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My question is mainly a follow-up on this answer.

I understand and know that it is unconstitutional in Germany to restrict access to universities without necessity and that it is hard for a university to prove that it can only accept 132 students next semester and not 133.

On the other hand, the following two things are not challenged by the courts

  • fail rates of 80-90% in the first semester, often encountered in mