Oct 2020 Uitz R (2018) What being left behind by the rule of law feels like, Part I. Verfassungsblog, 29 October. https://verfassungsblog.de/what-being-left-behind-by-the-rule-of-law-feels-likepart-i/. Accessed 3 Oct 2020 Uitz R (2020a) EU rule of law dialogues: risks – in Context. Verfassungsblog, 23 January. https:// verfassungsblog.de/eu-rule-of-law-dialogues-risks-in-context/. Accessed 3 Oct 2020 Uitz R (2020b) Finally: the ECJ defends academic freedom. Verfassungsblog, 8 October. https:// verfassungsblog.de/finally-the-cjeu-defends-academic-freedom/. Accessed 20 Oct 2020 Wunderlich N (2019) Von der Rechtsgemeinschaft zur Verweigerungsunion? EuR 6:557–577 Ziegler TD (2019) It’s not just about CEU: understanding the systemic limitation of academic freedom in Hungary. Verfassungsblog, 26 March. https://verfassungsblog.de/its-not-just-aboutceu-understanding-the-systemic-limitation-of-academic-freedom-in-hungary/. Accessed 3 Oct 2020

Freedom of Scientific Research in the European Research Area: Weaknesses and Strengths Sabrina Tranquilli

Abstract The European Research Area (ERA), as conceived since its foundation, continues to develop as a parallel system that works alongside national policies on scientific research. This paper analyses some of the main strengths and weaknesses of ERA, also in the light of the preview of the latest Framework Programme (Horizon Europe). Twenty years since the launch of ERA, it can be observed that some member states, such as Italy, exploit European programmes while underfunding scientific research, whereas others, such as Germany, use ERA to complement internal policy. Insufficient concern for social aspects and the rights of researchers shown by ERA threatens the effectiveness of European Commission efforts. Keywords Scientific research · European research area · Research funding · Promotion of research · Researchers’ rights

1 Engagement of the European Union in the Race for Research Funding This paper aims to analyse some of the main strengths and weaknesses of the European Research Area (ERA), also in the light of the preview of the latest Framework Programme (Horizon Europe).1 Looking at the latest initiatives of the 1 See the Proposal for Regulation (EU) of the General Secretariat of the Council of 29 September 2020 establishing Horizon Europe—the Framework Programme for Research and Innovation, laying down rules for participation and dissemination covering the seven-year period 2021–2027. In April 2019, an inter-institutional agreement was reached defining a consolidated text of the programme, but leaving out three major issues on which the institutions had not yet found consensus. These were three key horizontal issues: the overall budget of the programme and its internal organisation; the rules on association of third countries; and synergies with other sectoral

S. Tranquilli (*) Department of Political Sciences and Communication, University of Salerno, Salerno, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_4

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EU Commission, one aim of which is to revitalise ERA in response to the COVID19 pandemic,2 a question that still arises is whether ERA is just a space where EU researchers can move freely in the European Union or a tool that can help improve research objectives. In order to answer this question, we need to observe the impact of the Open Method of Coordination and in particular the European Charter for Researchers on national research policies.3 First let us consider some brief preliminary remarks on the evolution of ERA. The origins of ERA are obviously linked to the historical evolution of the scientific method in Europe. The scientific revolution in the period 1500–1600 not only disrupted previous theories on the physical and natural world, but laid the foundations for a radical transformation of the concept of science and its relationship with public power.4 Doing research became complex, requiring the aggregation of groups, facilities and equipment that are sometimes expensive or geographically distant. Governments emerge as promoters of scientific research instead of patronage. Modern theories on the “production of knowledge” highlight a system that supports immediate application of the results obtained, accentuates competition, and values research that can be sold on the market in the short period.5 Since the year 2000, there has been a tendency in Europe to accumulate scientific knowledge, increasing competitiveness and the mobility of scientists. European policies on scientific research6 were conceived to overcome the so-called “European paradox”, namely the contrast between high levels of scientific production and disproportionately lower levels of technological and industrial

programmes. On 7 June 2019, the European Commission adopted its proposals for Horizon Europe, the Research and Innovation (R&I) policy framework for 2021–2027. The package consists of proposals for: a Regulation establishing Horizon Europe and laying down the rules for participation, a Decision for a specific programme implementing Horizon Europe, a Regulation establishing the research and training programme of the European Atomic Energy Community (Euratom) for 2021–2025. 2 European Commission, A new ERA for Research and Innovation, COM (2020) 628 final, 30.9.2020. 3 Due to limited space, only a few aspects of Italian and German national research policy will be analysed. 4 Kuhn (1996), p. 202. 5 Gibbons et al. (1992), p. 59. 6 The most general and internationally accepted definition of scientific research is that of the “Frascati Manual” where it is defined as “creative work undertaken in a systematic way with the aim of increasing the stock of knowledge, including knowledge of man, culture and society, and the use of this stock of knowledge to design new applications”, Frascati Manual 2015: Guidelines for Collecting and Reporting Data on Research and Experimental Development, The Measurement of Scientific, Technological and Innovation Activities, Paris, https://doi.org/10.1787/ 9789264239012-en, last accessed 18.2.2021.

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development.7 The roots of a common path in scientific research among EU member states hail back to the foundation of the European Community.8 Due to the fragmentation of the scientific community (largely national and moulded according to specific identities), the European Research Area has struggled to establish itself more than have other European policies.9 Since 2000, this new supranational research ‘place’, developed mainly through framework programmes, has gradually emerged with the aim of catalysing scientific knowledge produced in the EU.10 Although the promotion and organisation of scientific research remains a national competence, the EU can act autonomously and conduct programmes to support research. The choice of the Open Method of Coordination leaves member states free to align national policies without compromising their autonomy.11 This method aims to “europeanize” areas (mainly but not exclusively by means of soft law acts) having a strong link with national (historical-constitutional) specificities within the competence of the member states. This method may sometimes prepare the ground for future harmonisation and convergence of the regulatory framework between member states. It should be pointed out that ERA was created and continues to evolve as a system parallel and external to the national one, and far from being a substitute (scientific research remains an essential and fundamental value for each state), works alongside to support the policies of the Union, funding research projects with a mainly European and international dimension. At the same time, it means that disparity in national research funding between EU states leads to large differences in the possibility of receiving funding from the EU. Since the first Framework Programme, the Community has invested more and more economic resources in the creation of a “single market in knowledge”, in particular by encouraging forms of partnership that are inclusive of Small and Medium Enterprises (SMEs). The Lisbon Strategy set investing 3% of Gross Domestic Product (GDP) in research and development and progressively increasing funding for basic research as a target for member states (led by the European Research Council). The ratio of Research and Development (R&D) expenditure to GDP is one of the five indicators set by the Europe 2020 Strategy to monitor the progress of individual countries towards the objectives of smart, inclusive and sustainable growth.

7

Kaiser (2012), p. 53; Argyropoulou et al. (2019), p. 1; Rodrıguez-Navarro and Narin (2018), p. 15. The first mention of the “research paradox” in the EU is in The European Report on Science and Technology Indicators 1994, Executive Summary. Directorate-General XII, L-2920. 8 Jansen and Semmet (2012), p. 13; De Elera (2006), p. 560; Giuffrida (2014), p. 1597. 9 Weber (1958), p. 8. 10 The choice of the Open Method of Co-ordination and the term ‘area’ itself clearly demonstrate a neutral choice of field that excludes the intention to build a ‘federal’ type system between member states and a purely international approach, thus creating the conceptual basis for something ‘completely new’, see von Bogdandy (2012), p. 618. 11 With the “Lisbon Strategy”, the Open Method of Coordination was established as a Union governance tool in areas including social policies, education, research and innovation.

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Let us now examine the slow progress of ERA and its impact on Italian and German national research policy, almost 20 years since its establishment.

2 A Quick Comparison of Research Funding in Italy and Germany Since the Open Method of Coordination affects national scientific research policy, the best results of research policy seem to flow from the member states and not from the EU. If we look at the latest data on the funding of scientific research in Italy, it does not seem exaggerated to speak of political appropriation at national level of the outcomes of ERA, combined with “scape-goating” of the EU. Although internationalization, coordination and integration of national and European initiatives are one of the first points in the latest National Research Programme of the Italian Ministry of Education, Universities and Research (now Ministry of Universities and Research) (2015–2020),12 the inadequacy of Italy's effort to bring the country closer to the EU objectives is evident from the merely programmatic content of the national plan to achieve the objectives set by the European Research Area. A first timid approach to EU policies was made by individual research bodies and universities with a declaration of intent to implement the European Charter for Researchers and Code of Conduct. A step towards EU policies and in particular the principles of the European Charter for Researchers is contained in the Madia law (Law no. 124/2015), through the possibility of stabilising employees hired on fixed-term contracts (Articles 16 and 17), and through “implementation of the European Charter for Researchers and the European Framework for Research Careers”, with particular regard to “freedom of research and professional autonomy” and the “portability of research projects and their ownership, enhancing the specificity of the contractual model of the system of research institutions” (Article 13(1) lett. a). These changes allowed an Italian administrative judge to recognise the right of researchers to be represented in the governance of public research institutions, and to state that coordination on scientific research between the EU and the member states is an obligation that precludes adoption of an internal act in conflict with European rules (even non-binding, such as those laid down in the European Charter for Researchers) if it “may result in a worsening of researchers’ rights (. . .)”.13 However, the most discouraging data, distancing Italy from the supranational objectives, are the statistics on national investment in research. Compared to the

12 At the time of writing, the Italian Ministry of Universities and Research (MUR) is in the process of adopting the new national research program 2021–2027 as indicated on the website https://www. miur.gov.it/web/guest/-/programma-nazionale-per-la-ricerca-2021-2027-aperta-la-consultazionepubblica, last accessed 18.2.2021. 13 See TAR Campania, Napoli, no. 7262/2018.

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overall Europe 2020 target of increasing public and private investment in R&D to 3% of GDP, Italy set itself the target of 1.53% by 2020. According to the latest Italian National Institute of Statistics (Istituto Nazionale di Statistica, ISTAT) data of 2018, private sector (business and non-profit) expenditure continues to be the main component of total expenditure (64.7%). Universities are estimated to account for 22.8% of total expenditure ( 0.8 percentage points compared to 2017). With reference to the sources of funding, businesses contributed the largest share of R&D expenditure (13.7 billion, or 54.5% of total funding), followed by the public institutions sector with 32.8% (8.2 billion) and foreign financiers with 10.5% (about 2.7 billion). However, the most striking fact is the relationship between the increase/decrease in national public funding and participation in European research programmes. Eurostat data on total expenditure on research and development in the various EU member states shows that not only is Italy far from the European objectives, but also that it increased its participation in European programmes between the seventh (FP7) and eighth framework programmes (Horizon 2020), while significantly decreasing national expenditure on research, confirming the perception that national policy relies on European funds as a substitute for public commitment.14 In general terms, it can be said that Italy is a very active country in Horizon 2020, firmly and steadily at the top in terms of participation.15 Unfortunately, however, the number of proposals submitted and those judged eligible for funding shows a success rate below the European average.16 In Germany the situation is quite different.17 While ERA is constantly present in research policies and methods, it is also used as a tool for strengthening the national research system.18 According to the latest data published by the Federal Statistical Office (Statistisches Bundesamt), 3.12% of GDP is invested in research.19 Non-university research institutes invested more than EUR 13.5 billion in research and development in 2017.20 However, non-university research institutes account for 14

European Commission, Commission staff working document in-depth interim evaluation of Horizon 2020, doc. SWD(2017) 220 final, 29.5.2017. 15 Italy is the fifth country (after Germany, UK, France, Spain) in terms of financial contribution, and fourth in terms of number of participations. 16 See Agency for the Promotion of European Research (Agenzia per la Promozione della Ricerca Europea, APRE) Report 2020—executive summary at https://www.apre.it/, last accessed 18.2.2021. 17 While the economic and financial crisis has led to a general reduction in state funding for scientific research in all EU countries in the last ten years, a notable exception is Germany, where a countercyclic strategy of increasing public resources has been adopted to strengthen research. This is also pointed out by the CNR, Report on Research and Innovation in Italy, Rome, June 2018, available at http://www.dsu.cnr.it, last accessed 18.2.2021. 18 Wissenschaftsrat, Internationalisierung von Hochschulen: Jetzt erst recht!, 9.7.2018. 19 See https://www.destatis.de/EN/Themes/Society-Environment/Education-Research-Culture/ Research-Development/_node.html, last accessed 18.2.2021. 20 According to provisional calculations of the Federal Statistical Office (Statistisches Bundesamt), €104.8 billion were spent on research and development in Germany in 2018.

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only 13.8% of total research expenditure in Germany, where universities contribute 18.0%, while most of the expenditure comes from business (69.2%). Research foundations play a lesser role, with a few notable exceptions, such as the Volkswagen Foundation (Volkswagenstiftung), which since 1962 has granted more than 5.3 billion euro of funding for more than 33,000 projects. In 2010, the Wissenschaftsrat issued recommendations on participation in the European Research Area, stating that it should be based on a strong and robust research system in the member states and that the individual players should act “autonomously in a context of plurality and competition”. The German Roadmap to the European Research Area drawn up by the federal government shows a strong line of continuity and consolidation of national policies, together with active support for ERA, primarily by contributing to the development of major research infrastructures.

3 Weaknesses and Strengths of New Research Programmes Looking to the Future The progress of ERA has been constantly monitored by the European institutions and national authorities. Empirical evidence confirms that outputs in the EU may have a considerable time-differential. In the last ERA Progress Report of February 2019, the results achieved by the states were monitored by the European Commission through a set of 24 core indicators jointly defined by member states and stakeholders.21 With reference to the six priorities of ERA, the report shows that although all member states have adopted and updated their national research strategies, wide disparities remain in terms of performance, mobility and growth rates, and suggests that the best results should be used as benchmarks for states (like Italy) that have not performed well. The European Commission has repeatedly focused the attention of the European institutions on the shortage of financial resources allocated. In the 2017 Report on the mid-term evaluation of the Eighth Framework Programme, the Commission highlighted “under-funding” due to the very large number of applications (102,076 as of 1 January 2017), of which it was only possible to fund 11.6%, leaving out many proposals that obtained the so-called “seal of excellence”. The Commission warns that besides being a cost in terms of lost opportunity for ERA, the shortage of funds is also a waste of resources for participants (estimated €636 million per year to prepare proposals), who are forced by complicated bureaucratic requirements and difficult application procedures to hire consultants for the preparation and reporting of projects. The main objective of ERA remains to strengthen the competitiveness and attractiveness of the EU as a research and innovation centre, qualifying it as a

21 European Commission, The European Research Area: advancing together the Europe of research and innovation, doc. (2019) 83 final, 15.2.2019.

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“pan-European” player, promoting national research and innovation, and fostering other EU policies. Horizon Europe also maintains the method of previous framework programmes (i.e. direct funding of projects and individual researchers) as an “addition” to national policies and funding. The new Framework Programme package seeks to simplify the rules but shows stronger “policy instrumentality” than do other EU policies. The European Commission published two milestone communications on global R&I-related challenges: a sustainable bioeconomy for Europe and an action for strengthening the connection between economy, society and the environment. At least 35% of the budget of Horizon Europe (expected to reach €35 billion) will support climate objectives. Furthermore, in the last year of Horizon 2020, the Commission prepared an additional call of around €1 billion allocated to Green Deal priorities, on top of the existing allocation of €1.35 billion in 2020. Likewise, the European Innovation Council under Horizon Europe will contribute to publicprivate investment in breakthrough innovation in support of the European Green Deal. However, even with the new Framework Programme, European policies, while highlighting objectives and ambitions, still do not provide concrete instruments to foster the social dimension of research, which remains one of the main problems of ERA. A recent study conducted by the European Commission found that after years of promoting the international mobility of researchers, most but not all barriers to physical mobility have been removed.22 This has led to asymmetric mobility within Europe, which could exacerbate the “brain drain”. It was thus pointed out that the EU should rethink mobility in its physical form, promoting online collaboration that would strengthen research, innovation and the economy at local level across the EU, in particular by investing in secure high-speed network facilities (in line with the Digital Education Action Plan and the Green Deal) and more broadly supporting all citizens. Large-scale EU-funded research infrastructure should benefit user groups across the EU and be managed as common goods. A more balanced distribution of research capacity can make European R&I more resilient in the long term and contribute to EU cohesion. In this context, it was emphasised that in the next decade, universities need to reassert their role in scientific research and their institutional independence and autonomy. Academic freedom of individual researchers and academics needs to be revived at EU level and in all member states to enable them to make their full contribution to their R&I policy priorities, which in turn can contribute to policy priorities at EU level. Addressing complex challenges will require European universities to adopt a combination of disciplinary and interdisciplinary approaches. The latter will require more attention from universities than in the 2000–2020 period, to ensure that interdisciplinarity can be better recognised and rewarded through career

European Commission, Towards a 2030 vision on the future of universities in the field of R&I in Europe, Independent expert report, September 2020, pp. 168–169.

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development and evaluation systems, and that it is also reflected at institutional level in recruitment systems.23

4 Concluding Remarks Despite the fact that member states share a path of scientific research since the foundation of the European Community, there are still many difficulties in establishing the European Research Area. The European scientific community is still highly fragmented. Since the first framework programme, the Community has invested more and more resources in the creation of a “single market for knowledge”. The Lisbon Strategy has promoted cooperation and movement of researchers within Europe (dubbed the ‘fifth freedom of the Union’), a target has been set for EU countries to invest 3% of their GDP in research and development, and funding for basic research has been progressively increased (the European Research Council playing a predominant role). However, the European paradox has meant that funding is focused on what is presumed to be ‘useful’ research, instead of the basic research that drives the knowledge frontier.24 From a methodological point of view, ERA has undoubtedly contributed to the development of a new method of “knowledge production”, by promoting comparisons in disciplines with a weaker tradition in this respect and by introducing the “European dimension” into scientific and legal thinking.25 Still from a methodological point of view, European programmes have pushed systems towards a “projectshaped” research model, which while ensuring the “portability” of the funding obtained, has encouraged research with tangible short-term objectives to the detriment of research with results that cannot be planned or can only be planned in the long term.26 However, in focusing mainly on the economic dimension in order to increase the competitiveness of the Union, European policies do not yet adequately consider the social dimension of researchers.27 The lack of social and social security rights leads

23

Ibid, pp. 168–169. Argyropoulou et al. (2019), p. 4. 25 In the field of administrative law, see De Lucia (2015), pp. 6–7. 26 Seckelmann (2012), p. 18. 27 The need for a EU social dimension of research emerged clearly in a recent preliminary ruling before the ECJ, Case C-326/19, requested by the Italian Administrative Court TAR Lazio on 23 April 2019 — EB v Presidenza del Consiglio dei Ministri and Others. The TAR Lazio referred the case of temporary researchers (type A) to the ECJ for a preliminary ruling. The researchers had requested stabilisation at the University of Lazio immediately after obtaining two-yearly renewal of the employment agreement. In January 2020, the Council of State, on appeal by some temporary researchers at the University of Perugia, also referred five preliminary questions of interpretation of the so-called Gelmini law to the ECJ, specifically the part of the law that makes university researchers temporary. 24

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to mistrust on their part of a real elimination of national borders. Besides, mobility is not perceived as positive in all member states, and unlike what happens in countries such as the United States, sometimes the more time a researcher spends abroad, the more difficult (or less possible) it is to return to the country of origin. Even countries, like Germany, that encourage the mobility of their researchers, may welcome foreign researchers but do not always integrate them readily into university roles.28 However, the situation is much better than in Italy, which is completely against the mobility of its researchers and unattractive to foreigners. The crowded race for funding has overloaded the framework programmes, unduly challenging their fragility. The new area can only fulfil its potential if research continues to be adequately promoted at national level. It cannot work if member states rely on funding from other states or from the EU itself, “expecting their academics to dip their spoons into the soup of others”.29 Only a commitment to promote national research can allow the many candidates who have not been successful in European programmes, but who have laboriously and meritoriously obtained the “seal of excellence” for their projects, to find other funding in a member state. While awaiting a political and social ground that allows member states to take a further step towards a Europe of Rights, by aligning policies towards the objective of economic development, and also towards recognition of the social value of research and the professionalism of researchers, the EU should preserve this fragile place where scientific research can have free rein.30 The European Research Area continues to evolve as a parallel system that works alongside national policies on scientific research by funding research projects that have a mainly European and international dimension. The Open Method of Coordination remains a complex integration tool and national authorities are required to progressively adapt to the agreed objectives: it is still strongly conditioned by decisions taken at different levels of government of EU member states, whose indifference to the objectives may however reduce it to “nothing more than a cheap talk”.31 Without parallel implementation of national systems and social aspects of research, the accelerating rush for EU funding and the prevailing functionalisation of EU policies towards economic development threaten the objectives of ERA. Promoting the rights of European researchers would perhaps be a step towards making ERA stronger and towards protecting the right to develop scientific temperament (unfortunately not yet included in EU treaties).32

28

Bobek (2017), p. 638; Morano-Foadi (2005), p. 133. Crouch (2017), p. 21. 30 Bourguignon (2017). 31 Borrás and Greve (2004), p. 334. 32 See e.g. Art. 51A of the Indian Constitution that lists the fundamental duties and clearly states that: “it is the fundamental duty of every citizen of India to develop the scientific temper, humanism and the spirit of inquiry and reform”. 29

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References Argyropoulou M, Soderquist KE, Ioannou G (2019) Getting out of the European paradox trap: making European research agile and challenge driven. Eur Manage 1:1–5 Bobek M (2017) Europeanization of Public Law. In: Cassese S, von Bogdandy A, Huber P (eds) The Max Planck handbooks in European Public law, Volume I: the administrative state. Oxford University Press, Oxford, pp 631–672 Borrás S, Greve S (2004) Concluding remarks: new method or just cheap talk? J Eur Public Policy 2:329–336 Bourguignon JP (2017) Keynote speech “Research as Support to the unification of Europe: towards an effective scientific diplomacy”. https://erc.europa.eu/news/60-years-europe-research-sup port-united-europe-possible-contribution-scientists. Accessed 15 Feb 2021 Crouch C (2017) Knowledge beyond frontiers. Br Acad Rev 31:20–21 De Elera A (2006) The European research area: on the way towards a European scientific community? Eur Law J 5:559–574 De Lucia L (2015) A proposito di “Verwaltungsrechtliche Dogmatik” di Eberhard SchmidtAssmann. Il diritto amministrativo tedesco e il rinnovamento della dogmatica giuridica. Riv Trim Dir Pubbl 1:1–8 Gibbons M, Limoges C, Nowotny H, Schwartzman S, Scott P, Trow M (1992) The new production of knowledge, the dynamics of science and research in contemporary societies. Sage, Thousand Oak Giuffrida R (2014) Titolo XIX. Ricerca e sviluppo tecnologico e spazio. In: Tizzano A (ed) Trattati dell’Unione Europea, 2nd edn. Giuffré, Milano, pp 1597–1695 Jansen D, Semmet T (2012) Which way towards a European research area? Patterns and paths of European integration in research, Technology and development policy - an introduction. In: Jansen D (ed) Towards a European research area. Proceedings of a research conference at the German research institute for public administration Speyer. Nomos, Baden Baden, pp 13–34 Kaiser R (2012) The European research council. An appropriate instrument for the improvement of Europe’s innovation performance? In: Jansen D (ed) Towards a European Research Area. Proceedings of a Research Conference at the German Research Institute for Public Administration Speyer. Nomos, Baden Baden, pp 53–71 Kuhn TS (1996) The structure of scientific revolutions, 3rd edn. University of Chicago Press, Chicago Morano-Foadi S (2005) Scientific mobility, career progression, and excellence in the European Research Area. Int Migrat 43:133–162 Rodrıguez-Navarro A, Narin F (2018) European paradox or delusion. Are European science and economy outdated? Sci Public Policy 1:14–23 Seckelmann M (2012) Autonomy and accountability. In: Bergan S, Egrou-Polak E, Kohler J, Purser L, Vukasović M (eds) Leadership and governance in higher education. Handbook for decision-makers and administrators, Volume No. 1/2012. Raabe, Berlin, pp 1–24 Von Bogdandy A (2012) National legal scholarship in the European legal area – A manifesto. Int J Const Law 3:614–626 Weber M (1958) Science as a vocation. Sci Mod World View 1:111–134

Academic Freedom and Cross-Border Cooperation: Conceptual Reflections and a Contextual Analysis in Relation to the South Tyrol Alpine Borderland Elisabeth Alber

Abstract Academic freedom is a complex concept. The same is true of cross-border cooperation in general terms and in relation to the policy field of higher education. The paper explores the nexus between these two concepts through the lens of border studies and in relation to the case of the northernmost Italian Autonomous Province of Bolzano/Bozen (South Tyrol). It does so through reference to the territorial autonomy of South Tyrol, which grants its German-speaking majority special rights, and in relation to South Tyrol’s position in the Austrian-Italian Euroregion TyrolSouth Tyrol-Trentino. Keywords Academic freedom · Cross-border cooperation · Higher education · Territorial autonomy · Euroregion Tyrol-South Tyrol-Trentino

1 The Link Between Seemingly Simple Concepts Academic freedom is anything but a simple static concept. While there is general agreement that it entails protection of academics from external authority, the content of academic freedom has never been clear-cut. It remains a complex and nuanced concept carrying many meanings that have developed differently under different historical circumstances and different balances of power in Europe1 and elsewhere.2 The same is true of cross-border cooperation in general terms and in relation to the policy field of higher education. The various sub-disciplines of social science conceptualise the scope of cross-border cooperation differently in relation to different political systems and in the interdependencies that originate from the dynamics inherent to multilevel governance. 1 2

Beiter et al. (2016). Marginson (2014).

E. Alber (*) Eurac Research Institute for Comparative Federalism, Bolzano/Bozen, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_5

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This contribution uses the specific lens of border studies to explore the nexus between academic freedom and cross-border cooperation. It views this understudied nexus from the perspective of the political autonomy of constituent units in borderlands, paired with the institutional autonomy of Higher Education Institutions (HEIs). Although it may play a role, the contribution does not per se focus on cross-border cooperation in teaching and research as a result of internationalisation strategies. Rather, it explores the following two questions: How can institutional autonomy as one of the many dimensions of academic freedom enable cross-border cooperation in border regions? Under what circumstances and for what purposes does this happen? In its empirical part (Sects. 3 and 4), this contribution answers these questions in relation to: (1) the case of the Autonomous Province of Bolzano/Bozen (South Tyrol), the northernmost constituent unit of Italy where German speakers are the majority, and (2) South Tyrol’s position as one of the constituent units that, together with the Autonomous Province of Trento and the Austrian Land Tyrol, form the Austrian-Italian Euroregion Tyrol–South Tyrol–Trentino. Theoretically, the contribution builds on the concept of political autonomy (i.e. the scope of the autonomy a border constituency is vested with) and on the concept of borderlands as soft spaces (i.e. borderlands developing “flexible governance arrangements that aim at overcoming institutional borders and entrenched practices by inserting new ways of doing things”).3 After this introduction, Sect. 2 elaborates on the concept of borderlands and places the case in the context of European border studies. The contribution argues that under certain well-defined circumstances, crossborder cooperation in teaching and research can be beneficial for borderland society and for the state’s higher education system to which borderland HEIs relate. Such circumstances are a borderland’s political autonomy and the presence of policy entrepreneurs enjoying such autonomy. The institutional autonomy of HEIs, as one of the many different dimensions of academic freedom, is another circumstance. It involves self-regulation in organisational matters, but also issues such as the freedom of teaching and research that academics require in order to engage in cross-border activities. In Europe, institutional autonomy of HEIs was further introduced in the framework of the Bologna process with the 1988 Magna Charta Universitatum. One of the principles of the Magna Charta Universitatum4 is that the university is an autonomous institution at the heart of societies which may be organised differently by reason of geography and historical heritage. As such, it produces, examines, appraises and hands down culture by research and teaching, independently of political authority and economic power. Conversely, a focus on institutional autonomy in higher education implies assessing the proper role of public authorities in relation to self-regulation in universities, and in relation to political systems. After

3 4

Telle (2017), p. 94. See www.magna-charta.org, last accessed 11.2.2021.

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all, the mere existence of institutional autonomy does not guarantee academic freedom. In an autonomous institution, academics may be coerced to interpret and teach specific creeds without inquiry or questioning.5 For borderlands, the question of how political systems and legal frameworks provide institutional autonomy in higher education is crucial for many reasons. Peace-building, economic regeneration and socio-economic specificities are among the most important. They all contribute to what, from a broader viewpoint, is subsumed in the concept of the vitality of cross-border regionalism, a process of political regulation that efficiently integrates actors from the local, regional, national and supranational levels.6 Of course, the mere provision of forms of institutional autonomy providing schemes of cross-border teaching and research does not ensure that such practices are deployed on a regular basis. The use of such practices must in the end be supported and co-shaped by a larger net of policy entrepreneurs who stimulate the creation of a cross-border culture in politics, in the economy and in civil society.7 Only such a holistic approach in and beyond HEIs can ultimately contribute to the creation of a borderland’s soft space, in which the diversity and mobility of today’s scientific societies is reflected in practices that transcend traditional disciplinary boundaries and state borders. After conceptually contextualizing the contribution (Sect. 2), Sects. 3 and 4 zoom in on the case of South Tyrol. Section 3 elaborates on the relevance of cross-border cooperation in relation to South Tyrol’s political autonomy and in relation to higher education. Section 4 shows how cross-border cooperation in teaching and research has unfolded in more recent times. It shows how the European Region Tyrol-South Tyrol-Trentino (Euregio), created in 2011 as a European Grouping for Territorial Cooperation (EGTC), acts as a driver of cross-border cooperation in higher education by contextualizing the role of the major HEIs involved in such practices. Section 5 offers final remarks.

2 Borderlands and Border Studies as ‘Between Areas’ Borderlands, or border regions, reflect the impacts of state borders on political spaces, economic relationships and social life. As their constitution and function are very much context-dependent, conceptualisations of borderlands reveal a great deal of fluidity and ambiguity. When Oscar Martinez wrote in 1994: “a borderland is

5 In this regard, see Ethical Codes and Speech Restrictions: New Scenarios and Constitutional Challenges to Freedom of Teaching at University – The Italian Perspective by G Ragone and Trigger Warnings and Academic Freedom: a Pedagogic Perspective by F Magni, both in this volume. 6 Scott (1999). 7 Perkmann (2007).

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a region that lies abject to a border”,8 he pinned down what most people, not directly involved in border studies, would describe as a borderland. To define a borderland by its connection to the border, however, includes a series of follow-up questions, the most prominent of which is the question of the ‘limits’ of the borderland. Phrased alternatively, one must ask how deeply a (socio-legal) borderland situation extends into the life of the bordering state(s). This essentially depends on three factors: the geographical reach of the interaction with the ‘other side’, the impact of the ‘other side’s’ influence on neighbouring socio-legal life, and the practical unfolding of border functions. The latter is based on control and permeability, and is therefore full of contradictions. So rather than asking whether borders are barriers or interfaces—a sterile question because most borders have both functions—scholars have tended to conceptualise borders in terms of a set of rules, norms and procedures that regulate borders and control their effects on social, political and economic actors.9 Finally, practices of cross-border cooperation depend on how borders are interpreted against the (perceived) logic of space. This logic, linked to the global phenomenon of relativisation of scales, implies a process of border rescaling. Accordingly, “borders are not just hard territorial lines”10 but must be understood in a functional manner, confirming the disaggregation of the triple function of borders inherent in the Westphalian model (1648)—demarcation of a state’s territory, authority and national identity. In Europe, the interdependencies created by the European integration process have contributed to the revision of traditional concepts in border studies. Instead of exploring what happens when distinct societies rub against each other or contest land—the traditional and loosest understanding to be found in border studies from the viewpoint of international relations—border studies viewed through the lens of the European integration process explore how areas interact through concrete crossborder activities, though under the authority of different states. The number of Euroregions has significantly increased since the early 1990s and many receive EU technical and financial support.11 Conceptually, the laboratory metaphor of European integration at subnational level has been deployed for many Euroregions, and where applicable, also for EGTCs.12 Situated at the edge of cultural spheres, they are the stage on which cultural contact, trade and (conflictual) processes of ethnogenesis (i.e. encounters and ‘amalgamation’ of previously distinct societal groups) take place.13 The case of South Tyrol is no exception in this regard. Like other border regions, South Tyrol was and is subject to continuous social-spatial disaggregation and

8

Martínez (1994), p. 5. Leresche and Saez (2002); O’Dowd (2002). 10 Brunet-Jailly (2011), p. 3. 11 Svensson (2013). 12 Ulrich (2020). 13 Engl (2020). 9

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aggregation, determined by actors who perceive and interpret the problem of scale inherent to the national border of the Brenner/o Pass differently at different times.14 The problem of scale, when viewed from a distance (from the capital city), implies that a border (region) may appear to be a small, well-defined area with few special characteristics and needs. However, when viewed up close (from the perspective of those living the borderland), the small area acquires considerable width and many blurry edges in terms of special characteristics and needs, since it carries many (perceived) social-spatial relationships of local stakeholders and segments of society. Many studies centred on the South Tyrolean borderland have highlighted the different nuances of these points.15 They are co-transforming the discipline of European border studies from a mono-disciplinary dialogue between a few scholars to a multi-, inter- and transdisciplinary dialogue between scholarly networks, the results of which can be found for instance in The Journal of Borderland Studies16 and in an increasing number of edited volumes that attempt to grasp the many dimensions of border studies from various sub-disciplines of social science.17 Political scientists have been showing that actors, internal or external to a specific border region, can serve as policy entrepreneurs who stimulate the creation of crossborder organisations.18 They have also been tackling the issue of how cross-border organisations themselves act as policy entrepreneurs,19 how Euroregions are being consolidated as soft spaces,20 and whether and to what extent Euroregions resist or accept re-bordering processes in the wake of crises.21 Two issues are of key concern to political scientists focusing on the drivers, challenges and the role of actors in cross-border cooperation: first, the existence or absence of strong collaboration between actors from the public, private and non-profit sectors; second, the existence or absence of collaboration between different levels of the political-administrative system.22 Legal scholars, instead, focus on questions linked to the so-called “diffusion of legal systems in the cooperation of cross-border public entities”.23 Indeed, it has been demonstrated that the main catalyst for the fact that public law in EU member states is increasingly “spreading beyond its original borders” is the area of crossborder cooperation.24 Although cross-border cooperation unfolds between public entities at various government levels and public enterprises that provide services of

14

Alber (2017). For an overview see Alber and Engl (2020). 16 See www.tandfonline.com/toc/rjbs20/current, last accessed 11.2.2021. 17 See Jordana et al. (2019); Beck (2019a). 18 Svensson (2018), p. 138. 19 Medve-Bálint and Svensson (2013). 20 Telle (2017). 21 Svensson (2020). 22 Popescu (2012); Zumbusch and Scherer (2019). 23 Krzymuski and Ulrich (2019), p. 213. 24 Ibidem, p. 226. 15

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general economic interest, for now, the legal sources for cross-border cooperation can be found in supranational law. The major sources are the ‘law-body’ of the Council of Europe and the European Union with the former’s Outline Convention on Cross-Border Cooperation between Territorial Communities of Authorities of 1980,25 and the EU’s EGTC Regulation of 2006.26 In other words, in the absence of a codified cross-border cooperation law, the intricate web of nationally anchored laws and regulations governing cross-border cooperation originates from the supranational ‘law-body’. Scholars of administrative sciences, however, are already working for better mastering and reducing the intricate web of acts regulating cross-border cooperation.27

3 The Evolution of Cross-Border Cooperation and Higher Education in South Tyrol One of the few attempts at theorizing a borderland contends that international literature on borders, boundaries and frontiers suggests four equally important analytical lenses: (1) market forces and trade flows, (2) policy activities of multiple levels of governments on adjacent borders, (3) the particular political clout of borderland communities, and (4) the specific culture of borderland communities. If these four lenses enhance or complement each other, then an integrated borderland region emerges, as in the hypothesis of Brunet-Jailly.28 Today, South Tyrol with its population of 531,17829 is coherent with these four lenses. In the last 70 years, cross-border cooperation has gone from being loose and single-issue to being institutionalised and multi-issue in the form of an EGTC. At its creation in 2011, the Euregio was the 21st such grouping in the EU (the first in Austria and the second in Italy). Its members, the Austrian Land Tyrol and the two Autonomous Provinces of Bolzano/Bozen and Trento, can cooperate in all areas in which they are assigned powers under constitutional law. Today such powers are vast and also include cross-border cooperation in teaching and research (see Sect. 4).

25 Available at www.coe.int/en/web/conventions/full-list/-/conventions/treaty/106, last accessed 11.2.2021. 26 The EGTC is governed by EC Regulation no. 1082/2006 of the European Parliament and of the Council of 5.7.2006 on a European grouping of territorial cooperation, amended by EU Regulation no. 1302/2013 of the European Parliament and of the Council of 17.12.2013 amending Regulation (EC) no. 1082/2006 on a European grouping of territorial cooperation (EGTC) as regards the clarification, simplification and improvement of the establishment and functioning of such groupings, available at https://ec.europa.eu/regional_policy/en/policy/cooperation/european-territorial/ egtc/, last accessed 11.2.2021. 27 Beck (2019b). 28 Brunet-Jailly (2005). 29 As of 31.12.2018. Landesinstitut für Statistik (2019).

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However, for a long time, cross-border initiatives were very controversial. Up to the late 1990s, any attempt to institutionalise cross-border cooperation was politically contentious, as the Italian government perceived it as illegitimate regional para-diplomacy,30 despite favourable developments in cross-border cooperation at supranational level. Back then, such developments included the adoption of the first international legal basis for cross-border cooperation in 1980 (the Council of Europe’s Outline Convention on Cross-Border Cooperation between Territorial Communities of Authorities), the establishment of the Committee of the Regions (CoR) at EU level in 1992 and the accession of Austria to the EU in 1995. The difficult history of South Tyrol is the reason why institutionalisation of crossborder cooperation in higher education was viewed with scepticism. From the fourteenth century until the end of World War I, South Tyrol, a land of transit and trade that was historically populated by a variety of German tribes and where the Romans settled in what are today the Ladin valleys, was part of the Crownland of Tyrol of the Habsburg Empire. Its population was predominantly German-speaking (as it is today)31. In 1919, South Tyrol was annexed to Italy and underwent Italianization. After World War II, the international Gruber-De Gasperi Agreement of 1946, Annex IV of the Paris Peace Treaty, confirmed South Tyrol as part of Italy, but made special provisions for German speakers to ensure “complete equality of rights with the Italian-speaking inhabitants” and to safeguard “the ethnic character, and the cultural and economic development of the German-speaking element”.32 The one-page Agreement called for a series of special arrangements in the fields of free movement of persons and goods across the Brenner/o border, and the mutual recognition of academic degrees. It also called for establishment of a special political system able to: (1) set on a par the use of the German and the Italian languages in the public sphere, (2) implement the right to mother tongue education in primary and secondary schools, and (3) provide equal rights to German speakers entering the public service. The entry into force of the Second Autonomy Statute (ASt)33 in 1972 paved the way for implementation of such a political system. Unlike the First Autonomy Statute of 1948, the ASt enabled South Tyrol to set up a complex power-sharing system. Competences were no longer vested at regional level. Italian-speakers were no longer the majority. Most legislative and administrative powers were transferred

30 For instance, the establishment of a joint Brussels office of Tyrol, South Tyrol and Trentino was challenged before the Constitutional Court, with the Court, however, upholding the right of Italian regions to establish direct contacts with EU institutions and thus legitimizing the common representation office. Engl and Zwilling (2008), p. 168. 31 German and Italian are co-official languages in South Tyrol, spoken by 69.0% and 26.06% of the population, respectively (data from the 2011 census), Landesinstitut für Statistik (2012). Ladin is spoken by 4.53% of the population. The numerical strength of German-, Italian- and Ladin-speakers is the foundation on which South Tyrol’s power-sharing system rests. 32 Available at www.regione.taa.it/codice/accordo_d.aspx, last accessed 11.2.2021. 33 Constitutional Law no. 1, 10.11.1971. The ASt is available at http://www.provinz.bz.it/politikrecht-aussenbeziehungen/autonomie/autonomiestatut.asp, last accessed 11.2.2021.

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from regional level to the level of the two autonomous provinces that together make up one of five special Italian regions.34 In line with consociational theory, today the ASt gives South Tyrol a system of horizontal power-sharing that combines elements of cultural and provincial selfgovernment.35 It makes it possible to preserve socio-linguistic group identities and to foster intergroup (elites’) dialogue and cooperation at the same time. The four elements of the system are: (1) the participation of all relevant language groups at governmental level and in the different subordinate sub-systems; (2) group rights in the fields of culture and education; (3) proportional representation of each language group in the bilingual public sphere; (4) veto power for each language group to defend vital group interests in case of necessity. Special rules for Ladin speakers and special bilateral relations with Rome complement the system. If bilingual administration is to work effectively in such a system, capacity must be built.36 To this end, specific bilateral cross-border cooperation agreements were set up. Based on the framework agreement for the promotion of cultural relations between Italy and Austria signed in 1952,37 a series of specialisation courses were started by the Austrian University of Innsbruck in cooperation with the Italian University of Padua in the 1970s. In 1979, South Tyrolean German and Ladin speakers were also set on a par with Austrian citizens for the sake of access to a series of services in Austria, including access to university and student benefits.38 In concrete terms, this implied that diplomas of secondary education were equated with those of Austrian high schools and that South Tyroleans were entitled to the same treatment with regard to study fees. The Austrian system also allowed full and associate professorships for South Tyroleans. In 1982, Italy and Austria further discussed the extent to which universities should enhance their cooperation. These discussions finally led to a bilateral agreement that came into force in 1983.39 Article 1 of the Agreement authorises all universities of the contracting states to conclude cooperation agreements regarding teaching and research, while Article 6 applies to higher legal studies and paved the way for the creation of the so-called integrated Italian law curriculum at the University of Innsbruck. Since 1985, this curriculum has made it possible to study Italian law partly in German, partly in Italian. As such it has contributed to establishing a class of bilingual lawyers and legal experts to be employed in the public administration of South Tyrol. Since 1992, when conflict regarding the political autonomy of South Tyrol was formally concluded at UN level, the extraordinary development of a considerable

34

Italy has a total of 20 regions. Alber (2021). 36 Bilingualism applies to all South Tyrol, while trilingualism applies to the Ladin valleys and to Ladin interests in provincial offices. 37 It entered into force in 1954. Bundesgesetzblatt (BGBl) no. 270/1954. 38 Gleichstellungsgesetz, Bundesgesetz 25.01.1979, BGBl no. 57. 39 BGBl no. 423/1983. 35

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body of South Tyrolean law, produced by the autonomous institutions, increasingly requires bilingual and bi-cultural experts. In more recent times, a growing number of Italian-speaking South Tyroleans train at the University of Innsbruck. Today, it can therefore be said that a true class of South Tyrolean legal experts, familiar with the borderland’s socio-legal identities, is developing in both linguistic groups.40 Of course, the impact of bilingual law and cross-border education on the sociolegal situation of South Tyrol is difficult to measure in absolute terms. However, it cannot be denied that cross-border cooperation in teaching is an effective guarantee for South Tyrol as a border region. It trains administrators who manage South Tyrol’s complex and densely regulated autonomy and minority protection system, and also policy entrepreneurs who work for increasingly flexible governance arrangements in the Euregio. South Tyrolean institutions themselves have also become a reference point for collective identification as a borderland, and by reflection so have large parts of South Tyrolean society. In 2014, for instance, more than 80 percent of German speakers in the province identified as South Tyroleans.41 This not only enabled negative peace (i.e. the absence of violence), but also positive peace (i.e. the development of a harmonised integrated society),42 although the limits of corporate consociationalism in bringing positive peace to divided societies cannot be ignored.43

4 Recent Developments in the Euregio and Regarding HEIs in South Tyrol Though only ten years old, the Euregio successfully acts as a driver for cross-border cooperation in teaching and research.44 In its composition, it resembles the historic Crownland of Tyrol including (the cultures related to) Italian and German speakers. Unlike in the past, today all constituent units of the Euregio have HEIs. The HEIs, research centres and innovation hubs regularly develop and implement practices of cross-border cooperation. Such practices are based on the respective institutional autonomies, one of the many dimensions of academic freedom, and are embedded in the network of policy entrepreneurs in each territory. The annual EGTC Monitoring Reports of the CoR give an essential account of how EGTCs implement cross-sector education projects. One example listed in the 2018-2019 Report is the Executive Master Euregio in European Public Administration (EMEPA).45 The EMEPA is targeted at graduates working in public 40

Alber and Palermo (2012), p. 308. Landesinstitut für Statistik (2014), p. 170. 42 Pallaver (2014). 43 Carlà (2018). 44 See www.europaregion.info/en/default.asp, last accessed 11.2.2021. 45 CoR (2020), p. 57. 41

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administration in one of the constituent units of the Euregio. The two-year curriculum is meant to enhance participants’ understanding of EU law and policies in view of the sub-state level and imparts lectures in German, Italian and English. The EMEPA exemplifies how the nexus between academic freedom and political as well as institutional autonomy can unfold in an effective manner. Three subnational authorities (the two Autonomous Provinces of Bolzano/Bozen and Trento as well as the Land Tyrol) have partnered with the respective HEIs in overcoming institutional barriers related to the complexity of designing a project that involves the national higher education regulations of two states. Major obstacles concerned the spheres of labour law covering the public sector in relation to the staff and participants involved (all participants frequent the program during working hours and in various locations in the Euregio). The program is financed by the Euregio, while being implemented practically by the three partnering universities—the University of Innsbruck in Austria (founded in 1669), the University of Trento (founded in 1962), and the Free University of Bolzano/Bozen (founded in 1997). In South Tyrol, the founding of a university was discussed in a very controversial manner for many years.46 Training programs at the University of Innsbruck were prioritised for ethnic and linguistic issues. As a response to reforms at national level in the 1990s,47 South Tyrol first founded the private non-profit Eurac Research in 1992 and then started to investigate the idea of establishing a university more systematically. Since the ASt does not explicitly envisage South Tyrol’s competence in higher education, there were five options. (1) Opening of a branch of the University of Innsbruck in Bolzano/Bozen, which would have required an amendment to the 1982 bilateral treaty between Austria and Italy. (2) Foundation of an Italian state university. The political reservations concerning this option proved too strong for several reasons. For instance, appointments of professors from abroad would have been virtually impossible due to the Italian competitive system. Development of institutional autonomy with international and Alpine orientation that favoured a strong presence of lecturers from the German-speaking world would also have been difficult. (3) Foundation of a separate South Tyrolean provincial university. However, complete transfer of state responsibilities in the field of higher education was not politically realistic. (4) Foundation of an international university. This option was ruled out for practical reasons, as entering a series of bi- and multilateral agreements is a very lengthy and cumbersome process. (5) Foundation of a non-government university. This option was chosen. A special legal basis for the South Tyrolean and other universities was passed in 1997 with the second Bassanini law. As part of Italian reforms for decentralisation and administrative simplification, it authorised establishment of a non-government university by public corporations or private individuals even outside the national

46

Woelk and Zwilling (2019). Among others, these reforms concerned the employment conditions of personnel in the school sector. 47

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three-year university plan. Article 17 paragraph 122 of Law 127/1997 expressly refers to the promotion and development of scientific cooperation with universities and research centres of other states, and also includes the establishment of integrated study programmes and joint research projects. Today, a framework agreement signed in 2013 between the HEIs in the Euregio additionally sets out general principles as to cross-border cooperation in teaching and research.48 The Euregio Mobility Fund is an example of how such principles translate into practice. So far, it has supported more than 43 tri- and bilateral projects in various scientific fields, in which around 1200 students and 200 lecturers participated. The three Euregio professorships recently initiated are another example. Each holder of a professorship is formally employed at one location in the Euregio (i.e. in Innsbruck, Bolzano/Bozen or Trento), but s/he is active in teaching and research at all three universities. For research, a Euregio Science Fund supports multi-year joint projects requiring HEIs located in the Euregio to partner and to research topics relevant to the border region. The fourth call started recently with a budget of three million euro. The Euregio has also initiated and supports the Euregio Young Researchers Award, the Euregio Research Conferences and the Euregio Labs (i.e. yearly think-tanks in which experts from academia, the public administration and the economy advance ideas; the 2019 edition was centred on cross-border cooperation in research).

5 Final Remarks This contribution advances our understanding of academic freedom and institutional autonomy in border regions in two ways. First, the South Tyrolean case confirms the potential of HEIs to contribute to the establishment of peace and more interaction across language groups. Second, it illustrates the circumstances under which HEIs located in two different states and three differently governed subnational entities can successfully contribute to the creation of a borderland conceived as a soft space of higher education. Although many obstacles to the regulation of cross-border cooperation in teaching and research remain, the empirical part of this contribution shows how some of them have been overcome. It reviews examples of cross-border cooperation that HEIs on the North-South axis of the Austrian-Italian border carry out by entering into partnerships, helped by most of the policy entrepreneurs in each territory. The contribution also shows how the Euregio itself—institutionalised as an EGTC—acts as a driver of cross-border cooperation in teaching and research. Of course, the impact of cross-border cooperation in higher education warrants further study, and will always be difficult to measure. It depends on many factors. One important factor is linked to the vitality of cross-border regionalism and the

48

See www.uibk.ac.at/public-relations/presse/archiv/2013/429/, last accessed 11.2.2021.

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extent to which and reasons why regionauts (i.e. residents in a border region who live and use the worlds on both sides of the border)49 and border surfers (i.e. residents in a border region who benefit from its institutional and social differences)50 take advantage of a border region. The contribution shows the implications that understanding a border as an actor of bi- and multilateral cooperation, rather than as a barrier, has for higher education in the presence of institutional autonomy, one of the many dimensions of academic freedom. In essence, it helps grasp localness in border studies and encourages a sense of borderless locality in teaching and research. Moreover, understanding how institutional autonomy and partnerships between HEIs of a border region unfold in practical terms helps clarify conceptual frameworks in border studies in relation to cross-border cooperation on one hand, and higher education on the other. Crossborder cooperation in teaching and research has only been analysed in a few empirical snapshots. A more systematic study of the topic and comprehensive studies across cases would be an interesting field for further research in European studies focusing on the nexus between academic freedom and cross-border cooperation.

References Alber E (2017) South Tyrol’s negotiated autonomy. Treatises and documents. J Ethnic Studies 78:41–48 Alber E (2021) South Tyrol’s model of conflict resolution: territorial autonomy and power-sharing. In: Keil S, McCulloch A (eds) Power-sharing in Europe. Palgrave Macmillan, London, pp 171–199 Alber E, Engl A (2020) Border Crossers und Border Studies: Eine Multiperspektivische Bestandsaufnahme zum Grenzraum Tirol-Südtirol-Trentino. In: Hug T, Maurer A, Walli T (eds) Crossing borders. Passaggi di confine. Grenzgänge. Festschrift für Günther Pallaver. Innsbruck University Press, Innsbruck, pp 29–45 Alber E, Palermo F (2012) Creating, studying and experimenting with bilingual law in South Tyrol: lost in interpretation? In: Arzoz X (ed) Bilingual higher education in the legal context. Martinus Nijhoff, Leiden, Boston, pp 287–309 Beck J (ed) (2019a) Transdisciplinary discourses on cross-border cooperation in Europe. Peter Lang, Brussels Beck J (2019b) Cross-border cooperation from the perspective of administrative science. In: Beck J (ed) Transdisciplinary discourses on cross-border cooperation in Europe. Peter Lang, Brussels, pp 232–379 Beiter DK, Karran T, Appiagyei-Atua K (2016) Academic freedom and its protection in the law of European States. Eur J Comp Law Gov 3:254–345 Brunet-Jailly E (2005) Theorizing borders: an interdisciplinary perspective. Geopolitics 4:633–649 Brunet-Jailly E (2011) Special section: borders, borderlands and theory. An introduction. Geopolitics 1:1–6

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Carlà A (2018) Peace in South Tyrol and the limits of consociationalism. Nationalism Ethn Polit 3:251–275 CoR Committee of the Regions (2020) EGTC monitoring report 2018–2019, https://portal.cor. europa.eu/egtc/ressources/Documents/CoR-EGTC-monitoring-report-final-study-2019.pdf. Accessed 11 February 2021 Engl A (2020) Europe’s culturally diverse borderscapes: the EGTC from the perspective of minority studies. In: Ocskay G (ed) 15 years of the EGTCs. Lessons learnt and future perspectives. Central European Service for Cross-border Initiatives (CESCI), Budapest, pp 197–218 Engl A, Zwilling C (2008) Cross-border cooperation between historical legacies and new horizons. In: Woelk J, Palermo F, Marko J (eds) Tolerance through law – Self-governance and group rights in South Tyrol. Martinus Nijhoff, Leiden Boston, pp 161–176 Jordana J, Keating M, Marx A, Wouters J (eds) (2019) Changing borders in Europe: exploring the dynamics of integration, differentiation and self-determination in the European Union. Routledge, Abingdon Krzymuski M, Ulrich P (2019) The diffusion of legal systems in the cooperation of cross-border public entities. In: Beck J (ed) Transdisciplinary discourses on cross-border cooperation in Europe. Peter Lang, Brussels, pp 213–229 Landesinstitut für Statistik (2012) Astatinfo no. 38, https://astat.provinz.bz.it/de/aktuellespublikationen-info.asp?news_action¼4&news_article_id¼396330. Accessed 11 February 2021 Landesinstitut für Statistik (ed) (2014) Südtiroler Sprachbarometer/Barometro linguistico dell’Alto Adige. Schriftenreihe 211:1–212 Landesinstitut für Statistik (2019) Astatinfo no. 62, https://astat.provinz.bz.it/de/aktuellespublikationen-info.asp?news_action¼4&news_article_id¼630458. Accessed 11 Feb 2021 Leresche J-P, Saez G (2002) Political frontier regimes. Towards cross-border governance? In: Perkmann M, Sum N-L (eds) Globalization, regionalization and cross-border regions. Palgrave MacMillan, London, pp 77–99 Löfgren O (2008) Regionauts: the transformation of cross-border regions in Scandinavia. Eur Urban Reg Stud 3:195–209 Marginson S (2014) Academic freedom. A global comparative approach. Front Edu China 1:24–41 Martínez OJ (1994) Border people. Life and society in the U.S.-Mexico borderlands. University of Arizona Press, Tucson Medve-Bálint G, Svensson S (2013) Diversity and development: policy entrepreneurship of Euroregional initiatives in Central and Eastern Europe. J Borderlands Stud 1:15–31 O’Dell T (2003) Øresund and the Regionauts. European Studies. J Eur Cult Hist Polit 19:31–53 O’Dowd L (2002) Transnational integration and cross-border regions in the European Union. In: Anderson J (ed) Transnational democracy: political spaces and border crossings. Routledge, London, pp 111–128 Pallaver G (2014) South Tyrol’s changing political system: from dissociative on the road to associative conflict resolution’. Nationalities Papers. J Nationalism Ethnicity 3:376–398 Perkmann M (2007) Policy entrepreneurship and multilevel governance. A comparative study of European cross-border Regions. Environ Plan C Polit Space 6:861–879 Popescu G (2012) Bordering and ordering the twenty first century: understanding borders. Rowman and Littlefield, Lanham Scott JW (1999) European and North American contexts for cross-border regionalism. Reg Stud 7:605–617 Svensson S (2013) Forget the policy gap: why local governments really decide to take part in crossborder cooperation initiatives in Europe. Eurasian Geography Econ 4:409–422 Svensson S (2018) Euroregions: institutional transfer and reinterpreted norms in Central and Eastern Europe. In: Batory A, Cartwright A, Stone D (eds) Policy experiments: failure and innovations. Edward Elgar, Cheltenham, pp 131–151 Svensson S (2020) Resistance or acceptance? The voice of local cross-border organizations in times of re-bordering. J Borderlands Stud. https://doi.org/10.1080/08865655.2020.1787190

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Telle S (2017) Euroregions as soft spaces. Between consolidation and transformation. Eur Spatial Res Policy 2:93–110 Terlouw K (2012) Border surfers and Euroregions: unplanned cross-border behaviour and planned territorial structures of cross-border governance. Plan Pract Res 3:351–366 Ulrich P (2020) The EGTC, transformative and innovative governance and national boundaries. In: Ocskay G (ed) 15 years of the EGTCs. Lessons learnt and future perspectives. Central European Service for Cross-border Initiatives (CESCI), Budapest, pp 169–195 Woelk J, Zwilling C (2019) Wissenschaftliche Forschung in Südtirol im Lichte des Unionsrechts. In: Obwexer W, Happacher E, Zwilling C (eds) EU-Mitgliedschaft und Südtirols Autonomie: Die Auswirkungen der EU-Mitgliedschaft auf die Autonomie des Landes Südtirol am Beispiel ausgewählter Gesetzgebungs- und Verwaltungskompetenzen. Österreich, Wien, pp 492–523 Zumbusch K, Scherer R (2019) Cross-border cooperation in political science. In: Beck J (ed) Transdisciplinary discourses on cross-border cooperation in Europe. Peter Lang, Brussels, pp 29–57

Part II

New Challenges

The State of Academic Freedom in Hungary: The Saga of the Central European University and the Research Network of the Hungarian Academy of Sciences in Light of National and European Guarantees of Academic Freedom Petra Lea Láncos

Abstract The year 2017 saw an extraordinary upheaval in the Hungarian academic landscape: new laws were adopted which were perceived to be geared to driving the Central European University out of Hungary. In 2019, the Hungarian Academy of Science’s research network was severed from the Academy, renamed Eötvös Loránd Research Network and put under the control of a separate governing board. In my paper I explore the political and legal backdrop of these events in the light of national constitutional law, international law and European law standards. Keywords Academic freedom · Free movement · Charter of Fundamental Rights · Rule of law · General Agreement on Trade in Services

1 Introduction The extraordinary upheaval in the Hungarian academic landscape of the past 3 years has affected institutions of higher education and research. The 2017 amendment of the Act on higher education led to the Central European University (CEU) all but

I am deeply indebted to Prof. Cristina Fraenkel-Haeberle and Prof. Margrit Seckelmann for the opportunity to participate in this research project. Manuscript submitted before CJ Judgement (6 October 2020) Case C-66/18 Commission v. Hungary. For details on the judgment, see Science and the European Dimension of Freedom of the Arts and Science by G Demuro and Freedom of Research and Academic Teaching in the European Union by S Schiedermair in this volume. P. L. Láncos (*) Department of European Law, Pázmány Péter Catholic University, Budapest, Hungary e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_6

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abandoning its Budapest campus, effectively relocating to Vienna. The political and legal repercussions of “Lex CEU” had hardly died down when news of a possible restructuring of budgetary contributions to the Hungarian Academy of Sciences (Academy) surfaced. In the space of just a few months, the research institutes affiliated with the Hungarian Academy of Sciences were severed from the Academy and reorganised under a new entity, the Eötvös Loránd Research Network (Eötvös Loránd Kutatási Hálózat, ELKH), which took over all projects, assets and infrastructure of the former institutes. The Government’s plans and the Hungarian legislator’s moves to regulate institutions of higher education offering foreign diplomas and the restructuring of a prominent part of state-funded research institutions was received by many in Hungary and abroad as a violation of academic freedom and an effort to force out or silence dissenting scholars. The legislative acts concerned prompted the European Commission for Democracy Through Law (Venice Commission) to deliver a preliminary opinion, the Hungarian Academy of Sciences to lodge a constitutional complaint and the European Commission to take legal action against Hungary before the ECJ. In this paper, I outline the constitutional and international law and the European law framework of academic freedom applicable in Hungary. I then briefly describe the legislative changes undertaken to reshape the Hungarian academic arena. Next, I provide some insights into the positions of the Hungarian legislator, the affected institutions and the different European bodies regarding conformity of the rules with constitutional and European Union law. Finally, I conclude with possible approaches and conclusions regarding the recent changes to the Hungarian academic landscape. In my assessment of the issues tackled in the present paper, I relied on scholarly writings, policy papers and documents issued by the Hungarian Government, European bodies or the institutions affected by the legislative changes described. Faced with scarce academic debate and reporting on the events discussed in the paper, my research proved to be particularly difficult. It was very hard to find sources that justify and argue in favour of the legislative changes made to academic life in Hungary. In fact, beyond laconic official justifications of draft bills, no scholarly papers putting forward arguments for the amendments affecting CEU and the Hungarian Academy of Sciences Research Network could be found, making it extremely difficult to provide a balanced assessment of what was happening. The lack of any elaborate justification or impact assessments or scholarly articles explaining the grounds and the expected benefits of these important changes leaves one no choice but to speculate on the possible reasons and merits of reorganizing these aspects of academic life. It also leads to a spectacularly one-sided citation of scholarly sources, unsatisfactory for anyone interested in giving a balanced account of the subject.

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2 Academic Freedom and the Context of Multi-Level Protection Academic freedom is constitutionally guaranteed under the Fundamental Law of Hungary, yet the Hungarian Constitution is not the only source of protection, since Hungary is party to the European Convention on Human Rights and a member state of the European Union. Here I review national constitutional law, international law and EU law sources guaranteeing academic freedom, briefly sketching the substance of this freedom as developed in the jurisprudence of the Hungarian Constitutional Court, EU law and the relevant case law of the European Court of Human Rights.

2.1

Protection of Academic Freedom in the Hungarian Fundamental Law

The Fundamental Law, namely Hungary’s new constitution, came into force on 1 January 2012 and includes a provision guaranteeing academic freedom with largely the same substance as that in the earlier constitution, Act no. XX of 1949.1 According to Article X of the Fundamental Law, 1) Hungary shall ensure the freedom of scientific research and artistic creation, the freedom of learning for the acquisition of the highest possible level of knowledge and, within the framework laid down in an Act, the freedom of teaching. 2) The state shall have no right to decide on questions of scientific truth; only scientists shall have the right to evaluate scientific research. 3) Hungary shall protect the scientific and artistic freedom of the Hungarian Academy of Sciences and the Hungarian Academy of Arts. Higher education institutions shall be autonomous in terms of the content and the methods of research and teaching; their organisation shall be regulated by an Act. The Government shall, within the framework of an Act, lay down the rules governing the management of public higher education institutions and shall supervise their management.

According to the earlier jurisprudence of the Constitutional Court (i.e. that of the previous constitution), “the state must remain neutral on questions of scientific truth” (Decision no. 34/1994. (VI. 24.) AB, ABH2 1994, 177, 182.). This “bars the state from determining what concrete activities constitute scientific conduct, what are the methods with which scientific research may take place, and what is to be considered

1

Art. 70/G former Constitution: 1) The Republic of Hungary shall respect and support the freedom of scientific and artistic expression, the freedom to learn and to teach. 2) Only scientists are entitled to decide questions of scientific truth and to determine the scientific value of research. 2 Abbreviation of Decision of the Constitutional Court.

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science.”3 The Constitutional Court deemed academic freedom a fundamental constitutional value, stating that “history has taught us that academic freedom is a fundamental guarantee of progress” (ABH 1994, 177, 182). Academic freedom requires that the state refrains from restricting the activities of those entitled to the rights guaranteed under this freedom, such as academic autonomy, the right to scientific work, access to scientific information and freedom of research and teaching. In the Constitutional Court’s earlier jurisprudence, academic autonomy entails ensuring scientific activity without external influence as well as rights of selfgovernment to institutions of higher education (Decision no. 41/2005. (X. 27.) AB, ABH 2005, 459, 474), where institutional autonomy includes independence in teaching, research, questions related to internal organisation, operation and financial management.4 The Constitutional Court clarified that it is unconstitutional for the state to allocate an external management body to determine the research and innovation strategy of an institution of higher education and for the state to determine which areas of science merit doctoral research. It also declared that the rights of the minister responsible for higher education do not extend to deciding the reorganisation or dissolution of universities or colleges, or to suspending the funding of these institutions from the budget.5 Finally, the Constitutional Court ruled that restricting scientists’ access to information, with due consideration to the privacy rights of others and the general interest, is unconstitutional (Decision no. 34/1994. (VI. 24) AB, ABH 1994, 177, 182–183, Decision no. 1116/B/1995. AB, ABH 2004, 1083, 1091), and that scientists have the right to publish their findings and to teach and establish institutions of higher education or research institutes (Decision no. 34/ 1994. (VI. 24.) AB, ABH 1994, 177, 182., Order no. 1032/E/1991/2. AB, ABH 1991, 965, 965). Meanwhile, the state is not merely obliged to refrain from restricting the rights of academic freedom (status negativus), but must also contribute to sustaining academic freedom, namely, it has an obligation of “institutional guarantee” (Decision no. 37/1992. (VII. 16.) AB, ABH 1992, 227.). The state has a wide margin of appreciation regarding the means by which it ensures the conditions for academic freedom, but this obligation typically includes the state’s obligation to establish and finance institutions of higher education or research, such as the Hungarian Academy of Sciences, which enjoys special constitutional protection owing to the fact that it is expressly mentioned in the Fundamental Law. Importantly, the fourth amendment of the Fundamental Law repealed the earlier jurisprudence of the Constitutional Court, based on the previous constitution.6 The

3

See Láncos (2009), p. 2609. Láncos (2009), p. 2611. 5 Ibid, p. 2612. 6 Closing and Miscellaneous Provisions of the Fundamental Law. The decisions of the Constitutional Court made prior to the entry into force of the Fundamental Law are repealed. This provision shall be without prejudice to the legal effects produced by those decisions. 4

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Constitutional Court is not however barred from reaching the same conclusions or citing its earlier case law, but can only do so under certain conditions: there has to be textual and substantive correspondence between the former Constitution’s provision interpreted earlier by the Constitutional Court, and the new provision of the Fundamental Law, the provision must be applicable to the case and inclusion of the interpretation in the reasoning of the decision must be necessary (Decision no. 13/ 2013. (VI. 17) ABH, Reasoning 27–34).

2.2

Academic Freedom, the Charter of Fundamental Rights and the European Convention on Human Rights

Member states are only bound to give effect to the provisions of the Charter of Fundamental Rights (CFR) when they are implementing EU law (Article 51 (1) CFR), for example when introducing national measures that affect the freedom of establishment. Charter of Fundamental Rights, Article 13 provides: “The arts and scientific research shall be free of constraint. Academic freedom shall be respected”. Based on the explanatory memorandum to the Charter of Fundamental Rights (the Charter), academic freedom is deduced from the right to freedom of thought and expression.7 Vrielink et al. conclude that owing to “the very general wording of Article 13 and the only limited explanation in the explanatory memorandum, the notion of academic freedom remains open to interpretation. This is all the more so, given the current absence of a body of jurisprudence providing further guidance.”8 Some even conclude that the general, laconic wording of the provision may in fact render it non-justiciable.9 Since the explanatory memorandum explicitly stipulates that Article 13 of the Charter of Fundamental Rights must be interpreted subject to the limitation authorised by Article 10 of the European Convention on Human Rights, consideration of European Court of Human Rights case law in determining the substance and scope of academic freedom ensured under the Charter seems appropriate. Since academic freedom is protected under Article 10 of the Convention by reference to freedom of speech and expression, academic speech, including publication and dissemination of findings is clearly protected.10 As far as the institutional autonomy of institutions of higher education is concerned, in his partly dissenting opinion attached to ECHR Judgment (2 April 2013) Tarantino and others v. Italy, Judge Pinto de Albuquerque of the European Court of Human Rights provided some insight into the margin for regulating state 7

Explanations relating to the Charter of Fundamental Rights, OJ C 303, 14.12.2007, pp. 17–35. Vrielink (2011), p. 121. 9 Bentley, cited by Sayers (2014), p. 395. See also Bakaradze (2018), p. 183. 10 Sayers (2014), p. 396. 8

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universities and private institutions of higher education. Judge Pinto de Albuquerque expands, while states “enjoy a certain discretion in exercising their regulatory powers over State schools”, they “may not exercise the same degree of control in respect of private schools” (universities). In fact, “private schools must enjoy a greater degree of autonomy. Institutional autonomy includes, as a minimum, establishment of the academic curriculum and control over the admission, evaluation, suspension and expulsion of students, the selection and promotion of academic and administrative staff, and the budget and financial organisation of the institution. (. . .) Were the government or other public authority to intervene in the regulation of any of these aspects, either by imposing certain rules a priori or quashing rules or decisions approved by private schools a posteriori, this intervention would have to comply with strict requirements of necessity and proportionality. Thus, the State’s margin of appreciation is wider with regard to the regulation of State schools and narrower with regard to that of private schools. An even narrower margin of appreciation applies a fortiori to higher education, where institutional autonomy plays a pivotal role.” Another source to help determine the scope of academic freedom in international soft law is the 1997 United Nations Educational, Scientific and Cultural Organisation (UNESCO) Recommendation concerning the Status of Higher-Education Personnel, which states in respect of institutional autonomy: 17. The proper enjoyment of academic freedom and compliance with the duties and responsibilities listed below require the autonomy of institutions of higher education. Autonomy is that degree of self-governance necessary for effective decision making by institutions of higher education regarding their academic work, standards, management and related activities consistent with systems of public accountability, especially in respect of funding provided by the state, and respect for academic freedom and human rights. However, the nature of institutional autonomy may differ according to the type of establishment involved. 18. Autonomy is the institutional form of academic freedom and a necessary precondition to guarantee the proper fulfilment of the functions entrusted to higher-education teaching personnel and institutions. 19. Member states are under an obligation to protect higher education institutions from threats to their autonomy coming from any source.

Based on the above, it is safe to say that while academic speech is well protected in the case law of the European Court of Human Rights, the protection of institutional autonomy of universities and colleges or research institutes as an element of academic freedom has yet to be given flesh in international jurisprudence. An important step in this direction was made by the Court of Justice of the European Union with CJ Judgement (6 October 2020) Case C-66/18 Commission v. Hungary.11

11

For details on the judgment, see Science and the European Dimension of Freedom of the Arts and Science by G Demuro and Freedom of Research and Academic Teaching in the European Union by S Schiedermair in this volume.

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3 Legislative Shifts in the Hungarian Academic Landscape In what follows, I provide an account of the events affecting the Hungarian academic landscape, focusing on the situation of CEU and the Hungarian Academy of Sciences. In this respect, I describe the legal, political and academic context of the legislative changes, setting the scene for the broader issue of academic freedom in Hungary.

3.1

CEU’s Long Road Out of Hungary

The Central European University, founded by Budapest-born financier George Soros, is accredited by the Middle States Commission on Higher Education, with programmes registered with the New York State Education Department. The so-called Közép-európai Egyetem12 is the partner institution of CEU, and an institution of higher education with accreditation in Hungary,13 offering Hungarian diplomas to its students. It owns the Budapest campus, library and offices. The controversy ensuing in the wake of “Lex CEU” did not affect Közép-európai Egyetem, which remains in Budapest, albeit with lesser significance, since it only offers Hungarian diplomas and the US diploma courses that attracted international students have since been moved to the CEU’s Vienna campus. The circumstances leading up to CEU relocating to Vienna were kickstarted by Act no. XXV of 2017 amending the Act on National Higher Education,14 which was later to become known as “Lex CEU”, adopted by the Hungarian National Assembly (Hungarian Parliament) on 4 April 2017.15 The amendment is meant to protect students from exploitation by fraudulent colleges and universities and to guarantee the quality of education provided by institutions of higher education operating in Hungary.16 The State Secretary for Education explained that the Hungarian Educational Authority must periodically review the operation of universities and colleges in Hungary and as a result of such a review, the Authority found several irregularities in the operation of Hungary’s 28 “foreign higher education institutions”. According to the amendment, “foreign higher education institutions” in possession of a license issued by the Educational Authority or on the basis of an international agreement may operate in Hungary and award foreign diplomas. According to

12

Literally: Central European University. Act no. LXI of 2004 on the state recognition of the Közép-európai Egyetem. 14 Act CCIV of 2011 on National Higher Education. 15 For a detailed account, see Bárd (2018). 16 These considerations are not contained in the general and detailed justification for bill T/14686 amending the Act on National Higher Education, but were presented to the Venice Commission, CDL-PI(2017)005—Hungary. Preliminary Opinion on Act XXV of 4.4.2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education, para. 72. 13

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Section 76 of the Act on National Higher Education, the licence for operating a college or university in Hungary is issued if the foreign higher education institution’s state of accreditation and registration (country of origin) has an education system “in line with the educational fundamental principles of the European Higher Education Area”. Since the US is not a member of said Area, CEU could only rely on an international agreement in order to continue operations in Hungary.17 This agreement had to be concluded by 17 October 2017, a mere 6 months after adoption of “Lex CEU”, for operations to continue. Although the deadline for concluding the international agreement was extended to 2019,18 the amendment foresaw an additional condition for higher education institutions which have their seat in a federal state: a “preliminary agreement” must be concluded between the central government of the federal state in question and Hungary, on the “theoretical support of [the institution of higher education’s] operation in Hungary”.19 The amendment to Section 76 (1)b of the Act on National Higher Education also foresaw that only foreign higher education institutions that qualify as a staterecognised higher education institution in their home country, actually operating and providing higher education in that state, would be permitted to conduct programmes leading to a diploma in the territory of Hungary. This meant that the foreign higher education institution has to maintain a campus and conduct higher education programmes in the country of origin as well. While the amendments to the Act on National Higher Education also stipulated further requirements,20 the condition of the preliminary agreement and the own campus and programmes delivered in the country of origin were what many considered to target and penalise CEU,21 since CEU was the only one of the seven foreign universities and colleges operating in Hungary and not originating from a

Act on National Higher Education, Art. 76(6): “The higher education institution referred to in subsection (1) which awards foreign diplomas or certificates may also be established and operate in Hungary on the basis of an international agreement. Such higher education institutions are ex officio registered by the Educational Authority.” 18 Act XXV of 2017 on the amendment of Act CCIV of 2011 on National Higher Education: Section 4(1) Section 115(7) of NHE Act shall be replaced by the following provision: “(7) The conditions laid down in this Act – stipulated in Act of 2017, on the amendment of Act CCIV of 2011 on National Tertiary Education contained in Section 9(2)(a) and (2)(b), Section 76(1) and clause (la) – in the case of federal states, with the exception of a preliminary agreement concluded with the central government thereof –, shall be fulfilled by foreign institutions of tertiary education having an operating license on 1.9.2017 until 1.1.2018. In the case of federal states, the preliminary agreement serving as the basis thereof shall be concluded within six months of entry into force of [Act no. XXV of 2017].” 19 Section 2(1)(a) of Act XXV of 2017 on the amendment of Act CCIV of 2011 on National Higher Education. 20 Section 9(2)(a) and (b) of the Act prescribed that higher education institutions’ designations not be misleading or confusing, while the amendment repealed work permit exemption for higher education institutions, forcing an administrative burden on all universities and colleges. 21 Venice Commission, CDL-PI(2017)005—Hungary. Preliminary Opinion on Act XXV of 4.4.2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education, para. 22–23. 17

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member of the European Higher Education Area, that did not have a campus and offer programmes in its country of origin.22 To secure the necessary campus and operations in the country of origin, CEU signed an agreement with Bard College in New York in 2017.23 Yet the requirement of an international agreement with CEU’s country of accreditation and registration posed further difficulties. On one hand, it is a condition which must be met by, but is outside the control of CEU, since concluding international agreements—‘preliminary’ or otherwise—is at the discretion of governments.24 On the other hand, even if Hungary and CEU’s state of origin were open to concluding such an agreement, in the case of the USA, the federal government is not in a position to conclude agreements regarding education, since such matters are the competence of the states.25 Indeed, in the case of McDaniel College, Hungary accepted an agreement concluded with the state of Maryland.26 Since the international agreement required by law was not signed by New York and Hungary, despite extension of the deadline to early 2019, CEU started looking for other possibilities to ensure that it could continue its programmes and recruit new students for the next academic year. Instead of waiting for the international agreement to be concluded in what was considered a “legal limbo, free to admit new students, but uncertain of its legal status in Hungary”,27 CEU announced on 3 December 2018 that it would relocate its international programme to Vienna. CEU had not yet announced its relocation to Vienna when news of the Hungarian Government’s intention to boost innovation through reorganisation of the Hungarian research landscape emerged.

22

Bárd (2017a), p. 2. Bárd (2019a), p. 7. 24 Bárd (2017b, c). 25 “Education is primarily a state and local responsibility in the United States. Matters related to the legal status and degree-granting authority of most higher education institutions, including these higher education institutions operating in Hungary, are within the purview of state-level authorities and not the U.S. federal government.” Letter of the Secretary of Education to Ministers Zoltán Balog and László Palkovics, dated 15.6.2017. 26 “[T]his exchange of letters was acknowledged as a preliminary international agreement, on the basis of which an agreement was signed between the government of Maryland and Hungary to secure the continued operation of the Budapest based McDaniel College”, Bárd (2019a), p. 7. Considering such a letter to be a preliminary agreement seems like a creative move, but was, however, welcomed by the Venice Commission in its preliminary opinion: “It is significant that the Hungarian Ministry of Foreign Affairs and Trade seems to interpret a letter received (on 15 June 2017) from the US Secretary of Education as in effect complying with the need for a preliminary agreement with the US federal authorities”, para. 93. CDL-PI(2017)005—Hungary. Preliminary Opinion on Act XXV of 4.4.2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education. 27 Ignatieff (2018), p. 3. 23

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Severing the Academy’s Research Network

The Hungarian Academy of Sciences (Magyar Tudományos Akadémia, MTA) is a state funded public body with the mission of “cultivating the national language and promoting science”.28 In 1825, Count István Széchenyi pledged his annual income for the protection and promotion of the national language and is considered the founder of the Academy.29 The association was established by Law no. XI of 1827 on the society of scientists or Hungarian academy for the cultivation of the national language, with a governing board managing the capital of the Academy. Within a few years, the Academy became the central institution of Hungarian scientific life, publishing academic works, awarding grants and disseminating scientific findings from abroad to the Hungarian academic audience. In 1867, the Academy became publicly funded and in the course of the following century, built an impressive scientific network with sections dedicated to the main scientific disciplines, cooperating in and contributing to international research initiatives. In 1948, the Academy came under the control of the Hungarian Scientific Council at the service of socialist policy.30 In the fifties and sixties, during the socialist regime, an extensive network of research centres was developed, beside its different sections, under the auspices of the Academy.31 After the change of political system, the status, organisation, tasks and finances of the Academy were regulated by Act no. XL of 1994 on the Hungarian Academy of Sciences, which underlined in its preamble that “it is a justified expectation of society that without restricting the autonomy of other institutions cultivating and promoting science, this great historical national institution’s history of freedom to operate and act, its rights of self-government and its internal democracy be reinforced by law.” In 2011, the Academy’s research network was completely rearranged under the direction of its president, József Pálinkás and the support of three-quarters of the Academy’s public body. The reform was to improve the competitiveness and performance of the research network, as well as preparing it for the challenges of modern research. The financial input and scientific output of the system were to be

28

Preamble of Act no. XL of 1994 on the Hungarian Academy of Sciences. In his speech in the lower house of the Hungarian National Assembly in Pozsony (currently: Bratislava, the capital of Slovakia) on 3.11.1825, Count Széchenyi not only pledged his annual income to serve the new Academy but put the operation of the new institution into the hands of the National Assembly. In their summary on the history of the Academy, Fónagy and Pótó recall that Széchenyi’s pledge was not an unprecedented or isolated act of generosity, indeed, Széchenyi’s father founded the National Museum and several young magnates of the time (György Károlyi, György Andrássy, Ábrahám Vay and József Teleki) followed Széchenyi in making important pledges. See Fónagy and Pótó (2016). 30 Fáy describes the effects of the socialist turn on the Academy, including isolation from the Western research community, exclusion of members, falsification of truths and history and slavish execution of communist political ambitions. See Fáy (1990). 31 Fónagy and Pótó (2016). 29

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optimised by reducing network fragmentation and consolidating research institutes, providing a professional critical mass in the newly merged research centres (the network’s 38 research institutes and two research centres were consolidated into five research institutes and ten research centres).32 In the summer of 2018, only a few years after implementation of this reform, the Minister responsible for Innovation and Technology admitted in an interview that certain budgetary changes were contemplated regarding financing of research conducted by the research institutions of the Hungarian Academy of Sciences.33 In a sudden move,34 the annual budget of the Academy’s research network was reallocated to the Ministry for Innovation and Technology, denying funds for the research network’s material expenses.35 Many understood this to be a government strategy to coerce the Academy into giving up its research network.36 While the Academy made several concessions, the bill submitted and eventually passed by the National Assembly, amending the Act on the Hungarian Academy of Sciences, did not reflect what had been negotiated.37 Amendment by Act LXVIII of 2019 severed the entire research network hitherto operating under the framework and financed through the budget of the Academy, renaming it the ELKH and placing it under the control of a governing board, whose president was jointly nominated by the President of the Academy and the Minister responsible for Innovation and Technology, and whose 12 members were delegated on an equal basis by the Academy and the Minister for Innovation and Technol-

32

See in detail Pálinkás (2011), pp. 1282–1296. The Minister underlined that “it is a legitimate demand that we spend the taxpayers’ money on useful goals, benefitting society”, arguing that certain areas of focus should be agreed upon for future research. He went on to say: “Of course, the Academy will have to think about whether it wants to continue operating its research network in its present form.” Palkovics László: Prioritások kellenek (László Palkovics: We need to set priorities). Magyar Hírlap, 6.7.2018. 34 The time allowed for the Academy to vet the draft bill on reorganizing the budget for financing the Academy and its research network has become notorious for its brevity: the Hungarian Academy of Sciences was given 54 minutes to make observations and comments on the bill. When asked about this, the Minister for Innovation and Technology responded: “When you are in a leadership position, be it minister, rector or president of the Academy, you also accept that life does not work the same way as when you were an engineer or mathematician. Leadership means responsibility, that you have to react in the interest of the institution in question. If you have 54 minutes, then you react in that time. Of course, the truth is quite different: I had informed president Lovász of what was to happen two days before the decision.” Palkovics László: A CEU sok mindent megtehetett volna, de nem tett meg (László Palkovics: CEU could have done a lot of things, but it didn’t), 31.10.2018, https://168ora.hu/itthon/palkovics-laszlo-a-ceu-sok-mindent-megtehetett-volna-denem-tett-meg-158423, last accessed 21.1.2021. 35 Visszatartja az akadémiai intézetek alapfinanszírozását a kormány (The Government is withholding the basic funding of the Academy’s institutes), https://hu.euronews.com/2019/02/09/ visszatartja-azakademiai-intezetek-alapfinanszirozasat-a-kormany, last accessed 21.1.2021. 36 https://24.hu/belfold/2019/03/28/mta-lovasz-laszlo-palkovics-laszlo/, last accessed 21.1.2021. 37 Summary of the situation of the Hungarian Academy of Sciences, https://adf2019.com/2019/11/ 17/summary-of-the-situation-of-the-hungarian-academy-of-sciences/, last accessed 21.1.2021. 33

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ogy.38 Reorganisation of the Academy’s research network under the ELKH was justified as follows: “The sustainable improvement of Hungary’s long term competitiveness makes it necessary to put in place a more transparent, incentivizing and flexible organisational and financial structure. A main pillar of this endeavour is the establishment of the Eötvös Loránd Research Network, which shall contribute to a greater and more efficient use of fundamental research findings (. . .).”39 According to an amendment to Act no. LXXVI of 2014 on scientific research, development and innovation,40 the use of all assets under the ownership and use of the Academy and its research institutes, necessary for operating the research network, shall be transferred to the Eötvös Loránd Research Network free of charge. These two major events are evidence that academic life, and as a corollary academic freedom in Hungary, are under pressure from a strong, parliament-backed Government. But what is the political context of these regulatory changes?

4 The Academic and Political Context Surrounding Legislative Upheaval in Hungarian Academic Life “Lex CEU” and the law severing the Academy’s research network were explained on the basis of the need to prevent the awarding of fraudulent diplomas and to foster greater efficiency of available research capacities.41 However, it is worth putting these aspects into context.

4.1 4.1.1

Academic Aspects Prevention of Fraudulent Diplomas

As far as the awarding of fraudulent diplomas is concerned, a report prepared for the Government on the operation of foreign institutions of higher education in Hungary mentions several concerns.42 These include problems such as a lack of license to perform dual education or enrolling students who are not eligible for MA studies

38 Decision no. 85/2019 (VIII. 1) of the Prime Minister on appointing the president and members of the governing board of the Eötvös Loránd Research Network. 39 https://www.parlament.hu/irom41/06322/adatok/fejezetek/36.pdf, last accessed 21.1.2021. 40 Art. 46(1) of Act no. LXVIII of 2019 on the amendment of certain laws for the transformation of the institutional system and financing of research, development and innovation. 41 Venice Commission, CDL-PI(2017)005—Hungary. Preliminary Opinion on Act XXV of 4 April 2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education, para. 72, https:// www.parlament.hu/irom41/06322/adatok/fejezetek/36.pdf, last accessed 21.1.2021. 42 Jelentés a Kormány részére a külföldi felsőoktatási intézmények magyarországi működéséről (Report to the Government on the operation of foreign higher education institutes in Hungary),

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(e.g. Université Pantheton Assas); lack of cooperation with a registered Hungarian higher education partner institution (e.g. University of Wales); the foreign institution of higher education programmes have no accreditation by an independent external higher education audit agency (e.g. Central European University); the diploma awarded by the foreign higher education institution is not recognised by the country of origin (e.g. École d’Art Maryse Eloy); the foreign institution of higher education is not recognised as a higher education institution in its country of origin (e.g. CECOS College London); failure to provide the data required under the Act on National Higher Education (almost all foreign universities and colleges operating in Hungary); conducting education programmes not registered in Hungary (e.g. Central European University). Regarding the CEU, the report elaborates that although it had no accreditation by an independent external higher education agency, it had to comply with a highly complex set of requirements prescribed by the Middle States Commission on Higher Education to maintain its accreditation in the USA. It further mentions that although 17 programmes of CEU were not registered in Hungary, the request for registration for all programmes had since been submitted to the Educational Authority. The main concern underlying the requirements mentioned in the report and the subsequently enacted further conditions under the amendments made to the Act on National Higher Education, according to the explanation provided to the Venice Commission, was to prevent the awarding of fraudulent diplomas, and the defrauding and exploiting of students in Hungary. It seems, however, that CEU eventually complied with the legal requirements in place, the only missing condition being an international agreement between Hungary and the country of origin, a condition completely beyond the CEU’s sphere of competence. Although the text of an agreement between Hungary and the state of New York was finalised, the Hungarian Government did not sign the agreement.43 Meanwhile, it is worth noting that CEU is ranked as a university of high global renown,44 higher than other universities operating in Hungary, according to the

pp. 6–10. The report concludes that only McDaniel College fulfils all the requirements of the laws governing the operation of foreign higher education institutions in Hungary (p. 12). 43 According to Michael Ignatieff, rector of CEU: “At first the Hungarian government insisted that such an agreement should be with the United States. The US government pointed out that the US constitution leaves jurisdiction in matters of higher education to the states. Eventually, in order to break the impasse, the Governor of New York State, where we are accredited, offered to negotiate a new agreement with Hungary to settle CEU’s legal status once and for all. Through the summer of 2017, the negotiations made good progress. A text of the agreement was finalised in September that would allow CEU to remain in Budapest. CEU agreed a further agreement with Bard College to conduct educational activities in New York. In October, in a sudden reversal, the Hungarian government decided not to sign the New York deal and instead to extend the deadline for compliance with the original “Lex CEU” for another year.” Ignatieff (2018), p. 3. 44 “Although figures vary slightly, the CEU welcomes nearly 1500 students from over 110 countries, including about 400 Hungarian students each year, and brings together academic staff from over 40 countries. Because of its academic excellence, it has been ranked among the world’s top universities and maintains fruitful co-operation relations with prominent educational and scientific

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Times Higher Education ranking, based on the “institution’s performance across teaching, research, knowledge transfer and international outlook”.45 One can argue that university rankings are based on very different indicators, which may also be weighted differently, leading to divergent results.46 One can also argue that these rankings put undue emphasis on research and reputation, while failing to capture other important elements of a university’s performance.47 Nevertheless, such rankings may be considered objective factors that inform prospective students’ choices and at least in part explain the popularity of the programmes of highly ranked universities, such as CEU.

4.1.2

Efficiency of the Academy’s Research Performance

In light of government plans to enhance the competitiveness of Hungarian research, an effort to evaluate the academic productivity and performance of the Academy’s research network48 was undertaken by the Scientific Presidential Committee of the Academy. The Committee was composed of seven members delegated by the Academy and seven members delegated by the Ministry for Innovation and Technology, who jointly determined the principles, aspects and methodology49 for evaluating the Academy’s research institutes. institutions all over the world. It is undisputed that CEU, since its establishment, has provided a significant contribution to Hungary’s academic and scientific life.” Venice Commission, CDL-PI (2017)005—Hungary. Preliminary Opinion on Act XXV of 4.4.2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education, para 24. Bárd (2018). “The Central European University (CEU) was founded after the political changes of 1989–1900, to assist Central and Eastern Europe to overcome the legacy of communist regimes and to implement “western” research and education methods, assisting in developing students’ ability and willingness to critical thinking, to accept and respect the diversity of views and opinions. The CEU soon became an important focal point and central institution in the Hungarian academic sphere, building good relations with other academic institutions, NGOs and even government circles”, states Lattmann (2017), p. 1. The CEU was the only university in Hungary to offer exclusively master’s and doctoral programs, without offering bachelor’s degrees, meaning it works with a smaller number of selected students. Besides the outstanding teaching staff, this may well be one of the factors that figure in the excellent ranking of the university. 45 https://www.timeshighereducation.com/world-university-rankings/2020/world-ranking#!/page/ 0/length/25/sort_by/rank/sort_order/asc/cols/stats, last accessed 21.1.2021. A full breakdown of the methodology and the weight of the indicators applied in the ranking is also available on the website. It should be mentioned that several Hungarian universities (University of Szeged and Eötvös Loránd) held impressive rankings according to the Academic Ranking of World Universities (ARWU) system, which places emphasis on teacher excellence. However, since Nobel prize winning professors no longer teach in these Hungarian institutions, they are no longer included in the ARWU ranking. See Kiss (2012). 46 For a detailed account, see Kacheng (2013); Bekhradnia (2016). 47 Hazelkorn (2019). 48 The performance of the Academy’s research network was last reviewed for the period between 2010 and 2015. 49 https://mta.hu/mta_hirei/az-akademiai-kutatointezet-halozat-2019-es-atvilagitasanakszempontjai-es-menetrendje-109290, last accessed 21.1.2021.

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The results indicated that the performance of the Academy’s research network was among the best in Europe, especially in the context of research output and public funds invested. The evaluation concluded that no large-scale reorganisation of the research network was necessary, whereas international cooperation could be enhanced and young researchers included as a way towards future development.50 It is worth noting that this evaluation was conducted by the Academy itself, which may call into question the objective nature of the findings. However, it should be stressed that the Academy invited the Ministry for Innovation and Technology to participate in the evaluation, which the latter declined.51 Nevertheless, in April 2019, in an attempt to bridge the gap between the Government’s focus on competitiveness and innovation and the Academy’s mission to perform fundamental research, the Academy prepared a White Paper on the Operation of the Academy’s research network and innovation, incidentally under the programme heading: Eötvös 2020. The programme was meant to hash out the Academy’s research institute potential in contributing to innovation through partnership and cooperation.52 Notwithstanding the results of the evaluation and the proposals in the White Paper, 3 months later, the bill severing the Academy’s research network was passed by the National Assembly, reorganizing the research institutes under a new name, yet unknown to the international academic community, and jeopardizing the potential draw of the Academy, whose name had become a brand.

50 Az MTA és az ITM közötti költségvetési vita (The budgetary dispute between the MTA and the Ministry for Innovation and Technology), https://mta.hu/az-mta-es-az-itm-kozotti-koltsegvetesivita/jol-teljesitenek-es-jo-helyen-vannak-befejezodott-az-mta-kutatointezet-halozatanakteljesitmenyertekelese-109573. See in detail: mathematics and natural sciences research institutes: https://mta.hu/data/dokumentumok/egyeb_dokumentumok/2019/01_AKT_eloterjesztes_2a_ melleklete_Atvilagitas%202019%20%20osszefoglalo_matematikai%20es% 20termeszettudomanyok_.pdf, last accessed 21.1.2021; life sciences: https://mta.hu/data/ dokumentumok/egyeb_dokumentumok/2019/01_AKT_eloterjesztes_2b_melleklete_Atvilagitas% 202019%20%20osszefoglalo_elettudomanyok.pdf; humanities and social sciences: https://mta.hu/ data/dokumentumok/egyeb_dokumentumok/2019/01_AKT_eloterjesztes_2c_melleklete_ Atvilagitas%202019%20osszefoglalo_bolcseszet%20es%20tarsadalomtudomanyok.pdf, last accessed 21.1.2021. 51 Részleges megállapodás az MTA és az ITM között (Partial agreement between the Hungarian Academy of Sciences and the Ministry of Technology and Innovation), 12.9.2018, https://mta.hu/ mta_hirei/reszleges-megallapodas-az-mta-es-az-itm-kozott-109009, last accessed 21.1.2021. 52 Boda (2019).

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Political Aspects Stop Soros: I Stand with CEU

The re-regulation of the requirements faced by foreign higher education institutions operating in Hungary took place in a specific political context, marked by the Stop Soros campaign, during which more than 2 billion Forints in public funds were spent to ‘consult’ the public on the ‘Soros plan’ and to inform Hungarians by means of billboards that “Soros would settle millions from Africa and the Middle East – Stop Soros!”. Meanwhile, the Stop Soros law amending several other acts was passed by the National Assembly, requiring the registration, levying and possible expulsion of members of organisations promoting mass immigration.53 The connection between the founder of CEU and the Stop Soros campaign became apparent when while answering questions relating to the “Lex CEU” bill regarding the conditions for operating a foreign higher education institution in Hungary, Prime Minister Orbán referred to CEU as the “Soros university”, remarking that “fraud is fraud, no matter who commits it.”54 Since then, the nature of the Stop Soros campaign has been underlined by the fact that the Prime Minister no longer refers to CEU by its name, but consistently uses the phrase “Soros university”.55 These events were accompanied by a strong anti-CEU and anti-Soros campaign in the media,56 illustrated by the historical low-point when the newspaper Figyelő published an article listing among other things, CEU professors’ names and branding them mercenaries of Soros.57 The perceived political attacks on CEU were met with pushback from students, civilians and academia, resulting in several demonstrations in the spring and early summer of 2017 under the slogan “I stand with CEU”58 and expressions of support from scientists, academic interest groups59 and Nobel laure-

53

Act no. VI of 2018 on the amendment of certain acts in respect of measures against illegal immigration. 54 A Soros-egyetem jövője kormányközi tárgyalásokon múlik (The future of the Soros university depends on international negotiations), 31.3.2017, https://www.kormany.hu/hu/a-miniszterelnok/ hirek/a-soros-egyetem-jovoje-kormanykozi-targyalasokon-mulik, last accessed 21.1.2021. 55 Most recently in January 2019, Orbán Viktor válaszai a nemzetközi sajtótájékoztatón felmerült újságírói kérdésekre (Viktor Orbán’s answers journalists’ questions posed at the international press conference), 12.1.2019, https://www.kormany.hu/hu/a-miniszterelnok/beszedek-publikaciokinterjuk/orban-viktor-valaszai-a-nemzetkozi-sajtotajekoztaton-felmerult-ujsagiroi-kerdesekre, last accessed 21.1.2021. 56 Lattmann (2017), p. 2. 57 Benková (2019), p. 2. 58 Lestyánszky (2017). 59 Statement of the Hungarian Rectors’ Conference, 3.4.2017, http://www.mrk.hu/en/2017/04/03/ statement-of-the-hungarian-rectors-conference/, last accessed 21.1.2021.

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ates.60 Many saw “Lex CEU” as an element in the campaign against George Soros and his ideas, as well as proof of rule-of-law backsliding in Hungary.61 “Lex CEU” was not without political consequences at supranational and regional level, with resolutions passed by European bodies, such as the European Parliament,62 urging Hungary to “start immediate dialogue with the relevant US authorities in order to guarantee future operation of the Central European University [. . .] and to make a public commitment that the university can remain in Budapest as a free institution”. In a similar vein, the Parliamentary Assembly of the Council of Europe63 urged Hungary to co-operate with the Venice Commission and to suspend implementation of the Act amending the National Higher Education Act.

4.2.2

Gender Studies and More Than Academy

The media campaign64 surrounding reorganisation of the Academy’s research network focused initially on the fact that social science researchers concentrate unduly on what were presented as liberal issues, such as minorities, homosexuality, gender65

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https://www.ceu.edu/sites/default/files/attachment/article/17927/cogsciletter.pdf, last accessed 21.1.2021. 61 “CEU was founded by Mr George Soros, public enemy number one in the eyes of the rulers of today’s Hungary. The election campaign before the 2018 parliamentary elections is framed around a government initiative entitled “Stop Soros”, harassing organisations receiving Soros money. CEU and Soros-funded NGOs represent everything the government fights against or is suspicious of, such as the rule of law, fundamental rights, multiculturalism, tolerance, accountable government, transparency, justice, equality, liberal democracy, and open society”, Bárd (2018). See also Bárd (2019b). Zsolt Enyedi (vice rector of CEU) explains: “The campaign against George Soros, the founder and honorary chairman of CEU and an early supporter of the European University in St. Petersburg, adds to our understanding of what is at stake. (. . .) The long-standing tensions between Orbán and Soros, his erstwhile mentor, escalated into an open conflict in 2015, at the beginning of the refugee crisis. Since then virtually the entire discourse of Orbán’s party, Fidesz, is structured around the issue of migration and the person of Soros, as allegedly responsible for the wave of migrants to Europe”, Enyedi (2018), p. 1069. James Kirchick is of the view that: “That same year, the government passed a law setting stricter conditions for accrediting foreign universities, a measure seemingly aimed at a single institution: Budapest’s Central European University (CEU). One of the top academic institutions in all of Central and Eastern Europe, it was founded by Orbán’s bête noir, George Soros, whom the government targeted in the 2018 parliamentary election with anti-Semitic rhetoric and imagery.” (Kirchick 2019, p. 15). 62 Resolution of 17.5.2017 on the situation in Hungary (2017/2656(RSP)). 63 Resolution of 27.4.2017; alarming developments in Hungary: draft NGO law restricting civil society and possible closure of the European Central University (2017/2162). 64 Summary of the Situation of the Hungarian Academy of Sciences https://adf2019.com/2019/11/ 17/summary-of-the-situation-of-the-hungarian-academy-of-sciences/, last accessed 21.1.2021. 65 It is worth noting that as of 2019, Hungarian institutions of higher education can no longer offer qualifications in gender studies. Governmental Decree no. 18/2018 (X. 12.), which amended Governmental Decree no. 139/2015 (VI. 9.) on the register of qualifications obtained in higher education, which repealed row 115 of the register: gender studies.

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and immigration.66 An anonymous article in Figyelő67 claimed that researchers working on these topics were receiving public funds without generating output, and did not want the Government to obtain more insight into what they were working on. On 2 July 2019, researchers, scientists and civilians demonstrated under the slogan “More Than Academy” (MTA, the same as the acronym of the Academy) against severing of the research network.

5 “Lex CEU” and the Academy’s Research Network in the Context of Multi-Level Judicial Governance The legislative changes made to Hungarian academic life, i.e. “Lex CEU” and the reorganisation of the Academy’s research network, gave rise to several legal proceedings before different national, international and European judicial and quasijudicial fora. I now give a brief account of these proceedings and their outcomes.

5.1 5.1.1

“Lex CEU” Application for Annulment of Certain “Lex CEU” Provisions Before the Hungarian Constitutional Court

On 21 April 2017, following enactment of the amendments68 to the Act on National Higher Education, 62 members of the Hungarian National Assembly applied to the Hungarian Constitutional Court to annul the provisions stipulating the requirement of concluding an international agreement with the country of origin for foreign higher education institutions to continue operating in Hungary.69 The applicants claimed that the contested provisions were unconstitutional, breaching Article B (1) on the rule of law, Article X(1) on academic freedom of the Fundamental Law and Article XV(1) and (2) prohibiting discrimination. The applicants argued that the contested provisions infringed Article B(1) of the Fundamental Law guaranteeing the rule of law, since Act no. XXV of 2017 amending the Act on National Higher Education was adopted by a special procedure, Unfortunately, as Barendt explains, ‘attacks’ on academia are often well received by society: “For many people, university life, with its traditional long vacations and relatively relaxed formal working schedules, is a legitimate object for satire and contempt”, Barendt (2010). 67 See A spekuláns emberei, in Figyelő, 19.6.2018. 68 Act no. XXV of 2017. 69 Application and order rendered by the Constitutional Court, available at: http://public.mkab.hu/ dev/dontesek.nsf/0/AF27B40BA3B0B821C1258109003F9B19?OpenDocument, last accessed 21.1.2021. 66

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namely the waiving of the general rules of parliamentary debate, without any substantive justification of the use of this procedure.70 A lack of sufficient time to prepare for the legislative change was also argued. The applicants also claimed breach of Article X(1) guaranteeing academic freedom. They claimed that as a result of the contested provisions, one institution of higher education under the constitutional protection afforded by Article X(1) of the Fundamental Law would be unable to exercise its rights to academic freedom. In fact, according to the application, the requirement regarding conclusion of an international agreement by Hungary and the country of origin in respect of an already operating foreign university restricted professors’ freedom to teach, students’ freedom to learn and their freedom of scientific research. The applicants asserted that the restriction laid down by the contested provision was not unavoidably necessary or appropriate to protect another fundamental right or achieve a constitutional value, and since it stipulated an impossible condition in respect of federal countries of origin, it breached the requirement of legal certainty as well. Finally, the applicants claimed that the contested provisions of the amended Act on Higher Education only affected the professors and students of one foreign higher education institution operating in Hungary, and as such, violated Article XV(1) and (2) of the Fundamental Law that prohibit discrimination. Although the Constitutional Court established a working group in respect of the amendment to the Act on National Higher Education,71 the findings of this group, if any, were not made public. Meanwhile, in its Order no. 3199/2018. (VI. 21.) AB, the Constitutional Court suspended its proceedings until the Court of Justice of the European Union ruled on Case C-66/18 (CJ Judgement, 6 October 2020, Commission v. Hungary), an infringement procedure launched against Hungary by the European Commission.72 In the reasoning of the order, the Constitutional Court recalled that in the course of interpreting the provisions of the Fundamental Law it

Lattmann also raised the question of the validity of the amendment: “As indicated above, the amendment has been adopted by an urgent procedure. Urgency was requested by the deputy Prime Minister Zsolt Semjén, in his official letter, dated 3 April 2017, Budapest. While there is absolutely no acceptable reason of employing the urgent procedure in this case, which can be an argument in front of the Constitutional Court, leading to the invalidity of the adopted law, we have a more problematic issue at hand. Namely, that this document cannot be authentic. Zsolt Semjén was not in Budapest at this day, he was on an official visit to Iran between 1 and 7 of April. This means that the letter could not have been signed by him on 3 April at Budapest”, Lattmann (2017), p. 3. 71 Press release: Munkacsoport állt fel az Alkotmánybíróságon a felsőoktatási törvény módosításának ügyében (A working group has been established at the Constitutional Court on the issue of the amendment of the Act on Higher Education), 31.5.2017, https://alkotmanybirosag. hu/kozlemeny/munkacsoport-allt-fel-az-alkotmanybirosagon-a-felsooktatasi-torvenymodositasanak-ugyeben/, last accessed 21.1.2021. 72 Section 60 of Act CLI of 2011: “The Constitutional Court may exceptionally suspend its proceedings until the termination of proceedings in progress before a court, an authority, other state organ, an institution of the European Union or an international organ, if the decision by the Constitutional Court on the merits of a case depends on the decision on an issue that is dealt with within the framework of proceedings before such organs [. . .]”. See also Várnay (2019), pp. 68 ff. 70

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also considers the jurisprudence of the ECJ.73 It went on to emphasise that it attached special relevance to constitutional dialogue within the European Union. Since the European Commission launched infringement proceedings against Hungary with due consideration to the preliminary opinion of the Venice Commission rendered on the same amendments to the Act on National Higher Education, and since the fundamental rights invoked by the Venice Commission match those of the Charter of Fundamental Rights, which are in turn substantively linked to the fundamental rights invoked by the applicants in the case, the Constitutional Court decided to wait for the ECJ before deciding the infringement case against Hungary.74 All the more so, since in a Hungarian interpretation of the Solange II jurisprudence, the Constitutional Court declared that “by way of its institutional reforms, the Charter of Fundamental Rights and the ECJ the European Union is able to guarantee a protection of fundamental rights that is identical to that afforded by national constitutions or at least sufficient” (Decision no. 22/2016. (XII. 5.) AB).75

5.1.2

Preliminary Opinion Rendered by the Venice Commission on the Amendment of the Act on Higher Education

In the summer of 2017, on request of the Parliamentary Assembly of the Council of Europe, the Venice Commission delivered its preliminary opinion on the amendment of the Act on National Higher Education.76 The preliminary opinion is pioneering, in the sense that it is the first time the Venice Commission had to deal with matters of academic freedom.77 In its preliminary opinion, the Venice Commission assessed the procedure for adoption of the amendment, the amendment’s effect on fundamental rights and the proportionality of the regulation. It is worth noting that owing to the circumstances

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Order no. 3199/2018. (VI. 21.) AB, Reasoning [2]. Ibid, Reasoning [3]. 75 In his dissenting opinion, Justice Stumpf pointed out that none of the conditions for suspending the Constitutional Court’s proceedings prevailed, since the unconstitutionality of “Lex CEU” did not depend on the ECJ’s findings, and even if the ECJ was to find that “Lex CEU” breached EU law, it would still be up to the Hungarian state to repeal the law. Furthermore, legal certainty requires that the Constitutional Court does not delay rendering a decision in the case. The only case where the Constitutional Court could justifiably suspend its proceedings to await the ECJ’s judgment would be if the Constitutional Court had already reached a preliminary finding that “Lex CEU” is not unconstitutional, but, in accordance with the principle of cooperation, it is willing to potentially defer to a different judgment of the ECJ. See: Dissenting opinion of István Stumpf attached to Order no. 3199/2018. (VI. 21.) AB (4.6.2018). 76 CDL-PI(2017)005 Venice Commission Opinion 891/2017—Preliminary Opinion on Act XXV of 4 April 2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education (11 August 2017). 77 Ibid, para. 38. 74

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of the adoption of “Lex CEU”, the Venice Commission understood the amendment to be targeting Central European University.78 As far as urgent adoption of the amendment is concerned, justified by the need to have it enter into force before the subsequent academic year, the preliminary opinion stated that “this reason seems not very convincing since there was no urgent need to change the applicable rules. Existing rules under the 2011 [Act on National Higher Education] already enabled the authorities to address the irregularities [. . .].” The Venice Commission underlined that the Government failed to consult with the affected universities and members of the Hungarian academic community, such as the Hungarian Rectors’ Conference, which represents the higher education sector in Hungary. Furthermore, “no impact assessment was made and no public consultation took place, as the draft law was presented to parliament and adopted within a few days”.79 In respect of the lack of consultation with affected higher education institutions, the Venice Commission referred to the Committee of Ministers recommendation on public responsibility for higher education, which underlines the need for public authorities to consult with higher education institutions and research institutes when elaborating or amending the legal framework applicable to them.80 While member states enjoy a broad margin of appreciation in designing specific rules regarding their national education systems, they must respect academic freedom and relevant international standards. While the Venice Commission acknowledged that “the regulatory framework proposed by the Law, as far as it applies to the establishment of new foreign universities [. . .] which are not yet active in Hungary, [. . .] does not appear to contradict applicable international standards and norms”,81 the same does not

78 “It is undisputed that the new provisions directly hit CEU, as this is an institution which is based outside the EEA with its legal seat in a federal state member of the OECD (the USA); which does not have a campus in its country of origin; which employs non-EU academic staff; and whose Hungarian partner bears the name of the Hungarian translation of ‘Central European University’ (Közép-európai Egyetem, KEE). It should also be noted that on 4 April 2017, in an exposé launching the debate on the Bill to amend the Act on Higher Education in Parliament, speaking about the reasons for the new regulations, the Hungarian Minister of Human Capacities made specific reference to the CEU and its founder Mr George Soros. The Minister mentioned both (the CEU and its founder) in connection with the purpose of the Bill and the aims pursued with the new requirements, and in relation to the irregularities found following a review of foreign universities in the autumn of 2016. Particular mention was made of the peculiarities of the CEU legal status and the CEU unique position in this respect.” CDL-PI(2017)005 Venice Commission Opinion 891/2017— Preliminary Opinion on Act XXV of 4.4.2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education (11.8.2017), para. 23. 79 CDL-PI(2017)005 Venice Commission Opinion 891/2017—Preliminary Opinion on Act XXV of 4.4.2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education (11.8.2017), para. 53. 80 Recommendation CM/Rec(2007)6 of the Committee of Ministers to the member states on the public responsibility for higher education (16.5.2007), para. 10. 81 CDL-PI(2017)005 Venice Commission Opinion 891/2017—Preliminary Opinion on Act XXV of 4 April 2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education (11.8.2017), para. 63.

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apply to existing foreign higher education institutions operating in Hungary. Should the existing universities affected by the amendment be unable to fulfil the conditions set by the law, the right to education of students participating in ongoing programmes will be breached, for they will not be able to complete their studies. Meanwhile, the higher education institution would ultimately have to cease its programmes, stop academic partnerships and ultimately close its operations in Hungary, amounting to a breach of its academic freedom.82 Concerning the proportionality of the amending legislation, the Venice Commission investigated the grounds for the amendment. Besides the justification of preventing irregularities in the operation of foreign institutions of higher education already mentioned in the justification to “Lex CEU”, Hungary also explained to the Venice Commission that the new rules were necessary by reason of “foreign policy and national security considerations; concerns of transparency and non-discrimination among foreign universities with operations in Hungary”.83 The Venice Commission found that these are legitimate concerns, nevertheless, it pointed out that the intended goals “seem rather vague and broad, and have little connection as far as existing universities are concerned, with the actual scope of the new restrictions imposed by the Law”, indeed, it considered it “doubtful whether the Law responds to a genuine need in respect of universities which are already active in Hungary”.84 As far as the requirement of concluding an international agreement between Hungary and the country of origin is concerned, the Venice Commission emphasised that it is questionable whether making the operation of a private university entirely dependent on a political decision unrelated to academic interest is justified.85 Furthermore, the Venice Commission considered the deadlines set by the amendment to be unrealistic, in particular, with the “severe legal consequences” of licence-withdrawal attached to the failure to meet these deadlines,86 which raises the problem of proportionality. Referring to the requirement of legal certainty, the Venice Commission asserted that a sudden change of the regulatory framework in respect of existing institutions of higher education fails to satisfy the principles of foreseeability and legitimate expectations. Indeed, the Venice Commission posed the question whether it would have been more appropriate to address the irregularities found by the Educational Authority with less intrusive measures than those enacted under Act XXV of 2017.87 In its conclusions, the Venice Commission recommended that the Hungarian authorities exempt already existing foreign higher education institutions from the requirement of prior international agreement between Hungary and the country of

82

Ibid, para. 65–67. Ibid, para. 70. 84 Ibid, para. 74. 85 Ibid, para. 88. 86 Ibid, para. 75. 87 Ibid, para. 81. 83

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origin,88 as well as the obligation to conduct programmes in the country of origin (campus obligation).89

5.1.3

Infringement Proceedings Before the Court of Justice of the European Union

The European Commission launched infringement proceedings against Hungary 8 months after Hungarian members of parliament submitted their application for the annulment of certain provisions of “Lex CEU” to the Constitutional Court. On 7 December 2017, the Commission brought Hungary before the ECJ, claiming that “Lex CEU” “disproportionately restricts EU and non-EU universities in their operations”.90 In particular, the Commission was of the view that the Act on National Higher Education, as amended by Act no. XXV of 2017 breached the freedom of higher education institutions to provide services and establish themselves in the EU. The Commission claimed that the amendment breached the principle of national treatment as set forth under Article XVII of the General Agreement on Trade in Services (GATS). The Commission further stressed that privately funded education institutes come under the scope of both the TFEU provisions on the freedom to provide services and the Services Directive,91 regardless of whether they are profitmaking. More importantly, the Commission stressed that the amendment “runs counter to the right of academic freedom, the right to education and the freedom to conduct a business as stipulated under the Charter of Fundamental Rights of the European Union92 and the Union’s legal obligations under international trade law.”

88 Of course, one could argue that a complete exemption of existing universities from the requirements set forth under the Act on Higher Education would be uncalled for, and the Venice Commission, while reiterating the recommendation that such exemption should be granted, concedes (para. 103): “Should this requirement nevertheless be maintained, it would be important to introduce flexibility with regard to the timeframe and the practical arrangements required for its implementation.” It is worth noting that eventually such temporal ‘flexibility’ was indeed granted by law, but was in itself insufficient for the CEU to meet the other requirement, namely, that the Hungarian Government sign the necessary agreement. 89 The Venice Commission also recommended that the prohibition of “misleading” identical names in different languages be removed where no risk of confusion exists, to remove restrictions on programme cooperation between Hungarian and foreign partner universities and to frame the new rules on work permits in a way that does not disproportionately affect academic freedom. CDL-PI (2017)005 Venice Commission Opinion 891/2017—Preliminary Opinion on Act XXV of 4.4.2017 on the Amendment of Act CCIV of 2011 on National Tertiary Education (11.8.2017), para. 124. 90 The Commission brings Hungary before the European Court of Justice of the EU over the Higher Education Law, Press Release, 7.12.2017, https://ec.europa.eu/commission/presscorner/detail/hu/ IP_17_5004, last accessed 21.1.2021. 91 Art. 56 TFEU and Art. 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12.12.2006 on services in the internal market, OJ L 376/27. 92 Art. 13, 14, 16 of the Charter of Fundamental Rights.

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Advocate General Kokott (AG) submitted her Opinion in case C-66/18 on 5 March 2020.93 The Advocate General clarified that since the EU assumed responsibility under the mixed agreement of GATS for violations by its member states, the ECJ has jurisdiction to proceed in infringement proceedings against a member state based on the relevant legal basis in the GATS and Article 216(2) TFEU.94 As far as the requirement regarding the conclusion of an international agreement with the foreign university’s state of origin is concerned, AG Kokott confirmed the infringement of the national treatment obligation under the GATS, since Hungary had not made use of the option to introduce limitations set out under Article XVI:2 of the treaty. As such, “the requirement of the conclusion of an international treaty for higher education institutions having their seat in third countries leads to a difference in treatment between institutions having their seat in Hungary and institutions having their seat in third countries”.95 While the Advocate General conceded that conclusion of international agreements is a common instrument in international cooperation in higher education to prevent fraudulent practices, it in fact involves an element of political discretion on the side of the concluding states which is not amenable to judicial review and as such, amounts to a ‘licence’ requirement, an element Hungary had not opted for under GATS, since it undertook to provide unrestricted national treatment to service providers.96 It is also unclear how such an agreement would prevent fraudulent practices in the case of already existing institutions of higher education. As such, the requirement of an international agreement with the state of origin was an arbitrary measure, violating Article XVII of the GATS in conjunction with Article 216(2) TFEU.97 Next, the Advocate General assessed a possible breach of the Charter of Fundamental Rights by “Lex CEU”. AG Kokott noted that the Charter was applicable in cases where member states are implementing Union law (Article 51(1) of the Charter), which includes instances where a member state internally puts EU obligations under international law, such as Article XVII GATS, into effect within its own regulatory competence.98 As far as infringement of the freedom to found educational establishments under Article 14(3) of the Charter is concerned,99 the Advocate General noted that in case of privately financed education institutions, this freedom is not only a specific expression of the freedom to conduct a business guaranteed 93

Opinion of Advocate General Kokott (5.3.2020) Case C-66/18 Commission v. Hungary. Art. 216(2) TFEU: Agreements concluded by the Union are binding upon the institutions of the Union and on its member states. 95 Opinion of Advocate General Kokott (5.3.2020) Case C-66/18 Commission v. Hungary, para. 111. 96 Ibid, para. 116–118. 97 Ibid, para. 122–125. 98 Ibid, para. 127–129. 99 Art. 14(3) of the Charter: The freedom to found educational establishments with due respect for democratic principles and the right of parents to ensure the education and teaching of their children in conformity with their religious, philosophical and pedagogical convictions shall be respected, in accordance with the national laws governing the exercise of such freedom and right. 94

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under Article 16 of the Charter, but also an institutional guarantee of diversity in the field of higher education.100 Nevertheless, since Article 14(3) of the Charter provides that this freedom is subject to “the national laws governing the exercise of such freedom and right”, AG Kokott examined the admissible limitations of this right. Following the assessment, she concluded yet again that the requirement of an international agreement under Hungarian law constitutes an arbitrary measure, since it applies to all institutions without the need to demonstrate quality deficiencies and without any evidence as to how deficiencies would be eliminated by way of an international agreement.101 Advocate General Kokott also examined the possible infringement of academic freedom guaranteed under Article 13 of the Charter, pointing out that “the Court has not yet had an opportunity to take a view on the scope of protection offered by the second sentence of Article 13 of the Charter”.102 The Advocate General expressly referred to the case law of the ECtHR, citing Article 52(3) of the Charter and the Explanations of the Charter and concluded that the Act on Higher Education does not directly limit academic freedom as a right to conduct academic research and to adopt and disseminate academic opinions. “It is nevertheless likely to deprive academics working at the universities concerned of the infrastructure needed to exercise academic freedom,”103 since academic freedom also includes a guarantee of the institutional and organisational framework of research and teaching. A requirement under national law which puts an end to research or teaching at a university constitutes a breach of Article 13 of the Charter. Such a restriction is only permissible, if prescribed by law and is necessary in a democratic society in order to safeguard aims such as public safety, prevention of disorder and crime (cf. Article 10 European Convention on Human Rights and Article 52 (1) of the Charter).104 Due to its unjustified and arbitrary nature, the Advocate General concluded that the requirement of an international agreement under Hungarian law is disproportionate and cannot justify the limitation of academic freedom ensured under the Charter. In a second step, the Advocate General assessed the requirement of the existence of genuine teaching activities in the state of origin, prescribed by “Lex CEU” for foreign universities. AG Kokott qualified the rule according to which foreign universities that do not offer higher education in their state origin after expiry of a transitional period must cease their activities to be a restriction on the freedom to provide services enshrined in Article 49 TFEU. Since the requirement is only aimed at foreign universities, it is directly discriminatory. As such, Hungary could only rely on Treaty Exceptions, such as public policy under Article 52(1), to justify this

100

Opinion of Advocate General Kokott (5.3.2020) Case C-66/18 Commission v. Hungary, para. 130–133. 101 Ibid, para. 138–140. 102 Ibid, para. 142. 103 Ibid, para. 144. 104 Ibid, para. 146–148.

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restriction under EU law.105 However, AG Kokott pointed out that “the justification of public policy means protection against a genuine and sufficiently serious threat affecting one of the fundamental interests of society. Although the importance of the aims of preventing deceptive and fraudulent practices and assuring high teaching quality should not be dismissed, no fundamental interests of society are affected within the meaning of this definition”.106 The Advocate General concluded that the requirement therefore infringed the freedom to provide services under Article 49 TFEU. Finally, since the measure under scrutiny was discriminatory in nature, it could not exploit the possibility under Article 16(1) and (3) of the Services Directive, namely, to introduce a national rule making the exercise of a specific service in the member state’s territory subject to compliance with requirements, since these national rules must be non-discriminatory, necessary and proportionate.107 The Advocate General also examined whether the requirement of genuine teaching activities in the state of origin prescribed under “Lex CEU” breached the fundamental rights of academic freedom and the freedom to found educational establishments (Articles 13 and 14(3) of the Charter). AG Kokott noted that since the rule under scrutiny is a deficient transposition of the Services Directive, the Charter applied, and if genuine teaching activities in the state of origin did not commence, the prohibition to continue research and teaching activities constituted an interference with the Charter rights mentioned above. In a first step, the Advocate General examined whether the requirement was necessary, as asserted by Hungary, to prevent fraudulent practices and to ensure quality teaching. While the requirement of teaching activities in the state of origin may be appropriate to verify the legality of an education programme, it goes beyond what is necessary, since other appropriate proof may be accepted by the host state (AG Kokott does not elaborate on what these proofs would be).108 As far as the aim of quality control is concerned, it was questionable whether the existence of teaching activities in the state of origin was an appropriate means to ensure quality teaching in the host state, in fact, further quality control measures had to be introduced to ensure quality control after the initial foundation of the university. Therefore, the Advocate General concluded that the national measure requiring genuine teaching activities in the state of origin breached the fundamental rights of academic freedom and the freedom to found education institutions guaranteed under the Charter. The Opinion of the Advocate General already provides several arguments for the applicability of the Charter of Fundamental Rights to the case and the violation of various rules of the TFEU. The ensuing judgment described by Demuro and Schiedermair in great detail in this volume built on these arguments. The judgment is of great importance for determining the lawfulness of ex post national requirements restricting the establishment of foreign institutions of higher education and the

105

Ibid, para. 154–159, 162. Ibid, para. 160. 107 Ibid, para. 170–175. 108 Ibid, para. 177–185. 106

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provision of higher education services in a member state of the EU. But the judgment is also ground-breaking because for the first time, the ECJ was bound to assess Article 13 of the Charter of Fundamental Rights not only from the perspective of artistic freedom, but also in respect of academic freedom, contributing to framing the substance of this specific fundamental right.

5.2

Reorganisation of the Academy’s Research Network

On 2 September 2019, a month after Act no. LXVIII of 2019 reorganizing the Academy’s research network under the Eötvös Loránd Research Network came into force, the president of the Academy submitted a constitutional complaint to the Hungarian Constitutional Court, requesting that several provisions of the amending legislation be annulled with ex tunc effect.109 The constitutional complaint alleged breach of Article XIII of the Fundamental Law on the right to property and Article X on artistic and academic freedom, in particular subsection (3) on the constitutional status of the Hungarian Academy of Sciences. According to the grounds for the complaint, the contested legislation amounted to an ex lege transfer of use of certain assets owned by the Academy to the Eötvös Loránd Research Network without consideration. The complaint asserted that the source of the assets and the way these were acquired (public funds received from the budget) were irrelevant from the perspective of the constitutional protection of the Academy’s property rights over these assets. Since the Academy was not given complete and immediate compensation for loss of these assets, the fact that the Academy remained the owner in name only means that its property rights had been breached. The complaint also alleged breach of Article X of the Fundamental law, in particular subsections (2) and (3) on academic freedom and the status of the Academy, which reads “Hungary shall protect the scientific [. . .] freedom of the Hungarian Academy of Sciences”. While the latter paragraph may be considered an institutional guarantee, it also vests the Academy with rights, such as legal standing to enforce its constitutional rights under the Fundamental Law and the preservation of its condition at the time the Fundamental Law was adopted. In concrete terms, without its research network, the Academy will be incapable of exercising its rights ensured under academic freedom, such as the right to conduct research and the right to freely determine the area, methods and aspects for evaluating research. Consequently, the Academy will no longer be in a position to carry out its public service of cultivating and promoting science.

109

Alkotmányjogi panaszt nyújtott be Lovász László, az MTA elnöke (László Lovász, the President of the Hungarian Academy of Sciences submitted a constitutional complaint), 3.9.2019 https://mta. hu/mta_hirei/alkotmanyjogi-panasz-benyujtasa-109944, last accessed 21.1.2021.

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6 Considerations and Conclusions Although the ECJ judgment in “Lex CEU” has already been rendered, the Constitutional Court’s proceedings remain suspended. Nevertheless, some preliminary observations can be made. While both the CEU and the Hungarian Academy of Sciences are entitled to academic freedom and the protection ensured thereunder, a distinction can be made between the legal status and constitutional/EU law protection of private institutions of higher education and state financed research institutions carrying out public service tasks. As emphasised by Judge Pinto de Albuquerque, the state enjoys a different margin of appreciation when regulating state and private entities. Where private institutions of higher education are concerned, it seems to go against academic freedom to prescribe conditions which cannot reasonably be met by a set deadline or requirements that are completely beyond the control of the affected university or college. The targeting of certain institutions through seemingly neutral rules, without proper cause and proportionate means, is unlawful. As Zsolt Enyedi (vice rector of CEU) emphasises, “One of the most practical lessons from the plight of CEU is that when we think about academic autonomy we must consider not only obvious political constraints such as censorship, but also the biased and instrumental use of regulations.”110 As far as state-financed institutions of higher education or research are concerned, the state’s margin of appreciation may be wider. Indeed, one may argue that the state can freely dispose of institutions and assets that were established and financed by the state to serve the public. In this reading, only institutions which are specifically protected under the Fundamental Law (institutional guarantee), namely the Hungarian Academy of Sciences and the Hungarian Academy of Arts, will be able to escape reorganisation or even dissolution. This approach would only entail protection for the public bodies of the two Academies, effectively placing all further institutes and bodies established by them into the ambit of state-funded entities of which the state can freely dispose. An opposing perspective would be to declare that the Academy benefits from the institutional guarantee under Article X(3) of the Fundamental Law as a whole, including its research network, rendering reorganisation of the network under a new name and leadership unconstitutional. Another aspect concerns the property rights of public bodies and their possible right to complete and immediate compensation. One could argue that the state has no obligation to compensate for reorganizing property relations among its own emanations. An opposing view would mean that the state, although entitled to conduct expropriation in exceptional cases and in the general interest, would have to substantiate that these conditions apply, and offer complete and immediate compensation for expropriated property. Of course, the question arises: since the law reorganizing the research network of the Academy does not transfer the Academy’s 110

Enyedi (2018), p. 1074.

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ownership, merely the use of assets to the Eötvös Loránd Research Network, do the rules on expropriation even apply, given that both the Academy and the Network are state-funded entities? Nevertheless, even if a state’s regulatory discretion extends to reorganizing statefunded research networks, the lack of proper consultation and coordination with the addressees of the new legislation and the complete absence of impact assessments that would justify and substantiate the benefits of the new rules deeply undermine the legitimacy of such laws. It is worth noting that material changes, such as those affecting CEU and to a lesser extent perhaps those aimed at the Academy’s former research institutes, have high costs which at least in the case of the Eötvös Loránd Research Network, are borne by the taxpayer. Not only is it “a legitimate demand that we spend the taxpayers’ money on useful goals, benefitting society”,111 but also that we conduct the necessary preparatory work to assess the benefits of change and inform society of the costs and concrete projections of the expected positive outcomes. Lack of consultation, withholding funds and failing to inform members of research institutes and the wider public of the merits of proposed changes undermines public trust, leads to uncertainty, and consequently to possible emigration of the best scientists to other countries. One can only hope that these changes to the Hungarian academic landscape are for the best, and that “in a few years’ time we will all see the results and realise that being a researcher is a financially and socially valued profession in Hungary.”112

References Bakaradze E (2018) Legal protection of main principles of academic freedom in EU. Research Association for Interdisciplenary Studies. http://rais.education/wp-content/uploads/2017/10/ 016March.pdf. Accessed 21 Jan 2021 Bárd P (2017a) The rule of law and academic freedom or the lack of it in Hungary. European Political Science. https://www.researchgate.net/publication/325368065_The_rule_of_law_ and_academic_freedom_or_the_lack_of_it_in_Hungary/link/5c782afc92851c6950492401/ download. Accessed 21 Jan 2021 Bárd P (2017b) The open society and its enemies: an attack against CEU, academic freedom and the rule of law. CEPS Policy Insights J 14:1–17 Bárd P (2017c) The impossible condition in “Lex CEU”. Visegrad Insight, 17 October. https:// visegradinsight.eu/the-impossible-condition-in-lex-ceu/. Accessed 21 Jan 2021 Bárd P (2018) The rule of law and academic freedom or the lack of it in Hungary. Eur Polit Sci J 19:87–96

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Palkovics László: Prioritások kellenek (László Palkovics: We need to set priorities), Magyar Hírlap, 6.7.2018. 112 Lovász László levele az MTA Kiválósági Intézetek kutatóihoz (László Lovász’s letter to researchers of the Academy’s Institutes of Excellence), 2.9.2019 https://mta.hu/mta_hirei/lovaszlaszlo-levele-az-mta-korabbi-kutatoihoz-109939, last accessed 21.1.2021.

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Bárd P (2019a) A schoolbook case of eliminating dissent by an illiberal regime: rule of law backsliding and attacks against academic freedom. https://europatarsasag.hu/sites/default/files/ open-space/documents/magyarorszagi-bardpetraruleoflawandtheceu.pdf. Accessed 21 Jan 2021 Bárd P (2019b) To leave or not to leave? Viktor Orbán’s war against George Soros and the CEU dilemma. Reconnect Europe, 14 February. https://reconnect-europe.eu/blog/bard-orbanceudilemma/. Accessed 21 Jan 2021 Barendt E (2010) Academic freedom and the law: a comparative study. Hart, Oxford Bekhradnia B (2016) International university rankings: for good or ill? High Educ Policy Inst HEPI Rep J 89:1–30 Benková L (2019) Hungary-Orbán’s project towards “illiberal democracy”. Austria Institut für Europa- und Sicherheitspolitik J 2:1–4 Boda Z (ed) (2019) Vitaanyag a magyar tudományos közösség számára. Fehér könyv az MTA-kutatóhálózat működéséről és az innovációról. (Discussion paper for Hungarian scientific community. White Paper on the operation of the Academy’s research network and innovation). https://mta.hu/data/dokumentumok/hatteranyagok/Eotvos2020.pdf. Accessed 21 Jan 2021 Enyedi Z (2018) Democratic backsliding and academic freedom in Hungary. Perspect Polit J 4:1067–1074 Fáy L (1990) Kisdoktorok, nagydoktorok, kalandorok (Minor doctors, full doctors and vagabonds). http://beszelo.c3.hu/cikkek/kisdoktorok-nagydoktorok-kalandorok. Accessed 21 Jan 2021 Fónagy Z, Pótó J (2016) A Magyar Tudományos Akadémia története (History of the Hungarian Academy of Sciences). https://mta.hu/hatteranyagok/a-magyar-tudomanyos-akademiatortenete-105670. Accessed 21 Jan 2021 Hazelkorn E (2019) The dubious practice of university rankings. Elephant in the lab. https:// elephantinthelab.org/the-accuracy-of-university-rankings-in-a-international-perspective/. Accessed 21 Jan 2021 Ignatieff M (2018) Academic freedom from without and within. In: Ignatieff M, Roch S (eds) Academic freedom: the global challenge. CEU Press, Budapest, pp 1–9 Kacheng S (2013) Misleading University rankings: cause and cure for discrepancies between nominal and attained weights. J High Educ Policy Manag J 2:206–214 Kirchick J (2019) Hungary. In: Polyakova A, Taussing T, Reinert T, Kirisci K, Sloat A, Kirchick J, Hooper M, Eisen N, Kenealy A (eds) The anatomy of illiberal states: assessing and responding to democratic decline in Turkey and Central Europe. Brookings, Washington, pp 13–15 Kiss Z (2012) Nemzetközi felsőoktatási rangsorok – miért olyan jók a legjobbak? Competitio J 11 (2):127–142 Láncos P-L (2009) 70/G. § A tudományos és művészeti élet szabadsága (Article 70: Academic and artistic freedom). In: Jakab A (ed) Az Alkotmány Kommentárja (Commentary of the Constitution). Századvég, Budapest Lattmann T (2017) Attack on the CEU in Hungary. Attack only on academic freedom? Int Law Reflect J 6:1–4 Lestyánszky Á (2017) Tens of thousands protest for education freedom in Budapest. The Budapest Beacon, 10 April. https://budapestbeacon.com/tens-thousands-protest-education-freedom-buda pest/. Accessed 21 Jan 2021 Pálinkás J (2011) Kiválóság – Fenntarthatóság – Versenyképesség (Excellence – sustainability – competitiveness). Magyar Tudomány J 11:1282–1297 Sayers D (2014) Article 13 – Freedom of arts and sciences. In: Peers S, Hervey T, Ward A (eds) The EU Charter of Fundamental Rights: a commentary. Hart, Oxford, pp 422–443 Várnay E (2019) Az Alkotmánybíróság és az Európai Bíróság. Együttműködő alkotmánybíráskodás? (The Constitutional Court and the European Court. Cooperative constitutionalism?). Állam- és jogtudomány J 2:63–91 Vrielink J (2011) Academic freedom as a fundamental right. Proc Soc Behav Sci J 13:117–141

The COVID-19 Pandemic as a Challenge for Academia and Academic Freedom: An Italian Perspective Flaminia Aperio Bella

Abstract This article concerns the impact of SARS-CoV-2 on academic freedom. In the dramatic framework of the pandemic, science is playing a pivotal role and many aspects of its freedom are challenged. I examine the monopolisation of scientific debate, the impact of “social distancing” on achievement of research objectives and the new challenges of digital teaching. Focusing on the Italian situation, I look at the pros and cons of measures adopted to tackle the emergency. Keywords Academic freedom · COVID-19 pandemic · Italian government response · Fundamental rights

On the whole, it [the state] must not demand from them [the universities] anything that relates directly and straight-forwardly to the state itself, but must nurse the inner conviction that when they [the universities] achieve their final purpose, they will also fulfil its [the state’s] purposes—W. v. Humboldt, On the Internal and External Organisation of the Higher Scientific Entities in Berlin (1810)

1 Introduction. The Spread of SARS-CoV-2 The world is currently faced with the dramatic challenge of COVID-19.1 The pandemic is stressing many aspects of human civilization, including public trust in science and in the relation between laypeople and experts.

1

COVID-19 is the name of the disease caused by the new coronavirus SARS-CoV-2.

F. Aperio Bella (*) Department of Law, Roma Tre University, Rome, Italy e-mail: fl[email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_7

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The recent spate of disregard for facts and delegitimization of expertise (typical of the ‘post-truth’ society)2 seems to be transforming into a new approach guided by faith in science. After the recent appearance and consolidation of political movements questioning the essence of expertise, the pandemic is fortunately reinstating the crucial role experts play in informing decisions with deep societal consequences.3 History teaches that the demand for scientific and technical expertise increases in periods of crisis and uncertainty, when governments and the public seek certainty in understanding problems and choosing responses.4 This creates a need for what is perceived as evidence-based policymaking that signals to the public that decisions are based on reasoned informed judgments which serve the public good, rather than special interests.5 Although the pandemic has led to increased reliance on scientific and technical experts,6 a possible downside to this renewed trust in science is that scientific and technical results are seldom “neutral”. With the growing importance (and media exposure) of academia’s representatives, the risk of the politicization of scientific and technical information is lying in wait. In other words, the centrality that the pandemic has given to science is ambiguous. Although the use of scientific and technical experts to inform, legitimise and justify government policies has proven to be an ingredient of a successful COVID-19 response,7 the pitfall of over-exposure of science is its politicization. We all witnessed the overabundance of information, some accurate and some not, circulating during the pandemic, significantly defined by the World Health Organization as “infodemic”.8 This “pandemic of information” also affected academia to some extent, pushing the producers of scientific knowledge (authors, editors and so

Post-truth “relates to or denotes circumstances in which objective facts are less influential in shaping public opinion than appeals to emotion and personal belief”, Oxford Dictionary. On the topic, see Mannion (2017) and for a comment, De Cleen (2018), p. 268. 3 Morvillo (2020). 4 Weible et al. (2020). 5 The idea of using evidence to inform policy is not new. As far back as ancient Greece, Aristotle put forward the notion that different kinds of knowledge should inform rulemaking. This would ideally involve a combination of scientific knowledge, pragmatic knowledge and value-led knowledge. The term “evidence-based policymaking” is intended to signify a modernising mandate, committed to replacing ideologically-driven politics with rational decision-making. It was widely used and studied in the second half of the 1990s. 6 Weible et al. (2020). 7 Ruger (2020) identified four characteristics of a just framework for a resilient COVID-19 response: governing for the common good; shared responsibility for scientifically grounded systems; rational, compassionate and transparent communication; ethical leadership and trust. 8 See the Joint statement by World Health Organization (WHO), United Nations (UN), United Nations International Children’s Emergency Fund (UNICEF), United Nations Development Programme (UNDP), United Nations Educational, Scientific and Cultural Organization (UNESCO), Joint United Nations Programme on HIV/AIDS (UNAIDS), International Telecommunication Union (ITU), UN Global Pulse and International Federation of Red Cross and Red 2

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forth) to disseminate incomplete and not yet reviewed studies (so-called “preprints”) that were misinterpreted by the public,9 causing confusion and ultimately mistrust in governments and the public health response.10 This fact is related to the public understanding of science,11 and confirms that the ongoing pandemic sets new challenges for academia in its relationship with laypeople. A reading of this renewed framework through the lens of academic freedom reveals many scenarios, likewise ambiguous, in which the role of academia is pivotal and academic freedom is at stake.

2 The Impact on Academic Freedom Academic freedom is an open legal concept that was increasingly common in national constitutions in the nineteenth and twentieth centuries. These constitutions were subsequently models for a number of provisions in EU and international recommendations and treaties.12 The doctrinal debate on the precise definition of academic freedom is heated and confirms its many dimensions.13 What is relevant here is the impact of the pandemic on at least three remarkable aspects of academic freedom. First, the pandemic monopolised scientific debate. The importance of studies in the field of medicine since the outbreak does not need to be underlined. Scientific Crescent Societies (IFRC), “Managing the COVID-19 infodemic: Promoting healthy behaviours and mitigating the harm from misinformation and disinformation”. 9 Lawton (2020). 10 See for example the study promoting the use of the hydroxychloroquine to treat patients with COVID-19. It appeared in preprint version and was enthusiastically broadcast by the mass media and politicians, and was then published by The Lancet. After the publication of clinical studies with contrary results, the study was revoked. This controversial issue had reflections on the Italian regulatory system and led to the decision of the Italian Pharmaceutical Agency (AIFA) to suspend its use off-label to treat COVID-19, except in the context of controlled clinical trials and without reimbursement by the National Health Service. The lawfulness of AIFA’s decision is currently before the Italian Administrative Court: see Aperio Bella (2021). 11 Irwin and Wynne (1996), pp. 1–18. 12 The most significant reference to academic freedom in the context of the EU is to be found in Art. 13 (‘Freedom of the arts and sciences’) CFR. Academic freedom also figures centrally in the activities of the Council of Europe (see Recommendation R (2000) 8 of the Committee of Ministers of 30 March 2000 on the research mission of universities and Recommendation 1762 (2006) of the Parliamentary Assembly of 30 June 2006 on ‘Academic Freedom and University Autonomy’). As far as the normative context of the UN is concerned, both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) are of importance for the question of academic freedom, recognizing its fundamental role in the protection of economic, social and cultural rights, such as education and the advancement of society. At international level, it is worth mentioning the UNESCO Recommendation concerning the Status of Higher-Education Teaching Personnel of 1997. 13 Ex multis, Karran (2009), p. 168.

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progress was not arrested by the pandemic, and the year 2020 will also be remembered for its incredible scientific results, first and foremost the development (production and distribution) of vaccines in such a short time. Of course, huge research funding was allocated to the ongoing emergency, not only in the field of medicine. Internal authorities and institutions (at national, EU and global level) targeted a large part of their resources at COVID-related topics (e.g. the EU “ERAvsCORONA” action plan and the related “corona platform”) in order to investigate all aspects of the impact of this dramatic event on civil society. The same can be said for private companies investing in Research and Development (R&D). A predictable result is that most research outcomes will concern this subject, marginalizing other topics, as well as curiosity-driven (so-called “pure”) research. Secondly, lockdowns and social distancing affected the achievement of research objectives. It is currently more difficult for scientists to carry out their research in the most appropriate and efficient way. Although we have high-performing new technologies at our disposal, the scientific richness stemming from “in person” relations is in danger. Another major consequence is that limited access to libraries, laboratories and in-depth study spaces could limit freedom of research by restricting its means. Thirdly, the “new” experience of remote learning, which has been fundamental in the emergency, could threaten academic freedom. Universities all over the world have closed their campuses and moved towards online education in the wake of the pandemic. The rapid transition to remote learning posed many well-documented, pedagogical hurdles14 and e-learning also had an impact on free speech. The pros and cons of the three issues are examined below.

2.1

Pros and Cons of COVID-Driven Scientific Debate

The pandemic signified a sudden drastic shift in the issues academics and research networks pay attention to, and hence changes in the agendas of many decisionmaking venues, such as academic institutions and agencies involved in R&D. This raised some questions: has COVID-19 definitively changed the justification of science and our approach to it? Is it always desirable that the whole science system be driven by social and utility imperatives? Before we examine these questions, it is worth noting that since the pandemic began, thousands of studies related to it have been published. Although the fact that “the research community has mobilised in the face of the pandemic in an unprecedented way”15 is a laudable demonstration of social engagement, it hides certain

14

The topic has also been widely investigated from a legal perspective. See Calvano (2020), Prisco (2020) and Torchia (2020). 15 John Inglis at the academic publisher Cold Spring Harbor Laboratory Press in New York, quoted by Lawton (2020).

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downsides. First, the already mentioned impressive increase in “preprint” studies has raised concerns about their improper use.16 Moreover, convergence of global research interest on the pandemic has overshadowed one of the most important characters of free research: its variety. The physiological monopolization of scientific debate caused by the terrible event has had more impact in countries where national investment in research is deficient. A lack of funds encourages researchers to seek project-driven resources and to shift their research efforts to more “profitable” topics. There is an insidious risk of confusing profit and research.17 Italy is below the Organisation for Economic Cooperation and Development (OECD) average in public funding for education and research18 and is therefore exposed to this risk. The confluence of academic efforts on a single topic has had positive aspects too. Thanks to the need for synergy, international academic collaboration is flourishing in response to COVID-19, beginning in the epistemic community of epidemiologists, virologists and pharmacologists, then spreading to the whole of academia.19 It has also stimulated free sharing of research: some prominent publishers have allowed free access to scientific publications useful for the study of COVID-19 and a huge amount of data hitherto accessible at a high price has become open access.20

2.2

Effects of Lockdown Measures on the Achievement of Research Objectives

Freedom of research is a key aspect of academic freedom.21 It has a number of dimensions, including research autonomy, source confidentiality and the right to information. In the latter dimension, freedom of research can be seen as a continuation of freedom to study, as both are partially concerned with gathering and The number of articles published on the online platform of medical “preprint” articles “medRxiv” increased impressively during the pandemic from 1100 in the first eight months of activity of the website to 3700 published in the first two months of the pandemic. 17 The notion that “funding manoeuvres” deprive researchers of the freedom to choose the subject of their activity dates back many decades: Nigro (1972), p. 744. About the general risk of polarization and isolation of research in some academic and private centres, see Seckelmann (2012). 18 “Education at a glance” (OECD, 2019) offered a troubling picture of the Italian education system. Challenges and issues concerned low public funding (expenditure on primary to tertiary institutions was 3.6% of GDP against the OECD average of 5%), widespread early school leaving (14.5% with peaks of 21% in Sardinia), quite low numbers of graduates per year, 28% among 25–34-year-olds, also because “University fees in Italy are higher than in many other European countries” and teachers’ starting salaries are still below the OECD average. See Calvano (2020). 19 For some of the initiatives promoted at global level in the field of law, see the Global Pandemic Network (https://www.globalpandemicnetwork.org/) and the Lex-Atlas COVID-19 (https:// lexatlas-c19.org/, last accessed 10.2.2021). 20 Caso (2020), p. 3. 21 Corso and Mazzamuto (1994) and Merloni (1989). 16

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ordering information and knowledge. However, freedom of research has another important dimension because research cannot be based solely on information that is commonly known or readily accessible. Robust and enforceable access to information is required in order to produce high-quality research.22 This fundamental aspect was jeopardised by the pandemic. After declaration of a state of emergency,23 when it was clear that the coronavirus was circulating in Lombardy, the Italian Government approved lockdown measures that suspended all laboratory activities and made access to libraries extremely difficult. The freezing of university activities lasted until 4 May, when the Decree of the President of the Council of Ministers (DPCM)24 of 26 April 2020 imposed social distancing, personal protection devices and organisational protection measures on examinations, traineeships, research, laboratory experimental and teaching activities and university libraries.25 It was unclear how science could move forward under the limitations of social distancing. This law severely complicated research working conditions in the hard lockdown phase and in the subsequent phase starting in spring 2020, when the Government passed measures aimed at allowing cautious resumption of the previously suspended activities. Collateral measures, such as postponement of deadlines for the submission of applications for National Scientific Qualification,26 accompanied by extension of the mandate of evaluation commissions were authorised.27 Some universities and research entities also postponed presentation of PhD theses. Then, Decreto Legge no. 34 of 19 May 2020 allowed PhD students finishing their studies to opt for postponement. The measure was confirmed and extended by subsequent legislative acts. The decision to give researchers more time to carry out their work did not fail to kindle debate: the fact that not all universities allowed postponement of PhD theses raised concern about equal treatment. Regarding measures adopted at central level, extension of the mandate of evaluation commissions for National Scientific Qualification seemed to violate the rotation principle, and ultimately the principle of impartiality.

22

Vrielink et al. (2011), p. 126. Resolution of the Council of Ministers of 31.1.2020 adopted pursuant to Decreto Legislativo no. 1 of 2018 (Civil Protection Code), G.U. no. 26 (1.2.2020). 24 DPCM is a generic format for any sort of administrative content delegated to the President of the Council of Ministers (hereafter PM) by ordinary law. The DPCMs issued during the pandemic had the legal nature of ordinanze allowing the PM to adopt them “by way of derogation from every legislation in force, while complying with the general principles of the legal system”. Apart from “general principles”, the only legislative sources that apply to DPCMs are the Italian Code of Civil Protection, which gives the PM power to enact such regulatory measures, and the Decreto Legge that envisages use of such measures (see Aperio Bella et al. 2021, para II.1). 25 Calvano (2020). 26 See Art. 101 of Decreto Legge no. 18 (17.3.2020), later converted into Law no. 27 (24.4.2020), G.U. no. 110 (29.4.2020). 27 Extension of the mandate of commissions to temporarily overcome the problem of appointing new commissions in the emergency situation. 23

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On the bright side of difficult access to “material” sources was the opening of access to databases and storage software. At global level, some prominent publishers allowed free access to scientific publications useful for the study of COVID-19. In Italy, universities were encouraged by law to ensure remote access to their databases and, later, specific funding was devoted to the improvement digital resources.28 Easier access to “dematerialised” files ultimately reduced the environmental impact of research. Widespread use of new technologies increased the number of remote conferences and seminars, also promoting opportunities for scientific debate.

2.3

New Challenges in Teaching: The Digital Divide and Other Issues

With regard to teaching activities, the forced transition to remote learning posed for teaching methods and equipment. Faculties were required to design online courses in a matter of days, when quality e-learning curricula call for careful planning, involving adaptation of teaching to the communication tool used. The choice and structure of the platforms were at variance with the essence of academia and with education in general as a public function. Such a sudden change in how courses were delivered exposed students to problems of access to technology and resources, and inequalities became more evident than ever before. In Italy, this increased dependence on technology in the emergency period accentuated the pre-existing digital divide for technological, economic and cultural reasons.29 The subject has been widely studied from the point of view of constitutional law, as online teaching involves fundamental rights to privacy, in addition to the right to education and freedom of teaching enshrined in Articles 33 and 34 of the Italian Constitution. Academic freedom and more generally the freedom of science are deduced primarily from the right to freedom of thought and expression.30 The fact that the lessons are recorded and are not intended to be heard exclusively in the classroom could limit the choice of teaching approaches or in some cases determine an attitude of self-censorship by lecturers and students. How can the issues of remote learning be addressed if the need for accessibility has to be balanced with free speech?

See Art. 101 (6-bis) of Decreto Legge no. 18 (17.3.2020), stating that “Universities and research institutes promote, in their autonomy and even through agreements, remote access tools to bibliographic resources, to databases and software currently accessible only through university networks”. See also Art. 236 of Decreto Legge no. 34 (19.5.2020) targeting specific funding to digital resources. 29 Zuddas (2020), p. 1. 30 See, for example, the explanatory memorandum of the CFR linking the freedom of the arts and sciences under Art. 13 to the freedoms of thought and expression posed by Art. 10 and Art. 11 of the Charter. 28

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The first response to the COVID-19 epidemic in Italy was the closing of schools and universities on 5 March 2020. This measure, which impacted the entire education system at all levels, from preschool to university, was announced by Decreto Legge no. 6 of 23 February 2020 and implemented by the DPCM of 4 March, coming into force on 10th March.31 Article 1, letter g DPCM makes it clear that e-learning was to be the normal method of teaching during the emergency.32 To tackle the issue of the digital divide, Decreto Legge no. 18 of 17 March 2020, together with initiatives launched by Agcom (Autorità garante per le garanzie nelle comunicazioni), the Ministry for Technological Innovation and Digitization (MID) and the Ministry for Education, offered an initial response through strengthening infrastructure capacity and offering material and cognitive support for e-learning activities to those most in need. As a further measure, IT support services by private companies and associations were offered free.33 On 8 April 2020, Decreto Legge no. 2234 regarding schools (“urgent measures on the regular conclusion and orderly start of the school year and on the organisation of state exams”) only included one article regarding universities (Article 7) which concerned electoral procedures of representative bodies. Curiously, despite the countless problems afflicting research and teaching during lockdown, all other decisions were left to universities and their rectors.35 In Italy, most courses are still delivered in remote mode. In some cases, online learning has proved to be a positive experience that may permanently transform universities. In the exceptional pandemic situation, against a background of lack of alternatives and easier access to lectures, class attendance has increased. Because recorded lectures can be reutilised, lecturers’ time may be spent interacting with students, improving the overall quality of learning. On the contrary, it can be argued that due to lack of interaction between students and lecturers, asynchronous formats in particular do not initiate cognitive dissonance that promotes reflective-critical thinking.36 31 Following the Declaration of the state of emergency, when it was clear that the coronavirus was circulating in Lombardy, the Italian Government approved Decreto Legge no. 6 (23.2.2020), G.U. no. 45 (23.2.2020) vesting the President of the Council of Ministers and other “competent authorities” with wide ranging powers to handle the emergency by issuing emergency administrative orders (ordinanze) both typical and atypical, the latter referring to measures to be adopted even beyond the occurrence of conditions described by the primary source. Decreto Legge no. 6 (and the following measures) constituted the basis for the Decrees of the President of the Italian Government (Decreti del Presidente del Consiglio dei Ministri or DPCM) that imposed severe limitations on constitutional freedoms. For a definition of DPCM see information in fn 23. 32 Calvano (2020). 33 This specific initiative, coordinated by the MID, has given concrete substance to the constitutional principle of “horizontal subsidiarity” (Art. 118 of the Constitution), thus demonstrating its vitality and importance at a crucial moment for the social and economic stability of the country (Zuddas 2020, p. 1). 34 Later converted into Law no. 41 (6.6.2020), G.U. no. 143 (6.6.2020). 35 Calvano (2020). 36 Wirth (2021).

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3 Conclusions Here we have tried to shed light on the ambiguous impact of COVID-19 on academic freedom. The nature of contemporary research, often requiring expensive facilities and equipment, makes external funds, awarded competitively, of primary importance in a system with insufficient national public investments, such as Italy. Such a system boosts the funding of research likely to have immediate applications, ascribing value to research with tangible short-term outcomes.37 The risk of neglecting “curiosity-driven” research is even higher when public interest and funds concentrate on solving a global social problem such as a pandemic. From a historical point of view, research has always started with the study of problems of daily interest. However, there are countless cases in which important innovations with decisive consequences for everyday life have occurred by chance through serendipity or unexpected links between apparently distant fields. It was only by construction of abstract theories that we discovered different and more powerful approaches, and were able to return to the original problem with a better toolbox of ideas and concepts. One can say that we would not have been able to develop COVID-19 vaccines so quickly without years of prior research on related viruses and vaccine production. Of course there was also enormous funding that allowed firms to run multiple trials in parallel, and regulators moved more quickly than normal.38 In other words, although the common effort of scientists to support the public goal brought remarkable outcomes, it would be a mistake to completely forget curiosity-driven research. Ultimately, the essence of research could be distorted in the name of contingency. With regard to the impact of the pandemic on the achievement of research objectives, most decisions on how to tackle the emergency were left to universities and their rectors. The consequent differential treatment sparked complaints, for example, that presentation of PhD theses was not postponed in some universities,39 whereas central decisions allowed researchers more time to submit National Scientific Qualification applications. This demonstrates how difficult it is to balance opposing needs. Nevertheless, initiatives such as opening access to data were a concrete expression of sharing and solidarity that favoured cooperation over competition. Hopefully such measures will continue beyond the emergency. Lessons can also be learned from the “positive side” of the ongoing massive e-learning experience: we have to urgently address the issues of inequality and privacy. In the last few months, inequality in student access to computer devices has been grossly unveiled. A second critical point is that once recordings are made, they are likely to last indefinitely. Classrooms should be places where teachers and students engage in candid, spontaneous discussion on complex topics without fear of retaliation. 37

Gibbons et al. (1994), p. 59. Ball (2021), p. 16. 39 Moranduzzo (2021), p. 29. 38

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The future will show whether the pandemic has really been a catalyst for the digitalization of teaching.40 Ongoing assessment by the National Agency for Evaluation of Universities and Research Institutes will hopefully provide a realistic picture of the quality and impact of e-learning during the emergency.41 If any guidance is to be drawn from these issues, it points in the direction of maintaining face-to-face teaching because of its irreplaceable richness, while capitalising familiarization with digital learning. Only by addressing these issues can academia, with its tradition of complex and critical thinking, be a space for dialogue and freedom essential to democracy. The pandemic has at least had the merit of indicating the path to follow.

References Aperio Bella F (2021) Il Consiglio di Stato sospende in via cautelare il provvedimento AIFA di sospensione dell’utilizzo dell’Idrossiclorichina. Osservatorio di Diritto sanitario of Federalismi. it, December 2020, https://www.federalismi.it/nv14/articolo-documento.cfm?Artid¼44761& content¼Il%2BConsiglio%2Bdi%2BStato%2Bsospende%2Bin%2Bvia%2Bcautelare%2Bil% 2Bprovvedimento%2BAIFA%2Bdi%2Bsospensione%2Bdell%E2%80%99utilizzo%2Bdell% 27Idrossiclorichina&content_author¼%3Cb%3EF%2E%2BAperio%2BBella%3C%2Fb%3E. Accessed 10 Feb 2021 Aperio Bella F, Lauri C, Capra G (2021) The role of COVID-19 soft law measures in Italy. Much ado about nothing?. Eur J Risk Regul, Volume 12, Special Issue 1: Special Issue on COVID-19 and Soft Law, March 2021, pp 93–110 Ball P (2021) The lightning-fast quest for COVID vaccines – and what it means for other diseases. Nature 589:16–18. https://www.nature.com/articles/d41586-020-03626-1. Accessed 10 Feb 2021 Calvano R (2020) The Italian education system: a chronically III patient facing Coronavirus pandemic, Intersentiaonline. https://www.intersentiaonline.com/publication/coronavirus-andthe-law-in-europe/652?version¼v-2f6f01ec-324e-637b-c7ca-a6bc0e384e16#H0. Accessed 10 Feb 2021 Caso R (2020) La scienza non sarà più la stessa. Più condivisione, cooperazione e solidarietà dopo il Covid-19?. BioLaw J, 24 March 2020, pp 1–6. https://doi.org/10.15168/2284-4503-620 Corso G, Mazzamuto M (1994) La libertà della scienza. In: Corso G, La Spina A (eds) Il CNR. Struttura e funzioni. Il Mulino, Bologna, pp 169–186 De Cleen B (2018) Populism exclusion, post-truth. Some conceptual caveats comment on ‘The rise of post-truth populism in pluralist liberal democracies: challenges for health policy’. Health Policy Manag 3:268–271. https://doi.org/10.15171/ijhpm.2017.80 Gibbons M, Limoges C, Nowotny H, Schwartzman S, Scott P, Trow M (1994) The new production of knowledge, the dynamics of science and research in contemporary societies. Sage, London Irwin IA, Wynne B (eds) (1996) Misunderstanding science? The public reconstruction of science and technology. Cambridge University Press, Cambridge Karran T (2009) Academic freedom in Europe: time for a Magna Charta? Higher Educ Pol 22:163–189. https://doi.org/10.1057/hep.2009.2

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Wirth (2021). The assessment through surveys started on 14 December 2020. See https://www.anvur.it/news/? attivita¼ava, last accessed 10.2.2021. 41

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Lawton G (2020) How the Covid-19 pandemic has led to a flood of misleading science. NewScientist, 6 May. https://www.newscientist.com/article/mg24632813-000-how-the-covid19-pandemic-has-led-to-a-flood-of-misleading-science/#ixzz6jctidBbE. Accessed 10 Feb 2021 Mannion E (2017) The rise of post-truth populism in pluralist liberal democracies: challenges for health policy. Int J Health Pol Manag 5:249–251. https://doi.org/10.15171/ijhpm.2017.19 Merloni F (1989) Ricerca scientifica (organizzazione). In: Enciclopedia del diritto. Milano, pp 393–410 Moranduzzo S (2021) Proroga negata alle tesi: dottorandi contro il Bo. Il Gazzettino, 26 January, p 29 Morvillo M (2020) I just can’t get enough (of experts): the numbers of COVID-19 and the need for a European approach in testing. Eur J Risk Regul 11:366–374. https://doi.org/10.1017/err. 2020.41 Nigro M (1972) Lo Stato italiano e la ricerca scientifica (profili organizzativi). Rivista trimestrale di diritto pubblico 2:740–802 Prisco S (2020) La didattica universitaria a distanza: “filosofia”, opportunità, limiti e rischi. Dirittifondamentali.it 2:1082–1098 Ruger JP (2020) Social justice as a foundation for democracy and health. BMJ. https://doi.org/10. 1136/bmj.m4049 Seckelmann M (2012) Autonomy and accountability. In: Bergan S, Egrou-Polak E, Kohler J, Purser L, Vukasović M (eds) Leadership and governance in higher education. Handbook for decision-makers and administrators, vol 1/2012. Raabe, Berlin, pp 1–24 Torchia L (2020) Ma lo Stato quando riapre?. IRPA, 24 May. https://www.irpa.eu/ma-lo-statoquando-riapre/. Accessed 10 Feb 2021 Vrielink J, Lemmens P, Parmentier S, LERU Working Group on human rights (2011) Academic freedom as a fundamental right. Procedia Soc Behav Sci 13:117–141. https://doi.org/10.1016/j. sbspro.2011.03.009 Weible CM, Nohrstedt D, Cairney P (2020) COVID-19 and the policy sciences: initial reactions and perspectives. Pol Sci 53:225–241. https://doi.org/10.1007/s11077-020-09381-4 Wirth E (2021) Duty of university professors to teach digitally and the freedom of teaching in Germany. CERIDAP 1, forthcoming Zuddas P (2020) COVID-19 e digital divide: tecnologie digitali e diritti sociali alla prova dell’emergenza sanitaria. Osservatorio Costituzionale AIC 3:1–23

Academic Freedom and the Use of Native Languages (the Italian “English-Only” Saga and Its Downsides) Diana-Urania Galetta

Abstract Starting with the concept of academic freedom, I examine whether and to what extent use of the native language of teachers and the university home-country can be considered to pertain to this freedom. Based on a concrete example, I show how the choice of a non-native language for teaching can affect academic freedom and marginalize the native language of a country as a language of science and culture. Keywords Academic freedom · Native language

1 Introductory Remarks The United Nations Educational, Scientific and Cultural Organization (UNESCO) defines academic freedom1 to include “the right to teach without any interference, subject to accepted professional principles including professional responsibility and intellectual rigour with regard to standards and methods of teaching.”2 Indeed, since medieval times academic freedom has been understood as meaning, first and foremost, the freedom of teachers to teach in their area of expertise without external control. The concept was further defined with the rise of the research-orientated Humboldtian-university model in early nineteenth century Germany.3 The Humboldtian concept enshrined the ideas of Lehrfreiheit and Lernfreiheit, freedom

1

More in general on this concept, see Shils (2012), p. 1 ff. Recommendation concerning the Status of Higher-Education Teaching Personnel, 11.11.1997, para. 29, http://portal.unesco.org/en/ev.php-URL_ID¼13144&URL_DO¼DO_TOPIC&URL_ SECTION¼201.html, last accessed 10.9.2020. 3 Paulsen (1902), passim. 2

D.-U. Galetta (*) Department of Italian and Supranational Public Law, University of Milan, Milan, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_8

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to teach and freedom to learn,4 which are the two closely intertwined aspects of the concept of academic freedom.5 Nonetheless, it is not until the beginning of the twentieth century that the concept evolved further, thanks also to a 1915 document of the American Association of University Professors. According to the 1915 General Report of the US Committee on Academic Freedom and Academic Tenure, “[i]f education is the corner stone of the structure of society and if progress in scientific knowledge is essential to civilization, few things can be more important than to enhance the dignity of the scholar’s profession, with a view to attracting into its ranks men of the highest ability, of sound learning, and of strong and independent character. This is the more essential because the pecuniary emoluments of the profession are not, and doubtless never will be, equal to those open to the more successful members of other professions. It is not, in our opinion, desirable that men should be drawn into this profession by the magnitude of the economic rewards which it offers; but it is for this reason the more needful that men of high gifts and character should be drawn into it by the assurance of an honourable and secure position, and of freedom to perform honestly and according to their own consciences the distinctive and important function which the nature of the profession lays upon them.”6 Also worth mentioning is the Magna Charta Universitatum (MCU), a document originally signed in Bologna by 388 rectors and heads of universities from all over Europe and beyond, on 18 September 1988, the 900th anniversary of the University of Bologna. Among its four fundamental principles, it indicated “Freedom in research and training” as “the fundamental principle in university life” and underlined the need to “preserve freedom in research and teaching.”7 The 2006 Recommendation of the Council of Europe on Academic Freedom and University Autonomy also strongly underlines the right to academic freedom.8 Today, at the beginning of the twenty-first century, academic freedom is facing major challenges. This is partly the effect of new technologies but is mostly a consequence of the impact of “commercial models of higher education”,9 which imply a slow but inexorable shift in power and authority “from the professoriate to professional managers and external governing bodies.”10

4

Further in Altbach (2001), p. 49 ff.; Altbach (2007), passim. Lehrfreiheit and Lernfreiheit, as German scholars put it. See Josephson (2004), passim. 6 General Report of the Committee on Academic Freedom and Academic Tenure, Bulletin of the American Association of University Professors, 1915, republished in Indiana Law Journal, Volume 91, p. 57 ff. (f. 61), http://ilj.law.indiana.edu/articles/AAUP-1915-Statement.pdf, last accessed 10.9.2020. 7 See http://www.magna-charta.org/magna-charta-universitatum, last accessed 10.9.2020. 8 Parliamentary Assembly. Assembly debate 30.6.2006 (23rd Sitting), see Doc. 10943, Report of the Committee on Culture, Science and Education, rapporteur: Mr Jařab). Text adopted by the Assembly on 30.6.2006 (23rd Sitting, https://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp? fileid¼17469&lang¼en, last accessed 10.9.2020. 9 Stilwell (2003), p. 51 ff. 10 See Altbach (2001), p. 216. 5

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2 The Case-Study The aim of this paper is not, however, to deal in general with all aspects of academic freedom. In analysing a well-known Italian case concerning the Politecnico of Milan, a prestigious Italian public university, I focus on one specific question. That question is whether and to what extent imposition of a foreign language for teaching can be considered a violation of academic freedom. Or, to put it the other way round, whether and to what extent use of the native language of the lecturer and of the university’s home-country is to be considered an element pertaining to this freedom. My opinion is that apart from relegating the native language to a marginal position and thus contributing in the long run to its marginalization as a language of science and culture, the choice of a non-native language for teaching has a strong impact on academic freedom. With regard to the present case-study, to make a long story short,11 the “Englishonly” saga started in 2012 with a resolution of the Academic Senate of the Politecnico, deciding that as of the academic year 2013-2014, all master’s degree and PhD programmes had to be taught “exclusively in English”. This imposition of “English-only” on all lecturers teaching master’s degree and PhD subjects, and their students as well, was justified in the name of the directive on the “internationalization of Italian universities” contained in the so-called Gelmini law, Article 2(2) lett. l, Law no. 240 (30 December 2010), G.U. no. 10 (14 January 2011).12 The decision of the Academic Senate was challenged in the Italian Administrative Court (TAR) by a number of Politecnico teaching staff and produced important and highly debated rulings, including that of the Italian Constitutional Court of February 2017,13 at the request of the Council of State (Consiglio di Stato) for a preliminary ruling. On the appeal of the Ministry of Education, University and Research and the Politecnico against the decision of the Administrative Court of Milan (TAR Lombardia), ruling in favour of the plaintiffs,14 the Consiglio di Stato requested a preliminary ruling of the Constitutional Court regarding the constitutional legitimacy of Article 2(2) lett. l of the Gelmini law,15 with reference to Articles 3, 6 and 33 of the Italian Constitution. The Consiglio di Stato expressed doubt as to whether the imposition of compulsory use of English for teaching by the Academic Senate of the Politecnico was coherent with the right to academic freedom protected by Article 11

See further Galetta (2018b), p. 6 ff. More in general, see the papers published in Galetta (2018a), pp. 3–72. 12 Law no. 240 (30.12.2010), G.U. no. 10 (14.1.2011), at https://www.camera.it/parlam/leggi/ 10240l.htm, last accessed 10.9.2020. 13 Italian Constitutional Court, Judgment no. 42/2017. For an in-depth analysis of this decision, see in particular the three papers of Rimoli (2017), p. 405 ff.; Caretti and Cardone (2017), p. 413 ff.; Galetta (2017), p. 422 ff. 14 Tribunale amministrativo regionale della Lombardia, Milan, sez. III, decision no. 1348 of 23.5.2013, available at https://www.giustizia-amministrativa.it, last accessed 10.9.2020. See Galetta (2013c), p. 1 ff. 15 G.U. no. 10 (14.1.2011), at https://www.gazzettaufficiale.it/, last accessed 10.9.2020.

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33 of the Italian Constitution, especially in as far as it could limit free communication with students by eliminating alternatives that may be considered more effective by the teaching staff.16 Article 33 of the Italian Constitution “guarantees the freedom of the arts and sciences, which may be freely taught”. The freedom of art and science is in turn a particular aspect of the general freedom of thought referred to in Article 21 of the Italian Constitution, which begins, “Anyone has the right to freely express his/her thoughts in speech, writing, or any other form of communication”, implying that everyone can express their thoughts according to their personal choice and inspiration, without the State being able to impose a certain form of manifestation. Thus academic freedom also means that teachers can choose the means by which to express their thoughts, the theories they intend to profess and, above all, the teaching method.17 From this perspective there can be no doubt that the choice of language is part of this freedom, so that imposing use of a foreign language not freely chosen by the lecturer and his/her students certainly conflicts with their academic freedom. The opinion I advocate here is clearly shared by the Italian Constitutional Court.18 In its 2017 ruling, following the reference from the Council of State on this matter, it concluded that in imposing the use of the English language, the Politecnico of Milan “could violate academic freedom because it would end up having a significant effect on the manner in which teachers are required to teach, depriving them of the choice over how to communicate with students, irrespective of their degree of familiarity with the foreign language”.19

16 This was the reasoning set out by the plaintiffs, whose opinion was that Law no. 240 (30 December 2010) violated Art. 33 of the Italian Constitution in as far as it limited the free manifestation of communication with students, which itself pertains to academic freedom. 17 In this regard, see Tremp (2016), p. 1 ff. 18 In the words of the Italian Constitutional Court, academic freedom “[. . .] is guaranteed to teachers by Art. 33(1) of the Constitution” and “[. . .] whilst it may manifest in the most disparate ways, it ‘nonetheless constitutes [. . .] a continuation and expansion’ (see Judgment no. 240 of 1974) of freedom within science and the arts”. Italian Constitutional Court, Judgment no. 42/2017. See the English translation of the Conclusions on points of law at www.cortecostituzionale.it/documenti/ download/doc/recent_judgments/S_42_2017.pdf., para. 3.2, last accessed 10.9.2020. 19 “L’esclusività della lingua straniera [...] potrebbe essere lesiva della libertà d’insegnamento, poiché [...] verrebbe a incidere significativamente sulle modalità con cui il docente è tenuto a svolgere la propria attività, sottraendogli la scelta sul come comunicare con gli studenti, indipendentemente dalla dimestichezza ch’egli stesso abbia con la lingua straniera”. Italian Constitutional Court, Judgement no. 42/2017, para. 4. See the English translation of the Conclusions on points of law at www.cortecostituzionale.it/documenti/download/doc/recent_judgments/ S_42_2017.pdf, last accessed 10.9.2020.

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3 Use of the Native Language as a Component of Academic Freedom, Both on the Part of Lecturers and Students: Some Additional Remarks To better understand the line of reasoning followed by the Italian Constitutional Court in its judgment, let us shift the focus to a more general question. When someone teaches or writes in a foreign language, is s/he producing ideas in a non-native language or is s/he just translating them? In this regard, I would first like to recall the conclusion of the General delegation for the French language and for the languages of France20 in its Annual Report for 2006. The conclusion reached was that at European Union level, French tends to become a language for translating into, but not for producing ideas,21 a disappointing finding from the perspective of the “glorious history” of the French language in and outside of Europe!22 At the November 2019 Conference organised by the French Ministry of Culture and the network of organisations for the policy and planning of the French language (Organismes de Politique et d’Aménagement linguistique, OPALE) on “reintroducing linguistic diversity in science”,23 even prominent hard-science scholars were of the opinion that scientific thought also depends on the language which is its vector. Notably, this opinion was expressed by a mathematician, a field in which one would think that language does not really matter.24 The prominent mathematician Laurent Lafforgue, awarded the Fields Medal in 2002,25 made the point strongly, stating that scientists are not situated outside but rather “within languages”. He said that the use of one’s native language gives “depth” to scientific thought, and regretted the fact that “doing mathematics” the same way everywhere 20 Délégation générale à la langue française et aux langues de France, https://www.culture.gouv.fr/ Sites-thematiques/Langue-francaise-et-langues-de-France, last accessed 10.9.2020. 21 Rapport au parlement sur l’emploi de la langue française (2006), https://www.culture.gouv.fr/ Sites-thematiques/Langue-francaise-et-langues-de-France/La-DGLFLF/Nos-priorites/Rapport-auparlement-sur-l-emploi-de-la-langue-francaise-2006, last accessed 10.9.2020, para. 13: “Le français tend à devenir une langue de traduction et non plus de conception”. 22 By the mid fourteenth century, French had become the most widely spoken language in Europe and was the language of diplomatic affairs between countries. Today, in the UN, for example, 85–90% of documents are initially written in English. See Rapport au parlement sur l’emploi de la langue française (2006), para. 97: “Environ 85 à 90% des documents sont rédigés initialement en anglais”. 23 https://www.culture.gouv.fr/Presse/Communiques-de-presse/Le-colloque-Pour-des-sciences-enfrancais-et-en-d-autres-langues-a-l-Institut-de-France-mobilise-la-communaute-scientifiquefrancaise-et-francophon, last accessed 10.9.2020. Two basic questions were addressed: 1) Can science be thought of in several languages? 2) Do we want to continue to make French a living language for science and research? 24 See https://en.wikipedia.org/wiki/Laurent_Lafforgue and https://www.ihes.fr/en/professeur/ laurent-lafforgue-2/, last accessed 10.9.2020. 25 The Fields Medal is awarded every four years at the International Congress of Mathematicians in recognition of outstanding mathematical achievement and promise of future achievement.

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had been detrimental for its depth. He concluded that “lack of thought” in scientific thinking is very much linked to loss of language26 or “linguistic neglect”, something he had pointed out about 15 years earlier.27 The question of the native language as the language of one’s intellectual identity and the language in which all semantic connections in our brain are built is in fact also one of the central arguments used by prominent Italian hard-science scholars against “anglophone monolingualism”.28 As a native Italian speaker who writes not only in English but also in other languages, I am fully aware of the advantages of learning and using foreign languages. It is undeniable, however, that the dissemination of ideas is best done in one’s native language and hence the choice to teach in a foreign language cannot be imposed on university professors without impinging on their academic freedom.29 With regard to the academic freedom of students (Lernfreiheit), university teaching cannot neglect the development of high-level functional skills in the native language of the university. Moreover, it is difficult to deny that extensive use of a foreign language in university courses does not foster mastery of the native language. More than that, replacing one’s native language with another during the years of higher education has been demonstrated to have consequences for the logicalargumentative level that students achieve, both as speakers and as writers.30 At the end of the day, a closely related regression in the control of logical-argumentative structures could undermine students’ ability to reason!31

4 The General Framework of Reference: No Room for Too Much Optimism! Despite all the sound arguments that one can bring against this trend towards “anglophone monolingualism”, the trend is fostered, at least in Italy, by an increasing shift in power and authority from the professoriate to central governing bodies, such as the Ministry for Universities and Research and especially ANVUR, the

“Aujourd’hui [...] on fait des mathématiques partout de la même façon, elles n’ont plus la même profondeur, il manque la pensée. Ce défaut de pensée est très lié à la perte linguistique”. See https:// www.culture.gouv.fr/Sites-thematiques/Langue-francaise-et-langues-de-France/Actualites/Pourdes-sciences-en-francais-et-en-d-autres-langues-colloque-international, last accessed 10.9.2020. 27 “Les faiblesses de la France dans certaines disciplines scientifiques pourraient être liées au délaissement linguistique”, Lafforgue (2005), p. 1 ff. See, in the same vein, Villa (2017), p. 48 ff. 28 See in particular Villa (2017), p. 39 ff. See also Villa (2020). 29 On this point, see Cabiddu (2017), p. 28 ff. 30 Bonomi (2018), para. 3. 31 “Se gli studenti italiani [...] rinunciano alla loro lingua madre, lingua irrinunciabile con cui ci affacciamo a tutti gli ambiti, regrediscono nel controllo delle strutture logico argomentative: un rischio, insomma, per la loro capacità di ragionare”, Serianni (2012). However, according to Graziosi (2015), p. 63, Italian shall remain the language of our feelings, affections and intimacy. 26

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Italian National Agency for the Evaluation of Universities and Research Institutes. The role of this agency is dramatically affecting the traditional role of the academic profession, with important repercussions on academic freedom as well.32 This powerful new National Agency is responsible for: 1. evaluating procedures, results and outputs of institutional management, teaching, research and technological transfer; 2. defining criteria and methods for the assessment of institutions and programmes (including PhD, Master and Post-graduate medical programmes) with a view to their periodic accreditation by the Ministry; 3. steering the assessment activities undertaken by the universities’ Independent Evaluation Units; 4. drawing up procedures for collecting and evaluating student satisfaction with programmes (in cooperation with said Evaluation Units); 5. developing and proposing to the Ministry quantitative and qualitative requirements for university establishment, merger, federation and closure, and the activation, merger or closure of study programmes; 6. providing benchmarks at the request of the Minister for the allocation of public funds, including definition of minimum performance levels and standard unit costs for specific services; 7. assessing the results of programme agreements between MIUR and individual institutions and their contribution to overall improvement of the quality of evaluation systems, based on expected results and predefined benchmarks; 8. assessing the effectiveness and efficiency of public funding programmes and incentive programmes for teaching, research and innovation; 9. undertaking further assessment exercises, defining standard parameters and providing technical regulations at the request of the Minister.33 Thus the agency has the power to affect all meaningful choices of Italian (public) universities. The universities, in a desperate attempt to satisfy the required “internationalization parameters” of their “educational offer”, limit the academic freedom of their professors and teaching staff, often without full awareness of the effects of their actions! In my opinion, this largely explains the phenomenon of Italian university courses taught entirely in English. As clarified by the Constitutional Court, this “anglicization” of education programmes is not a direct consequence of existing laws, because the internationalisation promoted by the Gelmini law is an objective that can be pursued in many ways, of which teaching courses in English is only one.34 Nonetheless, if we take a look beyond our national borders, the situation is not much better. According to a recent paper on academic freedom, academic output in

32 See Altbach (2001), p. 216, who refers more in general to the shift in power and authority from the professoriate to professional managers and external governing bodies. 33 https://www.anvur.it/en/agency/mission/, last accessed 10.9.2020. 34 Galetta (2013a), p. 1 ff.

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the UK, especially that related to teaching, has already fallen in line with the “entrepreneurial models of higher education”.35 Governments, willing to invest less and less money in higher education, implicitly or explicitly support such supposedly “managerial attitudes” on the part of public universities and all moves in the direction of self-financing. The situation is often exacerbated by the use of Information and Communication Technologies (ICT) as part of the teaching process. Probably without even being aware of it, and certainly without complaining about it, academics are giving up all choices and perhaps even ownership of very important aspects of their intellectual output: those related to teaching and teaching output. Regarding students, Mark Davies observes: “Pressures on academics to respond proactively to student requests for change, even if the changes are not considered by the academics in question to be in the long-term academic best interests of students, have the potential to undermine academic freedom as traditionally applied to teaching.”36 Academics often step back as they gradually accept to comply with the needs of more or less “commercial models” of higher education, models that seem to imply massive use of the English language to the exclusion of all others (“anglophone monolingualism”). In this framework, the idea of supposedly attracting students from abroad is used to leverage the obedience and enthusiasm of the teaching staff. What usually happens is that the bombastic offer of bachelor’s and master’s courses “entirely taught in English by prominent academics” affects the quality of teaching in university classes and makes the teaching less effective, due to the constraints of using a foreign language that neither students nor teachers completely master. The English used in such “international classes” is often a kind of “Globish”37 which does not do justice to the students or the teachers.38

5 Detrimental and Non-Proportional Restriction of Academic Freedom? Concluding Remarks I think I have made it clear at this point why the “English-only” saga of the Politecnico of Milan is paradigmatic and an essential point of reference for our discussion on academic freedom, being an important challenge to the freedom of teaching in Italy. It also highlights the well-known crisis in the relationship between the first paragraphs of Article 33 of the Italian Constitution, the ones that protect the freedom of teaching, and the last paragraph of the same article, protecting the

35 And they have also “[. . .] become potentially saleable products to be owned and exploited by universities as they see fit”, so Davies (2015), p. 999. 36 Davies (2015), p. 990. 37 Hatje and Mankowsky (2014), p. 155 ff. 38 In this regard, I totally agree with Serianni (2017), p. 113 ff.

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autonomy of universities.39 In this last regard, and to focus on the Public Law perspective, in a situation such as the one we are dealing with here, a conflict is clearly developing between the individual and the institutional right to academic freedom. That is to say, the institutional autonomy of higher education institutions is used as a pretext to limit the individual rights of higher-education teaching staff. The outcome of the “English-only” saga of the Politecnico has in my opinion been quite disappointing. Despite preliminary ruling no. 42 of 2017 of the Constitutional Court, on which the Council of State based its final decision in 2018,40 the Politecnico has continued to provide courses mainly in English and to expand its offer of courses taught exclusively in English. In 2019, the original plaintiffs therefore promoted a so-called “compliance judgment” (giudizio di ottemperanza) before the Consiglio di Stato. The decision was negative, because in the judges’ opinion, an adequate number of courses were still taught in the Italian language. This suggests that the administrative decision of the Politecnico involved a proportionate balancing of constitutionally relevant interests.41 I honestly do not see how such a conclusion was possible, since in 2019, out of a total of 1452 courses, 1046 were taught in English, 400 in Italian and only six were duplicated in Italian and English.42 It appears to me that a somewhat more careful balancing of the different rights and interests at stake was possible and is still necessary, and that this balance of conflicting interests needed to be struck by the principle of proportionality, as the Constitutional Court itself pointed out in decision no. 42 of 2017.43 In fact, as highlighted in an outstanding paper published in 2010 by the League of European Research Universities (LERU), “[i]f restrictions on individual academic freedom are unavoidable, they should not go any further than necessary in order to

39 In this vein, see Chirulli (2018), p. 29. On the general topic, see the comprehensive study by Baraggia (2016). 40 Consiglio di Stato, sez. VI, decision no. 617 of 29.1.2018 https://www.giustizia-amministrativa.it, last accessed 10.9.2020. 41 “In particolare, risulta un numero adeguato di corsi di lingua italiana che consente di ritenere che sia stata effettuata una scelta amministrativa che rappresenta l’esito di un proporzionato bilanciamento di interessi, di rilevanza costituzionale”, Consiglio di Stato, sez. VI, decision no. 7694 of 11.11.2019 https://www.giustizia-amministrativa.it, last accessed 10.9.2020. 42 This data is provided by the article published on 8.11.2019: Politecnico di Milano: su 40 corsi 27 sono solo in inglese, ma il Consiglio di Stato approva https://italofonia.info/politecnico-dimilano-su-40-corsi-27-sono-solo-in-inglese-ma-il-consiglio-di-stato-approva/, last accessed 10.9.2020. 43 “È ragionevole invece che, in considerazione delle peculiarità e delle specificità dei singoli insegnamenti, le università possano, nell’ambito della propria autonomia, scegliere di attivarli anche esclusivamente in lingua straniera. Va da sé che, perché questa facoltà offerta dal legislatore non diventi elusiva dei principî costituzionali, gli atenei debbono farvi ricorso secondo ragionevolezza, proporzionalità e adeguatezza, così da garantire pur sempre una complessiva offerta formativa che sia rispettosa del primato della lingua italiana, così come del principio d’eguaglianza, del diritto all’istruzione e della libertà d’insegnamento”, Italian Constitutional Court, Judgment no. 42/2017, para. 4.2.

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achieve legitimate institutional academic aims, with means being proportionate to these aims.”44 Stemming from German law and widely used in the European Union Law context, the principle of proportionality has in fact been used, from the very beginning, for such complex balancing purposes.45 With its structured three-step test, it has the advantage of restricting excessively wide discretion in balancing, while making the act of balancing “more transparent, more structured, and more foreseeable”.46 In the last part of my analysis and to conclude, I therefore try to clarify why in my opinion, imposing the use of a foreign language on lecturers and students is a restriction of the academic freedom of both, in the sense of Lehrfreiheit and Lernfreiheit, that cannot pass any properly implemented proportionality test. The legal reasoning on proportionality I want to share here is that already set out by the TAR Lombardia in the decision of May 2013.47 With this decision, it annulled the acts adopted by the Academic Senate of the Politecnico of Milan, requiring that all master’s degree and PhD courses be taught “exclusively in English” starting from academic year 2013–2014. With reference to the provision of the Gelmini law that the decision of the Academic Senate of the Politecnico of Milan meant to implement, TAR Lombardia observed that the “teaching in a foreign language” mentioned in the provision was just one possible means suggested to internationalize the Italian university system, and left broad discretion to universities in the choice of how to concretely achieve this goal.48 In such a case, applying the principle of proportionality means that the decision-maker has to verify that the means chosen to attain the specific (and legitimate) goal are not only appropriate for attainment of that goal, but also match the criterion of necessity, and therefore do not go beyond what is necessary to achieve the goal.49 As TAR Lombardia correctly points out in its ruling, in order to do so, the Academic Senate of the Politecnico should duly have taken the opposing interests of its teaching staff into account, and as far as we are concerned here, certainly the constitutionally enshrined right of freedom of teaching the arts and sciences (Articles 33 and 34 of the Italian Constitution), as well as the right of students to an education in the language that our system identifies as the expression of the cultural and linguistic heritage of our State. Both rights fall under the right to

44

Vrielink et al. (2010), p. 3. See most recently: Galetta (2019), p. 903 ff.; Galetta (2020), passim. 46 Barak (2010), p. 2. 47 TAR Lombardia, decision no. 1348/2013 http://www.giustizia-amministrativa.it, last accessed 10.9.2020. 48 See Law no. 240 (30.12.2010, Gelmini law) for the revision of the statutes of Italian universities, Art. 2(2). It is one of many cases in which the Gelmini law, respecting the statutory autonomy of universities, only indicates a very general set of criteria, with the aim of achieving a specific goal: the internationalization of the Italian university system. See on this point Galetta (2013a), p. 1 ff. 49 See especially Galetta (2012), p. 389 ff. 45

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academic freedom, which is not to be sacrificed beyond what is necessary to achieve the goal of internationalizing the Italian university system. This does not mean excluding “the possibility of teaching law in English in our country”.50 It only means that the choice of teaching in English in an Italian public university needs to undergo an ex ante proportionality test. And this test consists in taking into account all opposing rights and interests concretely at stake and making an appropriate balance.51 In this regard, the second step of the structured proportionality assessment, the necessity test, is the most important. This step is aptly described as “imposition of the mildest means”: if there is a choice between various means, all abstractly suitable for achieving a certain legitimate goal, the one involving the least negative consequences for the freedom/right/opposing interest at stake, must be chosen. From this perspective, if the linguistic diktat imposing the use of “solely English language” in all master’s degree and PhD courses can be considered a suitable means of achieving internationalization, it certainly cannot be considered necessary. Indeed, it goes far beyond what is necessary,52 as its impact on the opposing rights— and especially on the academic freedom of students and lecturers—is clearly too broad and too severe! To conclude, if academic freedom is still considered by academics to be of major importance for their identity and self-esteem,53 we should not forget the warning issued by Philip Altbach. Almost 20 years ago, he declared that academic freedom was far from secure,54 and “those concerned with the core values of the university need to be ever vigilant”. In my opinion, it is therefore a problem if “those who are responsible for leading and funding higher education are far too concerned with finance and management issues”55 to focus on the implications this has in the long term on the notion and content of academic freedom.

50

This is the personal opinion of della Cananea (2013), p. 2. According to Judgment no. 42/2017 of the Constitutional Court, “The objective of internationalisation – which the provision at issue legitimately intends to pursue, enabling universities to enhance their own international vocation, whether by offering an alternative study programme to students or by attracting teachers from abroad – must however be satisfied without undermining the constitutional principles of the primacy of the Italian language, equal access to university education and academic freedom” www.cortecostituzionale.it/documenti/download/doc/ recent_judgments/S_42_2017.pdf, para. 4, last accessed 10.9.2020. 52 Galetta (2013a), p. 1 ff.; Galetta (2013b), p. 1 ff. 53 Altbach (2001), p. 205 ff. See also Enders and Teichler (1995), passim. 54 See for example the reports published on the Scholars-at-risk-Network, https://www. scholarsatrisk.org/academic-freedom-media-review-archive/, last accessed 10.9.2020. 55 Altbach (2001), p. 205 ff. See further in Slaughter and Leslie (1997), passim. 51

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References Altbach PG (2001) Academic freedom. International realities and challenges. Higher Edu 41:205–219 Altbach PG (2007) Tradition and transition. The international imperative in higher education. Brill, Leiden Baraggia A (2016) L’autonomia universitaria nel quadro costituzionale italiano ed europeo. Giuffré, Milano Barak A (2010) Proportionality and principled balancing. Law Ethics Human Rights 1:1–18 Bonomi I (2018) Una nuova questione della lingua. Notizie di Politeia XXXIV-131:30–39 Cabiddu MA (2017) L’Italiano siamo noi: lingua e cittadinanza attiva. In: Cabiddu MA (ed) L’italiano alla prova dell’internazionalizzazione. Guerini, Milano, pp 15–38 Caretti P, Cardone A (2017) Il valore costituzionale del principio di ufficialità della lingua italiana. Giurisprudenza Costituzionale 1:405–413 Chirulli P (2018) Internazionalizzare gli atenei attraverso l’insegnamento in lingua inglese: una questione di proporzionalità. Notizie di Politeia XXXIV-131:19–29 Davies M (2015) Academic freedom: a lawyer’s perspective. Higher Edu 70:987–1002 Della Cananea G (2013) Law, language, and culture. Ital J Public Law 1:1–4 Enders J, Teichler U (1995) Der Hochschullehrerberuf im internationalen Vergleich. Bundesministerium für Bildung, Wissenschaft, Forschung und Technologie, Bonn Galetta DU (2012) Il principio di proporzionalità. In Renna M, Saitta F (eds) Studi sui principi del diritto amministrativo. Giuffré, Milano, pp 389–412 Galetta D-U (2013a) Autonomia universitaria e processi di internazionalizzazione degli Atenei dopo la legge n. 240 del 2010: una “anglicizzazione” necessaria? Riflessioni critiche dalla prospettiva del diritto (amministrativo). GiustAmm 2:1–10. https://www.giustamm.it Galetta D-U (2013b) The choice of teaching “only in English” in an Italian public University is a sign of intellectual subjection and is contrary to the proportionality principle (An Answer to G. della Cananea). Ital J Public Law 2:1–4 Galetta D-U (2013c) Basic English for all? No grazie! Come e perché il TAR Lombardia ha bloccato la fuga in avanti del Politecnico di Milano. Breve nota a TAR Lombardia, sez. III, sentenza 23 maggio 2013, n. 1348. GiustAmm J 6:1–2. https://www.giustamm.it Galetta D-U (2017) Esigenze di internazionalizzazione e principi costituzionali del primato della lingua italiana, della parità nell’accesso all’istruzione universitaria e della libertà d’insegnamento: la Corte costituzionale indica la via per un corretto bilanciamento da parte degli Atenei. Giurisprudenza Costituzionale 1:422–435 Galetta D-U (ed) (2018a) FORUM. Internazionalizzazione degli atenei e politica linguistica: riflessioni sulle implicazioni dell’uso dell’inglese nella didattica universitaria quale strumento di internazionalizzazione. Notizie di Politeia XXXIV-131:3–72 Galetta D-U (2018b) La vicenda dei corsi “solo in inglese” al Politecnico di Milano, fra problematiche giuridiche e problematiche socio-economiche. Notizie di Politeia XXXIV131:6–18 Galetta D-U (2019) Il principio di proporzionalità fra diritto nazionale e diritto europeo (e con uno sguardo anche al di là dei confini dell’Unione Europea). Rivista italiana di diritto pubblico comunitario 6:903–927 Galetta D-U (2020) Le Principe de proportionnalité. In: Auby JB, Dutheil de la Rochère J (eds) Droit Administratif Européen. Bruylant, Bruxelles Graziosi A (2015) La nuova questione della lingua in Italia. In: Beccaria GL, Graziosi A (eds) Lingua Madre. Italiano e inglese nel mondo globale. Il Mulino, Bologna, pp 11–77 Hatje A, Mankowsky P (2014) Sprachgrenzen, Traditionsgrenzen, Systemgrenzen, Denkgrenzen. Europarecht 2:155–170 Josephson SP (2004) Lehrfreiheit, Lernfreiheit, Wertfreiheit: Max Weber and the University Teachers’ Congress in Jena 1908. Max Weber Stud 4:201–219

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Lafforgue L (2005) Le français, au service des sciences. Pour la Science, https://www. laurentlafforgue.org/education.html, p. 8. Accessed 31 August 2020 Paulsen F (1902) Die deutschen Universitäten und das Universitätsstudium. Asher, Berlin Rimoli F (2017) Internazionalizzazione degli atenei e corsi in lingua straniera: la Corte accoglie l’inglese difendendo l’italiano. Giurisprudenza Costituzionale 1:413–422 Serianni L (2012) In: Mangiarotti A, Se le nostre università si convertono all’inglese. Corriere della Sera, 13 April, https://www.corriere.it/cultura/12_aprile_13/mangiarotti-universita-convertonoinglese_4d019c2a-856e-11e1-8bd9-25a08dbe0046.shtml. Accessed 20 Sept 2020 Shils E (2012) Academic freedom. In: Altbach PG (ed) International higher education: an Encyclopedia, vol 2. Routledge, London, pp 1–22 Slaughter S, Leslie LL (1997) Academic capitalism: politics, policies, and the entrepreneurial University. Johns Hopkins University Press, Baltimore Stilwell F (2003) Higher education, commercial criteria and economic incentives. J Higher Edu Policy Manage 25:51–61 Tremp P (2016) Lehrfreiheit und didaktische Expertise. Die Hochschule 2:68–80 Villa ML (2017) La scienza, la lingua e i futuri possibili: monolinguismo o multilinguismo di scambio? In: Cabiddu MA (ed) L’italiano alla prova dell’internazionalizzazione. Guerini, Milano, pp 39–58 Villa ML (2020) Bilinguismo: perché ha ragione il Consiglio di Stato. Scienza in rete, 16 February, https://www.scienzainrete.it/autori/villa/1894. Accessed 20 Sept 2020 Vrielink J, Lemmens P, Parmentier S (2010) Academic freedom as a fundamental right. LERU Advice Pap 6:3–24, https://www.leru.org/files/Academic-Freedom-as-a-Fundamental-RightFull-paper.pdf. Accessed 10 Sept 2020

Part III

Threats to Freedom of Teaching and Research in the Light of a “Governance by Numbers”

Academic Freedom, University Autonomy (Work in Progress) and Striving Towards Accountability: An Italian Perspective Lorenza Violini

Abstract This paper provides a critical overview of legislative attempts to strike a good balance between academic freedom, autonomy and accountability, through an analysis of the Italian constitutional model of academic freedom and the Italian legislation introducing accountability into the previous self-referential model of internal university governance. Keywords Academic freedom · Governance by numbers · University autonomy · Accountability

1 Introductory Remarks: The Interplay Between Academic Freedom, Autonomy and Accountability and Their Misinterpretations Academic freedom is a wide and nuanced concept regarding academic communities. It protects individual activities (freedom of science, freedom of teaching, freedom of expression), and the autonomy of universities (freedom of the collective body). Since all these freedoms and institutional features coexist in the context of institutions of higher education and touch the core of university activity, they are all considered in the present volume, which is concerned with identifying threats to academic freedom today. This essay focuses on the institutional dimension of academic freedom, i.e. on the concept of university autonomy, analysed from two

The title refers to the famous analysis of Robert Berdhal, in “Academic freedom, autonomy and accountability in British universities”, published in Journal Studies in Higher Education, Volume 15, 1990, Issue 2, pp. 169–180, based on the same triad ‘freedom-autonomyaccountability’. L. Violini (*) University of Milan, Milan, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_9

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complementary perspectives: external and internal university governance.1 The first dimension concerns how public authorities control universities from outside; the second relates to how universities are run internally. These two dimensions of academic governance reflect the dual nature of universities: as unanimously underlined by various scholars in the last two centuries,2 universities are a community of teachers and students, each accorded several freedoms (especially freedom of scientific research and freedom of teaching), and are entities that perform public tasks, namely the task of enhancing social, cultural and job-specific skills by providing higher education, a major public good for economic growth and the development of society.3 Being both a “community” and a “public” body, the question is how to combine these two aspects or this “ontological contradiction” (not far from the Humboldtian model of German universities)4 in a coherent framework of government, encompassing internal self-enacted rules and rules stemming from the external regulatory body, the central state and/or regional authorities. This “ontological contradiction” provides the basis for understanding the main problem affecting the definition of university governance in Italy, i.e. its “autonomy”. Indeed, autonomy is a highly disputed term that encompasses both selfgovernment and the limits of state control on universities. The latter has proven to be the dark side of academic autonomy, since external regulation of Italian universities has increased in recent decades, producing “hyper-regulation” which has become a major constraint and even a threat to the multiple dimensions of academic freedom. However, as we shall see, developments in internal governance are also an open issue in the debate on university autonomy and academic freedom in Italy. Italy is not the only country to suffer from not always successful attempts to reform university governance. As widely recognised in the literature, university governance is currently under pressure all over the world from attempts to modernise higher education systems at legislative and administrative level. These attempts are problematical because university governance, i.e. the structure and process of decision-making at institutional and system level, is highly complex and complicated. According to the current definition, it encompasses “decisions on the strategic directions (Leadership), allocation of responsibilities and resources, and monitoring their efficiency and effectiveness (Management), as well as implementation of authorised procedures and application of systems to achieve agreed results (Administration)”.5 In order to cope with the unresolvable contradiction of university autonomy and to adapt university governance to societal and economic changes, Italian universities have experienced two types of transformation: transformation of the value of

1

Middlehurst (2013). See the Project Group UNIMI 2040 (2020), p. 14. 3 See Cassese (1990), p. 764; Pototschnig (1990), p. 39; Gasparri (2000), p. 628; Mangiameli (2001), p. 216; Fenucci (1991), p. 95; Poggi (1998), p. 177; Villone (1967), p. 745. 4 Baraggia (2016), p. 51. 5 Middlehurst (2013), p. 277. 2

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autonomy and transformation of the meaning of academic freedom as understood by the academic class. The former, aiming originally at protecting individual academic freedom from intrusions by the public power, over the years has turned into an instrument for controlling university activities and bodies (so-called autonomy “under ministerial control”).6 The latter is still in the process of shifting from a traditional self-referential culture of the academic class to the value of accountability. In the 1980s, Italian universities perceived the need to give account to the outside world of the quality and output of the academic community, and therefore took up the challenge of answering to societal needs and interests. These transitions and transformations are still sources of unresolved tension, exacerbated inter alia by an endemic lack of resources and by the narrow financial autonomy of single universities. The aim of this contribution is to provide a critical overview with a historical perspective of the legislative attempts to strike a good balance between academic freedom, autonomy and accountability. The first section offers an insight into the Italian constitutional model of academic freedom and its aims. The second section sketches the developments of Italian legislation aimed at shifting the traditional selfreferential model of internal university governance to accountability. The third section explores recent threats to academic freedom arising from the latest reform of university legislation, which aimed to give the university a set of tools (e.g. evaluation of teaching and research production,7 anticorruption norms, links with stakeholders, database for tacking graduate careers), all inspired by the goal of accountability, but very fragmented. The problem of a coherent design for university reform therefore remains unsolved. In conclusion, I offer some reflections on further steps necessary to achieve of a proper balance between academic freedom, autonomy and accountability.

2 The Constitutional Framework The meaning, breath and scope of academic freedom in Italy stem primarily from two provisions of the Italian Constitution (the Constitution) of 1948: Articles 9 and 33. These articles must be read and interpreted in connection with one another, since each sheds light on different aspects of the freedom people and communities enjoy in institutions of higher education. Article 9 sets out one of the twelve fundamental principles of the Italian Constitution: “The Republic promotes cultural development and scientific and technical research. It safeguards natural beauty and the historical and artistic heritage of the nation.” The broad wording, very similar to Article 142 of the Weimar Constitution8

6

D’Atena (1998), p. 3332. See University Autonomy: Just One Step on the Long Road Ahead by A Marra in this volume. 8 Mazzarolli (1997), p. 77. 7

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but different from the Grundgesetz,9 the interpretation of which has been clarified by the German Constitutional Court in its case law on Article 5(3) Grundgesetz,10 allows most interpreters to consider institutions of higher education to be the main recipient, since research and teaching are their main tasks. Article 33 of the Constitution concerns the second task of universities, i.e. teaching according to the highest standards and the most recent research: “The arts and sciences as well as their teaching are free. The Republic lays down general rules for education and establishes state schools for all branches and grades. Public bodies and private persons have the right to establish schools and education institutes, at no cost to the state”. The two articles trace the boundaries of the content (freedom of science and research), the implementation of which is also protected by general freedom of speech under Article 21, but in a very special form, specific to schools and universities: it prevents state authorities from intrusion regarding the ideas school teachers and university lecturers express in the classroom. The last paragraph of Article 33 protects what we defined as the institutional (or collective) guarantee of academic freedom: university autonomy. According to Article 33(6), “Institutions of higher education, universities and academies, have the right to establish their own by-laws (statute) within the limits of state law.” Although university autonomy is proclaimed separately and after freedom of teaching, these two sides of academic freedom are closely related. It is worth remembering that the original aim of the Framers of the Constitution in stating the value of autonomy was to protect the freedom of teaching and research of academics, mainly by granting teaching staff immovability. Indeed, under Fascism, lecturers were moved from one university to another without reason or consent from university boards, often very far from where they lived. They were sometimes even dismissed if they did not comply with the official ideology. The Framers of the Constitution therefore also proclaimed university autonomy as a guarantee of teaching (and research) free from intrusion by the central government. The reference to state power to limit university autonomy is still, however, present in Article 33. And it cannot be otherwise. The tricky point is to understand how legislative boundaries to autonomy can pursue the legitimate goal of fostering academic accountability, without improperly impinging on academic freedom. This issue is still debated among Italian scholars.11 However, engaged in solving the dilemma, they risk overlooking the fact that the original aim of the Framers of the Constitution was to protect academics’ freedom of teaching and research, mainly by granting them immovability, as just explained. This guarantee, albeit in different forms, might be useful today against similar risks arising from the bureaucratic power of the central government.

9

Baraggia (2016), p. 25. Hochschul-Urteil (BVerfG, 29.05.1973 – 1 BvR 424/71; 1 BvR 325/72. 16). See Poli (2009), p. 797. 11 Cassese (1993), p. 83 ff. 10

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A Critical Overview on the Idea of “Autonomy” Under Article 33(6)

Bearing in mind the constitutional framework of university autonomy,12 let us examine how autonomy has been understood, interpreted and implemented since the Constitution was framed. Although aim of academic autonomy was and is to protect academic freedom and all the freedoms stemming from it (especially freedom of research and teaching, thus granting independent status to academics and to academia), it is not easy to properly explain what the concept underpins, especially with reference to universities.13 In other words, definitions of autonomy need to be handled with care as they are open to different interpretations in different contexts. For example, with regard to the understanding of university autonomy, the Constitution states only that autonomy is recognised within the boundaries defined by state law.14 Although the idea that springs from this wording implies that regulation may only define external “limits” to autonomy, the central government has acted as if it were entitled to exercise its regulatory powers and has even stipulated certain details of the self-government of universities (internal limits). As a consequence of this understanding of autonomy, in the various “reforms” undertaken in the last 30 years in Italy, during which universities were ostensibly granted the power to enact their own charters (statutes), to decide (to a very limited extent) their governing bodies and to exercise regulatory powers in several matters, the scope of autonomy remained “granted” by the national level with national legislation as the main source for university organisation, activities and finance (une autonomie octroyée). Even when the national legislation offered some possibility for universities to adopt different regulation as to internal governance, very few actually adopted different solutions in their charters. Among the most critical views on the current implementation of university autonomy (with respect to external and internal governance), a remark made by Marino Regini in a report drafted on the future of the University of Milan (Project UNIMI 2040) comes to mind.15 Reflecting on the past and present status of our institution, he wrote that the governmental process of granting autonomy to universities had been badly designed and badly implemented. As a consequence, most Italian universities tried to minimise the effects of the reforms, being unable to restructure their internal governance in a satisfactory way. Since the legislation does not envisage effective sanctions for non-compliance with its requirements,

See, for instance, the definition of “academic teaching” in BVerfGe 35, 79 (113). Vesperini (2009), p. 197 ff. 14 D’Atena (2006), p. 111 ff.; Balduzzi (2004), p. 263 ff.; Mazziotti di Celso (1980), p. 177; Sorace (1996), p. 150. 15 See Project Group UNIMI 2040 (2020). 12 13

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especially those affecting financial misbehaviour, responsible use of resources—a key element of autonomy—often ended up being ignored.16

3 Italian Legislation and University Governance from the Constitution to the Nineties: An “Autonomous” Design by the Central Government Though critical, the above remark in the UNIMI 2040 report offers an idea of the debate around the present status of Italian universities after several legislative attempts to promote autonomy and enhance the accountability of universities, whose efficiency is crucial for the sound development of western societies. As a matter of fact, western societies (and indeed all countries that strive to develop in a sound way) depend on the output of academic research, as the EU-Programme Lisbon 2020 pointed out referring to the so-called “knowledge-based economy”.17 Universities therefore bear a substantial responsibility toward society, to which they are tasked as a “public body” to provide research products and a well-structured higher education system, enabling students and graduates to enter the market. It is obviously impossible to achieve such openness to economy, the market and society in the context of a self-referential academic community. The way to such achievements has been a long one for Italian universities and the edict is not yet accomplished. The legislative path so far has included three major phases: the post-Republican-Constitution era, the fragmented reforms adopted after the late Sixties, and the legislative attempts made since the late Eighties (including the Gelmini law). (A) Regarding the first phase, in the second half of the previous century, a kind of “alliance” between the regulatory central state and the holders of academic power prompted a high degree of self-referentiality in universities. In the Fifties and Sixties, Italian universities depended entirely on rules enacted by the national Parliament and finance provided by the Government. Regarding implementation of the rules, universities relied on the decisions of their Academic Senates, composed of the Rector and the Deans of Faculties. As a consequence, decisions on research and teaching tasks, most imposed by law, were implemented at the discretion of the academic class, virtually without control. Academics were free to build their own schools and hire their own pupils, with very little competition; teaching positions were granted by the state and were distributed between the faculties under control of the Academic Senate, the Rector and prominent professors. One may consider such a system of

16 Vesperini (2013), p. 947. About the “hyper-regulation” (iperregolazione) phenomenon, see also Mari (2009), p. 673; Cassese (2001). 17 See Project Group UNIMI 2040 (2020), p. 15.

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government the perfect example of “academic freedom”, since no limits were set on concentration of almost all the powers granted by state legislation in the hands of academics. However, this was a misguided interpretation of the concept of autonomy, stemming from the idea of the university as a separate body, indifferent to and untouched by societal needs and the social demand for qualification. Academics were the actors of the internal system of government, without any need for protection against intrusion by public authorities, who only had the power to rule on external governance. (B) This self-referential microcosm began to be challenged by the economic, societal and legal transformations occurring after 1968, in the second wave of legislation. In the late Sixties and Seventies, the years of the student movements and transformation of elitist higher education into the so-called mass university, several new rules were put in place, but none were capable of actuating organic university reform. Among these attempts, a crucial role was played by abolition in 1969 of the requirement of a high school diploma from specific schools (liceo classico or scientifico) as a condition to enrol. In short, universities were pushed to open to broader segments of society, but very little effort was made to adapt the system as a whole to this big challenge. (C) The gap between the number of students, their growing needs and the internal and external structure of the academic governance made it imperative for universities to reflect the national need for change rather than institutional self-interest. The new atmosphere gave rise to a number of reforms in the 1980s, an appendix aiming at changing aspects of universities while implementing the constitutional requirement of autonomy. The reforms were all written at central level and are blighted by a “legalistic” understanding of the principle, as if autonomy would follow automatically from new “formal” rules and not from a “cultural” shift necessarily conceiving autonomy as a capacity to design one’s own strategic project, as advocated by new public management ideology. For universities, strategic autonomy would mean deciding their own finance and financial allocations, driving their own vision and being responsible to the market in a real sense by managing their own means to achieve their goals. On the contrary, though oriented towards autonomy and inspired by the ideas of new public management scholars, the reforms enacted in those years not only involved the Parliament but also regulations enacted by the Italian Ministry of Higher Education, the agent that would implement the legislative programmes. Scholars defined this situation as university autonomy under ministerial control,18 a definition that aptly describes the status of Italian universities almost up to the present day.

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D’Atena (1998), p. 3332; Cassese (1990), p. 764; Cassese (1993); Gasparri (2000), p. 628.

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4 From the Riforma Ruberti of 1989 to the Gelmini Law of 2010 We shall not describe in detail all steps of the ongoing process of restructuring university legislation and governance.19 To make a long story short, let us say that the whole process of reforming Italian universities by national laws was orientated towards the creation of an open, autonomous but at the same time accountable body in place of the traditional self-referential model described above. The 1989 legislation (the so-called Riforma Ruberti and some subsequent laws) attempted to combine autonomy with accountability, since there is no real autonomy without a sound culture of accountability, able to implement the mechanisms put in place for this important end. The two processes of granting autonomy and establishing an evaluation system ran parallel. Alongside rules creating autonomy in the fields of internal governance, from the top management to the administrative structures and the financing system, the law obliges universities to have a strategic long-period programme, in line with the guidelines of the Minister of Higher Education (encompassing curricula to be instituted and those do be abolished, a research programme, student services, internationalisation and a recruitment programme),20 an internal evaluation body (Internal Evaluation Body, Nucleo di Valutazione, NUV) and mechanisms of quality control of academic products, such as the evaluation of courses by students. In this way, regarding external governance, the national government aimed at cutting “unlimited” academic freedom and increasing autonomy, while maintaining universities under the control of central government agencies, such as the Agenzia Nazionale di Valutazione del Sistema Universitario e della Ricerca (ANVUR)21 and the bureaucracy of the Minister of Higher Education. The ideas of this legislative programme were promising but for various complex reasons, mainly depending on structural problems of the Italian administrative system, the aims were only partially achieved. Achievements were made in the creation of a new framework of internal and external governance, but they were unable to tackle and solve the structural limits of the Italian university system, including the “legal validity of educational qualification” (valore legale del titolo di studio)22 necessary to exercise major professions and to enter the public service, an issue that strongly influences the 19 A survey of the Italian legislation in the Osservatorio sull’Università (Università degli Studi Milano Bicocca) is available at https://www.osservatoriouniversita.unimib.it/, last accessed 4.2.2021. 20 Law no. 43 (31.3.2005), G.U. no. 75 (1.4.2005). 21 Italian National Agency for the Evaluation of Universities and Research Institute, ANVUR. 22 In the words of Mario Mauro: “In all probability, abolishing the legal validity of educational qualifications is still one of the best ways of guaranteeing the full legitimacy of those establishments which know how to teach properly”, debate at the European Parliament on Report A5-0183/2002 “on Universities and higher education in the European learning area”, 5 September 2002, available at https://www.europarl.europa.eu/sides/getDoc.do?pubRef¼-//EP//TEXT+CRE+20020905 +ITEM-003+DOC+XML+V0//EN, last accessed 4.2.2021.

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freedom of universities to create their own curricula. Another limit was the centralisation of decisions on hiring university professors23 and on the financing system based on the Fondo di Finanziamento Ordinario (FFO) distributed every year by the Ministry to universities on an equal basis, mainly according to number of students and marginally according to quality and performance criteria. A further limit concerned university self-financing mechanisms, such as student fees, until recently having a very low cap. These contradictions gave rise to a new wave of reforms, the main act of which was the “Gelmini” law of 2010,24 aimed: at forcing the process of reform by recentralising control over internal university governance; at making the mechanisms of internal and external evaluation effective; at opening universities to stakeholders by putting them on the Board of Directors (Consiglio di Amministrazione); at limiting the rectoral mandate to a maximum of 8 years; at democratising the Academic Senate with members elected by the whole academic body (both teaching and administrative) and at strengthening the parameters for accreditation of universities under the control of ANVUR. From a certain point of view, all these measures are in some ways limits to university autonomy (and academic freedom). However, they clearly pursued the legitimate value of academic accountability. This emerges clearly with regard to internal governance: indeed the reform of 2010 reduced the academic community’s self-government powers and enhanced the role of administrative bodies and boards, especially Boards of Directors composed of internal elected members and external “expert” or “laypeople”. This change met the need for efficiency, transparency and economic liability. It therefore comes as no surprise that this evolution of internal university governance has been described as being inspired by a “corporate model”.25 On the other hand, these changes created several new problems: consider for instance the tricky interplay between laypeople and professors in academic governance, the influence of academic bodies on recruitment policies26 or the bureaucratisation of academic life under the pressure of largely “quantitative” evaluation procedures. These problems are still hotly discussed and debated and are the core of current threats to academic freedom in Italy.

23

Fraenkel-Haeberle (2016), p. 119 ff. Minerva (2011), p. 1; Zeno-Zencovich (2011); Azzariti (2013), p. 2461; Vesperini (2013), p. 947 ff. 25 See the Project Group UNIMI 2040 (2020), p. 4. 26 Problems concerning academic recruitment are dealt with in detail in the book edited by Cavallo Perin et al. (2016); for a comparison between the Italian and the German systems, see in particular Banfi (2016), p. 43 ff. and Fraenkel-Haeberle (2016), p. 119 ff. 24

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5 Conclusions: Autonomy “Under Control of the Central Government”, Academic Freedom and New Threats As I have tried to show, the question of university autonomy in Italy is still characterised by the unresolved tension between its recognition as a fundamental aspect of academic freedom, and the need to constrain it with rules determined by the public power, aimed at fostering a high degree of accountability of bodies that play an exclusively public role and are mainly financed by the state. The concept of autonomy is consistent with the existence of external limits and constraints: autonomy is a relational concept and cannot be conceived as self-rule without external constraints. So the issue is not whether external regulation by the state is needed, but how these external constraints are designed and how much they interfere with the principle of autonomy. Throughout the history of Italian academic legislation, we have witnessed several attempts to define the fine line between self-rule and shared-rule. As we have seen, in the post-constitutional years, university autonomy as a constitutional value, aimed at protecting academic freedom from intrusion of the public authorities into matters of teaching and research, became an instrument for creating a closed university environment dominated by academic power. Since this situation became incompatible with the needs of society and the market, especially after the student revolution at the end of the Sixties, several attempts were made by the central government to “transform” autonomy into an instrument for opening the university to these new needs. In subsequent years, the effort of implementing accountability, not only through legislation but also through regulation, enforced by the executive power, gave rise to hyper-regulation and over-bureaucratisation of university life, that together with a substantial lack of state funding, distributed on the basis of algorithms rather than a competent understanding of the strengths and weaknesses of academic organisation, are currently the main threats to academic freedom. As scholars point out, in the last 30 years the basic structure of Italian university legislation has rested on three pillars: “autonomy” designed and shaped by the central government, an evaluation system with regulations decided by the Ministry and its agents, implemented at university level by a body (the NUV) imposed on universities by law, and a financing system (reorganised in 2006) that draws from a single public fund (the Ordinary Financing Fund, Fondo di Finanziamento Ordinario, FFO), the limits of which were described above. The latest legislative changes have profoundly limited university autonomy by imposing detailed rules, standards and procedures that leave very little room for autonomous self-government. In other words, in an effort to reduce academic selfreferentiality, the law created a dense network of rules that are now perceived as a threat to academic freedom in its true sense, namely freedom to research and teach according to one’s own inspiration, to love science and curiosity while at the same time accounting to society and the market, the needs of which are normative even for an “autonomous” entity, and where academic freedom and academic autonomy are

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implemented by scholars and the institution as a whole in a responsible way, permeated by a strong academic ethos. In a nutshell, so far the main achievement of changes to Italian university law has been to shift from a misguided definition of university autonomy, conceived as selfreferentiality, to an equally misguided notion of “constrained autonomy”. Much work has still to be done. First of all, it is important that the bureaucratisation of university internal governance, necessary to implement a model of efficiency and accountability, is not too heavy for the academic community. It is already onerous for Heads of the Departments, partly due to the prevailing managerial model. They have to be full time professors of the highest level in their academic career and have important research and teaching duties, but they are also responsible for long-period planning of Department activities and for all the evaluation and quality control reports of the Department. They also have staff and budget responsibilities. In some universities (e.g. Milan), the Departments bear responsibility for decisions in the field of hiring: they receive positions from the Board of Directors and have to allocate them in the different areas of the Department. The decision is made by the Council of the Department, often after exhausting discussion, not always guided by a true sense of the mission of the university as a whole. A heavy burden of bureaucratic tasks may threaten academic freedom, since prominent academics (those normally chosen as Department Heads) have to juggle time dedicated to scientific activity and bureaucratic tasks. Academic “power” cannot simply be replaced by bureaucrats or managers, since only academics can conceive and develop research projects, a major activity of universities. Last but not least, much work is still necessary to avoid the threat to academic freedom from the often merely “quantitative” central and local evaluation procedures of scientific activity, where the number of publications counts more than their quality. A positive change has recently been envisaged: after complaints about this aspect of evaluation, a new method was tried in 2014–2019, consisting in evaluating the “entire” production of a Department instead of the single products. This new method may improve evaluations, but is only a first step. In broadening the horizon to achieve a modern responsible understanding of academic freedom, it is important that university autonomy is not interpreted as selfreferentiality of the academic community, and that accountability is not just a formal procedure which burdens research and teaching staff with paperwork. In turn, competition for public and private funds cannot be allowed to transform the university into a market, as the “corporate model” implies. Though difficult to achieve, the proper balance between autonomy and accountability can only stem from a deep awareness of the university mission on the part of academics and the academic community. Administrative staff, managers and scholars need to realise that the academic freedom they enjoy finds its rationale in the goals they pursue and in their willingness to give account of them. Scholars have to cooperate for the common good, by creating, teaching and sharing knowledge, expertise and critical thinking. In the area of governance, leadership is crucial and

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has to be efficient in fulfilling its mission, offering a strategic general view of the goals of the university community with regard to the outside world. This mix of personal responsibility and collective drafting, understanding and sharing of the mission of the university should be aimed at creating value for society and not for a single class of persons. Regarding national legislation, work is still needed to foster accountability without limiting autonomy in order that universities may fully accomplish their tasks and fulfil their mission.

References Azzariti G (2013) Appunto critico sulla crisi dell’Università. Giurisprudenza costituzionale 3:2459–2464 Balduzzi R (2004) L’autonomia universitaria dopo la riforma del Titolo V della Costituzione. Le istituzioni del federalismo 2–3:263–283 Banfi A (2016) Academic recruitment in Italy: an overview for foreigners. In: Cavallo Perin R, Racca GM, Barbati C (eds) Il reclutamento universitario in Europa. Editoriale Scientifica, Napoli, pp 43–52 Baraggia A (2016) L’autonomia universitaria nel quadro costituzionale italiano ed europeo. Già e non ancora. . . Giuffré, Milano Berdhal R (1990) Academic freedom, autonomy and accountability in British universities. J Stud High Educ 2:169–180 Cassese S (1990) L’Università e le istituzioni autonome nello sviluppo politico dell’Europa. Rivista trimestrale di diritto pubblico 3:755–768 Cassese S (1993) L’autonomia delle Università nel rinnovamento delle istituzioni. Foro.it 2:82–87 Cassese S (2001) L’autonomia e il testo unico sulle Università. Giornale di diritto amministrativo 5:515–517 Cavallo Perin R et al (2016) Il reclutamento universitario in Europa–The academic recruitment in Europe. Editoriale scientifica, Napoli D’Atena A (1998) Un’autonomia sotto tutela ministeriale: il caso dell’Università. Giurisprudenza costituzionale 6:3332–3337 D’Atena A (2006) Lezioni di diritto costituzionale. Giappichelli, Torino Fenucci F (1991) Autonomia universitaria e libertà culturali. Giuffré, Milano Fraenkel-Haeberle C (2016) Il reclutamento universitario nella realtà federale tedesca. In: Cavallo Perin R, Racca GM, Barbati C (eds) Il reclutamento universitario in Europa. Editoriale Scientifica, Napoli, pp 119–140 Gasparri W (2000) Università degli Studi (voce). In: Digesto discipline pubblicistiche. Utet, Torino Mangiameli S (2001) Università e Costituzione (considerazione sulla recente evoluzione dell’ordinamento). Rivista di diritto costituzionale 1:209–227 Mari A (2009) Il sistema universitario italiano: bilanci e prospettive. Giornale di diritto amministrativo 6:673–679 Mazzarolli L (1997) Professori universitari, Università e garanzia costituzionale dell’autonomia universitaria. Quaderni costituzionali 1:77–92 Mazziotti di Celso M (1980) L’autonomia universitaria nella Costituzione. Diritto e Società 1:236 Middlehurst VR (2013) Changing internal governance: are leadership roles and management structures in United Kingdom Universities fit for the future? High Educ Q 3:275–294 Minerva AM (2011) La recente legge sull’Università. Un primo quadro d’insieme. Osservatorio sulle fonti 1:1–26

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Poggi A (1998) Il “caso” dell’autonomia universitaria: la costruzione di un “effettivo” modello di “autonomia” di un soggetto pubblico. In: Bardusco A, Pizzetti F (eds) L’effettività tra sistema delle fonti e controlli. Giuffré, Milano, pp 129–216 Poli MD (2009) Il diritto delle Università in Germania: la libertà di scienza come diritto individuale e garanzia istituzionale. Diritto pubblico comparato ed europeo 2:790–809 Pototschnig U (1990) Strutture di Governo e Autogoverno. In: Associazione italiana dei costituzionalisti, L’autonomia universitaria. Cedam, Padova, pp 27–42 Project Group UNIMI 2040 (2020) Discussion Paper no. 1. Il futuro della governance universitaria. https://lastatalenews.unimi.it/sites/default/files/attachments/UNIMI%202040%20Discussion% 20Paper%201.pdf. Accessed 21 Nov 2020 Sorace D (1996) L’autonomia universitaria degli anni Novanta: problemi e prospettive. Diritto pubblico 1:139–150 Vesperini G (2009) Per uno studio delle tendenze di riforma del sistema universitario. Giornale di diritto amministrativo 2:197–202 Vesperini G (2013) Iperregolazione e burocratizzazione del sistema universitario. Rivista trimestrale di diritto pubblico 4:947–962 Villone M (1967) Autonomia delle Università statali e potestà legislativa regionale. Rassegna diritto pubblico 1:742–754 Zeno-Zencovich V (2011) Ci vuole poco per fare una università migliore. Guardando oltre la “Riforma Gelmini”. Il Sirente, Fagnano Alto

Evaluation, Projectification, Governance by Numbers and Their Impact on Academic Research: The German Perspective Margrit Seckelmann

Abstract Since 1998, German university policy has more or less followed the New Steering Model, a specific variety of New Public Management. Evaluation, projectification and governance by numbers are some of the catchwords, flanked by instruments of indirect steering, such as performance-based management and management by contract. None of these instruments alone is detrimental to academic freedom, but constant pinpricks can cause inflammation. A research-friendly legal framework is therefore needed. Some hints in that direction are outlined in this contribution. Keywords Academic freedom · Evaluation · Projectification · Governance by numbers · New Public Management · New Steering Model

1 Introductory Remarks In his world-famous book of 1994, Michael Power noted with irony an “audit explosion” in western society: “Auditing seems as natural as politics. One may argue about its precise form, for example the balance between prevention and detection, but there is likely to be agreement that these things are done because of the way society is. Without them there would be more fraud, deception, waste, error and poor administration.”1 Although Power’s observation concerned politics, governance by numbers2 has already found its way into science. Today, researchers (not only from the natural

1 2

Power (1994), p. 9; also refer to Power (1997). See e.g. Heintz (2008), p. 110; Supiot (2017).

M. Seckelmann (*) German Research Institute for Public Administration, German University of Administrative Sciences Speyer, Speyer, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_10

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sciences) discuss their Hirsch-Index3 and their impact factor4 as if they were the horsepower of their car. In doing so, they ignore the fact that the indices are just attributions (not natural laws), derived from what we attach importance to, exactly as described by Michael Power. Nonetheless, more and more laws and ordinances follow the concept of governance by numbers5 and attach legal consequences to numbers.6 The law of science provides examples in Italy7 as well as in Germany.8 The “German way” seems to be softer than the Italian model: more a form of indirect governance than direct steering. However, inversions can be observed when it comes to EU-afflicted issues like the Bologna process (which is not treated in this article for reasons of space).9 In this contribution, I first outline the general legal framework in Germany10 (Sect. 2), then examine some details and finally draw conclusions.

2 New Public Management and Academic Freedom: A Tense Relationship (at Least in Germany) 2.1

Freedom from the State and by the State

The legal framework of academic freedom is defined in Article 5(3) of the German Constitution (Grundgesetz, GG). Although the first sentence of the paragraph is short (“Arts and sciences, research and teaching shall be free”), this guarantee contains a multi-dimensional concept. The first dimension is a (“classical”) right of defence against interference by the state (freedom from the state). Two more dimensions have been identified by the German Constitutional Court (Bundesverfassungsgericht, BVerfG): self-definition of the state as a “cultural state” (Kulturstaat) and derived from this, public responsibility for the arts and sciences (freedom by the state).11 When it comes to the sciences, the latter dimension contains a state responsibility to provide adequate means for free research and teaching12 (e.g. professors at public universities can publish their insights freely because they do not have to raise private money for their basic research). As academic freedom is guaranteed by a paragraph 3

As outlined in Hirsch (2005). Derived from Garfield (1979). 5 Supiot (2017). 6 Seckelmann (2018), pp. 12–20 ff. 7 See the contributions in Part III of this volume. 8 See e.g. Gärditz (2009); Krausnick (2012); Fraenkel-Haeberle (2014); Seckelmann (2018). 9 See Pilniok (2011); Seckelmann (2018), p. 294 ff. 10 In this article, only the German federal level (Bundesebene) is analysed, not the Länder. 11 BVerfGE 35, 79 (114), see also e.g. Schulze-Fielitz (2017), p. 204 ff.; Fehling (2010), p. 951 ff. 12 BVerfGE 35, 79 (114 f.). 4

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of Article 5 GG (regarding freedom of expression), this paragraph has to be seen in the context of freedom of expression.13 It goes without saying that permanent pressure to find third-party funding, imposed directly on teaching staff by the state, would create a tense relationship for academic freedom. Since nearly all matters of teaching and most issues of research fall within the responsibility of the member states of the German federation (Länder) and not the federation (Bund) itself, establishment of a federal evaluation agency like the Italian ANVUR (Agenzia Nazionale di Valutazione del Sistema Universitario e della Ricerca)14 is unlikely. Nonetheless, the existence of the German Accreditation Council (Akkredierungsrat) demonstrates that the Länder can establish an intra-state-agency (which accredits other agencies) via state contract.15 As a consequence, indirect (e.g. performance-related) forms are opted for. They may be formulas of state funding (leistungsorientierte Mittelvergabe16), established by the German Ministries of Science (i.e. the ministries of science of the German Länder, as the latter are mainly responsible for the funding of universities). Management by contract is therefore a very popular instrument in the toolbox of New Public Management, as it implies the idea that universities and ministries negotiate the funding for the next period on equal terms. When it comes to the setting of incentives for universities by the Bund, the German Excellence Initiative (Exzellenzinitiative), which will be analysed later, can be regarded as an incentive-based steering instrument. As the participation of universities is “voluntary” and as the initiative is based on an intra-federal arrangement between the Bund and the Länder, there is no direct violation of the German constitution.17

2.2

Organisation Matters

The BVerfG has made it very clear that the state has to provide “adequate” (wissenschaftsadäquate) organisation.18 Thus, the adequacy of the organisation of universities (and ceteris paribus of research institutes) can be an issue of rulings. Over the 70 years of its existence (since 1951), the BVerfG has followed a common 13

Seckelmann (2018), p. 226 and 229. See the contributions in Part III of this volume. 15 It was initially only established by an administrative agreement but had to be based on a state contract after the decision of the BVerfG of 2016 (BVerfGE 141, 143), see e.g. Seckelmann (2018), p. 484 ff. 16 See e.g. Gärditz (2009), p. 353; Seckelmann (2018), p. 369 ff. 17 Nonetheless, the constitution had to be changed in this context, see e.g. Seckelmann (2018), p. 482. 18 BVerfGE 35, 79 (145: wissenschaftsgerecht); 111, 333 (352: wissenschaftsadäquat); 127, 87 (113: wissenschaftsadäquat). Please also refer to Trute (1994). 14

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thread, changing slightly from time to time, namely in the period 2004 to 2010. In its so-called first Hochschulurteil of 1973,19 the Court focused on the individual university member (namely a chairholder), as the BVerfG does again today (more on this later). The university as an organisation has played a lesser role than its members, being more the object than the subject of academic freedom (at least in the judgements of the BVerfG). This approach refers explicitly20 and more often implicitly to the universitas magistrorum et scholarum in the late-medieval origin of universities.21 Nonetheless, the Court proved to be open to development of the structure of universities, most prominently in its highly discussed22 decision of 2004 regarding the German Land Brandenburg.23 After harsh criticism, the BVerfG modified its opinion in a decision of 2010 that emphasized the right of each chairholder to be heard (by putting the topic on the agenda of the academic senate and being represented fairly by the elected professorial members of the senate who must have the decisive vote24).25 The court continued this line in a decision of 2014.26 Although the BVerfG focused on the individual university member, it made clear that public resources are not infinite (and will be even shorter due to the COVID-19 pandemic). Thus, the Court does not expect the impossible from the state but mainly participation rights (Teilhaberechte). Whether Article 5(3) can also guarantee so-called original benefit rights (originäre Leistungsrechte) is highly disputed. One can sum up this discussion by saying that the state at least has to provide sufficient money for “free” research and teaching, e.g. enough laboratories for a specific study programme. Again, the boundaries are blurred when it comes to naming a sum deemed “sufficient”.

2.3

Instruments from the Toolbox of the New Steering Model and their Results

The management reforms since the late 1990s have in certain regards been rather opposed to the aforementioned concept of academic freedom. The New Steering Model (Neues Steuerungsmodell, NSM) is a specific German form of New Public

19

BVerfGE 35, 79. For further details, see Ellwein (1997) and Koch (2008). 21 Fraenkel-Haeberle (2014), p. 14 ff.; Fisch (2015), p. 1 ff.; Seckelmann (2018) p. 320. 22 See e.g. Gärditz (2009); Krausnick (2012). 23 BVerfGE 111, 333. 24 The latter was already stated in BVerfGE 35, 79 (132). 25 BVerfGE 127, 87. 26 BVerfGE 162, 338. 20

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Management (NPM): it was initially designed for municipalities but later customised for universities.27 Two aspects of the NSM are outlined in this paper: (1) turning the university into an organisational actor and (2) steering at a distance. They resulted in a projectification of research (3.9 and some unforeseen outcomes (4.).

2.3.1

Turning the University Into an Organisational Actor: Organisational “Autonomy” and the Autonomy of Science

In the year 2000, Detlef Müller-Böling published a pamphlet called University unbound (Die entfesselte Universität).28 In a certain regard, this publication plays an important role in the process which has been ongoing in German university policy since 1998. Müller-Böling postulated a new autonomous university, free from the “leading strings” of the state.29 An “inner liberation” should take place, enhancing the “corporative rights” and therefore the “autonomy” of the university.30 This postulate had an impact on academic freedom. It went straight to the concept of academic autonomy. If the NSM (or NPM) claimed to free universities by strengthening their “autonomy”, this mainly meant ensuring they could manage their own budget (at least to a certain extent) and choose their employees and students more specifically (also only to a certain extent). Intentionally or otherwise, it was an equivocation, because the traditional concept of academic autonomy meant following solely the laws of one’s own rational truth-seeking mind. The latter concept was referred to in the first Hochschulurteil of the BVerfG, which stated that research is “a serious and systematic attempt to look for the truth”.31 While the BVerfG addressed the individual as the subject of “autonomy”, the NSM/NPM referred to organisations, i.e. universities (and ceteris paribus their departments). New Steering Model “autonomy” is more or less sovereignty of the organisation in relation to the state and in relation to its members (or constituency). According to Georg Schreyögg, for example, an effective (autonomous) organisation is a body that can make its own decisions and enact them (the word sovereign would be more appropriate).32 By contrast, the traditional academic concept of “autonomy” does not refer to organisations, or only as a reflection of individual autonomy.

27

Fraenkel-Haeberle (2014); Sieweke (2010). Müller-Böling (2000). 29 Müller-Böling (2000), p. 9 f. 30 Müller-Böling (2000), p. 40 ff.; also refer to Kracht (2006); Krausnick (2012), pp. 300 ff. and Seckelmann (2018), p. 320 ff. 31 BVerfGE 35, 79 (113). 32 Schreyögg (1996). 28

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In Germany, the concept of academic and/or scientific freedom is still highly influenced by the idealistic philosophy of Johann Gottlieb Fichte33 and Wilhelm von Humboldt.34 The BVerfG refers to Humboldt when it comes to academic freedom: Humboldt looked for a formula to reconcile the individual’s interests with those of the public (while Fichte put more emphasis on the individual).35 Humboldt’s formula became world-famous. Providing unhindered academic teaching, Humboldt wrote, is the best a state can do in its own interests: the transfer of applicable knowledge cannot alone create inventive citizens (and good civil servants) but can foster independent (and individual) human character.36 When the BVerfG refers to Humboldt, one has to bear in mind that the Humboldtian concept of free research and teaching is a model that has not been seen in academia in Germany since 1810, especially not between 1933 and 1945. Thus, some authors speak of the “Humboldtian myth”37 while others stress that Humboldt outlined at least a concept of a university, which is autonomous, to guide our understanding of academic freedom.38 In any case, transfer from the state to universities of (further) rights to manage their own (financial or human) resources should not be confused with academic autonomy in the traditional sense of the word, which means autonomy of mind.39

2.3.2

Steering at a Distance and Governance by Numbers

Another phrase of the NSM/NPM “reforms” was the concept of “steering at a distance”.40 This concept related to a new fiction: a new social contract,41 founded on transparency and accountability.42 The new social contract was meant to assign more competences to universities and performance-based outcomes were to be the reward. Global budgets (Globalhaushalte) allow more flexibility43 than before but they come with the obligation to document performance indicators. “Governance by numbers” sounded 33

Fichte (1812); see also Seckelmann (2018), pp. 231–232. Humboldt (1903); see also Seckelmann (2018), p. 232 ff. 35 For more details, see Seckelmann (2018), p. 230 ff. 36 For a concise summary see Borsche (1990), p. 63. 37 Ash (2006), p. 245 (Humboldt Myth); Bartz (2005), p. 99 (Humboldtianismus). 38 Bumke (2010), p. 458. 39 Geis (2010). Regarding the development of the concept of scientific autonomy (corporative rights) and its re-interpretation around 1800 (freedom of the individual), see Müller (2008), p. 57 ff.; Fraenkel-Haeberle (2014), p. 20 ff. and Fisch (2015), p. 1 ff.; for more details, see Seckelmann (2018), p. 230 ff. 40 Kickert (1995). 41 Maasen and Dickel (2016). 42 Seckelmann (2012); see also Academic Freedom, University Autonomy (Work in Progress) and Striving towards Accountability – An Italian Perspective by L Violini in this volume. 43 Behrens (1996); Pasternack (2001). For further references see Seckelmann (2018), pp. 363–371. 34

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like a smart form of “steering at a distance”44 but it brought more bureaucracy instead of less. Furthermore, the concept of quality assurance opted for a model that combined internal scientific forms of self-evaluation with external legal results, causing a blurring of boundaries and a hybridisation45 (see also Sect. 2.3.4).

2.3.3

The “Projectification” of Research, Evaluation and the German Excellence Initiative

Nina Baur, Cristina Besio and Maria Norkus coined the term “projectification”.46 They apply it to the circumstance that research—traditionally conceived as a permanent process—is now perceived as a “project”. A project has a specific structure: (1) a plan (as the Latin proicere implies), (2) a beginning and (3) an end with specific outcomes.47 As Besio and Torka pointed out, this concept dates back to Vannevar Bush’s Science, the endless frontier (1945).48 At first, projectification mostly afflicted third-party funding (the founders expected “value for money”), but became more and more related to state-funded research. An important role in this was played by the European Commission and the value-for-money approach of its research programs.49 Today even teaching can be conceived as a project, as demonstrated by the German Digitalpakt of 2019, which deals out a certain sum of money for innovative teaching projects in the context of digitalisation (further enhanced by the measures against COVID-19). Projectification means evaluation, and evaluation requires projectification.50 If the term evaluation is used in a modern sense, it not only implies a general assessment (as implied by the Latin valere) but also an analysis of the goals, the structure and the outcomes of research, bundled into a project. Unlike in Italy, evaluation is not carried out by a specific agency but has found many ways into German universities. The most prominent way was the German Excellence Initiative (Exzellenzinitiative) 2007–2017 and its successor, the Excellence Strategy (Exzellenzstrategie) of 2019. The so-called third column of the Excellence Initiative rewarded innovative institutional strategies of universities (so-called “future concepts”/Zukunftskonzepte), not results. And even though the new Excellence Strategy puts more emphasis on research itself, both programmes have established a state of permanent evaluation,51 leading to a form of audit explosion.

44

Kickert (1995); Seckelmann (2018), p. 357 ff. Seckelmann (2018), pp. 307, 525 ff. 46 Baur et al. (2016), p. 373 ff. 47 Besio (2009). 48 Bush (1945); re the importance of this report see Besio (2009) and Torka (2009). 49 Pilniok (2011); Seckelmann (2018). 50 Seckelmann (2019), p. 120. 51 Seckelmann (2018), p. 473 ff. 45

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The Results: Salami-Slicing, Citation Cartels and Hybridisation

Summing up: the New Steering Model combines good old forms of academic selfassessment, such as the peer review, with legal consequences. One can also regard the relatively new Juniorprofessur as a project-professorship with a plan, an evaluation and an ending.52 Most such professorships are still not tenured, and a negative evaluation by a university council can put an end to the career of a young scholar at a very early stage. Meanwhile, the remuneration of newly tenured lecturers has changed from a relatively fixed salary (C-Besoldung) to a combined income with fixed and performance-related components (W-Besoldung). One cannot blame anyone for reacting to incentives: the unintended consequences have ranged from “salami-slicing” of ideas to “citation cartels”.53 Nonetheless, an evaluation that produces direct results (such as the end of a career or an institute) has to be legally framed, preferably by a law.54 In this regard, the Italian model of the state agency ANVUR could be an answer to the question of legitimation. But it would probably not be in line with German federalism and with the broad German understanding of freedom of research. Thus, the German model opts for less direct steering. In comparison to the Italian model, this option has its advantages and its disadvantages: it can be “tailored” more easily to the concrete situation and evaluandum. But the question of legitimation arises of how non-state agencies can be legitimally included in a process that deals with state clerks (“Beamten”)55 or with public universities and/or research institutes. When the inner and outer sphere are mixed, the result is hybridisation. And though celebrated by some German legal scholars as the new egg of Columbus,56 hybridisation is a complex issue that requires an accompanying legal framework.57

52

Seckelmann (2018), p. 452 ff. For more unwanted outcomes, see Automated Decisions, Research Quality Assessment and StepBased Salary System: Potential Dangers for Academic Freedom in Italy by E Buoso in this volume; see also Seckelmann (2018), p. 378 ff. 54 This is a result from Art. 2(1) and Art. 2(2) of the GG and its Vorbehalt des Gesetzes (respectively the Wesentlichkeitstheorie). For a proposal for such a law, see Seckelmann (2018), p. 418 ff. 55 This question was also addressed by the BVerfG in its decision on accreditation, BVerfG 141, 143; see also Seckelmann (2018), p. 485 ff. 56 Namely by Reiling (2016). 57 For more details, see Seckelmann (2018), p. 525 ff.; see also BVerfG 141, 143 (141). 53

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3 Conclusion: No Real Danger to Academic Freedom, But a Slippery Slope The New Steering Model has affected academic freedom but has not violated it seriously in Germany, because the German Constitutional Court has circumvented serious infringements. But one should remain vigilant: many pinpricks can lead to a state of inflammation.

References Ash MG (2006) Bachelor of what, master of whom? The Humboldt myth and historical transformation of higher education in German-speaking Europe and the US. Eur J Edu 41:245–267 Bartz O (2005) Bundesrepublikanische Universitätsleitbilder: Blüte und Zerfall des Humboldtianismus. Die Hochschule 14:99–113 Baur N, Besio C, Norkus M (2016) Organisationale Innovation am Beispiel der Projektifizierung der Wissenschaft. Eine figurationssoziologische Perspektive auf Entstehung, Verbreitung und Wirkungen. In: Rammert W, Hutter M, Knoblauch H, Windeler A (eds) Innovationsgesellschaft heute. Perspektiven, Felder und Fälle. Springer, Wiesbaden, pp 373–402 Behrens T (1996) Globalisierung der Hochschulhaushalte. Grundlagen, Ziele, Erscheinungsformen und Rahmenbedingungen. UniversitätsVerlag Webler, Neuwied Besio C (2009) Forschungsprojekte. Zum Ordnungswandel in der Wissenschaft. Bielefeld: transcript Borsche T (1990) Wilhelm von Humboldt. Beck, München Bumke C (2010) Universitäten im Wettbewerb. VVDStRL 69:407–461 Bush V (1945) Science, the endless frontier: a report to the president. University of Michigan Library, Washington Ellwein T (1997) Die deutsche Universität. Vom Mittelalter bis zur Gegenwart. Fourier, Wiesbaden Fehling M (2010) Hochschule. In: Fehling M, Ruffert M (eds) Handbuch Regulierungsrecht, § 17. Mohr Siebeck, Tübingen, pp 951–1002 Fichte JG (1812) Ueber die einzig mögliche Störung der akademischen Freiheit. Eine Rede beim Antritte seines Rectorats an der Universität zu Berlin, den 19. October 1811 gehalten. In: Id., Einige Vorlesungen über die Bestimmung des Gelehrten. https://www.projekt-gutenberg.org/ fichte/gelehrte/chap018.html. Accessed 4 Feb 2021 Fisch S (2015) Geschichte der europäischen Universität. Von Bologna nach Bologna. Beck, München Fraenkel-Haeberle C (2014) Die Universität im Mehrebenensystem. Modernisierungsansätze in Deutschland, Italien und Österreich. Mohr Siebeck, Tübingen Gärditz KF (2009) Hochschulorganisation und verwaltungsrechtliche Systembildung. Mohr Siebeck, Tübingen Garfield E (1979) Citation indexing: its theory and application in science, technology and humanities, http://www.garfield.library.upenn.edu/cifwd.html. Accessed 30 Dec 2020 Geis ME (2010) Universitäten im Wettbewerb. VVDStRL 69:364–406 Heintz B (2008) Governance by Numbers. Zum Zusammenhang von Quantifizierung und Globalisierung am Beispiel der Hochschulpolitik. In: Schuppert G, Voßkuhle A (eds) Governance von und durch Wissen. Nomos, Baden-Baden, pp 110–128 Hirsch JE (2005) An index to quantify an individual’s scientific research output. Proc Natl Acad Sci USA 46:16569–16572

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Humboldt W (1903) Politische Denkschriften. In: Königlich Preußische Akademie der Wissenschaften, Abteilung Politische Denkschriften (ed) Humboldt’s Gesammelte Schriften, Band 10 (1802–1810). Königlich Preußische Akademie der Wissenschaften, Berlin Kickert W (1995) Steering at a distance: a new paradigm of public governance in Dutch higher education. Governance 8:135–157 Koch HA (2008) Die Universität – Geschichte einer europäischen Institution. Primus, Darmstadt Kracht S (2006) Das neue Steuerungsmodell im Hochschulbereich. Zielvereinbarungen im Spannungsverhältnis zwischen Konsens und hierarchischem Verwaltungsaufbau. Nomos, Baden-Baden Krausnick D (2012) Staat und Hochschule im Gewährleistungsstaat. Mohr Siebeck, Tübingen Maasen S, Dickel S (2016) Partizipation, Responsivität, Nachhaltigkeit. Zur Realfiktion eines neuen Gesellschaftsvertrags. In: Simon D, Knie A, Hornbostel S, Zimmermann K (eds) Handbuch Wissenschaftspolitik, 2nd edn. Springer, Wiesbaden, pp 225–242 Müller RA (2008) Von der “libertas philosophandi” zur “Lehrfreiheit”. Zur Wissenschaftsfreiheit in Vergangenheit und Gegenwart. In: Müller RA, Schwinges RC (eds) Wissenschaftsfreiheit in Vergangenheit und Gegenwart. Schwabe, Basel, pp 57–67 Müller-Böling D (2000) Die entfesselte Hochschule. Bertelsmann Stiftung, Gütersloh Pasternack P (ed) (2001) Flexibilisierung der Hochschulhaushalte. Handbuch für Personalräte und Gremienmitglieder. Schüren, Marburg Pilniok A (2011) Governance im europäischen Forschungsförderverbund. Eine rechtswissenschaftliche Analyse der Forschungspolitik und Forschungsförderung im Mehrebenensystem. Mohr Siebeck, Tübingen Power M (1994) The audit explosion. Demos, London Power M (1997) The audit society. Oxford University Press, Oxford Reiling K (2016) Der Hybride. Administrative Wissensorganisation im privaten Bereich. Mohr Siebeck, Tübingen Schreyögg G (1996) Organisation. Grundlagen moderner Organisationsgestaltung. Springer, Wiesbaden Schulze-Fielitz H (2017) Forschung. In: Geis M-E (ed) Hochschulrecht im Freistaat Bayern. Handbuch für Wissenschaft und Praxis, 2nd Edition. C F Müller, Heidelberg Seckelmann M (2012) Autonomy and accountability. In: Bergan S, Egrou-Polak E, Kohler J, Purser L, Vukasović M (eds) Leadership and governance in higher education. Handbook for decision-makers and administrators, Volume No. 1/2012. Raabe, Berlin, pp 1–24 Seckelmann M (2018) Evaluation und Recht. Strukturen, Prozesse und Legitimationsfragen staatlicher Wissensgewinnung durch (Wissenschafts-)Evaluationen. Mohr, Tübingen Seckelmann M (2019) Evaluation und Recht. Ansätze zu einem wissenschaftsadäquaten Modell der staatlichen Indienstnahme evaluativer Verfahren. In: Ordnung der Wissenschaft (ODW), pp 119–124 Sieweke S (2010) Managementstrukturen und outputorientierte Finanzierung im Hochschulbereich: Zum Instrumentarium des Neuen Steuerungsmodells im Hinblick auf Wissenschaftsfreiheit und Hochschulautonomie. Nomos, Baden-Baden Supiot A (2017) Governance by numbers. The making of a legal model of allegiance. Hart, London Torka M (2009) Die Projektförmigkeit der Forschung. Nomos, Baden-Baden Trute HH (1994) Die Forschung zwischen grundrechtlicher Freiheit und staatlicher Institutionalisierung. Mohr Siebeck, Tübingen

University Autonomy: Just One Step on the Long Road Ahead Alfredo Marra

Abstract The contribution examines the state’s role in the university system. Today, universities compete while the state steers at a distance (“regulatory state”). I highlight similarities with economic market regulation by independent authorities. I also discuss the meaning of autonomy: in the present framework, autonomy appears to violate the provisions in the Italian Constitution. Keywords University autonomy · Regulation

1 Changes in Higher Education Systems in Europe: The Role of the State and Universities Since the 1980s, a wide-ranging process of restructuring higher education systems has been ongoing in all European countries. These reforms aim to make university systems less expensive and more consistent with the socio-economic needs of the various countries.1 Political scientists point out that in pursuing these objectives, governments have used different combinations of substantially the same public policy instruments.2 Three in particular deserve to be mentioned here: (1) redefinition of university autonomy; (2) introduction of lump sum funding linked to academic performance; (3) institutional accountability through accreditation and evaluation. University autonomy has been declined differently in English-speaking countries and continental Europe. In the former, the state’s role was initially negligible due to the private origins of many universities, but university autonomy was gradually restricted as state control of the quality of the services offered by universities 1 2

Barr (2004); Teixeira and Dill (2011). Capano (2015), p. 123 ff.

A. Marra (*) Department of Law, University of Milan Bicocca, Milan, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_11

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increased. In the countries of continental Europe, or rather in countries where universities have become the legal property of the state, autonomy has increased through “verticalization” of power in university institutions. Since this implied a reform of governance in a more managerial sense, the relevance of knowledge in society today has reduced the traditional differences between the English-speaking and continental models. Regarding the introduction of lump sum funding linked to academic performance, in many countries universities are required to compete for financial funding on the basis of evaluation of the quality of teaching and/or research. This has led to the third instrument, namely institutional accountability through accreditation and evaluation, whereby governments have reorganized higher education systems through the creation of quality assurance and/or evaluation agencies. These instruments are causing profound ongoing changes in the roles of the state and university institutions. The literature indicates that the university systems of continental Europe and the English-speaking countries have gradually converged to a steering-at-a-distance model,3 whereby the supervisory or regulatory state directs the system through rules and objectives. The state plays an unprecedented role compared to the past, through the introduction of forms of administered or quasimarket competition. These changes have redefined the concept of autonomy in its deepest meaning. We focus briefly on these two aspects in the case of Italy, namely (i) the change in the role of the state and the conditions for it to be acceptable, (ii) the redefinition of the concept of autonomy.

2 The 2010 Reform and the Creation of ANVUR In Italy, as in all major European countries, profound changes have taken place in the last 30 years. Inspired by the ideas of New Public Management, the structure of the higher education has been substantially modified. The reform process, launched in Italy with the Ruberti law of 1989, has been characterized by steps forward and backward.4 This law finally recognized university autonomy, a concept stated solemnly by the Italian Constitution (Article 33), but which actually only existed on paper. The Ruberti law laid down that universities had autonomy in teaching, science, financial organisation and accounting and that they could organize themselves through their own statutes and regulations. It also stipulated that universities should be governed exclusively by law that made explicit reference to said statutes and regulations. The Ruberti law envisaged creation of a specific Ministry for Universities, Scientific Research and Technology, based on the assumption that

3 4

Neave and Van Vught (1991). Law no. 168 (9.5.1989), G.U. no. 108 (11.5.1989).

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only a strong centre, capable of governing from a distance, could ensure the conditions for autonomy of individual universities. In fact, shortly after the Ruberti law, the state’s intrusiveness and universities’ reluctance to become autonomous led the higher education system in unclear directions in the 1990s. On one hand, the drafting of statutes and regulations by universities was slow and burdensome; on the other, centralized control of university curricula remained pervasive, since the Ministry defined the study programmes in detail, denying effective autonomy. A very substantive element of autonomy was introduced by the general state budget law of 1994.5 The funding system was reformed by creation of the Ordinary Finance Fund (Fondo di Finanziamento Ordinario, FFO), an annual overall allocation that universities could spend as they saw fit. While the state had previously allocated university funding for specific budget chapters, it now allowed universities to freely allocate their resources. Subsequent laws allowed universities to determine for themselves how much they would use for recruitment, and a law of 1998 introduced local competitions for academic recruitment.6 In 1998, the education ministers of Italy, France, Germany and the United Kingdom agreed to adopt common rules for the recognition of degrees and the mobility of teachers and students. In 1999, the Bologna process was launched with the consensus of 29 European nations. The Bologna process was an opportunity for Italian universities to acquire genuine academic autonomy, along with their recently acquired autonomy in financial matters and staff management.7 These were the main steps on the path to autonomy. What were the fruits? The results of autonomy have been disappointing. Finally autonomous, the universities interpreted this greater freedom in a mainly self-referential key. They have proved unable to use their autonomy responsibly. Moving from this consideration, the most important university reform that Italy has known since the days of Giovanni Gentile was launched 10 years ago. The reform of 2010 concerned almost all aspects of university life: from the governance of the higher education system and university governance to academic recruitment, the legal status of teaching staff, lecturers’ salaries and the right to education. Here we consider the first two: innovations in the governance of the higher education system and in university governance, illustrating how the state’s role and the meaning of autonomy, respectively, have changed. In relation to system governance, a major innovation has concerned the role of ANVUR, the national Agency for the evaluation of the university system and research (hereafter ‘the Agency’), operating since 2011. The Agency was established to support and partly replace the Ministry for Universities in governing the university system. It should be noted that the creation of independent agencies or authorities responsible for conducting quality assurance or evaluation is not exclusive to

5

Law no. 537 (24.12.1993), G.U. no. 303 (28.12.1993). Law no. 210 (3.7.1998), G.U. no. 155 (6.7.1998). 7 Capano et al. (2016). 6

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Italy. It is a common feature of many European countries in the area of higher education.8 However in Italy, the creation and strengthening of the Agency are core features of the changing role of the state, which previously at least formally controlled all the administrative and accounting procedures of Italian universities. Creation of the agency was a difficult process. Originally conceived as a genuine authority, independent of politics, in line with the concepts of the European Network for Quality Assurance in Higher Education (ENQA), ANVUR was eventually setup as a ministerial agency. Creation of the Agency further centralized the system, since the results of its actions are the basis for implementation of all the reforms. In many cases, the Agency’s decisions are not just limited to detailing the content of the law, but they also simultaneously execute and replace the law. Consequently, evaluation is now an aspect of administrative activity and follows administrative rules, so that the weight of traditional ministerial bureaucracy is further burdened by this evaluation declined in formalistic and bureaucratic terms.9 The Agency’s activity involves almost every phase of university life: from evaluation of research and teaching results to accreditation of courses and universities, procedures for National Scientific Qualification and distribution of funding. Regarding the latter point, about 30% of the Ordinary Finance Fund (FFO) is currently attributed on the basis of evaluations that in various ways involve ANVUR. However, with the introduction of the standard cost per student, also the principal amount (70%) is at least partly linked to efficiency parameters. Universities therefore compete with each other for the largest possible share of the prize. The rules of this competition are in substance defined and applied by the central authority, namely ANVUR. The academic world has struggled to metabolize this fact, partly because there is always resistance to new models, partly because the model itself and the way it is implemented have structural limitations. For the new governance model to be successful, the legitimacy profile of the Agency is decisive.

2.1

The Legitimacy Conditions of ANVUR: Technical Competence and Independence

For the Agency to be able to properly perform its task of steering at a distance, certain conditions must be met. In particular, it must be endowed with independence and technical competence. With regard to the Ministry, the independence of ANVUR requires a distinction to be maintained between the state that dictates the system’s objectives and ensure its funding, and the state that evaluates universities according to rules that are an expression of technical-scientific knowledge. With regard to universities, the 8 9

Turri (2015). Cassese (2013).

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independence of ANVUR means that funding quotas, which the universities are competing for, are allocated on a competitive basis. Finally, with regard to academics, the independence of ANVUR means that academic pressure groups cannot take possession of the evaluation and bend it to their own interests. Concerning high technical expertise, the law establishing ANVUR states that the members of the Steering Committee shall be chosen among “persons with high recognized qualifications and experience in higher education and research, as well as in the evaluation of such activities, from a variety of professional and disciplinary fields”. In the Italian experience, these two requirements are not always (fully) guaranteed, and right from the beginning, a certain ambiguity was evident in relations between ANVUR and the Ministry. This concerned both structural and procedural profiles.10 From an organisational point of view, the Minister’s power to appoint Steering Committee members is not in line with the requirement that evaluators be apolitical.11 And if evaluators have to be independent from those evaluated, the non-transparent way the Steering Committee members choose the members of the Groups of Evaluating Experts (Gruppi di Esperti della Valutazione, GEV) is even less satisfactory. From a procedural point of view, the research quality evaluation procedure (Valutazione della Qualità della Ricerca, VQR) and the national scientific qualification procedure (Abilitazione Scientifica Nazionale, ASN) reveal a grave confusion of roles between the Ministry and ANVUR. Evaluation methods and instruments are read as real parameters of judgment and are incorporated in ministerial decrees, so that evaluation is entirely absorbed into the administrative sphere. In this way, evaluation becomes ossified. The expression “juridification of the assessment” is particularly important: it is a result, perhaps foreseeable, of the transfer of institutions and instruments belonging to English-speaking countries into the Italian context. It should not therefore be surprising that assessment is reached via an exponential increase in administrative procedures, determining a rise in the power of the bureaucracy, which defines and directs procedures: a bureaucracy which no longer has the face of the traditional ministerial administration and no longer deploys the typical “command and control” instruments, but resorts to the apparently neutral one of method. This has weakened the legitimacy and credibility of the Agency.

10 11

Marra (2014). Pinelli (2011).

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The Procedural Guarantees in Proceedings Administered by ANVUR

To strengthen the legitimacy of the Agency, it is also important to ensure participation in proceedings, yet the Agency has a mixed attitude towards participation. It is interesting to note that in issuing some of its general acts, the Agency has adopted a procedure very similar to that used by the market regulation authorities, namely notice-and-comment procedure. Notice-and-comment is a common rulemaking procedure under which a proposed rule is published on the authority’s official web site and is open to comment by stakeholders. Through the notice-andcomment procedure the interested parties can participate and influence the authority in its definition of the rule. But the participation is real and effective when it is capable of having some effect on the decision; otherwise it is a superficial exercise and a waste of time. Conversely, the authority cannot be obliged to give the same weight to participants’ comments as it would in a co-decision process. The consequence would be what was called “ossification” in the regulatory context, namely a tightening of regulatory activity due to many formal and pedantic rules. Some indications can be drawn from the case law on economic regulation, which requires the Agency to state reasons for its decisions and give due consideration to the observations submitted (although it is not necessary to respond to every observation promptly). Whether ANVUR decides to be influenced by observations depends mainly on itself, since it is very unlikely to weigh the case law. In fact, there is almost no litigation between universities and ANVUR or universities and Ministry for Scientific Research and Technology, whereas litigation involving groups of or individual academics is more lively. In discharging its regulatory burden—both in procedures for issuing general acts and in evaluation procedures involving individuals—the Agency is in serious need of greater authority and legitimacy. This would help improve perceptions of the effectiveness and genuine nature of participation and support the dissemination of shared practices, criteria and evaluation methods among academics, still generally immature on this front. Ensuring the independence and competence of the entities operating within the Agency and guaranteeing participation are therefore indispensable conditions for the new model of steering at a distance to be effective. They are also vital to avoid the risk that the apparent neutrality of evaluation conceals old and new forms of academic and political pressure.

3 Changes in University Autonomy Now for some considerations on autonomy. The tension between autonomy and centralisation is a constant throughout the history of the Italian state. In 1859, when Italy had to choose a university model for the new kingdom, what was chosen is far

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from clear. Formally, a model similar to the unitary centralistic French Napoleonic model was chosen, but was never fully realized due to forces for the conservation of the many universities already existing in the pre-union states. Nor was an autonomist model realized because the legislation was always marked by centralism, with a prominent role of the Ministry for Education. Even the timid autonomy recognized by Gentile in the reform of 1923 was substantially abandoned by subsequent Fascist legislation. Even after the 1948 Constitution, in which autonomy was clearly chosen, the legislation remained practically unchanged for 40 years and universities continued to be substantially organs of the state. Everything was decided centrally: the state used universities to implement the public service of higher education. It is no coincidence that a famous Italian jurist likened autonomy to the phoenix: “We know there is university autonomy, but in all conscience, exactly or even approximately what it is, we do not know.”12 Despite the ineffectiveness of the Constitution, the doctrine confirms that it marked a real watershed in the matter: it introduced a strong conception of autonomy, very different from the pre-constitutional one.13 In fact, the last paragraph of Article 33 states that universities have the right to set up autonomous systems within the limits established by the laws of the state. It is clear in the doctrine and firmly anchored in constitutional jurisprudence that the autonomy of universities is linked to the statement on freedom of research and teaching in the first paragraph of Article 33. Autonomy is an institutional condition necessary and instrumental for science and teaching to be free from external (especially political) pressure. Since the holders of these freedoms are university teaching staff, part of the doctrine has considered that autonomy refers to a subject, the university, conceived as a public body based on association.14 In essence, the university is a body representing a community—the body of lecturers/professors—to which the Constitution recognizes the right to its own autonomy, precisely to fully guarantee freedom of research and teaching.15 Autonomy is therefore specified, first and foremost as self-ordering, that is, as a capacity recognized to universities to define the systematic body of rules that concerns their own organisation and action in a space defined by the legislator. In actual fact, the centralized model has prevailed for a long time, but without doubt, the recognition of autonomy enshrined in the Constitution is functional in protecting freedom of research and teaching against interference by external powers and political influences. As specified at the beginning, reformulation of autonomy is a tool used by governments to redefine higher education systems and ensure that universities achieve the objectives set by government. This has led to a decline in democratic

12

Pugliatti (1964). Ramajoli (2020). 14 Mazzarolli (1981). 15 D’Atena (1991). 13

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self-government of the academic community in favour of a corporate governance model. In the extreme case, the aim is to move from an associative-based model to a foundational type, similar in theory to that existing in some Anglo-American universities, where strategic orientation is not an expression of the academic community, but of stakeholders. It does not matter here to what extent this model of governance has been implemented in Italy since the 2010 reform, or whether it was a much less disruptive reform than is generally believed.16 It suffices to highlight that this new concept of autonomy, which aims to put universities in a position to respond to the needs of society and the economy, is substantially different from the autonomy enunciated by the Italian Constitution. The latter, as mentioned, serves to protect research and teaching from outside influences, in particular that of the government, and the new autonomy serves to make universities, through the government, more permeable and attentive to the needs of society and the economy. Ultimately, these two concepts of autonomy are in conflict. The task of Italian jurists is to establish, in the current Constitution, whether and under what conditions they can concretely coexist. The risk is that independence can be lost, not for reasons of political control but due to indirect subordination to the economic world.17

References Barr N (2004) Economics of the welfare state, 4th edn. Oxford University Press, Oxford Capano G (2015) Obiettivi e tendenze delle riforme dei sistemi universitari europei. Scuola democratica 1:123–140 Capano G, Regini M, Turri M (2016) Changing governance in universities. Italian higher education in comparative perspective. Palgrave, London Cassese S (2013) L’ANVUR ha ucciso la valutazione. Viva la valutazione! Lo stato delle università e la valutazione della ricerca. Il Mulino 1:73–79 D’Atena A (1991) Profili costituzionali dell’autonomia universitaria. Giurisprudenza costituzionale J:2973–2993 Marra A (2014) La valutazione del sistema universitario e il ruolo dell’ANVUR. In: Piperata G (ed) L’università e la sua organizzazione. Questioni ricorrenti e profili evolutivi. Editoriale Scientifica, Napoli, pp 115–138 Mazzarolli L (1981) L’autonomia delle Università e delle Accademie nella Costituzione italiana. Diritto e Società:267–300 Moscati R (2011) Università (Voce). In: Dizionario di storia. Treccani, https://www.treccani.it/ enciclopedia/l-universita_%28Dizionario-di-Storia%29/. Accessed 5 March 2021 Neave G, Van Vught F (1991) Prometheus bound: the changing relationship between government and higher education in Western Europe. Pergamon, Oxford Pinelli C (2011) Autonomia universitaria, libertà della scienza e valutazione dell’attività scientifica. Rivista AIC 3:1–10

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Capano et al. (2016). Moscati (2011).

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Pugliatti S (1964) Relazione sull’autonomia universitaria. L’Università Italiana, p 355 Ramajoli M (2020) La mai attuata autonomia universitaria. In: Marra A (ed) L’autonomia del nuovo millennio. Aracne, Roma, pp 27–34 Teixeira P, Dill D (2011) Public vices, private virtues? Assessing the effects of marketization in higher education. Sense, Rotterdam Turri M (2015) La valutazione nelle università europee. Scuola democratica 1:83–102

Automated Decisions, Research Quality Assessment and Step-Based Salary System: Potential Dangers for Academic Freedom in Italy Elena Buoso

Abstract Italy recently introduced Research Quality Assessment to allocate public funding and produce public evidence of the benefits of scientific research. This evaluation process has well-known inconveniences, emphasized by three additional factors: the system of National Scientific Habilitation (ASN); the rating system of scientific journals; the step-based salary system. These measures are aimed at preventing misbehaviour and inefficiencies but their effects on academic freedom are felt by everyone. Keywords Academic freedom · Research evaluation · Salary steps · Automated decisions · Bibliometric

1 Recent Challenges to Academic Freedom in Italy Academic freedom, understood as the freedom to choose the subject and method of research, is a broad concept: a fundamental principle protected by the Italian Constitution. The Constitution states that the Republic—which includes all public bodies at every administrative level—“promotes the development of culture and scientific and technical research” (Article 9), thus granting academic freedom and autonomy to universities (Article 33).1 The importance of these constitutional values and commitments has sometimes led to academic privileges and misconduct,2 circumstances which are not dealt with by the legal system in an appropriate way. Over the last decade,3 efforts to reform the university sector have intensified,

1

Orsi Battaglini (1990), p. 89; della Cananea (2011), p. 633; Pinelli (2011), p. 567. See della Cananea and Franchini (2009); della Cananea (2012), p. 486. 3 See the so-called Gelmini law, Law no. 240 (30.12.2010), G.U. no. 10 (14.1.2011). 2

E. Buoso (*) Department of Public, International and European Union Law, University of Padua, Padua, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_12

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tackling research assessments, academic recruitment and salary grades, and ultimately challenging the core of the academic system4 and its freedom. Besides its own substantial problems, this new system also encountered obstacles in the new regulatory methods. Firstly, the rules were introduced retroactively, and therefore applied to past behaviour;5 secondly, the rules were not accompanied by transitional dispositions which would have encouraged effective comprehensive changes in the academic community. All this led to strategic adjustments in the short term, and of course when the measure becomes the main goal, it ceases to be a good measure.6

2 The Introduction of Research Quality Assessment Exercises (VQR) in Italy The Italian National Agency for the Evaluation of Universities and Research Institutes (ANVUR) was founded in 2006. The agency has a governing board appointed by presidential decree on the advice of the Ministry for Education, Universities and Research (MIUR),7 which oversees the national quality evaluation system for universities and research bodies, mainly through Research Quality Evaluation Procedure (in Italian: VQR).8 The assessments are made approximately every 5 years (the first was conducted in 2011: see D.M. no. 17/2011 for the evaluation of research products from 2004 to

4

Davis et al. (2012). Cassese (2012), p. 431; Bellomo (2016), p. 426. 6 Denozza (2011), p. 593. 7 According to Pinelli (2011), p. 575, ANVUR is not sufficiently independent of MIUR. See also Sandulli (2009), p. 55; della Cananea (2011), p. 640; Travi (2011), p. 624. 8 ANVUR has the following tasks: 1. evaluating management, teaching, research and technological transfer of universities and other research organisations; 2. defining criteria and methods for assessment of institutions and accreditation of programmes (PhD, Master and Post-graduate programmes); 3. steering assessment activities undertaken by university Independent Evaluation Units; 4. defining procedures for collecting and evaluating student satisfaction reports; 5. developing and proposing quantitative and qualitative requirements for universities (new establishments, mergers, federations or closures) and study programmes to the Ministry; 6. providing benchmarks for the allocation of public funds; 7. assessing the results of agreements between the Ministry and individual institutions; 8. assessing the effectiveness and efficiency of public funding programmes and incentive programmes for teaching, research and innovation activities; 9. undertaking further assessment exercises, defining standard parameters and providing technical regulations at the request of the Minister. The list can be read on the official website https://www.anvur.it/en/ agency/mission/, last accessed 10.2.2021. On the assessment functions of ANVUR: Marra (2014), p. 119. 5

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2010)9 and are based on assorted criteria: so-called bibliometric10 statistical methods11 and peer-review systems. More precisely, a diversified method applies to areas where citation index and h-index indicators are used (natural sciences, engineering and the biomedical area, including for example psychology), whereas the “research products” of the social sciences are subject to peer review. Although Italy is a latecomer in academic evaluation,12 it does not seem to have exploited the experience of other countries,13 such as the UK and its RAE,14 which was introduced by M. Thatcher in 198615 and replaced (with some modifications) by the Research Excellence Framework in 2014,16 which inspired the Italian VQR. The purposes of the evaluation processes are the same:17 1. to report on how public money is invested in scientific research (to the taxpayer).18 This procedure is quite expensive, considering the steady decrease in public funding for research and universities; 2. to produce public evidence of the benefits of scientific research, and 3. to allocate public funding. VQR is decisive for assessing: the annual ordinary budget for research (at least 7%),19 three-fifths of the reward quota (up to 30% of the annual budget),20 and extra funding.21 This is why universities and departments urge their academics to publish and transform their research into “research products” which could score well in the VQR. The well-known inconveniences that ensue can be summarised as follows: (a) Goal-displacement: achieving a good score on the indicators becomes a target in itself which can be achieved by cheating the assessment system.22 For instance, 9

For more details, see Furiosi (2021), p. 2. Bibliometric is the term used in the Italian regulation, often as a synonym for the closely related scientometric and infometric. On the origin and meaning of the three metrics see: Hood and Wilson (2001), p. 291. See also Ghezzi (2020), p. 93. 11 Baccini (2010). 12 Banfi (2014), p. 364. 13 Hicks (2012), p. 251; Sivertsen (2017), p. 2; Baccini et al. (2019), p. 2. 14 https://www.rae.ac.uk/aboutus/history.asp, last accessed 10.2.2021. See Martin and Whitley (2010), p. 51. 15 On the influence of neoliberalism on the university system and its evaluation, see Chitty (2014), p. 45. 16 https://www.ref.ac.uk, last accessed 10.2.2021. See for example Stern Lord et al. (2016), p. 8; Sivertsen (2017), p. 2; Morgan Jones et al. (2017), p. 2. 17 De Fraja (2019); see also Seckelmann (2018), p. 23. 18 Banfi (2014), p. 363. 19 Art. 7, Law no. 1 (9.1.2009), G.U. no. 6 (9.1.2009). 20 Art. 2, Decreto legge no. 180 (10.11.2008), G.U. no. 263 (10.11.2008), as amended by Art. 13(1) b Law no. 240 (30.12.2010), G.U. no. 10 (14.1.2011). 21 For example the additional resources granted to some “Departments of Excellence” by Art. 1 (314–338), Law no. 232 (11.12.2016), G.U. no. 297 (21.12.2016). 22 Baccini et al. (2019), p. 2. 10

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the algorithms of the automatic evaluation procedure can be deceived quite easily (e.g. by self-citation, now excluded from the count, or mutual citations or by ignoring the papers of competitors to manipulate the citation index). A similar effect is obtained by “slicing” a scientific study into many publications to increase “productivity”.23 It is not solely a matter of academic ethics because such scientometric strategies affect the content and methods of scientific research. (b) Risk avoidance: b.1. in relation to the research topic: innovative, interdisciplinary or unconventional research subjects are avoided because indicators generally tend to reward traditional research programmes and mainstream topics.24 b.2. in relation to time and unpredictability: very complex research or topics with uncertain outcome are avoided when it may not be possible to publish the results within the timeframe of the assessments. (c) Task reduction: academics tend to avoid unrewarded academic activities, such as teaching and public engagement, in order to concentrate on publishable academic research.25 (d) Time stealing: huge new bureaucratic burdens leave academics much less time to perform their principal activities: research and teaching.26 (e) Quantity at the expense of quality: although the motto publish or perish is thought to promote excellence, this depends on the definition of excellence. Are the standards to be measured substantially or just numerically? Does the system promote an apparent standard of excellence? And is self-replicating excellence (once excellent always excellent) a good thing? (f) Disproportionate cost of the evaluation itself.27 In addition to this general problem, some difficulties arise from the regulation chosen by the Italian legislator or by some universities. VQR was introduced as an assessment tool for departments, but it affects individuals and their academic life. For instance, some internal regulations require VQR for admission to a doctoral college or to access internal resources. A negative score or refusing to participate in VQR28 can therefore isolate researchers and impede their research. VQR claims to measure the impact of a scientific study on the basis of various aspects, but it may

23

Butler (2003), p. 39. Baccini et al. (2019), p. 2; Banfi (2014), p. 376. 25 Baccini et al. (2019), p. 2. 26 O’Regan and Gray (2018), p. 533. See also Vesperini (2013), p. 947. 27 Baccini et al. (2013), p. 60. 28 In 2015–2016, in protest against the salary freeze for academic staff, a number of researchers refused to indicate which publications they would submit to VQR. In the following years, they were excluded from applying for research funding, according to an internal regulation of their university. The administrative court ruled in favour of the applicants, finding that the university had breached the principle of proportionality and had not found alternative solutions (compensation mechanisms) 24

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have unintended and paradoxical sides effects29 or lead to ridiculous results, such as universally recognised geniuses or Nobel prize winners with very few publications.30 Surprisingly, and despite voiced concern about “pervasive misapplication of indicators to the evaluation of scientific performance”,31,32 including from scientometric scientists, the Italian legislator decided to apply these problematic assessment criteria. Some corrections were recently introduced by the legislator, but the system adopted by ANVUR and expressed by the current VQR remains unrefined and has not been updated to make it more reliable and useful.33 All products are classified in one of five grades (from unacceptable to excellent) and each of these grades is assigned 5–25% of the products submitted. Therefore if more than 30/100 products are judged excellent, five of them have to be given a different grade (e.g. good), distorting the evaluation. In the end, the bibliometric index and the quantitative index based on the number of publications and their editorial collocation do not properly evaluate research outcomes; they only reflect the appreciation of the scientific community.34 Thus the indicators become more than a measuring system; they influence the creation of studies and publications, making researchers think in terms of indicators.35

envisaged by the VQR regulations in force at the time. Decision of Tar Cagliari, Sez. I, 10.1.2018, no. 10. See Furiosi (2018), p. 1099. 29 Weiler (2017), p. 721; McLellan (2020), p. 5. 30 See for example Wittgenstein, as reported by van Gestel and Vranken (2011), p. 901. 31 Hicks et al. (2015), p. 430. 32 Parnas (2007), p. 19. 33 See for example Hicks et al. (2015), p. 430 ff. To stop misapplication, these authors propose ten principles: “1. Quantitative evaluation should support qualitative assessment by experts; 2. The measurement of performance should be done according to the research missions of the institution, group or researcher; 3. Excellence in relevant research should be protected; 4. Keep data collection and analytical processes open, transparent and simple; 5. Allow the evaluated to verify data and analysis; 6. Account for variation by field in publication and citation practices; 7. Ground the assessment of individual researchers on a qualitative judgement of their portfolio; 8. Avoid misplaced concreteness and false precision; 9. Recognise the systemic effects of assessment and indicators; 10. Scrutinise indicators regularly and update them.” 34 Bornmann and Daniel (2008), p. 45; Denozza (2011), p. 590. 35 Dahler-Larsen (2014), p. 969; de Rijcke et al. (2016), p. 161; Müller and de Rijcke (2017), p. 157; Baccini et al. (2019), p. 2.

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3 National Scientific Habilitation (ASN) and Automated Decisions Based on Fixed Thresholds The issues briefly described are aggravated by two additional factors: (1) the system of the National Scientific Habilitation (ASN), which is a prerequisite for applying for permanent positions of Full and Associate Professor in Italian universities; Italy is currently the only country in which academic progress in some key careers relies entirely on bibliometric indicators;36 (2) the rating of scientific journals in order to calculate indicators for ASN in law, humanities and social sciences. National Scientific Habilitation requires the applicant to score above a preliminary threshold. A distinction must be made between bibliometric and non-bibliometric research areas, and then between the various scientific fields.37 Each field has different thresholds. Research products are assessed according to the field in which the candidate wishes to qualify. This affects the possibility of obtaining habilitation and restricts the choice of research topics. The thresholds for bibliometric scientific areas are quantitative, concerning productivity as indicated by the number of publications of the author recorded in two commercial databases,38 Web of Science (by Thomson Reuters) and Scopus (by Elsevier). They are also based on citations, i.e. the number of other papers citing the article under evaluation, expressed by the Hirsch index (h-index) in the Italian system.39 There is a general conviction that citation statistics are “inherently more accurate because they replace simple numbers with complex judgments, thus overcoming the possible subjectivity of peer review”40 but “this belief is unfounded”41 and there is strong evidence that it is inappropriate to consider number of citations and research quality to be equivalent.42

36

Baccini et al. (2019), p. 2. For example, constitutional law, general public law and administrative law belong to different scientific-disciplinary sectors and have different thresholds. 38 Private commercial databases are used to allocate public funds. This is problematic for career advancement of academic staff, because such tools were not designed for the specific purpose of assessing the productivity of academics. Moreover, in the event of any errors or delays, which have significant effects on the Italian academic system, there is no mandatory correction mechanism or adequate judicial protection. 39 From the name of its creator Hirsch (2005), p. 16569. 40 Adler et al. (2009), p. 1. See also Moed (2005), p. 25, in praise of the objectivity of bibliometrics. 41 Adler et al. (2009), p. 1; Banfi (2014), p. 365. 42 Up to ten different factors, such as the distribution of indexed publications over time, the size of different scientific communities and the technical problems of algorithms: Pinto (2009), pp. 7–9. Regarding so-called “sleeping beauties”, i.e. publications that go unnoticed because they are ahead of their time, see van Raan (2009), p. 467. 37

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Bibliometrics is very sensitive to the research environment and the citational styles of different fields.43 Moreover, it does not apply consistently to all sectors.44 Law and the humanities apply quantitative indicators of scientific production (three medians must be reached: a certain number of articles in the past ten years, a certain number of articles published in A-rated journals and a certain number of books). This discourages multidisciplinarity. It is a system that determines the topics of research and the form of publication, because journal articles, especially in A-ranking journals, end up counting more than a book, a book chapter and other research products, regardless of content.45 The journal accreditation system also suffers from an inappropriate link to VQR, which conditions the A-ranking. A-ranking is granted when papers that exceed a certain threshold of VQR excellence are published by a journal. This naturally impacts the journal’s editorial choices, encouraging publication of papers by structured academics who participate in the VQR and who belong to the research area for which the journal is accredited.46 The present system also gives journal editors47 the power to impede the careers of researchers: some papers may never be read because editors exclude them from publication for reasons that have nothing to do with the quality of the research.

4 Salary Levels for Academic Staff Based on Qualitative-Quantitative Evaluation A last point that affects academic freedom is the new regulation on salary increases. Periodic salary increments are envisaged for all civil servants, but increases are tied to the following qualitative-quantitative criteria in the case of academics: i. assessment of teaching activity, in some universities based on the students’ opinions, which can vary significantly depending on the questionnaire they are given; ii. assessment of scientific production, as for the VQR; iii. automated verification of management activities, such as mere participation in collegiate bodies.

43

Batista et al. (2006), p. 180; Carnevale (2012), p. 1565. Consider for example the different importance of articles and books: Pinto (2009), p. 11. 45 Luzzini (2018), p. 11. 46 Balletti (2016), par. 5; Furiosi (2021), par. 4. 47 This also increases the possibility of abuse by editors, who are in a position to take (academic) advantages of their role. See the recent case of exclusion of a highly cited researcher from the editorial board of a journal and his ban as a reviewer from another for repeatedly manipulating the peer-review process to amass citations of his own work: van Noorden (2020), p. 200. 44

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In some universities, the outcome of evaluation for salary increments has further consequences, for example it may affect participation in commissions for ASN, selection and career progression of academic staff, evaluation of research projects, and funding.48 The new system shifts the focus of academic activity.49 While the above described measures, and especially making salary increments depend on a questionable quality rating of research and teaching activities, are aimed at preventing misbehaviour and inefficiencies that occurred in the past, their effects on academic freedom are felt by everyone. These measures are as controversial as the message they convey: punish one hundred to educate one.

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de Fraja G (2019) Evaluation of academic research: peer review versus bibliometric algorithm. https://voxeu.org/article/evaluation-academic-research-peer-review-versus-bibliometric-algo rithm. Accessed 10 Feb 2021 de Rijcke S, Wouters PF, Rushforth AD, Franssen TP, Hammarfelt B (2016) Evaluation practices and effects of indicator use-a literature review. Res Evaluat 2:161–169. https://doi.org/10.1093/ reseval/rvv038 della Cananea G (2011) Interpretazioni della Costituzione e valutazioni della ricerca: interrogativi e ipotesi. Munus 3:633–642 della Cananea G (2012) Distingue frequenter: le valutazioni della ricerca in ambito giuridico. Il Lavoro nelle Pubbliche Amministrazioni 3-4:485–502 della Cananea G, Franchini C (eds) (2009) Concorrenza e merito nelle Università. Giappichelli, Torino Denozza F (2011) La ricerca scientifica e le tecniche di valutazione. Munus 3:589–598 Furiosi E (2018) La valutazione della qualità della ricerca (VQR) al vaglio del giudice amministrativo. Foro Amministrativo 6:1087–1102 Furiosi E (2021) Research Quality Assessment in Italy and classification of the A-class scientific Journals. Potential distorting effects. CERIDAP 2:1–10 Ghezzi C (2020) Research evaluation. In: Ghezzi C (ed) Being a Researcher: an informatics perspective. Springer, Cham, pp 93–110 Hicks D (2012) Performance-based university research funding systems. Res Policy 2:251–261 Hicks D, Wouters P, Waltmanis L, de Rijcke S, Rafols I (2015) The Leiden Manifesto for research metrics. Nature 520:429–431 Hirsch JE (2005) An index to quantify an individual’s scientific research output. Proc Natl Acad Sci USA 46:16569–16572 Hood WW, Wilson CS (2001) The literature of bibliometrics, scientometrics, and informetrics. Scientometrics 52:291–314. https://doi.org/10.1023/A:1017919924342 Luzzini F (2018) Bibliographical distortions, distortive habits: contextualizing Italian publications in the history of science. Isis:3–13 Magris F (2012) La concorrenza nella ricerca scientifica. Bompiani, Milano Marra A (2014) La valutazione del sistema universitario e il ruolo dell’ANVUR. In: Piperata G (ed) L’università e la sua organizzazione. Questioni ricorrenti e profili evolutivi. Editoriale Scientifica, Napoli, pp 115–137 Martin B, Whitley R (2010) The UK research assessment exercise: a case of regulatory capture? In: Whitley R, Gläser J, Engwall L (eds) Reconfiguring knowledge production: changing authority relationships in the sciences and their consequences for intellectual innovation. Oxford University Press, Oxford, pp 51–80 McLellan T (2020) Impact, theory of change, and the horizons of scientific practice. Soc Stud Sci J:1–21. https://doi.org/10.1177/0306312720950830 Moed HF (2005) Citation analysis in research evaluation. Springer, Dordrecht Morgan Jones M, Manville C, Chataway J (2017) Learning from the UK’s research impact assessment exercise: a case study of a retrospective impact assessment exercise and questions for the future. J Technol Trans:1–25. https://doi.org/10.1007/s10961-017-9608-6 Müller R, de Rijcke S (2017) Thinking with indicators. Exploring the epistemic impacts of academic performance indicators in the life sciences. Res Eval 3:157–168. https://doi.org/10. 1093/reseval/rvx023 O’Regan JP, Gray J (2018) The bureaucratic distortion of academic work: a transdisciplinary analysis of the UK research excellence framework in the age of neoliberalism. Language Intercult Commun 5:533–548. https://doi.org/10.1080/14708477.2018.1501847 Orsi Battaglini A (1990) Libertà scientifica, libertà accademica e valori costituzionali. In: Cheli E (ed) Nuove dimensioni dei diritti di libertà (Scritti in onore di Paolo Barile). Cedam, Padova, pp 89–108 Parnas DL (2007) Stop the numbers game. Counting papers slows the rate of scientific progress. Commun Assoc Comput Mach 11:19–21

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Part IV

The New Role of Universities and the Freedom of Science and Teaching

Private Higher Education and Academic Freedom Diana zu Hohenlohe

Abstract Individual academic freedom is under a special threat in private universities. Unlike in state universities, academic freedom may conflict with the basic rights of the university-owners. Such conflicts should be solved primarily by a careful balancing of fundamental rights. Where compromise is not possible, some rough guidelines for conflict resolution can be formulated. Keywords Private universities · Safeguards for academic freedom · Staff recruitment · Accreditation · Guarantee responsibility of the state

1 Introduction From the traditional continental European perspective, academic freedom is conceived mainly in an institutional setting where scientists or scholars work, or where research units, such as faculties or departments, are established at a state university or research institution financed by the state.1 For a long time, the private sector of suppliers of higher education services, apart from institutions run by the Church and religious orders, was not considered as a possible framework for ensuring academic freedom, since it either did not exist or was simply ignored due to the small numbers of its institutions, professors and students.2 However, the situation is changing radically, at least in some jurisdictions. While Germany is still reluctant to establish private universities, apart from the lowerranked universities of applied sciences (Fachhochschulen), Austria, for instance, passed a Federal Act on Accreditation of Education Institutions as Private 1 See for example Part II Chapter 12 Section 1 of the General State Laws for the Prussian states (Allgemeines Landrecht für die Preußischen Staaten) of 1794: “[. . .] Universities are enterprises of the state” (translation). 2 Penßel (2017), pp. 573–574; see still Kempen (2017), pp. 1 and 9.

D. z. Hohenlohe (*) Department of Law, Sigmund Freud Private University, Vienna, Austria © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_13

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Universities (Bundesgesetz über die Akkreditierung von Bildungseinrichtungen als Privatuniversitäten – Universitäts-Akkreditierungsgesetz) in 1999,3 opening the doors to the establishment of private universities.4 As a result, 14 private universities, offering more than 150 courses of study (Bachelor, Master and PhD programmes), have been founded in Austria since 2000.5 The private universities have already more than 15,000 students and double-digit annual growth.6

2 Challenges for Academic Freedom in Private Universities This new phenomenon raises questions and a series of challenges regarding academic freedom, with its two components, freedom of academic teaching and freedom of research, because private management and organisational and financial structures are different from those of state universities. For instance, a rector of a private university may fix an academic’s research agenda to ban certain subjects from lectures because students claim that they are nonsense or of no practical use. A private university-owner may install research units led by friends, relatives, business-partners and non-academic donors of funds, who are given the power to supervise doctoral and postdoctoral staff. Professors and other academic staff may not be given the necessary infrastructure, such as laboratory equipment or a library, or the necessary funds for research, since the focus of private universities is usually on teaching, which brings in student fees which are the principal income of the institution. In that regard, Margrit Seckelmann pointed out that the state has a responsibility to ensure academic freedom, primarily but not only by “safeguarding an institutional communication context for scholarship [. . .] providing the necessary resources”.7 Without basic state funding, academic freedom is potentially threatened.8 Linked to the latter aspect is the tremendous influence of (third-party) private donors on private universities. The Austrian Accreditation Authority (Agentur für Qualitätssicherung und Akkreditierung – AQ Austria) identified this influence as a special threat for academic freedom at private universities. In interpretative guidelines dated 13 December 2016 concerning the organisational structure of private universities, it urged that “the university, its organs and its members must be protected against science-extrinsic influences of third parties” by a system of checks and balances between the different organs of the university.9 Private universities

3

BGBl. I no. 168/1999. See Grimberger and Huber (2012), p. 22. 5 ÖPUK (2020). 6 ÖPUK (2018, 2019). 7 Seckelmann (2018), p. 264 (translation). 8 BVerfG Judgement 1 BvR 424/71, 1 BvR 325/72 (29.5.1973) para. 114–115. 9 AQ Austria (2016a), p. 3 (translation). 32 and 34. 4

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may be ensnared by financial incentives and other types of deal into making concessions regarding freedom of research and academic integrity.

3 Applicability of the Guarantee of Academic Freedom It is unclear whether the guarantee of academic freedom can be applied in the context of private universities. According to a conventional reading, basic rights have a defensive quality insofar as they protect personal liberties against infringements by the state. Thus, legal scholars argue that scientists working in private research institutions cannot claim academic freedom: “[A]n obligation of [. . .] research institutions organised under private law to respect and protect basic rights cannot be found, [when these entities] are not established or financed by the state. In the field of mere private law, basic rights do not have direct effect, but as [part of an] objective system of values, they rely at best on interpretation of the undetermined legal terminology of private law. Private enterprises employ scientists regularly on a contract basis [. . .]. It is explicitly or implicitly stipulated that they have to follow the detailed instructions of their employer regarding their field and method of work [when working] in research departments. This contractually secured managerial authority does not leave much room for a horizontal effect of the basic right [. . . of freedom of science] in private enterprise.”10

3.1

Institutional Academic Freedom of Private Universities

These considerations originally did not concern private universities, either from a human or basic rights perspective. Universities are the classical institutions of science, where academic teaching is offered and scientific research is conducted. Universities are therefore bearers of the right to science,11 as laid down, for example, in Article 5(3) of the German Basic Law (Grundgesetz)12 and in Article 17(1) of the Austrian State Basic Law on the General Rights of Citizens (Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger).13 In this regard, it does not make any difference whether a university is run under a system of public law or private law. 10

Meusel (1992), pp. 160–161 (translation). See inter alia Bettermann (1969), p. 1323; Meusel (1992), p. 160; Schmidt-Aßmann (1989), p. 208. 12 The provision reads: “Arts and sciences [Wissenschaft], research and teaching shall be free. The freedom of teaching shall not release any person from allegiance to the Constitution” (translation). The German term Wissenschaft not only includes the natural sciences but also the humanities and any other form of academic scholarship. 13 The norm stipulates: “Science [Wissenschaft] and its teaching is [sic.] free” (translation); see to this provision Wenger and Winkler (1974). 11

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Private universities have corporate or institutional academic freedom.14 This is acknowledged in legal systems such as those of Great Britain and the United States of America, where institutions of higher education are predominantly private.15 Institutional academic freedom ensures the establishment and running of a scientific enterprise where free academic operations take place. This includes decisions about mission, studies, recruitment of academic staff and students,16 as well as the structures, mechanisms and procedures for organizing, coordinating, financing, preparing and conducting teaching and research.17 A private university can therefore be confronted with various situations in which its academic freedom is endangered by the state. Such situations may occur particularly in the process of accreditation or reaccreditation by the accreditation authority or in the case of supervisory orders issued by the competent Ministry of Science. An example of a problematic legal provision in the context of accreditation is Section 25, paragraph 3, sentence 4 of the Austrian Federal Act on External Quality Assurance in the Field of Higher Education and the Agency for Quality Assurance and Accreditation Austria (Bundesgesetz über die externe Qualitätssicherung im Hochschulwesen und die Agentur für Qualitätssicherung und Akkreditierung Austria – Hochschul-Qualitätssicherungsgesetz).18 This provision deals with the necessary permission of the Ministry of Science for a positive accreditation or reaccreditation decision by the Accreditation Authority. It reads that the Minister of Science refuses permission to the Accreditation Authority on a decision about an accreditation application, if the decision of the Accreditation Authority is in contrast with the interests of national education policy. The interests of national education policy are not specified. The provision is too vague to sustain serious infringement of the academic freedom of a private university applying for accreditation or reaccreditation.

3.2

Individual Academic Freedom of Professors

A university with institutional academic freedom is impossible without the individual academic freedom of the teaching staff. From a human or basic rights perspective, it is “impossible to give an institution academic freedom while denying academic freedom to its scholars; in short: a university without free teaching staff

14 BVerfG Judgement 1 BvR 775/84 (14.4.1987) para. 196; Kempen (2017), p. 9; Scholz (1977), Art. 5(3), para. 125 and Fehling (2004), Art. 5(3), para. 131. 15 See Palfreyman and Temple (2017), pp. 50–54; Farrington and Palfreyman (2012), pp. 452–453. 16 U.S. Supreme Court Judgement 354 U.S. 234 (17.6.1957) Sweezy v. New Hamsphire. 17 BVerfG Judgement 1 BvR 424/71, 1 BvR 325/72 (29.5.1973) para. 114–115; Kempen (2017), p. 9; on the (disputed) freedom to found a private university, Messer (2009), pp. 379, 382; Würtenberger (2019), pp. 15, 16–18; Penßel (2017), pp. 582–584. 18 BGBl. I no. 74/2011.

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is not a university”.19 Academic freedom within the institution is therefore an inherent quality of universities, a feature that distinguishes universities from other private enterprises. Accordingly, scholars also have a right to academic teaching and research in private universities.20 This right is initially protected by the state’s “guarantee-responsibility” (Gewährleistungsverantwortung) for academic freedom in the private context.21 This guarantee-responsibility is activated and maintained by the accreditation relationship between the private university and the accreditation authority. The state rules for institutional accreditation must therefore ensure that the academic freedom of teaching staff in private universities is generally respected and protected. Accordingly, Section 2, paragraph 2, no. 1 of the Austrian Federal Act on Private Universities (Bundesgesetz über Privatuniversitäten – Privatuniversitätengesetz),22 which together with the Federal Act on External Quality Assurance in the Field of Higher Education and the Agency for Quality Assurance and Accreditation Austria has replaced the Federal Act on the Accreditation of Education Institutions as Private Universities, stipulates that one prerequisite for accreditation is that the private university align its activities with the principle of freedom of science and its teaching. Correspondingly, the constitutions and statutes of all Austrian private universities contain a formal commitment to academic freedom. However, neither the Federal Act on Private Universities nor the Federal Act on External Quality Assurance in the Field of Higher Education define explicit safeguards at university level to ensure that academic freedom is guaranteed in practice. Instead, the accreditation procedure focuses on the quality of the higher education services provided by private universities. As a result, the guarantee of academic freedom is not emphasised in the accreditation procedure.

3.3

Collective Academic Freedom of Teaching Staff and Corporate Academic Freedom of Faculties and Departments

Collective rights of teaching staff and corporate rights of faculties and departments may help safeguard individual academic freedom, although it is not clear whether such supra-individual rights exist in the framework of a private university.23 In an early decision on discussion in the legal literature regarding a “basic right of German

19

Kempen (2017), p. 13 (translation). BVerfG Judgement 1 BvL 8/10 (17.2.2016) para. 164; Seckelmann (2018), p. 271; critical Penßel (2017), pp. 593–594. 21 See Krausnick (2012), p. 27; Seckelmann (2018), p. 323. 22 BGBl. I no. 74/2011. 23 See Würtenberger (2019), pp. 19–23. 20

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universities”,24 the German Federal Constitutional Court mentioned that “the essential content of such a ‘right’, namely self-administration in the ‘academic’ field, which means [the field] directly related to research and teaching, is de facto uncontested; it is recognised in the laws on higher education and explicitly guaranteed in most constitutions of the Länder”.25 Thus the Court did not confirm a general right to academic self-administration within universities, but left the question open.26 Such a right could include the right to pass statutes necessary for the faculty or department, like study and examination regulations, rules concerning doctorates or habilitations. The right to academic self-administration could also mean the right to nominate representatives to boards having decision-making power at university level and the right to recruit new academic staff27 by ordinary appointment procedures. The German Federal Constitutional Court has accepted at least some of these rights for state universities, and has therefore held that faculties and university departments are bearers of the basic right to science.28 Regarding private universities, there are two possible lines of argument for the legal status of faculties and departments. They have to do with the fact that the internal sphere of these universities, unlike that of state universities, is moulded not only by the academic freedom of its scholars but also by professional freedom, the right to an established and operating business, and in general the property rights of owners. Private universities therefore have to have provisions for solving basic rights conflicts. Against this background, one position can be that individual academic freedom is under special threat in private universities and therefore needs strengthening by collective and corporate rights of faculties and university departments, which assume a fiduciary function when they become active in favour of the individual scholars.29 Another position is that the basic rights of the owners and founders of the private university, responsible for its operation, authorise them to decide about university structures and staff and to intervene directly in the case of individual scholars, without mediation by faculties or departments. The first argument is more convincing. There is an imbalance of power between the owners of a private university and an individual researcher who is employed and bound to the university by a working contract. Moreover, the quality of a university requires that individual academic freedom is effectively protected and not merely

24 See Smend (1928), pp. 56–73; Köttgen (1959); Küchenhoff (1964), pp. 604–605; Krausnick (2017), pp. 87, 91–92. 25 BVerfG Judgement 1 BvR 424/71, 1 BvR 325/72 (29.5.1973) para. 116 (translation). 26 Kempen (2017), p. 10. 27 Meusel (1982), p. 240; Trute (1994), pp. 358–360; Würtenberger (2019), p. 26. 28 BVerfG Judgement 1 BvR 316/60 (16.1.1963) para. 262; 1 BvR 775/84 (14.4.1984) para. 196; 1 BvR 1379/94, 1 BvR 1413/94 (31.5.1995) para. 93; see also Kempen (2017), p. 11; Meusel (1982), p. 35; comprehensively, Hänsch (1996). 29 Schulze-Fielitz (2009), pp. 158, 166.

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paid lip service. If, for example, the owners of a private university simply want to run the university to make money with student fees, while underfinancing academic departments, if they grant or sell university institutes including teaching positions to relatives, friends or business-partners without academic qualifications or experience, or divert funds granted for specific research projects, class action or corporate measures by faculties and departments are more likely to succeed than individual complaints. Faculties and departments of private universities should therefore be vested with their own academic freedom.

4 Infringement of Academic Freedom and Its Possible Justifications As mentioned, in private universities, academic freedom may conflict with the basic rights of the owners. According to the well-established formula of Konrad Hesse, conflicts between basic rights should be solved primarily by practical concordance,30 which means a compromise between the conflicting positions. For instance, a scholar might have to demonstrate restraint in expressing opinions in teaching that are contrary to the private university’s mission, as laid down in the university constitution. Or a scholar may have to adjust the main emphasis of his research or moderate his announcement of research outcome to the press in order to avoid the risk of donors withdrawing financial commitments for other projects. However, there may be conflicts that cannot be solved by compromise. In such cases, one of the conflicting positions prevails. Academic freedom is not per se stronger than the rights of the owners, and the latter are not per se stronger than academic freedom. Instead, the solution has to be found by balancing the interests in a given situation. Some rough guidelines may be suggested: the owners have a right to decide about the study programmes offered by the university; this right cannot be challenged by academic freedom if the study programmes are assigned sufficient staff, financial means and infrastructure. The owners can also determine student fees and give directions about student selection, subject to the laws pertaining to higher education.31 Conversely, core decisions about academic research must be free from any interference by the owners; this concerns determination of concrete research questions, choice of methods and assessment of results. Teaching staff need not accept a hierarchical structure where they are subject to the directions of a non-academic institute director, who has paid the university for that position. Scholars must not be forced to commit academic misconduct, such as writing master or doctoral theses for students with wealthy parents.

30 31

Hesse (1995), para. 72, 317–318. Würtenberger (2019), p. 22.

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5 Safeguards for Academic Freedom The structural threats for academic freedom in the context of private universities need to be counteracted by organisational and procedural safeguards. As the interpretative guidelines of the Austrian Accreditation Authority put it, “university freedoms need a structural safeguard within the governance of the private university. The internal constitution of universities and particularly their organisation and business management structures have to be shaped in a way that ensures unrestricted academic freedoms for all university members.”32 This goal is initially reached by strict separation of competences between university-owners and management. The personal identity of owners and chief administrative staff of private universities inevitably endangers the academic freedom of scholars. When the accreditation authority allows university owners to act as rector, heads of academic staff, chancellor, administrators of personnel and financial affairs, and deans of faculties,33 it flagrantly violates its “guarantee-responsibility”. There must also be organs of academic self-administration, vested with essential tasks within the university, that can balance conflicts between academic freedom and the interests of the university owners.34 The faculties must be authorised to elect their own deans and other heads. Teaching positions must generally be granted by a competitive appointment procedure with selection on the basis of merits. Rectorate appointments which disregard such a procedure35 must in the meantime be limited; circumvention of this requirement by granting contracts for permanent employment must not be permitted. Finally, funds donated to the university must not be paid into the private bank account of the university-owners but accredited directly to designated university budget positions. The donors of funds must not be able to buy university institutes or professorships or to require that certain persons be employed. There must not be any direct control over, or access to, individual scholars working in funded projects. Professorships and faculties must be provided with sufficient budget, equipment and academic as well as administrative staff.36 The accreditation authority has to consider comparative figures from state universities.

32

AQ Austria (2016a), p. 2 (translation). FirmenABC (2020), AQ Austria (2016b) and SFU (2020). 34 AQ Austria (2016a), pp. 3–4. 35 Section 99 of the Austrian Federal Act on the Organisation of Universities and Their Studies (Bundesgesetz über die Organisation der Universitäten und ihre Studien – Universitätsgesetz 2002), BGBl. I no. 120/2002. 36 See, with regard to state universities, BVerfG Judgement 1 BvR 79/70, 278/70, 282/70 para. 285; on the calculation of the minimum size of university libraries Vogel (2016), pp. 101–110. 33

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6 Conclusion In the formerly state-monopolised university systems of Central Europe, the new private universities function as laboratories of management and organisational structures in the field of higher education services and research. On one hand, private owners and donors often have significant influence on the daily work of academic staff, but on the other hand they foster flat hierarchies and direct contact between university management and individual researchers. This situation has positive and negative effects on freedom of research. A further topic is financial, which is very different in the private university arena. In some universities, there are not enough funds for even rudimentary research with laboratories and libraries. The state authorities have to take their guarantee-function for academic freedom seriously in private universities with regard to accreditation and reaccreditation procedures and beyond. They have to ensure that an institution claiming the rights of a university is not just a provider of higher teaching services, or a degree factory for paying students, the owners and the families and friends of the owners, but an organisation where research plays a significant role and can be of high quality. In the long run, private universities will probably bring their structures into line with those of state universities. They will emancipate from individual owners and will be managed by trained university personnel, hopefully not as cash-cows of bigger private enterprises but as independent foundations.

References AQ Austria (2016a) Handreichung zur Auslegung des § 14 Abs 5 lit b PU-AkkVO: Organisationsstruktur an Privatuniversitäten. https://www.aq.ac.at/de/ueber-uns/dokumenteueber-uns/Handreichung_Organisationsstruktur_PU_13_12_2016.pdf?m¼1485862364&. Accessed 18 May 2020 AQ Austria (2016b) Parlamentarisch[e] Anfrage 9739/J vom 06.07.2016 (XXV.GP). Statement. https://www.parlament.gv.at/PAKT/VHG/XXV/AB/AB_09404/imfname_557350.pdf. Accessed 18 May 2020 Bettermann KA (1969) Juristische Personen des öffentlichen Rechts als Grundrechtsträger. NJW 31:1321–1328 Farrington DJ, Palfreyman D (2012) The law of higher education, 2nd edn. Oxford University Press, Oxford Fehling M (2004) Artikel 5 GG. In: Kahl W, Waldhoff C, Walter C (eds) Bonner Kommentar zum Grundgesetz. C.F. Müller, Heidelberg FirmenABC (2020) Sigmund Freud Privatuniversität Wien GmbH. https://www.firmenabc.at/ sigmund-freud-privatuniversitaet-wien-gmbh_yQP. Accessed 18 May 2020 Grimberger M, Huber S (2012) Das Recht der Privatuniversitäten. NWV, Wien Hänsch B (1996) Die Rechtsstellung der Fakultäten/Fachbereiche in der Hochschule. Diss, Würzburg Hesse K (1995) Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 20th edn. C.F. Müller, Heidelberg Kempen B (2017) Grundfragen des institutionellen Hochschulrechts. In: Hartmer M, Detmer H (eds) Hochschulrecht. Ein Handbuch für die Praxis, 3rd edn. C.F. Müller, Heidelberg, pp 1–52

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Köttgen A (1959) Das Grundrecht der deutschen Universität. Gedanken über die institutionelle Garantie wissenschaftlicher Hochschulen. O. Schwartz, Göttingen Krausnick D (2012) Staat und Hochschule im Gewährleistungsstaat. Mohr Siebeck, Tübingen Krausnick D (2017) Grundlagen und Reichweite der akademischen Selbstverwaltung. In: Geis M-E (ed) Hochschulrecht im Freistaat Bayern. Ein Handbuch für die Praxis, 2nd edn. C.F. Müller, Heidelberg, pp 87–117 Küchenhoff D (1964) Das Grundgesetz und die Hochschulreform. DÖV 17:601–605 Messer H (2009) Nichtstaatliche Hochschulen – Hochschulen in freier Trägerschaft. In: Haug V (ed) Das Hochschulrecht in Baden-Württemberg, 2nd edn. C.F. Müller, Heidelberg, pp 485–497 Meusel E-J (1982) Grundprobleme des Rechts der außeruniversitären staatlichen Forschung. Wissenschaftliche Buchgesellschaft, Darmstadt Meusel E-J (1992) Außeruniversitäre Forschung im Wissenschaftsrecht. Carl Heymanns, Köln ÖPUK (2018) Rekordzuwachs an Studierenden an heimischen Privatuniversitäten. Press Release. https://oepuk.ac.at/rekordzuwachs-an-studierenden-an-heimischen-privatuniversitaeten/. Accessed 18 May 2020 ÖPUK (2019) Zuwachs von 11 Prozent an den heimischen Privatuniversitäten. Press Release. https://oepuk.ac.at/zuwachs-von-11-prozent-an-den-heimischen-privatuniversitaeten/. Accessed 18 May 2020 ÖPUK (2020) Seit wann existieren Privatuniversitäten in Österreich und wie viele existieren heute?. https://oepuk.ac.at/ueber-die-oepuk/faq-neu/. Accessed 18 May 2020 Palfreyman D, Temple P (2017) Universities and colleges. A very short introduction. Oxford University Press, Oxford Penßel R (2017) Nichtstaatliche Hochschulen. In: Geis M-E (ed) Hochschulrecht im Freistaat Bayern. Ein Handbuch für die Praxis, 2nd edn. C.F. Müller, Heidelberg, pp 573–600 Schmidt-Aßmann E (1989) Wissenschaftsrecht im Ordnungsrahmen des öffentlichen Rechts. JZ 44:205–2011 Scholz R (1977) Artikel 5 GG. In: Maunz T, Dürig G (eds) Grundgesetz. Kommentar. C.H. Beck, München Schulze-Fielitz H (2009) Forschung. In: Geis M-E (ed) Hochschulrecht im Freistaat Bayern. C.F. Müller, Heidelberg, pp 158–200 Seckelmann M (2018) Evaluation und Recht. Strukturen, Prozesse und Legitimationsfragen staatlicher Wissensgewinnung durch (Wissenschafts-)Evaluationen. Mohr Siebeck, Tübingen SFU (2020) Rektorat. https://www.sfu.ac.at/de/ueber-sfu/rektorat/. Accessed 18 May 2020 Smend R (1928) Das Recht der freien Meinungsäußerung. Der Begriff des Gesetzes in der Reichsverfassung VVDStRL 4:5–215 Trute H-H (1994) Die Forschung zwischen grundrechtlicher Freiheit und staatlicher Institutionalisierung. Mohr Siebeck, Tübingen Vogel B (2016) Flächenbedarf von Hochschulbibliotheken. In: Hauke P, Werner KU (eds) Praxishandbuch Bibliotheksbau. Planung – Gestaltung – Betrieb. De Gruyter, Berlin et al., pp 101–110 Wenger K, Winkler G (1974) Die Freiheit der Wissenschaft und ihrer Lehre. Österreichische Rektorenkonferenz, Wien. Würtenberger T (2019) Privathochschulfreiheit – auch bei der Organisation der Leitungsebene? Ordnung der Wissenschaft 1:15–26

Open Access Publication and Academic Freedom in the Field of the Social Sciences and Humanities from a Constitutional Law Perspective in Italy Irene Pellizzone

Abstract Few scholars are aware of the meaning of open access (OA), especially in the field of the social sciences and humanities, where the rates of OA-publication are remarkably low. The chapter gives an overview of the situation in Italy in order to outline the relation between OA and academic freedom. Also from the viewpoint of academic freedom, it emerges that public funding, university networks and awareness-raising among scholars enhance OA more than does imposition by law. Keywords Open access · Academic freedom · Enforcement · Bottom-up movement · Public funding

1 Introduction: Definition of Open Access and Legal Background Open Access (OA) in the academic context is increasingly widespread today,1 but while almost every academic has heard the words “Open Access”2 in the past five years, the history, meaning and main purpose of this manner of publication are not yet clear among Italian scholars, especially in the field of the Social Sciences and Humanities (hereinafter: SSH).3 A number of questions arise from this situation: first and foremost scholars wonder about the impact of OA on the circulation and

Eve (2020), p. 21, argues that “in the last decade Open Access has grown exponentially”. Eve (2020), p. I. 3 See the report of the survey conducted at the University of Rome La Sapienza in 2019: Indagine open access, Settore Catalogo prodotti della ricerca e valutazione, ASuRTT, especially p. 2, available at https://www.uniroma1.it/sites/default/files/field_file_allegati/report_indagine_oa_0. pdf, last accessed 29.11.2020. 1 2

I. Pellizzone (*) Department of Italian and Supranational Public Law, University of Milan, Milan, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_14

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dissemination of academic articles, which is in turn linked to the effectiveness of academic freedom. The capacity of academics to reach other academics or society with their scientific work has always been important and is even more so today, because the number of citations can also be essential for one’s career, especially in the scientific, technical and medical area (hereinafter: STM), where research assessment is bibliometric. Furthermore, the dissemination of scientific work increases knowledge, which is a major goal of every scholar. Open Access is an important step in this direction, because it is meant to overcome the constraints brought about by the costs of the editorial market, so that worthy literature can really circulate in every part of academia and society. However, the relation between the promotion of OA and the protection of academic freedom is neither simple nor obvious. While in the recent past some legal studies on copyright already outlined this issue from the perspective of copyright law,4 here my aim is to provide a complementary analysis from the perspective of constitutional law, in the belief that it may contribute to further development of this subject and to a search for solutions to the conflict between the freedoms and constitutional public interests at stake. After explaining the background of OA, I pursue my aim through an analysis of the Italian experience in the area of the SSH, which seems to appropriately frame the topic.

1.1

Preliminary Definitions and Legal Background of OA

“OA assures free availability and unrestricted use”5 of scientific papers through online access free of charge. More precisely, in the first worldwide initiative where the concept of OA was launched and presented (in Budapest 2002),6 OA was defined as: “free availability on the public internet, permitting any users to read, download, copy, distribute, print, search, or link to the full texts of these articles, crawl them for indexing, pass them as data to software, or use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the internet itself. The only constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors

4

See among others Caso (2019), p. 45 ff.; Moscon (2015), p. 99 ff. Suber (2006), p. 7. 6 OA is the result of a spontaneous non-institutional movement in the scientific community. Here I cannot trace the whole history of OA, but I list the: (i) Budapest Open Access Initiative, 14.2.2002 (principal drafter: Peter Suber, a philosopher specialising in law, epistemology and ethics), (ii) Bethesda Statement on Open Access Publishing, 20.6.2003, (iii) Berlin Declaration on Open Access to Knowledge in the Sciences and Humanities, 22.10.2003. For other variants of OA see Robinson-Garcia et al. (2020), p. 2. 5

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control over the integrity of their work and the right to be properly acknowledged and cited.” There are essentially two main routes to OA: the Green Route and the Golden Route. With regard to the Green Route, the author uploads the peer reviewed product to an online repository which can be freely accessed. Some publishers request that OA be granted only after an embargo period has elapsed. With regard to the Golden Route, the article is immediately accessible: the costs of the publication are in this case shifted from readers to the author and more usually to his/her institution.7 Recently a new route is emerging, especially in the field of online law-journals: the OA Diamond Route, which is basically a costless Golden Route (the processing charge is very low and the journal can afford it). Open Access is feasible for two reasons. Firstly, digital technologies and internet have made it possible to avoid printed publications: publication costs no longer depend on the number of copies printed and sent, but once a digital copy is created, it can be downloaded an infinite number of times without additional costs. Secondly, scholars do not depend on earning money from publication, because they are already paid by the institution to which they belong. Rather, scholars earn a reputation in the scientific community through the circulation of publications. Today, the importance of citations for the bibliometric assessment of research performance in the scientific, technical and medical areas further reinforces this aspect, in some cases even too much (editors become collectors of citations more than anything else). The real interest of academic authors is therefore dissemination of their intellectual property. From this perspective, OA may even protect scholars from exploitation by non-transparent (old and new) editors.8 Open Access is also important for society because it makes research results accessible to anyone, fostering innovation in the public and private sectors; the synergy of OA with the accomplishment of the third mission of universities is evident.9 Furthermore, widespread dissemination promotes more efficient science and therefore enhances progress.

1.2

Legal Framework of OA: A Brief Overview

The incredible potential of OA was grasped by universities and institutions after the conference in Budapest in 2002. In particular, the European Union became a strong 7

Harnad et al. (2008). Guédon (2001); Caso (2019), p. 53 ff.; Moscon (2015), p. 115, argues “Currently, the scientific ecosystem seems to be influenced by the interrelationship between copyright law, law of contract, and research evaluation systems, which, together, are strengthening the oligopolistic market of academic publishing and are leading to the private control of scientific content.” 9 Binda and Caso (2020) outline the relation between OA and the human right to science protected by General Comment no. 25 (2020) on science and economic, social and cultural rights (Art. 15 (1) b), (2), (3) and (4) of the International Covenant on Economic, Social and Cultural Rights). 8

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supporter of OA, providing a series of rules10 and programmes for implementation of the free availability of scientific literature.11 The Recommendation of the European Commission enacted in 2012 is especially important.12 It essentially provides that member states should ensure, “in compliance with the EU acquis on copyright and related rights [. . .] that all scientific publications resulting from publicly-funded research are made available in OA as from 2020 at the latest”. It is important to underline that the Recommendation focuses on publicly-funded research and has no legally binding effect. Furthermore, as a consequence of a European Commission decision, OA has become a principle of the current Horizon 2020 programme: this means that research funded by FF7 and Horizon 2020 will be published in OA,13 if publication is chosen as a means of dissemination.14 To date, while some member states have reacted promptly, others (Romania, Cyprus, Greece, Estonia, Bulgaria, Malta, Slovakia, Lithuania, Czech Republic, Luxembourg) have not yet implemented a national OA policy15 and the editorial market is far from reaching true OA.16 With regard to Italy, a year passed before the Recommendation was implemented by a law regulating OA.17 In line with the European Union’s approach, it does not envisage mandatory OA, but requires that OA be mandatory for research financed 50% or more with public funds. Open Access can be ensured by the Golden or the Green Route: the latter has an embargo period of 18 months (STM) or 24 months (SSH) after publication. The difference between the two areas stems from different customs in the two editorial markets in Italy. STM editors are used to offering OA, while SSH editors are not. The difference probably depends on many factors, including the fact that a key role is played by the absence of bibliometric evaluation such as the H-Index and Impact Factor, the national level of distribution and the common use of the Italian language for technical reasons in the SSH area.18 However, in the latter case, scholars have less possibility of using Golden OA, and they are more likely to opt for Green OA after a longer embargo. In line with the need for stronger intervention and a new European Recommendation dated 2018,19 a new bill to reduce the embargo and for other strong measures 10

Art. 179 and Art. 183 of the Treaty on the Functioning of the European Union (TFEU). Koutras (2020), p. 427. 12 EU Commission Recommendation (EU) 2012/417 of 17.7.2012 on access to and preservation of scientific information, later modified by the EU Commission Recommendation (EU) 2018/790 of 25.4.2018 on access to and preservation of scientific information. See also the EU Communication COM(2012) 401 final of 17.7.2012, Towards better access to scientific information: Boosting the benefits of public investments in research. 13 Koutras (2020), p. 427; Caso (2019), p. 56. 14 Guidelines to the Rules on Open Access to Scientific Publications and Open Access to Research Data in Horizon 2020, Version 3.2, 21.3.2017. 15 Koutras (2020), p. 429. 16 Caso (2019), p. 54. 17 Art. 4 of Law no. 112 (7.10.2013), G.U. no. 236 (8.10.2013). 18 See Galimberti (2016), p. 26 ff.; Marra (2014), p. 1 ff.; Delle Donne (2018), p. 17 ff. 19 See supra fn 12. 11

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in favour of OA was presented in the Italian Parliament, enacted by the Chamber of Deputies in 2019, but the Senate has not yet considered it.20 Among other things, the bill contains an important amendment to the copyright law of 1941 which acknowledges trends in other European countries such as Germany, the Netherlands, France and Belgium.21 In the case of research funded 50% or more with public money, the authors are obliged to retain the right to publish their scientific papers again after a first publication with an editor, and this is known as “re-publication”. In other words, an author’s ownership of his literature is inalienable and cannot be renounced. This limitation to the possibility to sell copyright is quite exceptional22 and is justified from a constitutional law perspective as the need to protect other constitutional interests over and above an author’s copyright: free access to scientific literature promotes the circulation of knowledge and the advancement of science and society. If this bill is enacted, the Italian legal framework will clearly still be far from making OA mandatory, but will focus rather on introduction of the new right of scholars to re-publish their papers. Moreover, the prohibition of selling copyright once and for all (already enacted by the European legal orders mentioned above) will only apply as a consequence of public funding.

2 Open Access and Academic Freedom in the SSH in Italy: Public Funding as Incentive I now come to the topic of the relationship between OA and academic freedom in the SSH in Italy. On one hand, OA might simply reinforce the academic freedom of individuals and the community: more dissemination, more freedom. On the other hand, one can argue that it might have the opposite effect if editors’ choices are considered to be part of the exercise of academic freedom. In this sense, authors are free to choose their editor and to ignore the availability of OA. Such polarisation is unlikely, because Green OA is not mandatory in Italy but linked to (at least 50%) public funding of research. This means that the law does not prohibit conventional publishing but requires a condition for access to public funding. In other words, the Green route has some incentives, but is not imposed. While it is true that scholars do not seek economic profit from publication, they are not inclined to publish if they cannot cover the editorial costs with public funding. The availability of public funding to pay editorial costs is really important, although the lack of a monitoring process on enforcement of OA means that OA may not always ensue despite public funding.

20 AS 1146, available at http://www.senato.it/leg/18/BGT/Schede/Ddliter/51466.htm, last accessed 29.11.2020. The bill was enacted in March 2020 by the Chamber of Deputies. 21 Caso (2019), p. 46 ff. 22 Moscon (2015), p. 113 ff.

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In cases where OA is not mandatory, and especially when public money is at stake, the law can place limitations regarding the choice of editor, in the name of other constitutional freedoms or interests, such as the promotion of science.23 With regard to this, let us stress that academic freedom is protected by Article 33 of the Italian Constitution24 and is situated at the top of the list of constitutional freedoms due to its close link with freedom of expression. This bond is very clear at European Union level, where Article 13 of the European Charter of Fundamental Rights (CFR) establishes “The arts and scientific research shall be free of constraint. Academic freedom shall be respected.” Indeed, as the explanatory memorandum of the CFR points out, that right “is deduced primarily from the right to freedom of thought and expression”, and it “may be subject only to the limitations authorised by Article 10 of the European Convention on Human Rights.”25 It is therefore also necessary to consider that the onus has to be proportionate to the goal pursued by the law. This said, the public funding condition of Green OA is legitimate from a constitutional perspective because it regards the form of the publication and does not preclude anything like censorship aimed at a preventive control on the merit of scientific work. Actually, the aim is quite the opposite: i.e. the widest possible dissemination, which in turn is the ground for academic freedom. Furthermore, in the case of OA, we have seen how many important public interests are at stake: above all, the circulation of knowledge as well as scientific and even social progress; according to some scholars, also people’s right to science and to access to the scientific literature.26 At the same time, it is quite common for legislation to link promotion of innovative policies with criteria for the assignment of public resources. Barriers to public funding are lawful if the criteria for access to it are not discriminatory. Apart from this, access to public funding for research cannot be limited on the grounds of research content and such barriers cannot force scholars to give up part of their academic freedom. Nevertheless, in order to check the proportionality of the public funding condition of Green OA, we have to verify whether this barrier to the distribution of public funding operates as a barrier to publication itself due to the specific conformation of the editorial market. As a matter of fact, in the particular field of SSH, the editorial market in Italy is far from ready to accept genuine OA: the traditional manner of publication is still dominant and editors are more or less reluctant to accept Green OA as well, or are at least unaware of its meaning and consequences. There are also cultural barriers on the side of the scholars, who are less accustomed to opting for

For an example of such constitutional scrutiny in the field of invention and copyright, see Italian Constitutional Court, Judgment no. 20 of 1978 available at https://www.cortecostituzionale.it/ actionPronuncia.do, last accessed 29.11.2020. The judgment recognises the right of scientists to be identified as the authors of their inventions in a mutual relation with the progress of science. In fact, the Court underlines that the need to provide adequate conditions for the promotion of science is a duty of the legislature under Art. 9 of the Italian Constitution. 24 Cerri (1988), p. 5 ff; Fontana (2006), p. 675 ff.; Iannuzzi (2018), p. 220 ff.; Orsi Battaglini (1990), p. 89 ff. 25 See Moscon (2015), p. 104. 26 Binda and Caso (2020), p. 1 ff. 23

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OA and have more trust in old editors who are not inclined to publish with OA. This is the point: the Green OA requirement of Italian law in the case of 50% public funding could paradoxically be perceived as a constraint to publication by scholars, in SSH but can become an obstacle to academic freedom if the editorial market is not ready to afford the challenge of OA. As a matter of fact, the shape of the editorial market and the cultural distance of some scholars are a constitutional impediment to the mandatory OA option, while promotion with suitable criteria for public funding or other forms of incentives is the proper solution.27 In this regard, I again underline that academic careers in the area of SSH are not evaluated on a bibliometric basis, as they are the area of STM. Since a mandatory OA would raise this constitutional problem, it is necessary to turn the attention to the role of institutions in the cultural promotion of OA and in particular to the role of universities, which are actually the birthplace of OA, also in the SSH.28 Dissemination of knowledge has advantages for authors and the scientific community, of which authors themselves may not be aware. Since universities are very often responsible for the supply of public funding for research and publication by their scholars, it is also necessary that they play a part in the correct implementation of the Green OA condition for access to public funding. Moreover, in compliance with the autonomy of universities established by Article 33 of the Italian Constitution, according to the Law No. 112 of 2013, subjects in charge of providing public funding (such as universities) are required to make their own rules to ensure Green OA.

3 Assessment of the Italian Experience Let us now assess the outcomes of the Italian legal framework. How are the universities playing their part? First of all, an interesting contribution comes from the Conference of Italian Rectors (CRUI), which appointed a special work group on OA and enacted guidelines for the drafting of policies and academic acts in the field of OA (2013).29 The guidelines show awareness of the importance of broadcasting the advantages of OA rather than imposing it by university statute. They also recommend enactment of a clause on OA in university statutes, and adoption of policies devoted to OA by universities. Open Access policies are of paramount importance, because they provide the rules that make it possible to follow a procedure for OA. The guidelines have an annex with a sample policy, which envisages appointment of an OA Committee by each university. The sample policy requires members of the Committee to be academics representing all European Research Council Areas: SSH, physical sciences and engineering and life sciences. It shows that the CRUI is aware

27

Likewise against mandatory OA: Johnston (2017), p. 1 ff.; Priest (2012), p. 377 ff.; Suber (2012). Migheli and Ramello (2013) stress the importance of social norms rather than law. 29 https://www.crui.it/images/allegati/biblioteca/linee_guida_policy.pdf, last accessed 30.11.2020. 28

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of the importance that each area remain shaped in a particular way. Considering the remarkable differences in editorial markets and their consequences for the sustainability of OA, this representation is of great importance and deserves special attention. Universities therefore have to equip themselves with rules aimed at ensuring OA in the above terms. It could be interesting to focus on the experience of the University of Milan. In 2014, the University of Milan enacted OA policy and appointed a committee composed of representatives of each department. Members of the Committee had the task of explaining and raising awareness of OA and verifying OA implementation policy in their department. Apart from the CRUI guideline, the University of Milan can enhance OA performance through pivotal cooperation with the League of European Research Universities (LERU), which has OA (and Open Science) as a strategic goal. Inspired by LERU, the University of Milan has made Green OA a strategic goal as well: the impulse of LERU with the roadmap “Open science and its role in Universities” (2018)30 has been decisive for the development of processes and activities. The OA publication data of each department is available on the university website.31 It is therefore possible to compare the results in STM and SSH departments. In 2020, the following additions were made to the university statute: “The University adopts the principle of freedom of access to scientific literature and promotes the circulation of research results in compliance with the protection of intellectual property and the agreements in place with public and private entities” (Article 2(6)); “The University adopts the principles of full and open access to scientific literature and promotes the free dissemination on the network of the results of the research produced in the University, to ensure the widest possible dissemination” (Article 54(1)). The university also implemented an e-publishing platform based on the Open Journal System (OJS) with its journals and book collection in Diamond Open Access, the most advanced form of free access to research data and findings, where the start of free access coincides with the date of publication. Although the situation has improved, there are still sharp differences between STM and SSH departments: in 2019, more than 50% of STM publications on average were OA, while the figure was below 50% for SSH publications. The lowest percentage of OA publications was recorded by an SSH department,32 while the highest was achieved by an STM department.33 Some improvements are nevertheless evident: data from 2017, 2018 and 2019 on the University of Milan website shows an increasing trend for most SSH departments. As far as the Diamond OA journals are concerned, many are indeed in the SSH area, where the editing can be performed by volunteers so that the journal does not need to charge fees.

30

https://www.leru.org/files/LERU-AP24-Open-Science-full-paper.pdf, last accessed 16.2.2021. https://www.unimi.it/it/ricerca/dati-e-prodotti-della-ricerca/scienza-aperta/open-access-e-openresearch-data-la-scienza-aperta, last accessed 30.11.2020. 32 Department of Private Law and Legal History. 33 Department of Chemistry. 31

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These figures from the University of Milan show the importance of promoting OA through the implementation of policy which links it to public funding and through awareness of its meaning and advantages.

4 Conclusions In conclusion, OA is an important tool for academic freedom because it promotes exchange of findings and knowledge between academics and between academics and society. Open access publications are also available to anyone, not only academics. Open access advances the third mission of universities, because the free circulation of publications may be a premise for the third mission itself. For better implementation of OA, it is important to understand that mandatory OA would probably collapse with the other constitutional values at stake freedom of expression, authors’ copyright and paradoxically academic freedom. Although OA is meant to foster academic freedom, its imposition could be problematic and selfdefeating if the editorial market is not capable of complying with OA. This does not mean that public funding and other incentives cannot serve the goal of promoting OA. Although OA is a bottom-up movement, we have seen how important well-structured widespread promotion from the top can be, as in the case of collaboration between CRUI and compliant universities, such as the University of Milan. Besides further changes to the rules, consolidation of a positive attitude towards OA in the SSH area would be important and some steps in this direction have already been taken. At the same time, many challenges remain, because implementation of OA relies on universities’ capacity to intervene. In fact, some years ago R. Caso argued that “neither the very high ethical values underlying the openness of scientific knowledge nor the multiple empirical evidence demonstrating the benefits in terms of impact of open access publications are in themselves sufficient incentives to persuade researchers to republish on OA archives.”34 In conclusion, the freedom of the scientific literature, and responsibility to it, rely on scholars being aware of the importance of OA. However, scholars cannot be directed by imposition, due precisely to the academic freedom that OA aims to protect. This circle leads us to conclude that universities themselves have to request clear and complete national and EU legislation.

References Berlin Declaration on Open Access to knowledge in the Sciences and Humanities (2003). https:// openaccess.mpg.de/67605/berlin_declaration_engl.pdf. Accessed 20 Jan 2021 Bethesda Statement on Open Access Publishing (2003). http://legacy.earlham.edu/~peters/fos/ bethesda.htm. Accessed 20 Jan 2021

34

Caso (2013), § 3.

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Binda F, Caso R (2020) Il diritto umano alla scienza aperta. Trento LawTech Res Pap 41:7–13 Budapest Open Access Initiative (2002). https://www.budapestopenaccessinitiative.org/read. Accessed 20 Jan 2021 Caso R (2013) Il decreto “Valore cultura”. La legge italiana sull’accesso aperto agli articoli scientifici: una prima panoramica. Aedon Rivista di Arti e Diritto. http://www.aedon.mulino. it/archivio/2013/3/caso.htm. Accessed 20 Jan 2021 Caso R (2019) La libertà accademica e il diritto di messa a disposizione del pubblico. Open Access. Opinio Juris in Comparatione 1:46–78 Cerri A (1988) Arte e scienza (libertà di). In: Enciclopedia giuridica. Istituto della Enciclopedia italiana, Roma, pp 5–7 Delle Donne R (2018) L’accesso aperto, le università e le SSH. Il Capitale culturale 17:17–45 Eve MP (2020) Open Access and the humanities: contexts, controversies and the future. Cambridge University Press, Cambridge Fontana G (2006) Art. 33. In: Bifulco R, Celotto R, Olivetti M (eds) Commentario alla Costituzione, 1st volume. Utet, Torino, pp 675–698 Galimberti P (2016) Fra comunicazione digitale e valutazione. Quale ruolo per l’Open Access nelle scienze umane? In: Scalco L (ed) Open Access e scienze umane. Note su diffusione e percezione delle riviste in area umanistica. Ledi, Milano, pp 25–32 Guédon J-C (2001) In Oldenburg’s long shadow: librarians, research scientists, publishers, and the control of scientific publishing. Association of Research Libraries, Washington DC Harnad S, Brody T, Vallières F, Carr L, Hitchcock S, Gingras Y, Oppenheim C, Hajjem C, Hilf ER (2008) The access/impact problem and the green and gold roads to Open Access: an update. Ser Rev 1:36–40 Iannuzzi A (2018) Art. 33. In: Clementi F, Cuocolo L, Rosa F, Vigevani GE (eds) La Costituzione italiana. Commento articolo per articolo, 1st volume, Principi fondamentali (Artt. 1-54). Il Mulino, Bologna, pp 220–225 Johnston DJ (2017) Open Access Policies and Academic Freedom: Understanding and Addressing Conflicts. J Librariansh Sch Commun 5:1–17 Koutras N (2020) Open Access publishing in the European Union: the example of scientific works. Pub Res Q 36:418–436 Marra M (2014) The recent Italian regulations about the open-access availability of publicly-funded research publications, and the documentation landscape in astrophysics. Digital Libraries, pp 1–4, arXiv:1407.6296. Accessed 20 Jan 2021 Migheli M, Ramello GB (2013) Open Access, social norms & publication choice. ICER Working Paper 3:1–23 Moscon V (2015) Academic freedom, copyright, and access to scholarly works: a comparative perspective. In: Caso R, Giovanella F (eds) Balancing copyright law in the digital age: some comparative perspectives. Springer, Berlin et al., pp 99–135 Orsi Battaglini A (1990) Libertà scientifica, libertà accademica e valori costituzionali. In: Nuove dimensioni nei diritti di libertà (scritti in onore di Paolo Barile). Cedam, Padova, pp 89–108 Priest EA (2012) Copyright and the Harvard Open Access mandate. Northwest J Technol Intellect Prop 7:377–440 Robinson-Garcia N, van Leeuwen TN, Torres-Salinas D (2020) Measuring Open Access uptake: data sources, expectations, and misconceptions. Sch Assess Rep 1:15–24 Suber P (2006) Open access overview. Open Access: unrestricted access to published research, pp 7–12. https://www.researchgate.net/profile/Arunachalam_Subbiah/publication/48547497_ Open_access_to_science_in_the_developing_world/links/09e415058b88dbf15c000000. pdf#page¼8. Accessed 20 Jan 2021 Suber P (2012) Open Access. MIT Press, Cambridge et al

The Third Mission of Universities: Technology Transfer and its Impact on Academic Freedom Cristina Fraenkel-Haeberle

Abstract Universities in Germany and other countries have recently undergone comprehensive reforms: they are expected to contribute to social development through exchange with external actors. These exchanges are commonly termed “third mission”. In this context knowledge and technology transfer can prove to be particularly critical to academic freedom, because market logic and economically rational behaviour may lead to goals in conflict with the institutional logic of scientific communities. Keywords Third mission · Academic freedom · Knowledge and technology transfer

1 Introduction: The Rationale of the Third Mission The most recent Italian Law on Universities defines these institutions of higher education as the “primary place of free research and free teaching.”1 A resolution of the German University Rectors’ Conference in 2013 also designated them as the organisational centres of the science system.2 Since more than half of all school leavers now apply to enrol in a university, the role of Universities and societal expectations are changing.3 At the same time, the share of public funding in the overall budget of Universities has continued to shrink, while the average share of

1

Law no. 240 (30.12.2010), G.U. no. 10 (14.1.2011), Art. 1(1), Gelmini law. Kalous (2018), p. 167. 3 According to the Statistisches Bundesamt, the number of students at German Universities increased from 1.94 million to 2.84 million in the ten years to 2017/18; compare Berghaeuser and Hoelscher (2020), p. 2. See also Clark (1998), p. 6. 2

C. Fraenkel-Haeberle (*) German Research Institute for Public Administration, German University of Administrative Sciences Speyer, Speyer, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_15

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third-party funds has increased to almost 30%.4 With the growing number of students and applications by Universities for more public funding, there is an increasing demand for more social benefits from science, more efficiency and economy, less ivory-tower mentality, and ultimately more legitimacy. Universities in Germany and other countries have recently undergone comprehensive reforms: transformation of academic governance, the Bologna process and various internal and external evaluations have widened their range of tasks. University activity can no longer be limited to the two core tasks of teaching and basic research but is expected to contribute to social development through exchange with external actors. These exchanges are commonly termed “third mission”. With this in mind, Universities aim to enrich their multidisciplinary skills and to create synergies, collaborations and exchange, internally and with the local area. These developments can however prove pernicious to the freedom of science as they impose constraints on scholars and may oppress them with heterodetermined research scopes and goals.

2 The Range of Third-Mission Activities Universities tend to react to market logic with economically rational behaviour, such as diversification of funding sources and increased engagement in entrepreneurial activities. This leads them to commercialise research results through spin-off companies, license industrial property rights, sign cooperations with private actors and engage in intensive personnel transfer with partners. The market logic of the “Entrepreneurial University”5 is often seen as the antithesis of the institutional logic of scientific communities.6 The two can lead to conflicting goals and affect the way universities act and manifest, depending on the predominant logic of the institutional environment. However, in recent academic research, a much broader understanding of the third mission, not aimed solely at the economic dimension of university engagement, has been gaining ground.7 According to this approach the “social contribution” of universities covers all social, entrepreneurial and innovative activities that universities carry out by interacting with the external non-university environment, in addition to their core functions of teaching and research. According to this interpretation, the third mission focuses on linking the university with (civil) society. Research partnerships with companies are just as much part of this as cooperations with civil society partners, regional engagement, social innovation and professional training. From this perspective, the third mission (in the broader sense of third-stream activities and community engagement) includes in first place economic actors such 4

Berghäuser (2020), p. 1. Berghäuser (2020), p. 71. 6 Compare Weiler (2006), p. 39 ff.; Clark (1998), p. 5 ff.; Mautner (2005), p. 95 ff. 7 Zomer and Benneworth (2011), p. 81 ff. 5

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as companies and corporate networks, chambers and business associations, in second place civil society actors such as foundations, citizens’ initiatives and Non-Governmental Organisations (NGOs), and in third place political actors such as local government.8 This broad concept of third mission will now be exemplified on the basis of the latest “Annual Report on Third Mission Activities”,9 drawn up in 2020 by the State University of Milan, which is a partner of this research project on academic freedom and has developed a comprehensive display of third mission activities.

2.1

The Third Mission at the University of Milan La Statale

The third mission activity of the University of Milan La Statale aims to support the main functions of the university in the field of scientific research and higher education “with the specific intent of disseminating culture and knowledge, and transferring the results of research outside the academic context, thus contributing to the social growth and cultural development of the region.”10 This concept is declined in different types of activity, defined on a national scale by the Italian research assessment agency ANVUR.11 The activity is divided into two macro areas: enhancement of scientific research and production of public and cultural assets. Patent applications and industrial property rights fall into the area of promoting scientific research, as well as spin-off companies. The latter operate on the basis of research results produced by the university, and maintain collaborative relationships with it, validated by a resolution of the University Board of Directors (accreditation). The promotion of scientific research also includes problem-solving activities on behalf of third parties, such as contract research and consultancies (from which those relating to competitive projects must be excluded). Finally, intermediation structures are mentioned. These can be internal to the University, such as technology transfer offices or internship placement activities, or external, such as incubators and technology parks. The second area includes management of the university’s historical and artistic heritage, embracing its prestigious headquarters (Cà Granda), as well as archaeological excavations in Italy and abroad, the University's museums, archives, historical libraries and cultural and musical activities (University orchestra and choir). It also covers “activities for public health”, implemented in the framework of

8

Berghäuser (2020), pp. 37–72. https://www.unimi.it/sites/default/files/2020-09/Relazione%20annuale%20attivit%C3%A0% 20TM%20Unimi%20-%202019.pdf, last accessed 20.10.2020. 10 https://www.unimi.it/it/terza-missione#:~:text¼La%20Terza%20Missione%20affianca%20le,all %27 indirizzo%20culturale%20del%20territorio, last accessed 20.10.2020. 11 Agenzia Nazionale di Valutazione del Sistema Universitario e della Ricerca. See ANVUR (2018) and Università degli Studi di Milano (2008, 2020). 9

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agreements with the hospitals of Milan, which allow the State University of Milan to be active in the field of research, for example in clinical trials of drugs, and in the field of treatment. Thirdly, it provides further education, not aimed at university students and without the issue of academic qualifications. This activity includes professional training projects for teachers and certification of skills, especially linguistic ones. Finally, public engagement is mentioned as a third-mission activity. It is the most crosscutting field, and concerns a non-profit institutional commitment to foster educational, cultural and civil society development, aimed at a non-academic audience.12 Dissemination initiatives and those aimed at high school students make up the greater part of the projects.

2.2

Third Mission of Higher Education in Germany

According to German sociological studies, the third mission in higher education is a general phenomenon with dynamic development, linked to “value for money” considerations and claims of accountability,13 yet its features change in relation to local dynamics. In this respect, there is no universal definition of third mission, nor of university activities categorised as such. Like the example of the University of Milan La Statale, in Germany third mission activities not only refer to the economic dimension of university engagement, but also to their social contribution and to activities in which universities interact with the external environment. Accordingly, the third mission goes beyond teaching, research and cooperation with companies, linking the university with civil society, external actors and socio-economic development.14 Relationships between universities and non-university research institutions—an increasingly important cooperation resource for universities—are not part of the third mission, since these cooperation partners belong to the scientific field.15 The link with the other two core missions of universities—teaching and research—is important for characterizing the third mission, since activities that take place in the “context of teaching and research without being solely teaching and research”16 become relevant for the third mission. They go beyond the first two missions, use resources (knowledge, technologies, personnel) linked to the core academic tasks, involve actors outside the academic field and focus on societal interests and socio-economic development. The third mission in the narrower

12

See more extensively: Processo di monitoraggio delle attività di Terza Missione dell’Università degli Studi di Milano – anno 2020, https://www.unimi.it/sites/default/files/2020-09/Il%20processo %20di%20monitoraggio%20della%20TM%20-%202020.pdf, last accessed 20.10.2020. 13 Berghaeuser and Hoelscher (2020), p. 3. 14 Ibid, p. 3 ff. 15 Berghäuser (2020), p. 40. 16 Pasternack and Zierold (2015), p. 281, quoted by Berghäuser (2020), p. 40.

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sense embraces activities that meet all the above conditions and are closely related to teaching and research. Professional training and continuing education, according to the concept of lifelong learning, lies at the interface with teaching. Technological transfer and research cooperation with private companies form an interface with research, also showing a parallel between the third mission and applied research. A distinction can therefore be made between third mission related to teaching (further education, science education, science literacy, service learning, expanded participation, etc.), third mission related to research (knowledge and technology transfer, open science, citizen science, etc.) and third mission in the broad sense without reference to teaching or research (community outreach, community service, civic engagement, etc.).17 To support this new development, the German federal state as well as the Länder have introduced new funding systems to promote third-mission activities and “Transfer and Innovation”, as shown for instance by the ten-year programme “Innovative University” (Innovative Hochschule), which started in 2017, and is jointly funded by the federal state and all the Länder with a financial allocation of up to 550 million euro.18 Known as “the small excellence initiative”, it is accessible to medium or small Universities and Universities of Applied Sciences (Fachhochschulen), not eligible for “general excellence initiative” funding. Its aim is to strengthen universities in the regional innovation system, and cooperation with the economy and society.19 In early 2018, the Speyer University of Administrative Sciences was awarded the project “Knowledge and idea transfer for innovation in administration” (Wissens- und Ideentransfer für Innovation in der Verwaltung— WITI). The project aims to provide scientific support to federal, state and municipal administrations in the quest for creative and innovative paths.20 This example shows that in Germany too, knowledge and technology transfer as core components of the third mission are by no means any longer a marginal phenomenon. Rather, they can largely be seen as legally institutionalised in the state university laws and as a core element of university governance.21 Consequently the focus of political debate on the third mission in Germany mostly concerns knowledge and technology transfer, which are in many ways critical for academic freedom.

17

See more extensively Berghäuser (2020), p. 37 ff. Berghaeuser and Hoelscher (2020), p. 7. 19 https://www.bmbf.de/de/innovative-hochschule-2866.html, last accessed 21.10.2020. 20 https://www.witi-innovation.de/, last accessed 20.10.2020. 21 Berghäuser (2017), p. 35 ff. 18

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3 Knowledge and Technology Transfer as the Predominant Form of Expression of the Third Mission The scientific community is by now convinced that the days of the solitary genius working “in a quiet closet” (im stillen Kämmerlein)22 or in a high-tech laboratory belong to the past.23 Already ten years ago a joint position paper published by the German Science Council (Wissenschaftsrat) declared that: “Effective research cooperation between scientific institutions and business companies forms a crucial basis for securing and fostering innovation performance and thus for the competitiveness of the increasingly science-based German economy.”24 Science and research are driving forces for economic and social development. Modern societies, based on the division of labour, can hardly imagine innovation without mutual interaction. Technological inventions mostly arise in research and development departments where teams of highly specialised experts work together. An impressive example is the Nobel Prize in Physics announced on 3 October 2017: the innovation in the measurement of gravitational waves involved more than a thousand scientists. The problem in this case was that according to the Nobel statute, the prize cannot be awarded to more than three scientists.25 Applying for funds is part of the day-to-day business of institutions, because here too the principle of constant improvement applies.26 In the framework of technology transfer, the university receives a research assignment and is paid by an external (private) actor. When the research is completed, authorship of the results is attributed to the customer. Contract research is therefore an economic activity of universities. Universities also provide consultancy to private companies in the form of expert opinions, technical assessments and technical assistance. Policy advice is another scientific activity of universities, since governments and (international) organisations increasingly view universities as important partners.27

4 What Are the Threats to Academic Freedom? 4.1

Different Goals

Entrepreneurial cooperation and organisations have various objectives and can serve different purposes (such as the production and sale of engines and their accessories).

22

As described by Rüegg (1996), p. 19; Schimank and Winnes (2001), p. 295; Koch (2008), p. 137. Eberbach (2018), p. 53. 24 Quoted by Möslein (2018), p. 99. 25 Möslein (2018), p. 101. 26 Eberbach (2018), p. 52. 27 Berghäuser (2020), p. 47. 23

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They are typically geared towards profit. On the other hand, universities are not normally interested in economic exploitation of knowledge through goods and services. Academic cooperation may serve such goals, for example in the case of start-up centres that want to launch young companies on the market, however it typically serves other goals, such as advancing knowledge. In some cases, scientific cooperation may also serve to increase the reputation of the scientists involved, for example if they are aiming for a Nobel Prize.28 Ultimately, however, science cooperation also serves common goals, such as structural funding or innovation policy. For example, the Fraunhofer Performance Centre website explicitly states that these centres “enable politicians to prioritise the development of scientific excellence with social benefits.”29 Scientific collaborations are therefore primarily geared towards gaining knowledge and only subordinately towards financial gain. Universities normally participate in a research network with the aim of increasing their scientific reputation, sharing the burdens (costs) of research, generating additional income (to support research and teaching) and thereby qualifying for future research projects.30

4.2

Need for Appropriate Scientific Monitoring

Bearing in mind these different goals, it should not be forgotten that scientific research cannot always be measured in monetary terms, as economic efficiency is not its main goal. It may therefore be necessary to review and monitor the use of funds. However, it is also important that all actors ensure that cooperation complies with recognised scientific standards. This applies in particular to the use of funds and economic decisions, because “donors” (usually the sponsoring institutions) and the “money users” (the researchers) of research collaborations are generally not identical.31 Therefore a “principal-agent conflict” presumably cannot be entirely ruled out, even if it may be considered a rather small risk in view of the common goal of successful research and its communication to the outside world.32 In this respect, it is worth considering regular evaluation of project implementation, which can be done by setting up a scientific advisory board.33 If necessary, the setting up of a researcher assembly may also be advisable. However, this is only suitable for big research collaborations that employ a large number of scientists. The researcher assembly

28

Möslein (2018), p. 108. Ibid, p. 108. 30 Ulrici (2018), p. 133. 31 Kumpan (2018), p. 120. 32 Ibid, p. 120. 33 See more extensively Kumpan (2018), p. 117 ff. 29

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could be made up of all scientists who are not already represented on the management body with information and advisory functions.34

4.3

The Time Dimension of Research Projects and Uncertain Results

Participation in a research network has risks because it is not initially clear whether usable knowledge can be achieved, to what extent and with what quality. Achieving research results is usually an unpredictably long process.35 Scientific collaborations differ in duration: they are project-related in the case of individual research projects or permanent in the case of start-up and performance centres, although the permanence is rather framework-based, because the partners (the supervised start-up companies) often change while the institutional framework persists.36 The cooperation of a university clinic with a pharmaceutical company can be short-term, because individual drug testing is limited in time. In contrast, framework contracts for repeated drug testing do not fall under the “short-term” heading.37 The duration of scientific cooperation is often indefinite, because it may not be possible to predict ex ante the direction in which an innovation will develop. The uncertainty is therefore greater than with other forms of cooperation. Long-term contracts generally have to provide mechanisms to deal with this unpredictability.38

4.4

Recognition of Intellectual Property Rights

Knowledge and technology utilisation aim to commercialise the results obtained by university research. This leads to the need for protection of intellectual property and publication, mostly in the form of patents. By entering into license agreements with companies, the university can generate income from research results. Protecting research results under intellectual property law is therefore a concrete form of knowledge and exploitation of technology. As a rule, members of a research association are not individual researchers, but institutions (universities and other non-university research institutions) and companies. They come together to enable a research project through organisation and

34

Ibid, p. 122. Eberbach (2018), p. 53. 36 Möslein (2018), p. 107. 37 Eberbach (2018), p. 53. 38 Möslein (2018), p. 107. 35

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equipment. The actual research is not, however, performed directly by them, but by their employees (researchers).39 If researchers are successful, they are entitled to recognition of their performance and may describe themselves as the author or inventor. This right can be based on Article 5(3) of the German Constitution alias Grundgesetz (GG) regarding scientific freedom, because recognition of a research contribution is part of scientific communication. Otherwise this personal right is comprehensively protected by Article 2 (1) GG. Finally, it may be based on Article 12 and 14 GG (professional freedom and property rights).40 The results of the activity of a researcher, a research association and its members are subject to industrial property rights (e.g. patent, utility model, copyright), which is equivalent to ownership assigned to a holder. The rights give the holder a monopoly on economic exploitation and protection against infringements for the term of the patent. The granting of industrial property rights balances the interests of the inventor (creator) and the general public and competitors, but not the interests of those involved in a research partnership.41 Another problem can also arise from the practical implementation of the research cooperation. It is widely known that research institutes tend not to undertake in-depth legal analysis.42 So it is conceivable that legally there is for instance a bilateral or trilateral cooperation agreement, but in legal transactions with the outside the appearance of a legally competent unit is conveyed, for example by a logo created for the cooperation or by common body provisions, such as research meetings of all cooperation partners, or through a common research concept (so-called “identity equipment”). For example, in legal transactions one could assume that an independent, legally competent unit is behind a “science campus”.43

4.5

Agreement on the Results Obtained by a Research Partnership (So-called “Foreground”)

An agreement is necessary regarding the secrecy of research results and protection of intellectual property. Essentially, research results are not financial assets, but their exploitation can have economic value. As has rightly been pointed out, practical implementation requires further investment (e.g. in new plants and methods) and entrepreneurial risk. It is unlikely to be undertaken unless exclusive rights to the intellectual property can be used to obtain a financial return.44 There is also a regular 39

Ulrici (2018), p. 129. Ulrici (2018), p. 129. 41 Ibid, p. 138. 42 Geis (2018), p. 81. 43 Ibid, p. 81. 44 Ulrici (2018), p. 131 ff. 40

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need for an agreement on the availability of previous knowledge and existing property rights (so-called background). Accordingly, there is an interest in making existing knowledge and property rights accessible and available to the members of a research partnership for the sake of the research project, as scientific progress regularly builds on and develops already acquired notions. Thus the interest of universities and other research institutions to sign further research collaborations based on certain research results often conflicts with the interest of partner companies assigned exclusive rights to exploit research results. On the other hand, conflicting interests cannot be balanced by monetary compensation of universities and research institutions (i.e. purchasing interest in further research), as the participating universities and other research institutions may be interested in using research results for further activities.45

4.6

Heterogeneity and Variety of Forms of Cooperation: Need for Coordination

Cooperations differ with regard to the partners involved and their legal status: they may involve individual scientists, universities, non-university research institutions and industrial companies. The role of scientific collaborations in an innovation chain can vary: while projects of the Deutsche Forschungsgemeinschaft—DFG (German Research Foundation) typically serve basic research, performance centres may focus more on applied science.46 This focus is clearly in the “foreground” when founding a company, but without necessarily denying the importance of previous scientific innovation. Thus, the financial contribution and the human-resources contribution must be coordinated. An agreement must be reached about who provides the so-called background-knowledge, but above all, an agreement on the division of so-called foreground-knowledge is required (i.e. on the results obtained by a research partnership).47 In a cooperation with several partners, where the research is performed by people who work for these stakeholders, extensive coordination regarding the results of intellectual achievements and the intellectual property rights granted to them is necessary. One example is the impact factor. Allocations may be made twice, not only in the context of allocation of funds. Impact factors of joint publications should be attributed to each cooperation partner and academics should be able to decide how the impact factors of joint publications are attributed. Legislation is therefore needed to solve such problems of imputation.48

45

Ulrici (218), p. 137. Möslein (2018), p. 107. 47 Ulrici (2018), p. 131. 48 Geis (2018), p. 82. 46

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A need for coordination has been identified at three levels. Considering the cooperation of several partners, it exists horizontally at the level of the research association, i.e. between its members and between them and the research association (so-called association level). The members of a research association must balance their conflicting interests regarding access, protection and exploitation of intellectual achievements (horizontal association level). The conflicting interests of researchers on one hand, and the research association and its members on the other, must also be balanced (vertical employment level). Finally, there may be a need for coordination between the interests of individual researchers and the interests of other researchers (horizontal research level).49 Concerning the involvement of researchers, there is also a need for vertical coordination between the association and its members from another perspective. The legal system assigns intellectual property to the inventive (creative) performance of an individual researcher (so-called inventor or creator principle, see § 7 UrhG, § 6 PatG).50 The results of intellectual achievements are assigned to the researchers and not to the research association or its members, again implying a need for horizontal coordination between them, taking into account the division of labour between researchers.51

5 The Necessity of Enabling Legislation52 on Research-Friendly Cooperation Models Cooperation between universities and private institutions (for which the private “AnInstitut” may stand as a paradigm) is quite widespread in Germany.53 Cooperations between universities and industry in particular have played a major role for a long time, not least due to the legal obligation to transfer knowledge and technology prescribed by the university framework law.54 However, such cooperation models hardly meet the requirements set by the famous judgement of the Federal Constitutional Court on Lower Saxony law, repeatedly upheld.55 In particular, the significant involvement of university academics in questions directly related to research is rarely taken into account in the drafting of contracts (definition of research objectives, the procedure and the actors). Contract structure must observe the rights and meet the requirements of Article 5 (3) GG and—according to the case law of the Federal Constitutional Court on organ

49

Ulrici (2018), p. 157. See on this point also Ulrici (2015), p. 319. 51 Ulrici (2018), p. 131 ff. 52 Kumpan (2018), p. 69. 53 Geis (2018), p. 77. 54 Hochschulrahmengesetz—HRG (BGBl. 1976, I, p. 18) § 2 (7). 55 BVerfGE, 35, 79 (132 f.). Compare Trute (1994), p. 173 ff.; Gärditz (2009), p. 274 ff.; FraenkelHaeberle (2014), p. 185 ff. 50

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structure—prevent a “structural threat”56 to the freedom of science.57 This includes the primacy of scientific (as distinct from commercial) management in research questions, division of management into different organs of the cooperation partners (stakeholders’ assembly) and scientists involved (researchers’ assembly), and existence of a scientific advisory board.58 Involvement of single scientists in the contractual relationship can also pose problems, since due to their fundamental right to (negative) freedom of research (Article 5(3) GG) they cannot simply be committed to concrete cooperation.59 An innovative attempt to involve researchers in the contract “at eye level” and to respect their “negative freedom of research” was the “Berlin contract building blocks” (Berliner Vertragsbausteine)60 developed in 2002/2003 for industrial cooperation, which was essentially a trilateral contract between the university, researchers and cooperation partners.61 The promotion of scientific cooperation promises to become a future task of private law, because innovation increasingly takes place in cooperation relationships and fostering cooperation is an elementary purpose of private law.62 Since cooperation contracts in the academic field are subject to uncertainty, and the common practice of bilateral cooperation agreements involves considerable risks in legal transactions, new types of company need to be considered. Legal regulation of research collaborations is difficult to map with the means of existing law. It is not clear whether scientific cooperations are governed by contract or company law: if they take place through a market transaction, they come under contract law; if they take place in the framework of entrepreneurial organisations, they come under company law.63 Thus, depending on the perspective, scientific collaborations can be seen as belonging simultaneously to a legal-free or to a legal-overregulated area: legalfree, because existing law does not provide any specific regulation for such cooperation; legal-overregulated because cooperations can choose between many options, none of which match their proper content.64 At present, a tailored cooperation agreement has to be drawn up for every new cooperation. This is expensive and 56 Seckelmann (2010), p. 238. According to this, the legislator has a margin of appreciation, but is not allowed to “freeze” university organisation. The organisational structures should rather contribute to an effective enforcement of academic freedom. 57 Geis (2018), p. 79. 58 Ibid, p. 79. 59 Ibid, p. 80. 60 https://docplayer.org/11495727-Vertragsbausteine-berliner-vertrag.html#show_full_text, last accessed 29.10.2020. 61 Ulrici (2018), p. 151. 62 Möslein (2018), p. 100. 63 Ibid, p. 100. The author quotes a Californian lawyer: “an agreement for the joint development of new technology is probably the most difficult type of agreement for business-people to negotiate, draft and administrate.” 64 Eberbach (2018), p. 66.

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time-consuming, especially for institutions that do not conclude such contracts on a regular basis. If each institution develops its own rules, the same questions are repeatedly addressed and the wheel is invented again and again. These transaction costs subtract funds from research.65

6 Conclusions The cooperation between universities or other research institutions and companies to form a research network results in a considerable need for coordination of intellectual performance. This concerns the research results and property rights (so-called foreground), but also the exploitation of previously existing knowledge and property rights to achieve the objectives pursued by a research association (so-called background). Functioning cooperation requires a firm legal foundation that defines mutual rights and obligations, fosters aims and objectives, creates the necessary organs, and anticipates performance disorders and liability. Universities’ third mission has gained importance in the political and social discussion of recent years and plays a major role in the external communication of Universities. Although economy-related links with the external world, which are predominant in the academic context, can be a threat for academic freedom, a much broader consideration of the third mission can help universities play a key role as an economic and cultural engine for the region and a promoter of progress and innovation for their community of reference. The third mission supports dialogue and interaction with citizens, the economic system and public and private institutions towards an innovative, open and sustainable society. Nevertheless, this positive development should be compatible with the autonomy and the special rules (Eigengesetzlichkeit) of Universities and research institutions which are at the core of academic freedom.

References ANVUR (2018) Valutazione Terza Missione/Impatto sociale – Università linee guida per la compilazione della scheda unica annuale Terza Missione e impatto sociale SUA-TM/IS per le Università (version 7 November 2018). https://www.anvur.it/wp-content/uploads/2018/11/ SUA-TM_Lineeguida.pdf. Accessed 20 Oct 2020 Berghaeuser H, Hoelscher M (2020) Reinventing the third mission of higher education in Germany: political frameworks and Universities’ reactions. Tert Educ Manag 26:57–76 Berghäuser H (2017) Die Dritte Mission in der Hochschulgovernance. Eine Analyse der Landeshochschulgesetze. Hochschulmanagement. Zeitschrift für die Leitung, Entwicklung und Selbstverwaltung von Hochschulen und Wissenschaftseinrichtungen 2+3:35–43

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Berghäuser H (2020) Die Dritte Mission von Hochschulen – Strategie oder window dressing? (doctoral dissertation at the German University of Administrative Sciences Speyer). Fraunhofer Verlag, Karlsruhe Clark BR (1998) The entrepreneurial university: demande and reponse. Tert Educ Manag 1:5–16 Eberbach W (2018) Eine Rechtsform für Wissenschaftskooperationen – Ausgangspunkte und Grundlagen. Ordnung der Wissenschaft 2:51–67 Fraenkel-Haeberle C (2014) Die Universität im Mehrebenensystem. Modernisierungsansätze in Deutschland, Italien und Österreich. Mohr Siebeck, Tübingen Gärditz K-F (2009) Hochschulorganisation und verwaltungsrechtliche Systembildung. Mohr Siebeck, Tübingen Geis M-E (2018) Forschungskooperationen: Öffentliches oder Zivilrecht? – Positionsbestimmungen und Regelungszuständigkeiten. Ordnung der Wissenschaft 2:77–83 Kalous A (2018) Vernetztes Arbeiten und Personalzuordnung. Ordnung der Wissenschaft 2:161–167 Koch H-A (2008) Die Universität. Geschichte einer europäischen Institution. Wissenschaftliche Buchgesellschaft, Darmstadt Kumpan C (2018) Die Governance einer Forschungskooperationsgesellschaft – Struktur, Kompetenzen und Verfahren. Ordnung der Wissenschaft 2:115–124 Mautner G (2005) The entrepreneurial university: a discursive profile of a higher education buzzword. Crit Discourse Stud 2:95–120 Möslein F (2018) Privatrechtliche Regelsetzungsfragen der wissenschaftlichen Kooperationsform: Angebot des Gesetzgebers oder selbstgestaltetes Recht? Ordnung der Wissenschaft 2:99–111 Pasternack P, Zierold S (2015) Regionale Hochschulwirkungen aktiv gestalten: Ein Modell für Third-Mission-Entwicklungsstrategien. In: Fritsch M et al (eds) Schrumpfende Regionen – dynamische Hochschulen. Hochschulstrategien im demografischen Wandel. Springer Fachmedien, Wiesbaden, pp 279–293 Rüegg W (1996) Themen, Probleme, Erkenntnisse. In: Rüegg W (ed) Geschichte der Universität in Europa, 2nd volume. C.H. Beck, München Schimank U, Winnes M (2001) Jenseits von Humboldt? Muster und Entwicklungspfade des Verhältnisses von Forschung und Lehre in verschiedenen europäischen Hochschulsystemen. In: Stölting E, Schimank U (eds) Die Krise der Universitäten. Springer, Wiesbaden, pp 295–325 Seckelmann M (2010) Rechtliche Grundlagen und Rahmensetzung. In: Simon D, Knie A, Hornbostel S (eds) Handbuch Wissenschaftspolitik. VS Verlag für Sozialwissenschaften, Heidelberg, pp 227–243 Trute H-H (1994) Die Forschung zwischen grundrechtlicher Freiheit und staatlicher Institutionalisierung. Mohr Siebeck, Tübingen Ulrici B (2015) Das Recht um und auf das Arbeitsergebnis. Wissenschaftsrecht 48:318–334 Ulrici B (2018) Geistiges Eigentum in Forschungsverbünden. Ordnung der Wissenschaft 2:129–157 Università degli Studi di Milano (2008) Relazione annuale sulle attività di Terza Missione ai sensi del D.L. 10 novembre 2008, n. 180. https://www.unimi.it/sites/default/files/2020-09/Relazione %20annuale%20attivit%C3%A0%20TM%20Unimi%20-%202019.pdf. Accessed 20 Oct 2020 Università degli Studi di Milano (2020) Processo di monitoraggio delle attività di Terza Missione dell’Università degli Studi di Milano – anno 2020. https://www.unimi.it/sites/default/files/202009/Il%20processo%20di%20monitoraggio%20de lla%20TM%20-%202020.pdf. Accessed 20 Oct 2020 Weiler HN (2006) Profil Qualität, Autonomie. Die unternehmerische Universität im Wettbewerb. Zeitschrift für Hochschulrecht 1:39–46 Zomer A, Benneworth P (2011) The rise of University’s Third Mission. In: Enders J, de Boer HF, Westerheijden DF (eds) Reform of higher education in Europe. Sense Publishers, Rotterdam et al., pp 81–101

Do Ethics Commissions Promote or Endanger Academic Freedom? Michael Fehling

Abstract Ethics commissions are increasingly involved in the assessment of research projects in Germany and Italy, especially in the field of clinical studies and research funding. In such assessments, there is often conflict between the academic freedom of researchers and other constitutional values, particularly the rights of patients and probands in clinical studies. A proportional balance between these conflicting values needs to be found. Although the involvement of ethics commissions may pose a threat to academic freedom, there are also positive aspects, such as legal certainty and reduced legal scrutiny. Keywords Pharmaceutical law · Proportional balance · Peer review · Margin of appreciation · Legal certainty

1 The Emergence of Ethics Commissions and the Implications of Constitutional Law First introduced in the United States,1 expert committees designed to assess the ethics of research projects have found their way to Europe since the 1980s. The concept originates in the field of clinical pharmaceutical research. Here, the need to balance both the interest in further research (which one hopes will be beneficial for public health) on the one hand and the rights and interests of patients and probands on the other, can pose serious ethical problems. The 2001 Directive on “good clinical

I am very grateful to Vincent Mittag and Nico Schröter for valuable research assistance. 1

Robertson (1979), p. 484 ff.; from the German perspective Deutsch (2006), p. 411.

M. Fehling (*) Bucerius Law School, Hamburg, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_16

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practice in the conduct of clinical trials on medicinal products for human use”2 and its successor, Regulation (EU) 2014/536,3 have gradually brought national legislation in the EU into line. In Germany, such legislation is to be found in Sec. 40(1)2, 42, 42a of the Medicinal Products Act (Arzneimittelgesetz)4 and the GCP-Ordinance (GCP-Rechtsverordnung),5 in Italy in legge Lorenzin of 2018.6 At national level, ethics commissions have also become commonplace in many other areas besides clinical pharmaceutical research. In Germany, they are referred to, for instance, in the Medical Devices Act (Medizinproduktegesetz)7 (Sec. 20), in the Stem Cell Act (Stammzellgesetz)8 (Sec. 5, 6, 9) and the Radiation Protection Law (Strahlenschutzgesetz)9 (Sec. 31 and 36). Notably, ethics commissions are not only mandated when conducting research on humans. By now, such commissions are also established to review research involving animals, such as in Sec. 15(1)2 of the Animal Protection Act (Tierschutzgesetz)10 in Germany or the decreto legislativo no. 26 of 201411 (implementing Directive (EU) 2010/6312) in Italy. The ethical conflict of interests one encounters when conducting pharmaceutical trials may also be expressed as a conflict of (constitutional) rights—both at national and at a European level. More precisely, academic freedom (Wissenschaftsfreiheit),

2 Directive (EC) 2001/20 of the European Parliament and of the Council of 4 April 2001 on the approximation of the laws, regulations and administrative provisions of the Member States relating to—the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use, OJ L 121/34. 3 Regulation (EU) 2014/536 of the European Parliament and of the Council of 16 April 2014 on clinical trials on medicinal products for human use, and repealing Directive 2001/20/EC, OJ L 158/1. For an overview see Lanzerath (2019), p. 700. 4 Gesetz über den Verkehr mit Arzneimitteln (Arzneimittelgesetz—AMG) in der Fassung der Bekanntmachung vom 12. Dezember 2005, BGBl. I S. 3394 zuletzt geändert durch Gesetz vom 9.12.2020, BGBl. I S. 2870. 5 Verordnung über die Anwendung der Guten Klinischen Praxis bei der Durchführung von klinischen Prüfungen mit Arzneimitteln zur Anwendung am Menschen (GCP-Verordnung— GCP-V) vom 9. 8.2004, BGBl. I S. 2081, zuletzt geändert durch Gesetz vom 20.12.2016, BGBl. I S. 3048. 6 Law no. 3 (11.1.2018), G.U. no. 25 (31.1.2018). 7 Gesetz über Medizinprodukte (Medizinproduktegesetz—MPG) in der Fassung der Bekanntmachung vom 7. 8.2002, BGBl. I S. 3146 zuletzt geändert durch Verordnung vom 19.6.2020, BGBl. I S. 1328. 8 Gesetz zur Sicherstellung des Embryonenschutzes im Zusammenhang mit Einfuhr und Verwendung menschlicher embryonaler Stammzellen (Stammzellgesetz—StZG) vom 28.6.2002, BGBl. I S. 2277 zuletzt geändert durch Gesetz vom 29.3.2017, BGBl. I 2277. 9 Gesetz zum Schutz vor der schädlichen Wirkung ionisierender Strahlung (Strahlenschutzgesetz— StrlSchG) vom 27.6.2017, BGBl. I S. 1966 zuletzt geändert durch Gesetz vom 23.10.2020, BGBl. I S. 2232. 10 Tierschutzgesetz vom 18.5.2006, BGBl. I, S. 1206 zuletzt geändert durch Verordnung vom 19.6.2020, BGBl. I S. 1328. 11 Decreto Legislativo no. 26 (4.3.2014), G.U. no. 61 (14.3.2014). 12 Directive (EU) 2010/63 of the European Parliament and of the Council of 22.9.2010 on the protection of animals used for scientific purposes, OJ L 276/33.

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protected by Article 5(3) of the German Basic Law (Grundgesetz)13 and Article 33 (1) of the Italian Constitution,14 may be in conflict with patients’ or probands’ rights of self-determination (as protected under Article 2(1) connected with Article 1(1) of the German Basic Law)15 and physical integrity (as protected under Article 2(2) of the German Basic Law). When academic research depends on the prior involvement of an ethics commission, this at first glance seems to encroach on academic freedom, which according to general doctrine needs to be justified so as not to result in a violation of the constitution (see Sect. 3). In terms of our topic: academic freedom is at risk. However, on closer inspection, an ethics commission may also prove positive for researchers and their academic freedom, for example by improving legal certainty and easing responsibility; a reduced level of judicial scrutiny may also turn out to be rather freedom-friendly (Sect. 4). Primarily, these are rather abstract questions of constitutional law and doctrine. Yet, for two reasons the provisions of ordinary statutory law cannot be disregarded. First, the responsibilities and powers of ethics commissions may be quite different, depending on what kind of research they relate to. Hence, the specific provisions regulating ethics commission activities are crucial when evaluated in terms of constitutional law. Second, constitutional guarantees must be kept in mind when interpreting such statutory provisions. They may have to be construed and applied in such a way as to allow the best-possible realization of the constitutional guarantees involved. I now sketch the variety of responsibilities and powers of ethics commissions under the current law (Sect. 2).

2 The Great Variety of Responsibilities and Powers of Ethics Commissions 2.1

Varying Composition and Institutional Setting

By definition, an ethics commission is an independent body of experts of different disciplines, who together give an expert opinion, if necessary by majority vote.16 This is the core of the legal definition in Sec. 2(2) no. 11 of the EU Regulation (also Sec. 2(k) of the former EC Directive) and may also serve as a guideline for ethics commissions outside the scope of the regulation. Besides the relevant medical specialities, the professional groups represented on the commission may vary. So may the number of members. Commissions may be composed of lawyers, ethicists,

13

For an overview in English see Becker (2009), p. 121 ff.; Pritchard (1998), p. 104 ff. For an overview see Bighi (1993), p. 58 ff. 15 See in general BVerfG Judgement 1 BvR 536/72 (5.6.1973), https://germanlawarchive.iuscomp. org/?p¼62, last accessed 6.4.2021; analysed by Jacoby (2007), p. 462 ff. 16 See for the decision making process Siegler (1986), p. 22 ff.; for Germany Albers (2003), p. 435. 14

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members of the clergy or even laypeople.17 In this respect, the review process can only partly be compared to that of a peer review.18 In Germany, ethics commissions, which provide project-related assessments (see Sect. 2.2), are usually based at medical associations (Ärztekammern) or universities, but may occasionally also be established at specialist institutes.19 Today,20 private ethics commissions, mainly dealing with rules of professional conduct, no longer play a significant role. In Italy, the large number of public ethics commissions, formerly often responsible for only one specific medical institution, has been drastically reduced (by decrees of the Ministry of Health and the legge Lorenzin of 201821) and they have been given greater regional responsibilities. This was done for professionalization and to increase efficiency. At the same time, certain framework conditions for commission organisation (composition and qualification of members, institutional independence) and procedures have been established.22

2.2

Involvement in Various (Administrative) Tasks and Decisions

This article focuses on the involvement of ethics commissions in the approval of certain research projects, namely clinical pharmaceutical studies. The legal provisions mentioned above concern such decisions. An affirmative vote by an ethics commission is also a common requirement when it comes to the granting of research funding, especially at European level within the framework programme “Horizon 2020” and its successor programme “Horizon Europe”.23 Finally, scientific journals

17

Siegler (1986), p. 22; Deutsch (2006), p. 413. Probably close to peer review according to Just (2008), p. 643; Gramm (1999), p. 217. 19 Doppelfeld (2008), p. 646. 20 A decade ago, they could be found for medical devices according to the Medical Devices Act (Medizinproduktegesetz) as well as the use of X-rays according to the X-ray ordinance (Röntgenverordnung) and ionising radiation according to the Radiation Protection ordinance (Strahlenschutzverordnung); compare Kern (2008), p. 634. 21 See supra fn 6. 22 For an overview see Petrini and Brusaferro (2019), p. 315 ff. 23 See for Horizon 2020, especially Art. 14 Regulation (EU) 2013/1290 of the European Parliament and of the Council of 11.12.2013 laying down the rules for participation and dissemination in “Horizon 2020 the Framework Programme for Research and Innovation (2014-2020)” and repealing Regulation (EC) No 1906/2006, OJ L 347/81; furthermore Art. 19 Regulation (EU) 2013/1290 of the European Parliament and of the Council of 11.12.2013 establishing Horizon 2020—the Framework Programme for Research and Innovation (2014–2020) and repealing Decision No 1982/2006/EC, OJ L 347/104, mentioned by Lanzerath (2019), p. 701. For Horizon Europe see European Commission, Proposal for a Regulation of the European Parliament and of the Council establishing Horizon Europe—the Framework Programme for Research and Innovation, 18

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often make publication dependent on a positive ethical evaluation.24 Publication is of course usually by non-state actors and is therefore not directly relevant as regards encroachment on constitutional rights. One exception may be when a semigovernmental research organisation (such as the German Research Foundation, Deutsche Forschungsgemeinschaft), which is bound by constitutional rights,25 includes a publication-requirement in its funding conditions. Apart from such project-related involvement, ethics commissions, such as the German Ethics Council (Deutscher Ethikrat), are also relied upon by politicians for general policy advice regarding strategic questions or specific legislative projects.26 However, since such general policy advice does not affect academic freedom,27 it need not concern us here.

2.3

Differences as per the Binding Effect of Commission Decisions

Originally, ethics commissions, for example in German pharmaceutical law, usually only had an advisory function. Hence, the competent authority was not bound by their vote when deciding on approval. Today, however, this is an exception.28 For example, such a non-binding vote of an ethics commission is required at medical departments in the state of Hesse, for clinical trials on people, which are not subject to the Medical Products Act (Arzneimittelgesetz), and for epidemiological research with personal data, see Sec. 53 of the Hessian Higher Education Act (Hessisches Hochschulgesetz). Since 2004, the German Medicinal Products Act (Arzneimittelgesetz) (Sec. 40(1) 2) stipulates that clinical pharmaceutical trials may only be started after approval by the competent authority and by an ethics commission. Since 2001, such a binding effect of the commission’s decision is also prescribed by EU Law29 (see now Sec. 4 of Regulation (EU) 2014/536). As a result, ethics commissions have gradually been transformed from ethical or professional advisory bodies into quasi-public

laying down its rules for participation and dissemination COM (2018) 435 final, 7.6.2018 (especially Art. 15). 24 Indicated by McGrath and Lilley (2015), p. 3191; for Germany Doppelfeld (2008), p. 635. 25 See Fehling (2014), p. 193 ff.; in general terms see also Britz (2013), Art. 5(3), marginal number 61. 26 See for example the European Group on Ethics, Plomer (2008), p. 840 ff.; regarding the German Ethics Council, Bogner and Menz (2010), p. 895 ff. 27 Compare Hufen (2017), p. 1265. 28 For this development see Doppelfeld (2008), p. 645; Just (2008) p. 640 ff. 29 Deutsch (2006), p. 412.

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entities with regulatory functions, charged with protecting patients’ rights and interests. This trend has been observed in Germany30 and Italy31 alike. The German Stem Cell Act (Stammzellgesetz) (Sec. 6(5)) has for example taken something like a middle course. Here, the vote of the ethics commission has “to be taken into account” but does not strictly bind the authorities. However, if the authority wants to deviate from the vote, it must give its reasons in writing (“comply or explain”).

2.4

The Relevant Standard: Legal or Ethical Criteria?

The standard of assessment on which the ethics commission’s vote is to be based is prescribed by the corresponding law, at least in Germany. This raises the question as to what role ethical aspects, which after all are eponymous for these commissions, may still play in their decisions. At first glance, this might seem rather obvious. The primacy of the law (Gesetzmäßigkeitsprinzip), as mandated by Article 20(3) of the German Constitution (Grundgesetz), leaves little room for non-legal criteria to determine the commission’s decision when such carries actual legal effect and is more than a mere appeal to the researcher’s personal responsibility. One does not have to embrace sociological systems theory (Systemtheorie)32 to emphasise that it is exclusively the function of the law to resolve social conflicts with binding effect and to stabilise normative expectations.33 Moreover, the distinction between ethics and law is a central achievement of modernity. Therefore, if the decision of an ethics commission carries actual legal effect, it must be considered as one that has to be made solely by application of the law.34 However, the relevant law may incorporate non-legal standards, including ethical or moral ones, for example in undefined legal terms (unbestimmte Rechtsbegriffe) or when it mandates a balancing of conflicting interests. With regard to our topic, this might be the case where the law explicitly or implicitly asks for a risk-benefit analysis, as in the case for example with clinical pharmaceutical trials (Sec. 42 (1) no. 3 and Sec. 40(1) no. 2 of the Medicinal Products Act, Arzneimittelgesetz). Further, the application of undefined legal terms like “reasonable” or “unjustifiable” (as in Sec. 40(1) no. 2a of the Medicinal Products Act, Arzneimittelgesetz: “unjustifiable harmful effects”) may allow an ethical evaluation in individual

30

See inter alia Doppelfeld (2008), p. 645 ff.; Kern (2008), p. 635 ff. See Petrini and Brusaferro (2019), p. 314 ff. 32 See for the function of the law according to system theory Luhmann (1989), p. 140; Luhmann (1992), p. 1427 ff. 33 Pointing to Luhmann in this context, Albers (2003), p. 426, footnotes 32 and 33; FatehMoghadam and Atzeni (2009), p. 115, footnote 1, and p. 119, footnotes 14 and 15. 34 Fateh-Moghadam and Atzeni (2009), p. 115 ff.; Albers (2003), p. 426 ff. 31

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cases. Yet, even in such cases, the assessment at its core remains a legal one, because it is guided and bound by constitutional guarantees—to protect both academic freedom and the rights of probands. We return to this point later. Most legal standards by which ethics commissions decide are in any case rather formal. For example, they refer to insurance protection or the professional qualifications of the researchers, or set criteria for informed consent by probands.35 In these cases, there is no actual ethical assessment of the proposed study.36 Against this background, does it still make sense to call them “ethics commissions”? From a sociological perspective, it probably serves primarily to facilitate understanding between the different disciplines within the commission. Physicians and other specialists do not have to engage in a legal discourse but can exchange arguments on the common “neutral” ground of ethics.37

3 Compatibility of Ethics Commissions and Academic Freedom 3.1

Varying Intensity of Encroachments on Academic Freedom

In national constitutional law, the right to choose, design and carry out research projects free from the state’s influence is at the core of academic freedom in Germany (Article 5(3) of the German Constitution, Grundgesetz)38 and probably also in Italy.39 However, it is a foregone truth that academic freedom does not automatically entitle a researcher to infringe the rights of third parties.40 It is therefore not an encroachment on academic freedom to require the consent of probands/patients involved in clinical trials. This logic, however, cannot be applied to stem cell research as no third-party rights are involved in clinical trials. Therefore, in stem cell research any restrictions must be seen as encroachments on academic freedom, which according to general doctrine need to be justified so as not to result in a violation of the constitution. 35

Deutsch (2008), p. 653 ff. Kern (2008), p. 635 ff. 37 Fateh-Moghadam and Atzeni (2009), p. 141 ff. 38 BVerfG Judgement 1 BvL 8/10 (20.2.2016) para. 49; for an overview in English Becker (2009), p. 122. 39 Bighi (1993), p. 58 ff. 40 See Fehling (2004), marginal number 147; Dähne (2007), p. 308. This is not a statement in the much more general controversy on interpretation of scope of protection (Schutzbereich) of fundamental rights in Germany: for a narrower reading, Böckenförde (2003), p. 185 f.; criticism by Kahl (2004), p. 184 ff.; also compare BVerfG Judgment 2 BvR 1/84 (19.3.1984), Neue Juristische Wochenschrift 1984, p. 1293, 1294 with the statement that the scope of protection of the freedom of arts does not imply the right to use private property of others. 36

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The intensity of such encroachment on academic freedom largely depends on the degree to which the ethics commission’s decision is binding. There is certainly clear and severe encroachment not only when approval of the research project is conditional on the commission’s consent (as in German pharmaceutical law) but also when the competent authority has to “comply or explain”41 (as required by the German Stem Cell Act, Stammzellgesetz). This does not hold if an ethics commission only acts in an advisory capacity and its decision does not have any legal effect (not even an obligation on behalf of the authority or the researcher to explain themselves).42 Yet, the mere fact that a researcher has to submit documents to an ethics commission and be accountable to it constitutes a procedural encroachment (prozeduraler Grundrechtseingriff) on academic freedom,43 whether or not the commission’s decision is binding. However, the intensity of such procedural encroachment is low. The situation is somewhat different when the grant of research funding is conditional on approval by an ethics commission. If such funding is provided by a semi-government organisation, such as the German Research Foundation (Deutsche Forschungsgemeinschaft), it may also be bound by constitutional rights.44 In this case, academic freedom becomes relevant not as a constitutional protection against government infringements on individual rights (Abwehrfunktion) but rather in its capacity as a constitutional right to participate in (semi-)governmental services and benefits (Teilhabefunktion).45 At least under German constitutional doctrine, the latter is also guaranteed by academic freedom,46 although the level of protection is somewhat weaker. In particular, the general doctrinal requirement that any encroachment on constitutional rights must be based on a parliamentary law (Vorbehalt des Gesetzes) does not fully apply here.47 In this respect, it nonetheless appears doubtful whether mere internal funding guidelines, requiring involvement of an ethics commission, are sufficient. Academic freedom is also guaranteed by the Charter of Fundamental Rights of the European Union (Article 13 CFR),48 probably to a similar degree. European fundamental rights are applicable, on the one hand, according to Article 51(1)1 CFR if the European Commission requires involvement of an ethics commission when granting research funding itself. On the other hand, academic freedom as a European 41

In general, German doctrine acknowledges that fundamental rights can be encroached not only directly by command and control but also indirectly by making it substantially more difficult to exercise fundamental rights, Dreier (2013), Vorbemerkungen vor Art. 1, marginal number 125 ff. 42 Probably Hufen (2017), p. 1268; less clear Gramm (1999), p 216 ff. 43 Britz (2013), Art. 5(3) marginal number 37; Hufen (2017), p. 1268. 44 See supra fn 25. 45 Compare Fehling (2014), p. 194. 46 Britz (2013), Art. 5(3) marginal number 80 ff.; Gärditz (2020), Art. 5 Abs. 3 marginal number 259 ff. 47 Compare Fehling (2014), p. 199 f.; more general for fundamental rights Kloepfer (2011), p. 318 ff. 48 For an overview see Sayers (2014), p. 422 ff.

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fundamental right comes into play if there is relevant secondary law,49 as in the case of clinical pharmaceutical trials (with “incomplete” EU Regulation50). However, in this constellation, in addition national constitutional guarantees remain applicable if there is still room for complementary regulation at national level,51 as in the case of pharmaceutical research. What remains unclear is whether and to what extent European fundamental rights also serve as a right to participate in governmental services and benefits,52 as in the case of the above mentioned German constitutional doctrine. Ultimately, the extent to which European academic freedom plays a role, when allocation of research funds by the European Commission requires involvement of an ethics commission, depends on this.

3.2

Potential Justification of Encroachments by Conflicting Constitutional Guarantees

In the German Basic Law (Grundgesetz), academic freedom is guaranteed without explicit reservations (Article 5(3) German Basic Law). Therefore, any encroachment may only be justified by conflicting interests having equal constitutional status (verfassungsimmanente Schranken).53 Such conflicting interests of constitutional status might be patients’ or probands’ rights to self-determination (as protected under Article 2(1) connected with Article 1(1) of the German Basic Law) and physical integrity (as protected under Article 2(2) of the Basic Law).54 The same is true for EU Law. Article 52(1)2 CFR explicitly refers to the “rights and freedoms of others” (here in particular Article 3 CFR) as a possible limitation of fundamental rights of the Charter.55 49 See in general CJ Judgement (26.2.2013) Case C-617/10 Åklagaren v. Åkerberg Fransson, para. 16 ff.; Judgment (6.3.2014) Case C-206/13 Siragusa v. Regione Sicilia – Soprintendenza Beni Culturali e Ambientali di Palermo, para. 16 ff. 50 “Incomplete” here means that in addition there must be national law, because the regulation does not cover everything that needs to be regulated in this context; see Ruffert, in: Calliess and Ruffert (2016), Art. 288 AEUV marginal number 21. 51 Pointing in this direction CJ Judgment (24.9.2019) Case C-507/17 Google LLC v. Commission nationale de l’informatique et des libertés (CNIL), para. 67. 52 Regarding the academic freedom advocated by Augsberg (2015), Art. 13 CFR marginal number 9 and Jarass (2021), Art. 13 CFR marginal number 12. In general, this might be problematic because of the limited powers of the EU, see Jarass (2021), Art. 51 marginal number 6; Schwerdtfeger (2019), Art. 51 marginal number 93. 53 See, for example, BVerfG Judgment supra fn 38, para. 58; Kloepfer (2010), p. 313 ff. 54 Britz (2013), Art. 5 (3) marginal number 41; Hufen (2017), p. 1266. 55 Jarass (2021), Art. 13 marginal number 15; Schwerdtfeger (2019), Art. 51 marginal number 36. Others (e.g. Bernsdorff (2019), Art. 13 marginal number 12) refer to Art. 52(3) CFR together with Art. 10 CFR, but this is less convincing because Art. 10 CFR does not explicitly recognise the freedom of science.

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The Central Problem of Achieving a Proportional Balance of Constitutional Interests

The question at hand cannot be answered by unilaterally taking the perspective of academic freedom and the need to justify any encroachments on it. Since prima facie constitutional guarantees of equal status come into play, a proportional balance between them must be sought: what we in Germany call “practical concordance” (praktische Konkordanz).56 Achieving such a balance is complicated by the fact that besides the already mentioned constitutional rights, additional interests of constitutional status are involved: on one side of the balance, the restriction of scientific activities not only infringes the individual scientist’s academic freedom but also touches the social benefits of scientific research, and in the case of medical research, public health. Similarly, on the other side of the balance, not only individual rights of patients/probands must be considered, but also societal values, such as that of not exploiting humans for experimental purposes. This might ultimately also affect human dignity,57 which has special constitutional status under the German Constitution.58 It is precisely in this supra-individual dimension and its link to fundamental constitutional values that the ethical nature of the conflict is reflected. In the concrete balancing, several additional parameters have to be taken into account: first of all the intensity with which the different interests are at stake and the probabilities of different scenarios that affect risk-benefit assessment. Apart from this, it is hardly possible to identify clearer guidelines for this balancing on an abstract level. The protection of patients’ and probands’ rights is not weakened by their consent to (clinical) studies. It cannot be argued that they have given up their rights, namely the right to physical integrity. Patients and probands remain in need of protection, because as laypersons they are not in a position to fully assess the risks to their health. Even an optimal explanation of the risks, which is a prerequisite for the validity of consent, does not lead to a different conclusion. The situation is made even more difficult by the fact that any risk-benefit assessment by the ethics commission must be made under considerable uncertainty.59 The same is true for decisions by the competent authorities, which might be involved. The extent to which a new medication will prove effective, whether new medical devices will improve healthcare or novel stem cell research will lead to improved therapeutic options in the future—all this can hardly be predicted with certainty on the sole basis of study design and before the start of clinical trials. Likewise, based solely on pre-clinical research, it is impossible to answer questions

56

BVerfG Judgment 1 BvR 16/13 (6.11.2019), para. 76; regarding fundamental rights in general Hesse (1999), marginal number 317 ff. 57 Notices form European Union Institutions and Bodies of 14 December 2007 on Charter of Fundamental Rights of the European Union, OJ C 303/22. 58 For an overview in English see Bendor and Sachs (2011), p. 25 ff. 59 Compare for the medical sector in general Aulisio and Arnold (2008), p. 419.

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about side effects and their severity or the individual health effects that any proband or patient might suffer or enjoy. Against this background, the involvement of ethics commissions must be understood as a “flight to procedure” or, to put it more positively, as an attempt to protect fundamental rights by procedural means.60 This is a common strategy where substantive legal rules and standards turn out to be deficient.61 At least the diverse composition of ethics commissions improves the chances of having all relevant aspects and professional perspectives considered.62 The participation of expert scientists in the commission moves the procedure closer to what is known as peer review. It would be going too far to speak of mere self-regulation of the scientific community, given the involvement of experts from other disciplines and possibly even laypersons. However, this might be considered to mitigate the intensity of encroachments on academic freedom.63 In addition to such proceduralism, lawmakers are pursuing another strategy which is only partially compatible with the first one. The objective is to eliminate uncertainty as far as possible from the commission’s testing routine. To that end, ethics commissions are largely left to assess rather formal aspects of the study design.64 Criteria such as the formal qualifications of the researchers involved in the study are given preference over more substantive criteria that might prove to be even more restrictive and hence to encroach more intensely on academic freedom. Ethics commissions are not called upon to assess the scientific value of research projects as such. However, the more formal the criteria applied by the ethics commissions, the lower the intrinsic value of involving them in the first place.65 For example, it is hardly necessary to involve an expert commission alongside the competent authorities to check whether there is sufficient insurance coverage for probands/patients (e.g. generally Sec. 40(1)3 no. 8 and in particular Sec. 42a(4) no. 2 of the German Medicinal Products Act, Arzneimittelgesetz). Ultimately, the complexity of the assessments to be made means that the legislator has quite wide prerogative.66 Thus the existing provisions on ethics commissions appear to be a passable solution to the conflict between the different constitutional interests involved.67

60

See Gramm (1999), p. 225; Mager (2009), marginal number 34; more general regarding freedom of science Britz (2013), Art. 5(3) marginal number 104. 61 Regarding German law in general see for example Kloepfer (2010), p. 33 ff. 62 Pointing in this direction Albers (2003), p. 434 ff. 63 Fehling (2004), marginal number 165; also compare Gramm (1999), p. 218; Schulze-Fielitz (1994/2012), § 27 marginal number 31; Schmidt-Aßmann (2001), p. 31 ff. 64 Regarding the German Medicinal Products Act see Deutsch (2006), p. 414 ff. 65 Compare Dähne (2007), p. 326: “purely cosmetic gesture”. 66 See Kleindiek (1998), p. 311; Würtenberger (2013), p. 8; more general for this line of thought BVerfG Judgment 1 BvF 2/05 (23.6.2010), para. 140; Hwang (2009), p. 45 ff. 67 Pointing in this direction Löwer (2011), marginal number 29; Fehling (2004), marginal number 165.

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Consequences for the Interpretation and Application of the Relevant Laws

These constitutional premises have consequences for the interpretation and application of relevant statutes. Here they can only be outlined in very general terms. In any given case, the possibilities and limits of interpreting ordinary law in accordance with constitutional law68 depend on the specific provisions. An ethics commission may not be called upon to examine and assess the scientific value of a research project, as this touches the very core of academic freedom.69 Similarly, when conducting a risk-benefit assessment, it may only examine whether the expected benefits of the research, as suggested by the applicant, are plausible. In this respect, researchers have a margin of appreciation, which must be observed by the ethics commission and any competent authority involved,70 for example in pharmaceutical law. A reason for more serious concern is the practice of some ethics commissions of authorizing a research project but at the same time mandating compliance with additional requirements or making approval conditional on such compliance in the first place.71 In German law, such provisions would be issued according to Sec. 36 (2) of the Administrative Procedures Act (Verwaltungsverfahrensgesetz), if the commission’s approval qualifies as an administrative act [Verwaltungsakt] (Sec. 35 of the Administrative Procedures Act, Verwaltungsverfahrensgesetz), as is the case in pharmaceutical law. This is because the freedom to choose the methods of research and to independently design a clinical study is at the core of academic freedom. Thus an ethics commission must not impose its own “improvements” on the research project, but is restricted to assessing the project as presented, possibly after some amendments.72

68

For this doctrine in general compare Müller and Christensen (2013), p. 133 ff.; Kloepfer (2011), p. 34 ff. 69 See, slightly general, Dähne (2007), p. 309. 70 Regarding the margin of appreciation of researchers in general see Löwer (2011), marginal number 24; also compare BVerfG Judgment 1 BvL 12/94 (20.6.1994), Neue Zeitschrift für Verwaltungsrecht 1994, p. 894, 895. 71 Pointing in this direction Meuser and Platter (2005), p. 401 ff.; Doppelfeld (2008) p. 648. 72 It is always legally possible to reintroduce the request with modifications, see Meuser and Platter (2005), p. 398.

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4 Possible Benefits for Academic Freedom of Involving Ethics Commissions Certainly, from our perspective, we are primarily concerned with the potential dangers for academic freedom of ethics commission involvement. The benefit of such commissions is primarily seen in protecting the rights and interests of third parties. Nevertheless, there are three aspects where involvement of an ethics commission might, at least indirectly and to some extent, protect and promote the academic freedom of the researchers involved.

4.1

Improving Legal Certainty for the Researchers Involved

Like administrative decisions in general, approval by an ethics commission first creates legal certainty and legitimate expectations (Vertrauensschutz) for the researchers involved. In German law, if the commission’s decision qualifies as an administrative act (Verwaltungsakt) addressed to the applicant, as in pharmaceutical law,73 approval may only be revoked according to the relevant statutory provisions (e.g. Sec. 42(4a) of the Medicinal Products Act, Arzneimittelgesetz or, in the absence of a special provision, Sec. 48, 49 of the Administrative Procedures Act, Verwaltungsverfahrensgesetz). The primacy of the law (Gesetzmäßigkeitsprinzip) also means that an ethics commission may only engage in ongoing monitoring during the study if such is envisaged by law.74 The international Declaration of Helsinki75 in itself is not sufficient under German constitutional law. If this is not the case, the commission is restricted to a proactive assessment. However, there are again constitutional limits to the protection of legitimate expectations (Vertrauensschutz). If it turns out, contrary to the original assessment, that the probands’ or patients’ health, itself protected by constitutional law, is at considerable risk during a clinical trial, the law must allow approval of the trial to be revoked. This is envisaged by German law (see e.g. Sec. 42a(4a) and Sec. 40 (1) sentence 7 no. 2a of the Medicinal Products Act, Arzneimittelgesetz).

73

Deutsch (2006), p. 415; Meuser and Platter (2005), p. 396. Stressing the requirement of a legal basis regarding the powers of ethics commissions more generally, Gramm (1999), p. 223 ff. For the opposite, but without giving reasons for this, see Lippert (2006), p. 982. The EU Regulation (supra fn 3) requires a “follow-up” regarding the pharmaceutical study, but within the responsibilities of the competent authority, not the ethics commission. 75 WMA Declaration of Helsinki—Ethical Principles for Medical Research Involving Human Subjects, see https://www.wma.net/policies-post/wma-declaration-of-helsinki-ethical-principles-formedical-research-involving-human-subjects/, last accessed 6.4.2021. The provisions are not binding in the German and the Italian legal systems. 74

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Possibility of Easing Researchers’ Responsibility?

The protection of legitimate expectations (Vertrauensschutz) provided by ethics commission approval, itself limited, does not waive the applicants’ and participating researchers’ legal and especially ethical responsibility. When conducting the study, they must still ensure that it is conducted in accordance with the law and that it does not pose undue risks to the probands’ health.76 If necessary, they must react to unforeseen risks by modifying or even abandoning the study. The researchers, not the ethics commission, are liable for (health) damage and remain responsible (for example as doctors) under their professional rules of conduct.77 This reflects the underlying understanding of academic freedom, since the freedom enjoyed by the researcher is inseparably linked to his or her moral and legal responsibility.78

4.3

Reduced Judicial Scrutiny as Both a Threat to and Protection of Academic Freedom

If the negative decision of an ethics commission carries legal effect, the applicant may challenge it in the courts (in Germany by way of an enforcement action (Verpflichtungsklage) according to Sec. 42(1) 2nd alternative of the Code of Administrative Court Procedure, Verwaltungsgerichtsordnung). According to general doctrines of constitutional and administrative law, the controlling court must observe a certain margin of appreciation of the ethics commission.79 In Germany, establishment of a pluralistic expert commission is understood to indicate the lawmaker’s intention to give the commission’s decision special importance, also in the courts.80 This follows from the so-called “doctrine of normative empowerment” (normative Ermächtigungslehre), derived from Article 19(4) of the German Basic Law (Grundgesetz).81 However, due to the grave implications of constitutional guarantees on the commission’s decision, the margin of appreciation is defined quite narrowly. One may to a certain degree adopt the principles that the Federal Administrative Court (Bundesverwaltungsgericht) developed with regard to equally pluralistic review boards tasked with assessing whether certain media are to be indexed 76 Concerning the protection of probands’ health, see especially Art. 48 of the Regulation (EU) 2014/536, supra fn 3. 77 Compare general principle no. 10 of the Declaration of Helsinki (supra fn 75). 78 Özmen (2015), p. 71. 79 See Fateh-Moghadam and Atzeni (2009), p. 127 ff.; also pointing in this direction, although not totally clear, Gramm (1999), p. 225; Albers (2003), p. 434. 80 Maurer and Waldhoff (2020), § 7, marginal number 45. 81 BVerfG (Federal Constitutional Court) Judgment 1 BvR 857/07 (31.5.2011), para. 73; Judgement 1 BvR 419/81 (17.4.1991) Neue Juristische Wochenschrift 1991, p. 2005, 2006.

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as harmful to young people.82 According to those principles, one has to conceive the ethics commission’s decision as a two-step-process: first, assessing the benefits and risks associated with a proposed study, second, balancing benefits and risks under the relevant constitutional rights. On both levels the commission does no more enjoy a genuine margin of appreciation; however, it is considered to have the status of an anticipated expert opinion (antizipiertes Sachverständigengutachten). From the perspective of academic freedom, this reduced level of judicial scrutiny cuts both ways. On one hand, it limits the possibility of researchers to have undue encroachment on their academic freedom checked by the courts. On the other hand, an ethics commission, which due to its composition resembles scientific peer review, might be considered closer to the scientific community and its values than a state court.83 Moreover, the margin of appreciation enjoyed by the commission versus the courts is preceded by a margin of appreciation enjoyed by the applicant versus the ethics commission.84 Furthermore, notwithstanding any margin of appreciation, as a “last resort” the courts may still check whether the ethics commission has misjudged the scope of academic freedom altogether. Therefore, in an overall assessment, there is much to suggest that a narrowly defined margin of appreciation protects rather than endangers academic freedom.

5 Conclusion Involvement of ethics commissions is a potential threat to academic freedom since their task is to render more or less binding, decisions on issues that touch the very core of academic freedom, namely the balancing of risks and benefits of proposed clinical trials. However, encroachments on academic freedom may be justified by conflicting interests of equal constitutional status, especially the rights and interests of patients and probands. To that end, laws requiring involvement of an ethics commission can be interpreted and applied in accordance with the constitution so as to strike an adequate balance between the conflicting constitutional interests. On closer inspection, the involvement of ethics commissions may to a certain degree even work to promote academic freedom. In particular, the affirmative decision of an ethics commission helps create an albeit limited degree of legal certainty and legitimate expectations (Vertrauensschutz) for the researchers involved. The primacy of the law (Gesetzmäßigkeitsprinzip) protects them from being assessed by standards other than those prescribed by the law. In particular,

82 Especially in BVerwG (Federal Administrative Court), Judgement 6 C 18/18 (30.10.2019), Neue Zeitschrift für Verwaltungsrecht 2020, p. 233, para. 12 ff., overruling in part Judgement 7 C 20.92 (26.11.1992) Neue Juristische Wochenschrift 1993, p. 1491 ff. “Opus Pistorum”; for an overview on the case law see Maurer and Waldhoff (2020), § 7, marginal number 40. 83 Implied by Fateh-Moghadam and Atzeni (2009), p. 128. 84 See supra fn 70.

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genuine ethical standards may only be relied upon as far as such can be derived from interpreting the relevant legal provisions. Finally, the margin of appreciation that ethics commissions have, but which must be defined narrowly, combined with a margin of appreciation enjoyed by the researchers themselves, can be seen as promoting, rather than constraining, academic freedom. However, ethics commissions are no magic cure that allows difficult ethical conflicts to be “outsourced” by “fleeing to procedure”. They should therefore be kept limited to particularly sensitive areas and not be extended to more and more areas of research.85 Just the implementation of such a procedure costs time and money and constitutes a procedural encroachment (prozeduraler Grundrechtseingriff) on academic freedom. Since it prolongs or delays approval procedures, it may also infringe the freedom of occupation (Berufsfreiheit) of companies funding the research. Even more importantly, in the field of pharmaceutical research, including the search for a vaccine against COVID-19, people may need new medicines to be ready for the market quickly.

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Doppelfeld E (2008) Mögliche neue Tätigkeitsfelder für Ethik-Kommissionen. Medizinrecht 26:645–650 Dreier H (2013) Vorbemerkungen vor Art. 1 GG. In: Dreier H (ed) Grundgesetz-Kommentar, 3rd edn. Mohr, Tübingen Fateh-Moghadam B, Atzeni G (2009) Ethisch vertretbar im Sinne des Gesetzes – Zum Verhältnis von Ethik und Recht am Beispiel der Praxis von Forschungs-Ethikkommissionen. In: Vöneky S, Hagedorn C, Clados M, von Achenbach J (eds) Legitimation ethischer Entscheidungen im Recht. Interdisziplinäre Untersuchungen. Springer, Heidelberg, pp 115–143 Fehling M (2004) Art. 5 Abs. 3 (Wissenschaftsfreiheit). In: Dolzer R, Vogel K (eds) Bonner Kommentar zum Grundgesetz. C. F. Müller, Heidelberg Fehling M (2014) Verfassungskonforme Ausgestaltungen von DFG-Förderbedingungen zur OpenAccess-Publikation. Ordnung der Wissenschaft 1:179–214 Gärditz KF (2020) Art. 5 Abs. 3 [Recht der freien Meinungsäußerung]. In: Maunz T, Dürig G (eds) Grundgesetz Kommentar 92th supplementary delivery. Beck, München Gramm C (1999) Ethikkommissionen: Sicherung oder Begrenzung der Wissenschaftsfreiheit? Wissenschaftsrecht 32:209–225 Hesse K (1999) Grundzüge des Verfassungsrechts der Bundesrepublik Deutschland, 20th edn. C.F. Müller, Heidelberg Hufen F (2017) Wissenschaft zwischen Freiheit und Kontrolle. Neue Zeitschrift für Verwaltungsrecht 36:1265–1268 Hwang SP (2009) Die Begründung der gesetzgeberischen Einschätzungsspielräume aus den Grenzen der verfassungsgerichtlichen Rechtsanwendung. Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft 92:31–48 Jacoby N (2007) Redefining the right to be let alone: privacy rights and the constitutionality of technical surveilance measures in Germany and the United States. Georgia J Int Comparative Law 35:433–493 Jarass HD (2021) Charta der Grundrechte der EU, 4rd edn. Beck, München Just H (2008) Die Professionalisierung der Ethik-Kommissionen, einer Einrichtung der Selbstkontrolle der Wissenschaft. Medizinrecht 26:640–645 Kahl W (2004) Vom weiten Schutzbereich zum engen Gewährleistungsgehalt. Kritik einer neuen Richtung der deutschen Grundrechtsdogmatik. Der Staat 43:167–202 Kern BR (2008) Standortbestimmung: Ethikkommissionen – auf welchen Gebieten werden sie tätig? Medizinrecht 26:631–636 Kleindiek R (1998) Wissenschaft und Freiheit in der Risikogesellschaft. Eine grundrechtsdogmatische Untersuchung zum Normbereich von Art. 5 Abs. 3 Satz 1 des Grundgesetzes. Duncker & Humblot, Berlin Kloepfer M (2010) Verfassungsrecht Band II. Grundrechte. Beck, München Kloepfer M (2011) Verfassungsrecht Band I. Staatsorganisationsrecht. Beck, München Lanzerath D (2019) Europäische Ethikkommissionen im Wandel: Herausforderungen durch neue Rahmenbedingungen. Bundesgesundheitsblatt – Gesundheitsschutz – Gesundheitsforschung 62:697–705 Lippert HD (2006) Die zustimmende Bewertung einer Ethikkommission bei der klinischen Prüfung von Arzneimitteln nach dem novellierten Arzneimittelgesetz und der GCP-Verordnung. In: Kern BR, Wadle E, Schroeder KP, Katzenmeier C (eds) Humaniora: Medizin - Recht Geschichte. Festschrift für Adolf Laufs zum 70. Geburtstag. Springer, Berlin, pp 973–987 Löwer W (2011) § 99 Freiheit von Forschung und Lehre. In: Merten D, Papier HJ (eds) Handbuch der Grundrechte in Deutschland und Europa. C.F. Müller, Heidelberg, pp 699–765 Luhmann N (1989) Law as a social system. Northwest Univ Law Rev 83:136–150 Luhmann N (1992) Operational closure and structural coupling: the differentiation of the legal system. Cardozo Law Rev 13:1419–1441 Mager U (2009) § 166 Freiheit von Forschung und Lehre. In: Isensee J, Kirchhof P (eds) Handbuch des Staatsrechts der Bundesrepublik Deutschland, 3rd edn. C.F. Müller, Heidelberg, pp 1075–1111

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Maurer H, Waldhoff C (2020) Allgemeines Verwaltungsrecht, 20th edn. Beck, München McGrath JC, Lilley E (2015) Implementing guidelines on reporting research using animals (ARRIVE etc.): new requirements for publication in BJP. Br J Pharmacol 172:3189–3193 Meuser S, Platter J (2005) Die Bewertung der klinischen Prüfung von Arzneimitteln durch die Ethikkommission – eine Verwaltungsentscheidung besonderer Art? Pharmarecht 27:395–402 Müller F, Christensen R (2013) Juristische Methodik I, 11th edn. Duncker & Humblot, Berlin Özmen E (2015) Wissenschaft. Freiheit. Verantwortung. Über Ethik und Ethos der freien Wissenschaft und Forschung. Ordnung der Wissenschaft 2:65–72 Petrini C, Brusaferro C (2019) Ethics committees and research in Italy: seeking new regulatory frameworks (with a look at the past). Annali dell’Istituto Superiore di Sanità 55:314–318 Plomer A (2008) The European Group on Ethics: law, politics and the limits of moral integration in Europe. Eur Law 14:839–859 Pritchard RMO (1998) Academic freedom and autonomy in the United Kingdom and Germany. Minerva 36:101–124 Robertson JA (1979) The law of institutional review boards. UCLA Law Rev 26:484–549 Ruffert M (2016) AEUV Art. 288 [Rechtsakte des Unionsrechts]. In: Calliess C, Ruffert M (eds) EUV/AEUV, 5th edn. Beck, München Sayers D (2014) Article 13 – Freedom of the arts and sciences. In: Peers S, Hervey T, Kenner J, Ward A (eds) The EU Charter of Fundamental Rights. Nomos, Baden-Baden, pp 422–443 Schmidt-Aßmann E (2001) Privatrechtliche und öffentlich-rechtliche Gestaltungsformen (staatlicher) Aufgabenwahrnehmung: Das Beispiel des Wissenschaftsrechts. In: Balaguer CF, Morlok M, Häberle P (eds) Die Welt des Verfassungsstaats. Nomos, Baden-Baden, pp 19–33 Schulze-Fielitz H (1994 reprint 2012) § 27 Freiheit der Wissenschaft. In: Benda E, Maihofer W, Vogel H, Hesse K, Heyde W (eds) Handbuch des Verfassungsrechts der Bundesrepublik Deutschland, 2nd edn. De Gruyter, Berlin, pp 1339–1362 Schwerdtfeger A (2019) Art. 51 Anwendungsbereich. In: Meyer J, Hölscheidt M (eds) Charta der Grundrechte der Europäischen Union, 5th edn. Nomos, Baden-Baden Siegler M (1986) Ethics commitees: decisions by bureaucracy. Hast Center Rep 16:22–24 Würtenberger T (2013) Schranken der Forschungsfreiheit und staatliche Schutzpflichten, Anhörung vor dem Deutschen Ethikrat, https://www.ethikrat.org/fileadmin/PDF-Dateien/Veranstaltungen/ anhoerung-25-04-2013-wuertenberger.pdf. Accessed 6 Apr 2021

Ethical Codes and Speech Restrictions: New Scenarios and Constitutional Challenges to Freedom of Teaching at University—The Italian Perspective Giada Ragone

Abstract Universities all over the world are adopting rules aimed at protecting sensitive individuals from topics that may cause emotional distress or produce discrimination. Some of these rules even require teachers to warn students of political or religious beliefs expressed in course materials, and to point out “no go areas”. In Italy, this new turn in the ethic of care still only seems a distant possibility, although a number of University ethical codes have been adopted and many guidelines already require the use of a gender-fair language. Are these policies compatible with freedom of teaching under Article 33 of the Constitution? This chapter examines the issue through the Italian case-law. Keywords Freedom of teaching · Ethic of care · Ethical codes · Speech restrictions · Trigger warnings

1 Introduction: The Massification of University and the Rise of the Ethic of Care In the last 50 years, universities all over the world have undergone many changes.1 One of the most substantial has been higher education’s move towards inclusivity and away from class-based elitism.2 According to Clark Kerr, in the second half of the twentieth century, the classical idea of university, as described by Humboldt and Newman the century before, was overcome by the “multiversity” paradigm.3 “The 1 Early observers of the changes occurring in universities since the 1960s included Clark Kerr, former chancellor of the University of California (Berkeley), and Jürgen Habermas. See Kerr (2001) and Habermas (1968). 2 Baraggia et al. (2017), p. 2. 3 Krücken et al. (2006), p. 7.

G. Ragone (*) University of Milan, Milan, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_17

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Idea of a Multiversity is a city of infinite variety”, where the students are “more drawn from all classes and races than the students in the village”—the old university—and they “identify less with the total community and more with its subgroups.”4 The massification of university led to a pluralism and diversification of academic demography,5 creating much debate and shaping the intellectual positions of students and scholars across campuses. However, as happens in civil society, the unavoidable consequences of pluralism are tension, division and disagreement. In an attempt to avoid the possibility of universities and campuses becoming microcosms of discrimination and unfair treatment of minorities and marginalised groups, higher-education institutions have gradually worked to create an inclusive and protected learning and working environment. This commitment is a clear manifestation of the “ethic of care”6 in higher education. The “ethic of care” in academic communities is defined as the Athenaeums’ attention to sustain “ways in which [. . .] individuals behave ethically toward others.”7 Tools used to further this goal include ethical codes, harassment policies and behavioural guidelines. In the United States of America, traces of this effort can be observed as far back as the 1990s. At that time, hundreds of colleges and universities adopted codes restricting hate speech.8 Hate speech, as defined by Jeremy Waldron, is “the use of words which are deliberately abusive and/or insulting and/or threatening and/or demeaning directed at members of vulnerable minorities, calculated to stir up hatred against them”.9 Waldron pointed out that such regulations met the need to protect personal dignity, avoiding interference with education.10 The ethic of care has developed much in recent years, going far beyond mere prohibition of discrimination and restrictions on hate speech. In some cases, this trend met students’ growing expectation that “a supportive campus environment is one in which views are not challenged”.11 As reported in Francesco Magni’s chapter,12 university policies and ethical codes now require teaching staff to warn their students of political, ideological and religious beliefs expressed in course materials in order to spare them from unpleasant discussions. Others require lecturers not only to regulate classroom speech, but also to avoid certain controversial topics or “no go areas”. In the USA and Canada,13 where so-called “trigger

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Kerr (2001), p. 31. See Guri-Rosenblit et al. (2007), p. 373. 6 See Katz and Noddings (1999). 7 Keeling (2014), p. 143. 8 Chemerinsky and Gillman (2017), p. 82. 9 Waldron (2012), pp. 8–9. 10 Waldron (2012). 11 Chemerinsky and Gillman (2017), p. 14. 12 See Trigger Warnings and Academic Freedom: a Pedagogic Perspective by F Magni in this volume. 13 See Donlevy et al. (2019). 5

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warnings”14 are used in many campuses and speech considered politically controversial can form the basis of claims of harassment or “microaggressions”,15 students often ask for formal investigations after faculty members publish papers in scientific journals, the contents of which are considered offensive. Nor is it unusual for members of the academic community to request withdrawal of invitations to controversial speakers at conferences and seminars.16 On one hand, no reasonable person would disagree with the importance of avoiding a discriminatory learning environment and of considering students’ sensitivities. Indeed, we should not underestimate the fact that today “there are more people on campus who can testify to the very real harm associated with hateful or intolerant speech, or to the day-to-day indignity of microaggressions”.17 On the other hand, however, when speech or writing restrictions merely espouse politically controversial speech or unpopular ideas and do not transgress into the realm of hate speech or demeaning language directed at members of vulnerable groups, we should ask to what extent they are legitimate and aligned with the values of academic freedom, specifically freedom of teaching. Indeed, as proclaimed by the United Nations Educational, Scientific and Cultural Organization (UNESCO) Recommendation concerning the Status of Higher-Education Teaching Personnel of 1997, academic freedom is first and foremost “the right, without constriction by prescribed doctrine, to freedom of teaching and discussion.”18 The new horizon of the ethic of care cannot be simply justified by the need to avoid bias and discrimination in the university environment. Its implementation comes at a price that we need to consider. A reflection on this point is pivotal, if we think that “freedom of expression and academic freedom are at the very core of the mission of colleges and universities, and limiting the expression of ideas would undermine the very learning environment that is central to higher education.”19 In the present contribution, the question of the proper balance between an ethic of care and academic freedom is addressed from an Italian constitutional perspective. After analysing whether and the extent to which the phenomenon concerns Italian universities, the chapter focuses on the freedom of teaching that the Constitution of the Republic of Italy specifically recognises under Article 33(1). This freedom is guaranteed for all teachers, particularly those of universities. An analysis of the case law then shows the depth of protection of freedom of teaching at Italian universities. Statements “at the start of a piece of writing, video, etc. alerting the reader or viewer to the fact that it contains potentially distressing material (often used to introduce a description of such content)”. See “Trigger warning” at www.OxfordDictionaries.com. 15 See Donlevy et al. (2019). 16 Chemerinsky and Gillman (2017), pp. 70–71. 17 Ibid, p. 13. 18 It also includes “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 recommendation, para. 27. 19 Chemerinsky and Gillman (2017), p. x. 14

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The chapter concludes with reflections on the compatibility between this freedom and instruments aimed at promoting protected learning environments.

2 Fair-Language Guidelines and Ethical Codes at University. Are Speech Restrictions and Teacher Censorship Going to Be an Issue Also in Italy? In the Italian framework, speech restrictions and regulations as invasive as those adopted on the other side of the Atlantic are apparently far off. Lecturers can obviously warn their students of any shocking images or sensitive topics in their lectures and material. But such behaviour is usually spontaneous, rather than being required by university codes and regulations. It is also very uncommon for universities to provide their teaching staff with lists of arguments and topics prohibited on campus. However, the ethic of care is spreading in Italian universities and some signals of its influence on teaching should not be underestimated or ignored. An example is the number of norms, guidelines and policies that already require members of state administrations (including universities) to use gender-fair language, which is aimed at implementing equality and equal opportunities for men and women, and avoiding gender-based discrimination.20 For instance, in 2007 the Italian Council of Ministers and the Department of Public Function both adopted a Directive21 which dictated that all employees of state administrations must use non-discriminatory language in all their documents (reports, circulars, decrees, regulations, etc.), preferring “neutral” words when possible.22 A few years later, a bill23 presented in the Senate, concerning the introduction of gender education at school and gender study programmes at university,24 explicitly underlined the role of gender-fair language in the educational environment as a policy tool capable of realizing effective equality between the sexes. While the proposal was never approved, it is worthy of attention, as it prescribed a particular language for teachers and mandatory contents in educational programmes. The commitment to fight gender-based discrimination and bias through language regulations seems to be increasingly pursued by university authorities. In 2016, the University of Turin signed the Charter “Io parlo e non discrimino”,25 a document 20

More references in De Benedetto (2019), p. 84 ff. Directive of 23.5.2007, G.U. no. 173 (27.7.2007). 22 The Directive suggests, for example, to use the word “persone” (people) instead of “uomini” (men). 23 Disegno di legge S. 1680, XVII Legislature. The Proposal, communicated to the Senate in 2014 and assigned to the proper Commission in 2015, has never been voted. 24 See Art. 4. 25 “I speak, I do not discriminate”. 21

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which declared, inter alia, the intent to adopt guidelines aimed at avoiding any kind of gender discrimination in institutional communications and to verify that at events promoted, patronised and/or supported by the university, non-discriminatory forms of gender communication were observed. The same Charter was also signed by the University of Ferrara, which also adopted two important instruments. First, a Rectoral Decree26 that required sensitivity to gender-inclusive language in all the university’s acts and documents. Second, a manual providing gender-fair rules to be followed in all the Athenaeum’s “expressive forms”, from legislative to administrative acts, from standard forms to websites. The manual does not explicitly refer to teaching or research, but it does not clearly exclude lectures and papers from the forms of expression regulated. Other Italian universities have issued similar guidelines.27 The University of Padua published a document28 promoting the use of non-discriminatory language, attentive to gender differences, “in public events and everyday academic life”,29 calling for language that conveys the values of fairness, openness and inclusion, according to the university statute. Ca’ Foscari University of Venice also adopted guidelines on the proper use of gender-fair language.30 These guidelines specifically focus on the language employed in administrative acts, but also ban discriminatory behaviour in every university activity.31 Similar affirmations can be found in the University of Bologna’s guidelines,32 formally regulating institutional communications, but also aimed at promoting non-discriminatory language throughout the university environment33 and providing “affirmative actions that can be shared by the entire academic community”.34 Another sign of the development of the ethic of care in Italian universities is the spread of ethical codes adopted by the academic governances, in line with the autonomy of each university,35 providing behavioural rules against discrimination and harassment. Almost every Italian university has its own ethical code, but an extensive variety of documents is included under this term. Here we consider the

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D.R. no. 321, 24.2.2016. Pending publication, the Rector of the University of Milan also adopted a resolution to promote non-discriminatory written and verbal language at all levels in the university. 28 Generi e linguaggi. Linee guida per un linguaggio amministrativo e istituzionale attento alle differenze di genere. 29 Ibid, p. 3. 30 Linee guida per il linguaggio di genere. 31 Ibid, p. 1. 32 Linee guida per la visibilità del genere nella comunicazione istituzionale dell’Università di Bologna. 33 Ibid, p. 4. 34 Ibid, p. 6. 35 According to Art. 33(6): “Higher education institutions, universities and academies have the right to establish their own regulations within the limits laid down by the law.” On university autonomy, see Academic Freedom, University Autonomy (Work in Progress) and Striving towards Accountability – An Italian Perspective by L Violini in this volume. 27

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codes of three universities (in the south, centre and north of the country) included in the top five in terms of number of enrolments:36 La Sapienza in Rome,37 Alma Mater of Bologna,38 and La Statale of Milan.39 In all three cases, there is a strong commitment against any form of discrimination, both direct and indirect, in university activities and fields of operation. Discrimination on many grounds, including gender, personal belief, language, ethnic or social origin, nationality, health and age, is banned. The codes promote equal opportunity and require members of the academic community to behave respectfully towards others. However, none of the codes refer to speech limitations, nor do they directly affect the teaching sphere by banning topics or arguments at lectures. On the contrary, in every case there is explicit recognition of freedom of teaching. If we focus on such codes, it seems that Italian universities have engaged the challenge to promote inclusive and protected learning environments, but have done so without resorting to instruments and policies directly affecting the freedom of teaching. In the above ethical codes, the promotion of an equal opportunity culture has a pivotal role, but there are no traces of trigger warnings, “no go areas” or similar tools. Nonetheless, in contrast with this view, one could say that the codes provide just general principles that could be implemented with more detailed and invasive rules and guidelines in future. Such a scenario will be verified over the time. To date, the main symptoms of an ethic of care affecting the realm of teaching activities, in the Italian framework, are those related to the gender-fair language prescriptions already discussed. We noted that they usually pertain to administrative acts and institutional communications, although it is not difficult to imagine that in line with the explicit intents of these documents, their use could be extended to all events of academic life, including lectures, seminars and so on. The fact that in most cases they are “soft law” tools, the enforceability of which is doubtful, attenuates concern about improper limitations on the freedom of teaching. Nonetheless, if their use eventually affects teaching activities, we should ask to what extent they align with the strong protection of freedom of teaching provided to university teaching staff under the Italian Constitution.

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See https://anagrafe.miur.it/, last accessed 20.10.2020. Codice etico di Ateneo, D.R. no. 1636, 23.5.2012. 38 Codice etico e di comportamento, D.R. no. 1408, 1.10.2014. 39 Codice etico e per l’integrità nella ricerca, D.R. no. 224, 18.1.2019. Some values embedded in this code are implemented and specified in another document: Codice per la tutela della dignità e del benessere delle persone nell’organizzazione, D.R. no. 758, 10.2.2020. 37

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3 Freedom of Teaching at University Under Article 33: A “Boundless” Liberty? In the previous section, we argued that speech restrictions and topic censorship do not seem to be a current threat to academic freedom in Italy. However, some concerns about freedom of teaching stem from the fair-language rules and one cannot exclude the possibility that instruments employed in the name of the ethic of care could also develop in Italy, as occurred in the USA. Such a scenario, and particularly the possibility of resorting to mandatory trigger warnings and “no go areas”, raises tricky constitutional challenges. What about the right to freely express one’s thoughts, upheld by Article 21 of the Italian Constitution?40 And above all, with specific regard to the topic of this volume, what about freedom of teaching under Article 33(1)? Although these two liberties are fundamental, neither is unlimited. Generally, “all fundamental rights protected by the Constitution are mutually related to one another and it is thus not possible to identify any one of them in isolation as prevailing absolutely over the others. [. . .] If this were not the case, the result would be an unlimited expansion of one of the rights, which would ‘tyrannise’ other legal interests recognised and protected under constitutional law”.41 Article 21, for example, recognises the right to freely express one’s thoughts in speech, writing or any other form of communication, but it also clarifies that seizure of the press is permitted under certain conditions and that publications, performances and other exhibits offensive to public morality may be prohibited.42 The text of this article demonstrates that in the framework of the Italian Constitution, freedom of expression may be subject to limitations for different reasons. Article 33, which together with Articles 9, 34 and 117(2)n comprise the “cultural Constitution”,43 states at paragraph 1: “The Republic guarantees the freedom of the arts and sciences, which may be freely taught.”44 As remarked in the literature,45 the arts and sciences (and their teaching) are protected together, because—as with religion—they are both fundamental experiences in the search for meaning. Unlike the case of freedom of expression, the Constitution does not explicitly condone any restrictions on freedom of teaching in these disciplines. However, it is indisputable that some limits are permissible,46 for example to protect minors and in the interests 40 On freedom of expression see, ex multis, Pace and Manetti (2006); Pino (2008); Scaffardi (2009); Orofino (2014); De Vergottini (2015); Pitruzzella et al. (2017); Vigevani (2018). 41 Italian Constitutional Court, Judgement no. 85/2013. 42 On the limit of public morality, see Cuniberti (2011), p. 33 ff. 43 See Iannuzzi (2018), p. 220. 44 See para. 1. 45 See Orsi Battaglini (1990), p. 96. Peter Häberle noted the same about the German Grundgesetz: see Häberle (1985), p. 329 ff. 46 On this point, see Pototschnig (1971), p. 721 ff.; Cerri (1988), p. 5 ff.; Iannuzzi (2018), p. 220 ff.; Morelli (2019), p. 12.

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of public morality. As teaching is also a duty, teachers employed in schools and universities are not free to refuse to teach. However, many scholars agree that, for university professors’ freedom of teaching, it is very hard to find support for legitimate restrictions. Limits to freedom of teaching “gradually slacken in the course of the educational system, almost completely disappearing by university level.”47 This radical idea stems, inter alia, from awareness that according the Humboldt paradigm,48 universities are places par excellence “where scientific research and teaching meld.”49 Limiting freedom of teaching at universities therefore means limiting another pivotal aspect of academic freedom: the freedom of research. Moreover, since free teaching is strongly intertwined with the promotion of culture,50 protecting it ensures maintenance of cultural pluralism in society. In line with this view, the American constitutionalist Cass Sunstein wrote: “a theory of academic freedom is an aspect of a theory of democracy.”51 Nevertheless, “in the perspective of a constitutional democracy” academic free teaching (and researching) could not be considered “unlimited [. . . and] should find a reasonable balance with other fundamental rights and principles that conflict with them in concrete cases.”52 Even those who think that academic freedom does not tolerate any sort of ethical limitation agree that academic freedom should be reconciled with other societal rights,53 through the well-known constitutional techniques of balancing54 (and particularly with regard to reasonableness55 and proportionality).56 Case law demonstrates, however, how hard it is to find concrete, reasonable and proportionate restrictions on freedom of teaching at universities. We now examine two cases where freedom of teaching under Article 33(1), clashed with other constitutional values. The first shows an exceptional reason for limiting this freedom and only concerns private institutions of education, established under Article 33 (3) of the Constitution.57 The second shows the prevalence of freedom of teaching on the value of university autonomy promoted by Article 33(6).

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Iannuzzi (2018), p. 222. According to the Italian Constitutional Court, Judgement no. 240/1974: freedom of teaching behaves differently according to the different types and degrees of teaching. 48 See Morelli (2019), p. 12. 49 Italian Constitutional Court, Judgement no. 14/1983. 50 Iannuzzi (2018), p. 221. 51 Sunstein (1996), p. 94. 52 Morelli (2019), p. 12. 53 Orsi Battaglini (1990), p. 100. 54 Orsi Battaglini (1990), p. 101. 55 See Cardone (2015), p. 4. 56 See Galetta (2018), p. 11. 57 “Entities and private persons shall have the right to establish schools and institutions of education, at no cost for the state.”

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Italian Case Law on Freedom of Teaching at Universities

The first case worth mentioning concerns a private university with religious affiliations that requires its teachers to respect Catholic doctrine in teaching and scientific activities.58 This requirement is in line with the most relevant European labour legislation, Directive (EC) 2000/78,59 that establishes a general framework for equal treatment in employment. It states that by virtue of the special nature of jobs where the employer is a religious entity, the employee is bound by a heightened duty of loyalty.60 The same principle has also been upheld by well-established case law of the European Court of Human Rights.61 This special bond of trust is legitimate when the employee performs tasks that have a direct link with the ethical aims pursued by the organisation,62 as in the case of university teaching staff. In this framework, limits to academic free teaching are tolerable when related to the goal of protecting the institution’s interest in providing teaching consistent with its religious orientation. A paradigmatic example of the clash between this interest and a professor’s freedom of teaching is the famous Lombardi Vallauri case. Luigi Lombardi Vallauri was a lecturer in legal philosophy at the law school of the Catholic University of Milan. His contract was renewed on an annual basis for more than 20 years, until the academic year 1998/1999. In October 1998, the Congregation for Catholic Education of the Holy See, informed the Dean that Vallauri had publicly expressed views in clear opposition to Catholic doctrine, and asked the Athenaeum not to renew his contract in the interests of the well-being of students and the university. Although the unorthodox views were not expressed during his teaching activities, they were considered capable of influencing Vallauri’s educational duties. Since one of the conditions for obtaining the job was the approval by the mentioned Congregation, the Faculty Board declined to employ Vallauri the following academic year. The instructor challenged the university’s decision before the

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Croce (2010), p. 3. Directive (EC) 2000/78 of the European Council of 27.11.2000 establishing a general framework for equal treatment in employment and occupation, OJ L 303. See, in particular, Art. 4(2). 60 In two highly debated judgements on the German cases, CJ Judgement (11.9.2018) Case C-68/17 IR v. JQ and CJ Judgement (17.4.2018) Case C-414/16 Vera Egenberger v. Evangelisches Werk für Diakonie und Entwicklung e.V., the Court of Justice of the European Union clarified that: the decision of a church or other organisation, the ethos of which is based on religion or belief, to require its employees to act with loyalty to that ethos must be amenable to effective judicial review. The loyalty requirement must be necessary and objectively dictated, having regard to the ethos of the church, by the nature of the occupational activity concerned or the circumstances in which it is carried out, and must comply with the principle of proportionality. 61 See, for example, ECHR Judgement (23.9.2010) Obst v. Germany, ECHR Judgement (23.9.2010) Schüth v. Germany, ECHR Judgement (3.2.2011) Siebenhaar v. Germany, ECHR Judgement (12.6.2014) Fernández Martínez v. Spain. 62 See Ragone (2014), p. 199 ff. 59

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Regional Administrative Court and subsequently the Council of State, arguing that it was unconstitutional since it violated, inter alia, his freedom of teaching. The Supreme Administrative Court rejected the claim with Judgement no. 1762 of 2005, stating that the Italian judicial authorities could not depart from Constitutional Court Judgement no. 195 of 1972 (the “Cordero” ruling): another case stemming from the Holy See’s withdrawal of consent to a teacher at the Catholic University.63 The latter judgement established that it is compatible with freedom of teaching under Article 33 that teaching appointments at the Catholic University are subject to approval by the Holy See. Indeed, if the state compelled religious universities also to recruit teaching staff not aligned with their creed, this would violate the religious freedom of those who founded, support and decide to attend the religious university. Those who accept an offer to teach in a religious university are not forced to do so, and their acceptance entails embracing the religious goals of such institutions. In other words, freedom of teaching is not violated since teachers are free to accept or refuse work with religious universities, and are aware of such institutions’ specific goals. Moreover, they are free to resign whenever they cease to share these universities’ aims and orientation. The constitutional judgement clarified, however, that although freedom of teaching may be limited in religious universities in order to promote their goals, this is an exception; in state universities freedom of teaching must be “fully guaranteed”.64 It follows that, aside from religious universities, scholars and professors are “fully” free to express their views on religion and other personal creeds, even if controversial or unorthodox. A few years later, the European Court of Human rights stated65 that in neglecting to explain how Vallauri’s views, which supposedly conflicted with Catholic doctrine, could affect the university’s interests, the Faculty Board had not given adequate reasons for its decision. In the Court of Strasbourg’s opinion, the legitimate aim of protecting the university’s interest in basing its teaching on Catholic doctrine could limit the freedom of expression of teaching staff only if such interest was proved to be concretely harmed. The second illustrative case concerns the Politecnico of Milan, and it is analysed in this volume by Professor Diana-Urania Galetta.66 As it is well-known, the case originated from the decision of the Academic Senate to institute post-graduate courses taught entirely in English. The decision—an expression of university autonomy under Article 33(6) of the Constitution—was based on legislation67 that permits the enhancement of internationalisation by several means, including study programmes and selection procedures in foreign languages.

63

See Lariccia (1972), p. 2177 ff. See para. 6 Considerato in Diritto (CiD), Italian Constitutional Court, Judgement no. 195/1972. 65 ECHR Judgement (20.10.2009) Lombardi Vallauri v. Italy. 66 See Academic Freedom and the Use of Native Languages (the Italian “English-only” Saga and its Downsides) by D-U Galetta in this volume. 67 Art. 2(2)(l) of Law no. 240 (30.12.2010), G.U. no. 10 (14.1.2011), Gelmini law. 64

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The aforementioned resolution was challenged by a group of professors at that Atheneaum, which resulted in an administrative proceeding that led, through an “incidental” referral, to a ruling by the Italian Constitutional Court: decision no. 42 of 2017. The judgement stated that the objective of internationalisation must be satisfied without undermining the constitutional principle of the primacy of the Italian language (Article 6 of the Constitution), equal access to university education (Article 3) and academic freedom (Article 33, 1). In the Court’s opinion, where universities were allowed to “draw up a general offer of education including entire study programmes taught exclusively in a language other than Italian, even in areas in which the very object of teaching requires it, this would undoubtedly result in an illegitimate sacrifice of these principles”.68 Focusing on the violation of Article 33(1), the Court clarified that the provision of courses taught entirely in English could violate academic freedom “because it would end up having a significant effect on the manner in which teachers are required to teach, depriving them of the choice of how to communicate with students, irrespective of their degree of familiarity with the foreign language; moreover, it would discriminate against teachers with regard to the allocation of courses for teaching, as they would necessarily be allocated on the basis of expertise—knowledge of a foreign language—which has nothing to do with the skills examined during recruitment and the specific knowledge to be imparted to students.”69 The Court considered restrictions to the manner of exercising freedom of teaching (“how to communicate with students”) and restrictions on access to this right (“with regard to the allocation of courses”) to be both inadmissible.70 The Constitutional ruling on the Politecnico case confirms the view that “in the Constitution itself, [. . .] there is a clear disparity between the protection of science [and its teaching. . .] and recognition of university autonomy.”71 Indeed, “the individual dimension [. . .] is the hard core of academic freedom, being of a superior rank in the constitutional system to its collective or institutional dimension.”72 In other words, the freedom of science and the freedom of teaching of science cannot easily be sacrificed in the name of university autonomy. This position casts a shadow on the legitimacy of restrictions to freedom of teaching on the basis of ethical codes, which are also expressions of academic autonomy.

68

See para. 4 CiD. Para. 4 CiD. 70 On this distinction see Cardone (2015), p. 3 and 6. 71 Orsi Battaglini (1990), p. 103. 72 Ibid, p. 104. 69

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4 Conclusion Possible tension between the maintenance of inclusive and non-discriminatory learning environments on one hand, and the need to safeguard freedom of teaching on the other, does not yet seem to be an issue in the Italian system. In this context, academic freedom is probably not yet under the kind of pressure caused by the alarming development of the ethic of care in the USA and other countries. Indeed, the behavioural codes and the gender-fair language rules currently adopted by Italian universities cannot be compared with the trigger warnings, “no go areas”, and the other forms of speech restriction that have been implemented abroad. They aim to promote the well-being of academic community members and equal opportunity culture, but they pursue this goal without compelling professors to avoid certain themes, content, or even ideas in their classes. However, the current existence of guidelines and manuals requiring university employees to use certain words instead of others in the name of fairness is cause for concern. If these rules were considered to extend also to academics and lecturers, the possibility of a clash with academic freedom would become real. Indeed, as the constitutional ruling on the exclusive use of English in university programs shows, language regulations, “depriving [teachers] of choice over how to communicate with students” can be included in the category of pressures incompatible with freedom of teaching under Article 33(1). It has been prominently affirmed that “the university can impose subject-matter or other restrictions on speech [. . .] to the extent that the restrictions are closely related to its educational mission.”73 This principle was also confirmed in the Cordero and Lombardi Vallauri cases, at least with regard to religiously affiliated universities. However, the fact that the educational mission of a university could include a possible limit to academic freedom triggers a further reflection: should universities be places for protected debates, or rather spaces for discussing, reasoning and confronting each other with different opinions and points of view, even on highly debated issues, where people’s ethical principles are challenged? Of course, abusive and disrespectful language can be lawfully banned in educational spaces, at least in order to prevent true threats to individual rights and physical harm.74 But these restrictions and prohibitions should never aim to remove the causes of tension by eliminating sensitive grounds of discussion or censoring controversial ideas, as this would mean not only illegitimately sacrificing an academic’s freedom of teaching, but also eliminating pluralism from the university. Such a result would have a high cost for the mission of universities, and not only. Indeed, we think it is undeniable that “promoting an inclusive culture of mutual respect, tolerating diverse and controversial views, and working through differences by way of conversation rather than intimidation, are essential not only to higher

73 74

Sunstein (1996), p. 107. See Chemerinsky and Gillman (2017), p. 116 ff.

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education. They are also how free, diverse, democratic societies must behave if they are to remain free, diverse and democratic”.75

References Baraggia A, Delsignore M, Galli L, Raba B (2017) Building bridges: towards cohesion through the European University system. Ius Publicum Netw Rev, February, 1–46 Cardone A (2015) Tre questioni costituzionali in tema di ufficialità della lingua italiana e di insegnamento universitario. Osservatorio sulle fonti 2:1–6 Cerri A (1988) Arte e scienza (libertà di). In: Enciclopedia giuridica, 3rd Volume. Istituto della Enciclopedia italiana, Roma, pp 1–7 Chemerinsky E, Gillman H (2017) Free speech on campus. Yale University Press, New Haven Croce M (2010) Dal “Caso Cordero” al “Caso Vallauri”: nozione di scienza e libertà di insegnamento (discutendo con Michele Massa). Forum di Quaderni costituzionali 1–4 Cuniberti M (2011) Il limite del buon costume. In: Cuniberti M, Lamarque E, Tonoletti B, Vigevani GE, Viviani Schlein P (eds) Percorsi di diritto dell’informazione. Giappichelli, Torino, pp 33–46 De Benedetto M (2019) Uguaglianza di genere, lingue e linguaggio: un punto di vista di diritto pubblico. Diritto Amministrativo 27:83–124 De Vergottini G (2015) La libertà di pensiero è sempre attuale? Percorsi Costituzionali 1–2:3–29 Donlevy JK, Gereluk D, Brandon J (2019) Trigger warnings, freedom of speech, and academic freedom in higher education. Edu Law 28:1–41 Galetta D-U (2018) Internazionalizzazione degli Atenei e corsi di studio in lingua straniera: fra conseguenze “a sistema” del contenzioso sui corsi “solo in inglese” al Politecnico di Milano e possibili scenari future. Federalismi.it 4:1–16 Guri-Rosenblit S, Šebková H, Teichler U (2007) Massification and diversity of higher education systems: interplay of complex dimensions. Higher Edu Policy 20:373–389 Häberle P (1985) Die Freiheit der Wissenschaft im Verfassungsstaat. Archiv des öffentlichen Rechts 11:329–363 Habermas J (1968) L’Università nella democrazia. De Donato Editore, Bari Iannuzzi A (2018) Art. 33. In: Clementi F, Cuocolo L, Rosa F, Vigevani GE (eds) La Costituzione italiana. Commento articolo per articolo, 1st Volume, Principi fondamentali (Artt. 1-54). Il Mulino, Bologna, pp 220–225 Katz MS, Noddings N (1999) Justice and caring: the search for common ground in education. Teachers College Press, New York Keeling RP (2014) An ethic of care in higher education: well-being and learning. J College Character 15:141–148 Kerr C (2001) The uses of the University. Harvard University Press, Cambridge Krücken G et al (2006) Towards a multiversity? Universities between global trends and national traditions. Transcript, Bielefeld Lariccia S (1972) Libertà delle università ideologicamente impegnate e libertà di insegnamento. Giurisprudenza costituzionale 2177–2200 Morelli A (2019) Notazioni su mondo universitario e libertà di ricerca e di insegnamento a partire da Stoner di John Williams. Dirittifondamentali.it 2:1–16 Orofino M (2014) La libertà di espressione tra Costituzione e carte europee dei diritti: il dinamismo dei diritti in una società in continua trasformazione. Giappichelli, Torino Orsi Battaglini A (1990) Libertà scientifica, libertà accademica e valori costituzionali. In: Nuove dimensioni nei diritti di libertà. Cedam, Padova pp 89–108

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See Chemerinsky and Gillman (2017), p. 159.

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Pace A, Manetti M (2006) Rapporti civili: art. 21: la libertà di manifestazione del proprio pensiero. In: Commentario della Costituzione. Zanichelli, Roma Pino G (2008) Discorso razzista e libertà di manifestazione del pensiero. Politica del diritto 2:287–305 Pitruzzella G, Pollicino O, Quintarelli S (2017) Parole e potere: libertà d’espressione, hate speech e fake news. EGEA, Milano Pototschnig U (1971) Insegnamento (libertà di). In: Enciclopedia del diritto, XXI. Giuffré, Milano, pp 721–750 Pototschnig U (1976) L’università come società. Rivista giuridica della scuola:269–275 Ragone G (2014) Enti confessionali e licenziamento ideologico. Uno sguardo alla giurisprudenza della Corte di Strasburgo. Ephemerides Iuris Canonici 54:199–224 Scaffardi L (2009) Oltre i confini della libertà di espressione: l’istigazione all’odio razziale. Cedam, Padova Sunstein C (1996) Academic freedom and law: liberalism, speech codes, and related problems. In: Menand L (ed) The future of academic freedom. University of Chicago Press, Chicago, pp 93–115 Tosi P (2003) The Italian university system for a new Europe of citizenships and cultures. Atenei 4:10–17 Vigevani GE (2018) Art. 21. In: Clementi F, Cuocolo L, Rosa F, Vigevani GE (eds) La Costituzione italiana. Commento articolo per articolo, 1st Volume, Principi fondamentali (Artt. 1-54). Il Mulino, Bologna, pp 145–153 Volokh E (2015) No, there’s no “hate speech” exception to the First Amendment. Washington Post, 7 May, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/07/no-theresno-hate-speech-exception-to-the-first-amendment/. Accessed 20 Oct 2020 Waldron J (2012) The harm in hate speech. Harvard University Press, Cambridge

Trigger Warnings and Academic Freedom: A Pedagogic Perspective Francesco Magni

Abstract In recent years, trigger warnings, microaggressions, speech codes and safe spaces have made their way into U.S. universities and gradually into universities around the world, seriously challenging academic freedom. What are the risks of excluding controversial questions from university debate? The chapter examines academic freedom, free speech and democracy in a pedagogical perspective, in search of a clear mission of universities in these uncertain times. Keywords University · Academic freedom · Free speech · Trigger warning · Higher education

1 Introduction In 1964 some young Americans founded the Free Speech Movement at the University of Berkeley in California, claiming the right of students to freedom of expression. In an interview years later, one of their young leaders, Mario Savio, said: “To me, freedom of speech is something that represents the very dignity of what a human being is. [. . .] That’s what marks us off from the stones and the stars. You can speak freely. It is almost impossible for me to describe. It is the thing that marks us as just below the angels.”1 It has been many years since those events, and again something is happening in American colleges and universities. At a time when universities are playing a fundamental role in training young people to face the challenges of today, requests and episodes limiting freedom of speech are becoming increasingly common. For example, performance of plays (Shakespeare) and reading of the classics of world literature (Ovid) have been 1 Cohen (2014), p. 25. For further considerations see Ferguson (2017) and also the Free Speech Movement Archives, http://www.fsm-a.org/, last accessed 20.10.2020.

F. Magni (*) Department of Human and Social Sciences, University of Bergamo, Bergamo, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_18

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limited, censored or prohibited in colleges and universities across the United States due to content deemed violent, controversial or “sensitive” for students. Increasingly often, groups of students have denied invited speakers the right to speak, because of their ideas or beliefs (so-called no-platforming). Several American universities have introduced regulations, codes of conduct and speech codes, committing teachers to warn students in advance (so-called trigger warnings) of controversial course material that could generate emotionally complex situations and could be perceived as microaggressions (we return later to these terms). According to some,2 this amounts to coddling university students and protecting them in echo chambers, comfort zones and safe spaces where there is no risk of encountering words or expressions that may arouse discomfort or embarrassment. This is why young people of the 2010s have been dubbed the “snowflake generation”—a Collins English Dictionary word of the year in 2016—meaning an overly-emotional, highly-sensitive, vulnerable, easily offended generation, unable to deal with opposing opinions. For some, this is merely a caricature, useful to emphasise a “dichotomy between a younger generation’s oversensitivity and free speech as an absolute good in the interests of truth.”3 But beyond sociological definitions, some fundamental issues and questions remain to be explored. What happened to transform a value deemed important enough to fight for in the 1960s into a threat in just over 50 years? Why has freedom of speech gone from being a value to stand up for Mario Savio and other Berkeley students in 1964 to being a threat for other young Americans? Why have students stopped demanding freedom of speech and started demanding freedom from speech?4 Why, in just over 50 years, are speech codes being requested to regulate debates on campuses? Why are students invoking safe spaces where they can feel protected from any even remotely “controversial” statement or behaviour? These things are even more surprising if we consider that they are taking place in colleges and universities. How can universities continue to be a forum where it is possible to discuss controversial issues, if political correctness has to be maintained? Are limits to free speech necessary? What are the risks of excluding controversial issues and problems from the debate? Where, if not at university, should questions which remain unclear or controversial be discussed? Finally, how can universities preserve and relaunch their mission in the social context of the twenty-first century? Before attempting to answer these questions, let us take a look at this new vocabulary of terms such as microaggressions, trigger warnings, speech codes and safe spaces.

2

Lukianoff and Haidt (2015, 2018). See also Bloom (2012). Baer (2019), p. 95. 4 Lukianoff (2014a). 3

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2 Academic Freedom Among Trigger Warnings, Microaggressions, Speech Codes and Safe Spaces So-called microaggressions are small actions or word choices that may have no malicious intent but are nonetheless interpreted as covert violence by a person or group of persons. As explained by Lukianoff and Haidt, “The term microaggression originated in the 1970s and referred to subtle, often unconscious racist affronts. The definition has expanded in recent years to include anything that can be perceived as discriminatory on virtually any basis.”5 For example, in some campus guidelines, it is a microaggression to ask an Asian American or Latino American “Where were you born?” because it implies that he or she is not a real American. To prevent microaggressions, the category of trigger warnings has been introduced.6 These are notifications or alerts that professors are expected to issue before their lessons, if something in a course, for example the subject to be discussed in class, might cause a strong emotional response. Trigger warnings were initially intended for “exceptional” victims of abuse or trauma. They were originally focused on material containing descriptions of sexual assault and rape, and were motivated by concern that such things could “trigger” disabling memories, anxiety and fear in students who were survivors of rape and sexual abuse. In other words, trigger warnings are “brief tags meant to alert students that certain class texts and images contain material related to racism, sexual violence or other trauma-related topics.”7 For example, “potential triggers could include material as varied as Ovid’s account of the myths of Daphne and Persephone in the Metamorphoses, autobiographical accounts by survivors of wartime sexual violence, and clips from contemporary films depicting sexual assault.”8 Over the years, more and more aspects of reality (literary, social, political, scientific and so forth) have been considered potentially shocking from the emotional point of view of the individuals involved. Students at universities across the United States increasingly demanded that their teachers issue warnings before covering material that might evoke a negative emotional response. Trigger warnings risk not just being about allowing traumatised students equal access to education: “Whatever their original purpose may have been, trigger warnings are now used to mark discussion of racism, sexism and U.S. imperialism.”9 There are various ways of issuing a warning, but in any case, it alerts the public “to violent and disturbing content, which could be sexual assault, racist violence, transphobic or homophobic slurs”.10 The warning may be given vocally before addressing a particular topic in class or added in brackets to a reading list. It should

5

Lukianoff and Haidt (2015). Bentley and Griffin (2017); Knox (2017); Wiener (2018). 7 Khazan (2019). 8 Moody-Adams (2018), p. 42. 9 See Levinovitz (2016). 10 Gust (2016). 6

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be noted that a trigger warning does not constitute permission to skip the lesson or avoid a topic or part of an exam programme. According to some American surveys, about half of U.S. teaching staff use trigger warnings.11 For example, “some students have called for warnings that Chinua Achebe’s Things Fall Apart describes racial violence and that F. Scott Fitzgerald’s The Great Gatsby portrays misogyny and physical abuse, so that students who have previously been victims of racism or domestic violence can choose to avoid these works, which they believe might “trigger” a recurrence of past trauma.”12 In order to avoid microaggression and to regulate the use of trigger warnings, more and more colleges and universities across the United States of America have introduced speech codes into their regulations, “as a way of demonstrating their commitment to diversity and tolerance,”13 actually abandoning the breakthrough inaugurated by the free-speech movement in the 1960s. This was done to turn campuses into safe spaces where students are shielded from words and ideas that may make some uncomfortable. Speech regulation can take various forms, but as explained by Greg Lukianoff, a constitutional lawyer and president of the Foundation for Individual Rights in Education (FIRE),14 which defends free speech and academic freedom on campus, their purpose is the same: “to prohibit speech that might be offensive on the basis of race, gender, sexual orientation, or an ever-increasing list of other characteristics.”15 The University of Texas at El Paso, for example, has expanded the list of protected attributes to include “race, colour, religion, national origin, gender, age, disability, citizenship, veteran status, sexual orientation, ideology, political views and political affiliation”.16 Unfortunately, this has created “a culture in which everyone must think twice before speaking up, lest they face charges of insensitivity, aggression or worse”.17 In some cases, as happened at Texas Tech University in 2003, this has led to the creation of free-speech zones on campus where students can engage in free-speech activities, from handing out flyers, pamphlets and newspapers, to holding demonstrations.18 Censorship may also take the form of no-platforming: this is a form of political activism by individuals or groups of students aimed at silencing controversial invited

11

https://www.npr.org/sections/ed/2016/09/07/492979242/half-of-professors-in-npr-ed-surveyhave-used-trigger-warnings?t¼1577619407028, last accessed 20.10.2020. 12 Lukianoff and Haidt (2015). 13 Lukianoff (2014b), p. 38. 14 https://www.thefire.org/, last accessed 20.10.2020. 15 Lukianoff (2014b), p. 38. 16 See Texas Tech University, Student Affairs Handbook, 2002–2003, p. 15, quoted in Lukianoff (2014b), p. 39. 17 Lukianoff and Haidt (2015). 18 Lukianoff (2014b), p. 62.

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speakers, or denying them access to a venue in which to express their opinion. People tend to be classified as allies (who can talk) or enemies (who are prevented from doing so). Finally, another concern about academic freedom is whether it should cover “extramural speech”, particularly online activity and social media controversies, such as comments made on Facebook, Twitter, and so forth. In 1940, the American Association of University Professors (AAUP) stated: “College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence, they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.”19 While this is certainly still true today, it is legitimate to ask where to draw the limit between free speech and special obligations derived from a position held. And who is responsible for deciding that limit? The topic is even more interesting when we consider that these trends are no longer only affecting the US, but spreading all over the world, starting with the UK, as demonstrated by the activities of Dennis Hayes, Professor of Education at the University of Derby and founder of Academics for Academic Freedom,20 and by publication of the first Free Speech University Ranking in 2018.21 Of course not all authors are critical of speech codes. For example, Ulrich Baer, borrowing from Hannah Arendt, “[w]e are not born equal; we become equal as members of a group on the strength of our decision to guarantee ourselves mutually equal rights,”22 argues that trigger warnings, speech codes and safe spaces “are intended to afford all students, and especially minorities, equal learning opportunities. Their intent is not censorship [. . .]. But their motive is indeed political [. . .]. Equality concerns are always political.”23 In a university, the author claims, there is a right to participate on equal terms: “What are we to do when speakers don’t respect the truth, dispute established facts, and undermine this commitment to equality that undergirds the university and, in a different way, democracy itself?”24 He also states

19

American Association of University Professors (AAUP), Statement of Principles on Academic Freedom and Tenure, 1940, https://www.aaup.org/report/1940-statement-principles-academicfreedom-and-tenure. 20 https://www.afaf.org.uk/, last accessed 20.10.2020. 21 https://www.spiked-online.com/free-speech-university-rankings/, last accessed 20.10.2020. 22 Arendt (1951), p. 301. And so, continues Hannah Arendt: “our political life rests on the assumption that we can produce equality through organisation, because man can act in and change and build a common world, together with his equals and only with equals”. 23 Baer (2019), p. 6. 24 Baer (2019), p. xi.

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that defending free speech as an absolute right without boundaries, and rejecting violent or racist speech, could create “a moral vacuum”.25 Respect for other people is certainly a value to be preserved, especially in universities whose primary purpose should always be to build a community of students and teachers committed to the search for truth. But other authors have seen not only a resurgence of political correctness in these limitations,26 but also a real threat of censorship of ideas and people not aligned with the majority in a given space-time context (on both the political left and right),27 a betrayal of liberty on campuses28 and the death of academic freedom.29

3 Academic Freedom and Democracy Democracy is at stake in this issue. Whittington argues, “The current crisis of free speech on college campuses is both symptom and cause of a larger threat to the maintenance of liberal democracy itself.”30 At high school, college and university, learning to argue and think critically, to understand the democratic values of tolerance, pluralism and respect for different views and to handle disagreement through open dialogue is a fundamental responsibility for an education system and prepares the next generation of citizens for civil disagreement, also in the political arena.31 We can teach and demonstrate to future generations that “disagreements must be resolved through the exercise of reason rather than the exercise of force,”32 promoting debate and discussion and upholding the values of epistemic humility, tolerance and genuine pluralism. On the contrary, campus censorship risks giving a wrong lesson about how to live in a free and democratic society. Education plays a key role in this, being the best weapon against oversimplification, mindless partisanship and uncritical thinking. In other words, “a theory of academic freedom is an aspect of a theory of democracy.”33 Free speech can be seen as “the people’s darling privilege”,34 because minority views must be protected for the sake of a healthy democracy.35

25

Baer (2019), p. xiv. MacDonald (2018). For more on the concept of political correctness from an Italian historical point of view, see Capozzi (2018). 27 Hentoff (1992); Holmes (2017). 28 Kors and Silverglate (1999). 29 Hayes (2020). 30 Whittington (2018), p. xi. 31 Berner (2020). 32 Whittington (2018), p. 7. 33 Sunstein (1996), p. 94. See also Sunstein (1993). 34 Curtis (2000). 35 MacDonald (2018). 26

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It is noteworthy that before spreading to the UK36 and Europe, what I have just described began in the United States, the homeland of freedoms and rights, where since 1791 the First Amendment of the Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press. . .”. Universities have rightly been called “First Amendment institutions”,37 by virtue of their special place in society. President Obama and President Trump have both spoken out against the limitation of free speech. The former, in an interview in November 2015, said: “[We] have these values of free speech. And it’s not free speech in the abstract. The purpose of that kind of free speech is to make sure that we are forced to use argument and reason and words in making our democracy work. And, you know, you don’t have to be fearful of somebody spouting bad ideas. Just out-argue them. Beat’em. Make the case as to why they’re wrong. Win over adherents. That’s how things work in a democracy.”38 The latter, President Trump, issued an executive order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities to promote free and open debate on college and university campuses. In this executive order it is stated that “free inquiry is an essential feature of our Nation’s democracy, and it promotes learning, scientific discovery, and economic prosperity. We must encourage institutions to appropriately account for this bedrock principle in their administration of student life and to avoid creating environments that stifle competing perspectives, thereby potentially impeding beneficial research and undermining learning.”39 At this point it is useful to consider what academic freedom and free speech are and why defending them is particularly important in universities.

4 Academic Freedom and Free Speech This wide range of new issues suggests that academic freedom is under attack at different levels and with different intensities.40 What exactly is academic freedom? We can start with Lackey’s definition: “Academic freedom consists in the absence of, or protection from, such restraints or pressures [. . .] as are designed to create in the minds of academic scholars [. . .] fears and anxieties that may inhibit 36

Egginton (2018); Dunt (2015). Horwitz (2013), p. 107. 38 Obama (2015). 39 Executive Order No. 13864, 21.03.2019, Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities, https://www.federalregister.gov/documents/2019/03/26/201905934/improving-free-inquiry-transparency-and-accountability-at-colleges-and-universities, last accessed 20.01.2021. 40 For cases of campus censorship in the 1980s and 1990s see: Kors and Silverglate (1999); Aby Stephen et al. (2000). 37

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them from freely studying and investigating whatever they are interested in, and from freely discussing, teaching or publishing whatever opinions they have reached.”41 The category of free speech emerges from this definition. As we have already said, in recent decades American campuses have seen a cultural shift in student demands from freedom of speech to freedom from speech. Can academic freedom exist without freedom of speech? John Stuart Mill comes to our aid. In his book On Liberty (1859) at Chapter 2 “Of the liberty of thought and discussion”, the British philosopher and economist famously defends free speech on the grounds that full and open discussion promotes truth, for four reasons. “First if any option is compelled to silence, that opinion may, for aught we can certainly know, be true. To deny this is to assume our own infallibility.” “Secondly, though the silenced opinion be an error, it may, and very commonly does, contain a portion of truth; and since the general or prevailing opinion on any subject is rarely or never the whole truth, it is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied.” “Thirdly, even if the received opinion be not only true, but the whole truth; unless it is suffered to be, and actually is, vigorously and earnestly contested, it will, by most of those who receive it, be held in the manner of a prejudice, with little comprehension or feeling of its rational grounds.” Fourthly, in the absence of vigorous debate, “the meaning of the doctrine itself will be in danger of being lost, or enfeebled, and deprived of its vital effect on the character and conduct: the dogma becoming a mere formal profession, inefficacious for good, but cumbering the ground, and preventing the growth of any real and heartfelt conviction, from reason or personal experience.”42 This is a very strong defence of free speech and its value, and Mill makes it even more explicit: “There ought to exist the fullest liberty of professing and discussing, as a matter of ethical conviction, any doctrine, however immoral it may be considered.”43 Dissenting voices must be protected because of one simple fact: any of us might be wrong. And Mill tells us that any doctrine should be allowed the light of the day, no matter how immoral it may seem to everyone else. For Mill such liberty is for everyone44 and on every subject.45

41 Machlup (1955), p. 753 ff. See also Menand (1996). Among the latest books on academic freedom and free speech, Ben-Porath (2017); Roth (2019) and Scott (2019) are also worth mentioning. 42 Mill (1859), pp. 97–98. 43 Mill (1859), p. 102. 44 “If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person than he, if he had the power, would be justified in silencing mankind”, Mill (1859), p. 30. 45 “Absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral or theological”, Mill (1859), p. 22.

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If liberty of expression is stifled, the price paid is “a sort of intellectual pacification” that sacrifices “the entire moral courage of the human mind.”46 The limitation he places on free expression is “one very simple principle”, usually referred to as the “harm principle”, which states that “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.”47 On the opposite side of this view, we find Marcuse: “Certain things cannot be said, certain ideas cannot be expressed, certain policies cannot be proposed, certain behaviour cannot be permitted without making tolerance an instrument for the continuation of servitude.”48 Between these two positions, we find the “paradox of tolerance” expressed by Karl Popper: “Unlimited tolerance must lead to the disappearance of tolerance. If we extend unlimited tolerance even to those who are intolerant, if we are not prepared to defend a tolerant society against the onslaught of the intolerant, then the tolerant will be destroyed, and tolerance with them.”49 So, if on one hand free speech represents a particular value in the university context, on the other, we have to ask ourselves how to deal with this paradox of tolerance. As well, universities have to try to raise consciousness about the need to balance freedom of speech with the need to make all students feel welcome. But how? And must there be some limits to freedom of speech?

5 University Aims and Academic Freedom As we already said, academic freedom, also thanks to free speech and free inquiry, allows universities to engage in intellectual pursuits without fear of censorship or retaliation. This matter “lies at the heart of the mission of the university”:50 only by cultivating critical-thinking and by providing space for intellectually independent reflection, can we hope to shape a new generation that can face the challenges of our time responsibly and be capable of autonomous judgement and debate skills.51 We can discuss ways and degrees of flexibility to decline this principle, but freedom of speech and academic freedom are necessary to achieve the goal of the university, namely to teach students, often through vigorous debate and exchange of ideas and viewpoints, in search of the truth and the advancement of knowledge.

46

Mill (1859), p. 60. Mill (1859), p. 17. 48 Marcuse (1965), p. 88. 49 Popper (1945), p. 265, note 4. 50 Lackey (2018), p. 3. 51 Arum and Roksa (2011). 47

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Surely the university’s aim is not to discuss whatever springs to a person’s mind, nor that all ideas should be expressed in universities, but on the contrary that all ideas and views can be expressed, obviously in a proper and respectful manner. This does not mean that under specific circumstances speech cannot be regulated, but only that restriction on speech should be very narrow. For example, within the university context, where speech serves a specific rather than general purpose, there could be particular attention to speech that advances learning and research. We can also discuss the idea that colleges and universities are obliged to host any speaker, regardless of his/her qualifications and the importance of his/her views. But I think we can agree that free discussion and open thought is needed in our complex and dynamic world, especially in universities as places of thought, ideas and projects. On this point, we can refer to John Dewey’s comment: “Any attack, or even any restriction, upon academic freedom is directed against the university itself.” The purpose of the university, continues the American pedagogue, is “to investigate truth; critically to verify fact; to reach conclusions by means of the best methods at command, untrammelled by external fear or favour, to communicate this truth to the student, to interpret to him its bearing on questions he will have to face in life—that is precisely the aim and object of the university. To aim a blow at one of these operations is to deal a vital wound to the university itself. The university function is the truth-function. At one time, it may be more concerned with the tradition or transmission of truth, and at another time with its discovery [. . .] The one thing that is inherent and essential is the idea of truth.”52 For Dewey the pursuit of truth is itself a public good. Indeed, some years later he wrote: “Truth is important because of social interest.”53 And this is particularly important in universities because the modern university is not a “personally conducted institution like a factory” but rather, the teaching staff “has been trained to think of the pursuit and expression of truth as a public function to be exercised on behalf of the interests of their moral employer, society as a whole.”54 In other texts,55 Dewey also argues that academic freedom for teachers and students is essential for the creation of intelligent citizens and the support of full vital democracy. If academic freedom and free speech are essential in the search for truth, and if the mission of universities is essentially the pursuit of truth, the transmission of knowledge and the possibility of shaping critical people who can exercise their judgment freely in contemporary society, then academic freedom and free speech are essential for universities to fulfil their mission. As Lackey clearly points out, “If Mill tells us that open and vigorous discussion is needed to promote truth, and if Dewey is right that the pursuit of truth is the core aim of the university, then silencing certain

52

Dewey (1902), p. 3. Dewey (1911), p. 105. 54 Dewey (1915), pp. 407–408. 55 Dewey (1936). 53

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members of the community, or blocking particular voices from being heard, can be seen as fundamentally antithetical to the mission of the university.”56 Emblematic in this direction is the Woodward Report. Written by a committee, appointed in 1974 by Yale University’s president, Kingman Brewster Jr. and chaired by historian C. Vann Woodward, the report examines the state of free speech at Yale and is now part of Yale’s official policy. The introduction states: “The primary function of the university is to discover and disseminate knowledge by means of research and teaching. To fulfil this function a free interchange of ideas is necessary not only within its walls but with the world beyond as well. It follows that the university must do everything possible to ensure within it the fullest degree of intellectual freedom. The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable. [. . .] We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox. Free speech is a barrier to the tyranny of authoritarian or even majority opinion as to the rightness or wrongness of particular doctrines or thoughts.”57

6 Conclusion A few centuries ago John Henry Newman, in a truly masterful page of his Idea of a University (1852), stated that “a university training is the great ordinary means to a great but ordinary end; it aims at raising the intellectual tone of society, at cultivating the public mind, at purifying the national taste, at supplying true principles to popular enthusiasm and fixed aims to popular aspiration, at giving enlargement and sobriety to the ideas of the age, at facilitating the exercise of political power, and refining the intercourse of private life. It is education which gives a man a clear conscious view of his own opinions and judgments, a truth in developing them, an eloquence in expressing them, and a force in urging them. It teaches him to see things as they are, to go right to the point, to disentangle a skein of thought, to detect what is sophistical, and to discard what is irrelevant. It prepares him to fill any post with credit, and to master any subject with facility. It shows him how to accommodate himself to others, how to throw himself into their state of mind, how to bring before them his own, how to influence them, how to come to an understanding with them, how to bear with them. He is at home in any society, he has common ground with every class; he knows when to speak and when to be silent; he is able to converse, he is able to listen; he can ask a question pertinently, and gain a lesson seasonably, when he has nothing to impart himself; he is ever ready, yet never in the way; he is a pleasant companion, and a comrade you can depend upon; he knows

56 57

Lackey (2018), p. 14. Woodward Report (1974).

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when to be serious and when to trifle, and he has a sure tact which enables him to trifle with gracefulness and to be serious with effect.”58 The function of Newman’s university is “intellectual culture”: universities have to “educate the intellect to reason well in all matters, to reach out towards truth, and to grasp it.”59 And this perspective can also be found in the roots of the United States of America, in the words of one of the founding fathers, Thomas Jefferson, who on founding the University of Virginia, wrote to William Roscoe on 27 December 1820: “This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.”60 Follow and seek the truth wherever it may lead. This is the ancient but always new mission of any university student or researcher, yesterday as today.

References Aby Stephen H, Kuhn IV James C (eds) (2000) Academic freedom. A guide to the literature. Greenwood Press, Santa Barbara Arendt H (1951) The origins of totalitarianism. Houghton Mifflin Harcourt [1973], San Diego et al Arum R, Roksa J (2011) Academically adrift: limited learning on College campuses. University of Chicago Press, Chicago Baer U (2019) Snowflakes get right. Free speech, truth, and equality on campus. Oxford University Press, Oxford Ben-Porath SR (2017) Free speech on campus. University of Pennsylvania Press, Philadelphia Bentley M, Griffin P (2017) Trigger warnings and the student experience. Learn Teach Polit Int Stud 4:470–485 Berner A (2020) In a polarized America, what can we do about civil disagreement?. Brookings, 10 April, https://www.brookings.edu/blog/brown-center-chalkboard/2020/04/10/in-a-polar ized-america-what-can-we-do-about-civil-disagreement/. Accessed 20 Oct 2020 Bloom A (2012) The closing of the American mind: how higher education has failed democracy and impoverished the souls of today’s students. Simon & Schuster, New York Capozzi E (2018) Politicamente corretto. Storia di un’ideologia. Marsilio, Venezia Cohen R (ed) (2014) The essential Mario Savio speeches and writings that changed America. University of California Press, Oakland Curtis MK (2000) Free speech, “The people’s darling privilege”. Struggles for freedom of expression in American history. Duke University Press, Durham et al Dewey J (1902) Academic freedom. Edu Rev 23:1–14. Now reprinted in Metzger WP (1977) (ed) The American concept of academic freedom in formation: a collection of essays and reports. Arno Press, New York Dewey J (1911) The problem of truth. In: Hickman LA, Alexander TM (1998) (eds) The essential Dewey. 2. Bloomington Indiana University Press, Bloomington, pp 101–130 Dewey J (1915) 1899–1924: Essays and miscellany in the 1915 period and German philosophy and politics and schools of tomorrow, 8th Volume. Southern Illinois University Press, Carbondale (1979)

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Newman (1852), discourse 7, para. 10. Newman (1852), discourse 6, para. 1. 60 https://founders.archives.gov/documents/Jefferson/98-01-02-1712, last accessed 20.10.2020. 59

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Dewey J (1936) The social significance of academic freedom. Edu Digest 1984(1):37–39 Dunt I (2015) Safe space or free speech? The crisis around debate at UK universities. The Guardian, 6 February, https://www.theguardian.com/education/2015/feb/06/safe-space-or-free-speechcrisis-debate-uk-universities. Accessed 20 Oct 2020 Egginton W (2018) The splintering of the American mind: identity politics, inequality, and community on today’s College campuses. Bloomsbury, London Ferguson RA (2017) We demand. The University and student protests. University of California Press, Oakland Gust O (2016) I use trigger warnings – but I’m not mollycoddling my students. The Guardian, 14 June, https://www.theguardian.com/higher-education-network/2016/jun/14/i-use-triggerwarnings-but-im-not-mollycoddling-my-students. Accessed 20 Oct 2020 Hayes D (2020) The death of academic freedom? Free speech and censorship on campus. Routledge, London et al Hentoff N (1992) Free speech for me – But not for thee. How the American left and right relentlessly censor each other. HarperCollins, New York Holmes KR (2017) The closing of the liberal mind. Encounter, New York Horwitz P (2013) First Amendment institutions. Harvard University Press, Cambridge Khazan O (2019) The real problem with trigger warnings. The Atlantic, 28 March, https://www. theatlantic.com/health/archive/2019/03/do-trigger-warnings-work/585871/. Accessed 20 Oct 2020 Knox EJM (2017) Trigger warnings: history, theory, context. Rowman & Littlefield, Lanham Kors AC, Silverglate H (1999) The shadow University: the betrayal of liberty on America’s campuses. Harper Perennial, New York Lackey J (2018) Academic freedom. In: Lackey J (ed) Academic freedom. Oxford University Press, Oxford, pp 3–20 Levinovitz A (2016) How trigger warnings silence religious students, The Atlantic, 30 August, https://www.theatlantic.com/politics/archive/2016/08/silencing-religious-students-on-campus/ 497951/. Accessed 20 Oct 2020 Lukianoff G (2014a) Freedom from speech. Encounter, New York Lukianoff G (2014b) Unlearning liberty. Campus censorship and the end of American debate. Encounter, New York Lukianoff G, Haidt J (2015) The coddling of the American mind. The Atlantic, September, https:// www.theatlantic.com/magazine/archive/2015/09/the-coddling-of-the-american-mind/399356/. Accessed 20 Oct 2020 Lukianoff G, Haidt J (2018) The coddling of the American mind: how good intentions and bad ideas are setting up a generation for failure. Penguin Press, New York MacDonald H (2018) The diversity delusion. St. Martin’s Press, New York Machlup F (1955) On some misconceptions concerning academic freedom. Bull Am Assoc Univ Prof J 4:753–784 Marcuse H (1965) Repressive tolerance. In: Wolff RP, Moore B Jr, Marcuse H (eds) A critique of pure tolerance. Beacon Press, Boston Menand L (ed) (1996) The future of academic freedom. University of Chicago Press, Chicago Mill JS (1859) On liberty. The Walter Scott Publishing Co., London et al. [2011] Moody-Adams M (2018) Is there a “Safe Space” for academic freedom? In: Lackey J (ed) Academic freedom. Oxford University Press, Oxford, pp 36–60 Newman J (1852) The idea of a University. The National Institute for Newman Studies, http://www. newmanreader.org/. Accessed 20 Oct 2020 Obama B (2015) Interview with ABC News’ George Stephanopoulos, 15 November, https://www. thefire.org/obamas-abc-news-interview-transcript-on-missouri-protesters/. Accessed 20 Oct 2020 Popper KR (1945) The open society and its enemies. Routledge, London Roth M S (2019) Safe enough spaces. A pragmatist’s approach to inclusion, free speech, and political correctness on college campuses. Yale University Press, New Haven

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Scott JW (2019) Knowledge, Power, and Academic Freedom. Columbia University Press, New York Sunstein C (1993) Democracy and the problem of free speech. Free Press, New York Sunstein C (1996) Academic freedom and law: liberalism, speech codes and related problems. In: Menand L (ed) The future of academic freedom. University of Chicago Press, Chicago, pp 93–118 Whittington KE (2018) Speak freely: why universities must defend free speech. Princeton University Press, Princeton Wiener G (ed) (2018) Micro aggressions, safe spaces and trigger warnings. Greenhaven, New York Yale University (1974) Woodward report, https://yalecollege.yale.edu/get-know-yale-college/ office-dean/reports/report-committee-freedom-expression-yale. Accessed 20 Oct 2020

Autonomy and Interdependence: The Relationship of Experts and Laypeople in Science from a Sociological Perspective Cristina Besio and Marco Jöstingmeier

Abstract Today the risks and uncertainties of scientific knowledge are much debated and science is criticized for its supposed inability to handle problems of the “real world”. In this context, we ask how lay knowledge can complement science. Focusing on healthcare projects, we show how laypeople cooperate with scientists to improve scientific knowledge. We conclude that while science remains logically autonomous, in a complex world it is simultaneously closely interlinked with lay knowledge. Keywords Expert knowledge · Healthcare · Lay knowledge · Systems theory

1 Science and Lay Knowledge in Modern Society In recent decades, the legitimacy of science has been increasingly questioned. Scientific knowledge seems to be losing its traditional authority and its usefulness for dealing with society’s most pressing problems, such as inequality, climate change and health challenges. Science has traditionally been regarded as the centre of social knowledge production, and scientific knowledge was seen as an outstanding form of knowledge, more exact than the practical knowledge generated in other social fields. This implied a sort of division of labour between science and society, in which science provided the basic knowledge for social progress, and industry and society used this knowledge to develop new technologies and innovations.1 Since the 1980s, this ideal has been increasingly debated as the limits and uncertainties of scientific knowledge became visible. Accidents like the nuclear catastrophes of Three Mile Island in the USA2 and Chernobyl in the former USSR 1 2

Etzkowitz and Leydesdorff (1995), p. 15. Nelkin (1981).

C. Besio (*) · M. Jöstingmeier Institute for Social Sciences, Helmut Schmidt University, Hamburg, Germany e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 M. Seckelmann et al. (eds.), Academic Freedom Under Pressure?, https://doi.org/10.1007/978-3-030-77524-7_19

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raised questions regarding the negative consequences of technological and scientific progress. Today, COVID-19 reveals the temporary and uncertain nature of scientific knowledge. The pandemic is a striking example of how the provisional nature of knowledge fosters heated debate about the reliability of science. From a sociological perspective, the theory of Reflexive Modernity3 emphasises how scientific progress produces new risks. It argues that knowledge, including scientific knowledge, is always uncertain and provisional,4 and produces new ignorance regarding the consequences of progress.5 It is therefore increasingly uncertain whether scientific knowledge can deliver adequate means to manage complex problems. Today, this fundamental uncertainty is exacerbated by debate in the mass media, social media and society in general. Science is also criticised for retreating into its “ivory tower” and opting out of “real life problems”. This puts scientific knowledge under scrutiny, and may threaten the independence of science.6 Conversely, lay knowledge is gaining in relevance. As recent discussions of “Citizen Science”7 show, interaction between experts and laypeople is intensifying in many fields of research. The increasing legitimacy of lay knowledge promises to grasp the “real” problems of contemporary society and to “democratise” science. Laypersons and their knowledge can criticise science and scientific knowledge and may correct potentially risky, problem-inducing scientific ventures. While laypeople can convincingly criticise and even deny scientific knowledge, it remains impossible to replace science with lay knowledge. Lay knowledge is a different form of expertise, directed at different problems and arising from a type of logic different from that of scientific knowledge. It is nevertheless a crucial requisite for scientific research and a basic source of scientific progress. For many scientific disciplines, it is crucial to interact or even cooperate with laypeople. In this chapter, we explore this interaction between scientists and laypeople. Examining this relationship from a sociological perspective, we show that: (1) science remains a highly specialised, autonomous and therefore irreplaceable form of social communication and (2) science is in various contingent ways highly dependent on other (social) actors and forms of knowledge. In a complex unpredictable world, science can be improved and complemented by input from laypeople. By emphasizing the autonomy of science, we can more precisely explore its interdependence with lay knowledge. To analyse the relationship of experts and laypeople, we use Niklas Luhmann’s theory of social differentiation8 and his sociology of science.9 We use systems theory to show precisely how experts and laypeople, scientific knowledge and lay

3

Beck (1986). Giddens (1990), p. 39. 5 Merton (1936), p. 898. 6 Beck (1986), p. 70. 7 Tauginienė et al. (2020). 8 Luhmann (1997). 9 Luhmann (1990). 4

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knowledge, interact and how they are autonomous yet interdependent. To examine the interaction of experts and laypeople empirically, we explore the relationship between patients and physicians in healthcare. This interaction is a striking example of how intricately interdependent science and lay knowledge are, because in this sector it is essential for scientists to cooperate with laypeople and to access their everyday knowledge about their illness and/or the effects of treatment. While we stress the positive relationship between science and lay knowledge, in our conclusions we ask whether increased interdependence of science and lay knowledge may have negative side-effects for science.

2 Science as a Social System We conceive science as an autonomous social system differentiated from other parts of society. Systems theory postulates that modern society is differentiated into various subsystems: the economy, politics, the legal system, education, mass media, arts, religion and of course science.10 The key argument of systems theory is that these societal subsystems are autonomous in the control of their operations and processes and cannot be directly steered by other systems or actors. As a social system, science is built on communication which deals with questions of truth. Science is the subsystem concerned with the social construction of knowledge, which can be verified by different observers and therefore regarded as true and objectively independent of personal experience or mere opinion.11 “Truth” is the central medium of communication, or currency, of science, just as money is for the economy and power for politics, and establishes the independence of science. By autonomously controlling the criteria of true knowledge, science is different from other systems, like politics and economics. In communicating true knowledge, science is self-controlling (e.g. by peer review, see below) and therefore autonomous.12 The criteria for shaping scientifically true knowledge are the specific structures of science, which consist of disciplinary concepts and the corresponding theories and methods.13 To have scientific legitimacy, knowledge must refer to available concepts, theories and methods, whether by constructing new theory or by referring to existing theories, and using methods which enable research processes to be transparent for other scientists. Theoretical concepts and research methods are both shaped autonomously in the scientific discourse. Theories and methods function as the structures of scientific communication because they make it possible to issue well-founded arguments for the communication of knowledge, which can be

10

Luhmann (1997). Luhmann (1970), p. 234. 12 Ibid, p. 234. 13 Luhmann (1990), p. 383 ff. and p. 403 ff. 11

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regarded as true. If a person just says: “It is true because I say so”, it is highly improbable that others will agree. But if the person says: “It is true because a majority of scientists assert it on the basis of scientific theories and methods”, the likelihood of convincing others increases significantly. This is the function of truth as a generalised medium of communication. In the subsequent process of publication of scientific results, scientific knowledge is objectively condensed for a multitude of observers. Every new scientific finding must stand the test of the community of experts, which manifests in the practice of peer review. With publication, science is established as a social system beyond spatial borders, temporal limitations and immediate experience. As long as statements are developed in the framework of theories and methods and then validated by peers, scientific knowledge is constructed and generally considered to be true, until/ unless falsified by another process of scientific communication. Science is the place where society constructs objectified knowledge and truth, but that does not mean that these truths are everlasting and absolute. Like all forms of knowledge, scientific knowledge is contingent and therefore temporary and uncertain. As Giddens puts it: “In science, nothing is certain, and nothing can be proved, even if scientific endeavour provides us with the most dependable information about the world to which we can aspire. [. . .] No knowledge under conditions of modernity is knowledge in the ‘old’ sense, where ‘to know’ is to be certain. This applies equally to the natural and the social sciences.”14 So complaints about an increased uncertainty of scientific knowledge miss the point that in the modern world all forms of knowledge are fundamentally uncertain and provisional. How does science manage this problem while still endeavouring to construct knowledge that provides at least temporary certainties in the vast ocean of uncertainty typical of modern society? One strategy science has developed to provide such provisional certainty is to relate its knowledge to “real life problems” and rely on “lifeworld”15 experiences as embodied in lay knowledge.

3 Interdependence of Science and Society: The Case of Lay Knowledge Lay knowledge depends on science because it lacks specialised scientific approaches. In modern life, science provides proven findings, which laypeople cannot deliver. Modern society depends on science in different ways. Scientific knowledge is crucial for technological and economic development; it delivers insights which are useful for many social systems and individuals. There is virtually no societal sector, from politics to education, industry or healthcare, which does not

14 15

Giddens (1990), p. 39. Habermas (1981).

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rely on scientific knowledge to improve its performance. In this sense, many societal actors and social systems depend on science. However, for the purposes of this paper, we stress that science too depends on input from other societal subsystems. First of all, scientific research would not be possible without money and the heterogeneous funding provided by politics and industry. Research projects are typically funded by state agencies or economic enterprises. In the context of research projects, it is certainly possible that these actors bring their specific needs and aims into the realm of science.16 Additionally, science—especially empirical science—relies on outside influences in the form of empirical data and contributions from laypeople, for example descriptions of diseases from patients for the health sciences and personal narratives for the social sciences. Lay knowledge, like scientific knowledge, is a specific form of socially constructed knowledge based on the practices of everyday life and on events in individual lives.17 Medical sociology reflects the relevance of such knowledge by changing the concepts describing laypeople’s roles in healthcare and medicine. Traditionally, laypeople’s narratives of diseases and symptoms were defined as “lay beliefs”,18 implying a knowledge gap between patients and experts. However, in today’s increasingly digitalised society, patients are better informed than in the past19 and in fact have experiential knowledge which is more than mere beliefs or opinions.20 After all, patients are the ones who know how diseases impact their lives and how treatments affect their well-being.21 It is increasingly clear that scientific and lay knowledge are both valuable forms of knowledge. Just as science can affect everyday practices and deliver new insights for laypeople (for example nutrition practices may change in the light of scientific discoveries), conversely laypeople can provide impulses for new research activities. Despite these interrelations, science remains autonomous. The autonomy of science relies on its specific structures and processes, which cannot be reproduced elsewhere. But in order to construct scientific knowledge, science has to relate to outside phenomena—which also include the everyday experiences of laypeople. The impact of lay knowledge on science can be conceived as an irritation. Irritations of a system are undefined signals from other systems, actors or persons. These signals are indefinite in the sense that the irritated system must make sense of them in its own way. This implies that external actors or systems cannot determine how the irritated system understands the signals.22 Laypersons produce irritations, which may influence scientific communication and action and thus trigger new research activities, but they cannot determine what scientists learn from these inputs. For example,

16

Besio (2009); Besio and Meyer (2015). Popay et al. (1998); Williams (2003). 18 Kangas (2002), p. 301. 19 Baumgart (2010). 20 Kangas (2002), p. 302. 21 Henderson (2010), p. 4. 22 Luhmann (1995), p. 63; Luhmann (1997), p. 789 ff. 17

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patients report feelings and symptoms of diseases, the effects of therapies and so forth. Their reports may be surprising new information that physicians remark and which may induce new research. To make sense of irritations from laypersons, scientists and researchers must notice something at least minimally surprising, and in this way produce information autonomously. Bateson defined information as a “difference that makes a difference”,23 which implies that for an irritation to become informative it must make a difference to established expectations and structures in the form of theories and methods. For example, when a layperson’s description of symptoms contradicts the current state of research, it may surprise scientists and therefore induce more research. Scientists compare this description with available datasets, established theories and empirical studies. When compared with established structures, the irritation becomes informative.24 The research process is directed towards constructing new generalised knowledge. To legitimise new research results as scientifically sound, it is necessary to publish the results, which involves review by other experts. The community of researchers evaluates the theoretical approach, assesses the methodical foundations and by approval for publication emphasises that the research upholds scientific standards and makes a valuable contribution to the discipline. A threefold process is completed, in which the narratives of laypeople irritate experts, who do more research and eventually publish their results. Thus, new scientific knowledge is created autonomously in the scientific discourse, while being caused by interdependence with lay knowledge.

4 Experts and Laypeople in Science: The Example of Healthcare To address the question of the autonomy and the interdependence of science, we explore the sector of healthcare. The relationship between science and lay knowledge in this sector offers insights for several reasons. First, the interaction of patients and physicians in healthcare shows how intricately interdependent health science and lay knowledge are, because it is essential to explore experiences of laypeople and everyday knowledge about sickness and treatments in order to construct new knowledge. In many cases, medical and health research must stay in contact with the experience and knowledge of patients in order to further scientific knowledge. Second, many physicians, doctors and psychologists practise medicine and are also involved in scientific research. Thus, medical research often interacts closely with the application of scientific knowledge for medical aims. Third, with new possibilities of information-gathering via the internet and social media, patients are 23 24

Bateson (1985), p. 488. Willke (2001), p. 7.

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much more informed about therapeutic approaches and health science in general.25 This changes the relationship between patients and doctors, so that physicians today have to deal with better informed patients. This results in a more direct interaction of scientifically based expert knowledge and lay knowledge of patients.

4.1

Lay Knowledge as Irritation of Science

The relationship between experts and laypeople and their respective forms of knowledge of science and healthcare unfolds above all in their interaction in concrete therapeutic settings, where patients, care workers, families, volunteers and physicians may be involved. In such settings, laypeople can challenge experts, giving them impulses for further research. Laypeople can provide insights about details of their diseases, pain and suffering. Patients can tell experts about the effects of medications and therapies; family members can tell physicians how patients react to certain medicines and treatments or mention difficulties in the application of medical devices and the like. Such insights are a specific form of knowledge that springs from everyday experience with illness. This experiential knowledge is situational and highly dependent on specific contexts and subjective perception. This specific knowledge of laypeople can constitute feedback on specific forms of treatment, suggesting new fields of study. Laypeople can even encourage research on specific issues directly. For example, parents of children with Down Syndrome stress that they are more interested in dealing with the disease in everyday life than in its causes26 and therefore encourage research on practical questions. Laypeople’s perspectives on diseases bring additional criteria to medical issues, point out problems that science would otherwise overlook and sensitise experts to everyday challenges, as well as the ethical, economic and cultural aspects of living with illness. For example, in a particularly successful initiative in India, laypeople are systematically involved in a project to improve palliative health care in rural areas.27 Laypeople bring specific perspectives to the palliative care of sick and elderly people. They stress that suffering depends not only on pathology, but also on family and economic constraints. For example, many seriously ill patients do not have the means to pay for travel to a doctor who may not live close to home. They point out that home care is more important than optimal medical treatment for some patients.28 So the perspective on palliative care expands beyond the expert view of physicians. When lay knowledge is considered,

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Baumgart (2010). Irwin (1994), p. 176 ff. 27 Vijay and Kulkarni (2012). 28 Vijay et al. (2020), p. 12. 26

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the meaning of caregiving shifts from a dominant bio-medical approach to a holistic model, including various social and cultural dimensions.29 Experiential knowledge is important not only in physical medicine, but also in psychological therapy. The treatment of psychological illnesses is especially dependent on impulses and narratives from patients, since they do not have physical symptoms that can be observed directly by the experts treating them. As Kangas30 shows, patients with depression construct and tell their very own narratives about the disease, giving psychologists essential insights into their emotions, feelings and life with depression. These insights go beyond purely clinical aspects and add cultural aspects to the observation of depression. Here, experiential lay knowledge can be an irritation to practising experts, providing formerly unknown and therefore surprising insights into an illness which cannot be imaged by x-rays or observed physically by observers. Laypeople often irritate when the specifics of a disease are not known or the disease is relatively new: in such cases, any form of knowledge is limited and the disease is not yet understood. COVID-19 showed this very clearly. In the spring of 2020, it was fundamentally unclear how to identify a coronavirus infection and what symptoms came with it. Sudden loss of smell and taste was reported by single patients31 and was initially surprising to physicians and scientists because it was hitherto unknown and unexpected, since nasal congestion is less a symptom of SARS-CoV-2 infection than of influenza. Laypeople delivered irritations which resulted in further data collection and research by virologists and epidemiologists, while giving practising physicians new insights for diagnosing COVID.

4.2

The Role of Experts: Construction of Scientific Knowledge

Irritation elicited by laypeople offers surprising clues to a situation, suggesting that a closer look and more research are needed. How is such irritation subsequently processed by scientists? Answering this question is important for understanding how science reasserts its autonomy, while simultaneously maintaining interdependence with lay knowledge. Scientists process these clues from their own perspective: to make sense of irritation, scientists rely on their experience and knowledge. Experts play a vital role in processing the input from laypeople. The task of scientific experts in their interaction with laypeople is multidimensional. Experts first collect, sort and compare laypeople’s knowledge and transform it into “data”. They may check its validity and search for new patterns, similarities or differences in 29

Vijay et al. (2012), p. 762 ff. Kangas (2001), p. 86 ff. 31 Giacomelli et al. (2020). 30

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experiential knowledge in order to find generalizable information. Then from the vaguely formulated needs of laypeople, they may formulate further research questions and hypotheses in a precise way. Eventually, they may systematise and generalise their results by reflecting them theoretically. Further steps may include repeated empirical validation of theoretical arguments or generalisation of the new insights. In so doing, scientists build on the state of the art, making a contribution to the scientific discourse, so that their new insights come to be part of scientific communication. For example, in the case of the palliative healthcare project in rural India, experts played a vital role in identifying tasks which could be performed by laypeople, such as giving patients medicine. Thus laypeople were instructed in basic medical knowledge by experts, increasing the number of volunteers for relatively easy tasks.32 The scientific background of the experts enabled them to assess and foster the competence of laypeople and organise new healthcare processes, improving overall palliative care in rural India. Regarding research on depression, scientists collect the narratives of patients with their specific socio-cultural backgrounds—childhood experiences and trauma, workplace problems like mobbing, and so forth33—and use them to formulate hypotheses which take social factors of depression (as opposed to differences in brain chemistry) into account. The specific experiential knowledge of the patients and the experiences in living with depression in the form of reflective narratives are thus used to improve scientific understanding of the psychology of depression. From the expert perspective, these narratives are compared with the textbook knowledge of psychology and their experience as practising psychologists and thus integrated into the current state of research. The same process has been observed in the current pandemic, with intense research into the characteristics of SARS-CoV-2 infection. Continuing the above example, reports of patients who suddenly lost their sense of smell and taste triggered more data collection by researchers. Scientists surveyed a population of infected patients to find out more about this unexpected indication. Other research groups formulated corresponding research questions and built hypotheses which they validated by cross-country empirical research,34 thus generating new and more generalised empirical data which went beyond mere anecdotal remarks of patients and beyond the empirical data of small, specific, local populations. Based on the empirical foundation of lay knowledge, experts constructed new generalised knowledge, which was systematically validated by the scientific method. The independence of science becomes especially clear in the process of validating new knowledge by mutual fact-checking and peer review. This process is obviously independent of other influences, because it involves strictly internal quality assurance. Peer review shows how scientific communication remains autonomous, while

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Vijay et al. (2020), p. 16. Kangas (2001), p. 80 ff. 34 Mullol et al. (2020). 33

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research itself could be interdependent with outside factors. The result is a very distinct and highly differentiated form of knowledge, which is naturally not infallible, but as experience shows, very efficient and generally convincing. This knowledge is constructed in an autonomous yet interdependent process. Interdependence does not mean that science loses its autonomy, but rather emphasises the specific role of science in society, underlining its distinct function.

5 Science: Between Autonomy and Interdependence The case of the relationship between experts and laypeople in science and healthcare demonstrates the distinct autonomy of science, as well as its dependence on outside influences. The autonomy of science is visible in its processing of lay knowledge in the context of its own structures: lay knowledge is reflected scientifically in the framework of concepts, theories and methods and integrated into the scientific discourse. At the same time, the case of healthcare shows that scientific communication depends on irritation by lay knowledge from outside, giving experts hints of previously unnoticed problems and questions. So the relationship of science and lay knowledge, and more generally the relationship of science and society, have to be understood as a relationship combining autonomy and interdependence. Science preserves its autonomy in its communication of knowledge, which claims to be true and objectively verifiable. Precisely because of these characteristics, scientific knowledge is highly relevant for healthcare, which depends on scientific findings. At the same time, scientific communications depend in different ways on lay knowledge and on other forms of expert knowledge from various fields of society. Such forms of knowledge give science a variety of inputs and thus equip it to handle complex problems. But the question remains as to how increased interdependence can have negative side-effects on science. To answer this question, it is necessary to consider the organisational level of science. Like political decisions, economic processes35 and many other crucial forms of societal communication and action, science takes place significantly but not exclusively in organisations. Universities, research institutions and think tanks are the social centres of scientific research.36 Organisations relate and combine different types of societal logic like science, economics and politics with each other. In addition to research concerns, scientific organisations must consider political and economic agendas. Universities may make concessions to external funders and employed scientists feel obliged to produce results in the interest of the funders. This interdependence does not normally threaten scientific independence because political, economic and other aims do not replace scientific criteria in the task of defining true knowledge. However, adding external criteria to

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Jöstingmeier (2019), p. 108 ff. Besio (2009); Besio (2012).

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scientific aims may imply that issues or approaches, also of interest to funders, are favoured.37 This can affect the volume of research in specific areas, impacting the development of science, but not scientific quality. The case of certain think tanks and highly economised or politicised research organisations is more problematic. For example, industry-based research departments, religiously aligned think tanks and research foundations of political parties may describe themselves as research institutions, but are in fact interest-based lobbying organisations for certain social groups. In such organisations, the primary scientific criteria and structures are replaced by other types of logic and “scientific language” may be no more than a facade. To differentiate such forms of “pro forma” science from actual scientific research, it is necessary to use theories, which underline the autonomy of science while showing that science is always interdependent with other forms of knowledge in modern society. In this chapter, we have shown that a sociological perspective based on systems theory can explore the question of the autonomy and interdependence of science in a fruitful way. Regarding the importance of lay knowledge for scientific practice, we showed that this does not pose a significant problem for the independence of science. Even new concepts like Citizen Science are never about replacing scientific knowledge with lay knowledge, but complementing it. On the contrary, participative settings stress the specific role of science in mediating, combining, verifying and systematizing different sources of knowledge. So science is highly interdependent with its different societal environments, not despite, but because of its autonomy and specificity. Of course, this does not prevent lay knowledge from having negative side-effects on science. Problems can arise, for example, when external suggestions push research on certain issues before scientific methods and instruments are sufficiently mature to obtain solid results. Nevertheless, in contexts such as healthcare, the two types of knowledge irritate, influence and inspire each other. While combining such different perspectives does not ensure the best possible knowledge, it may at least enrich the viewpoints of the parties on the most pressing problems of today’s world and open up possibilities for more holistic forms of knowledge.

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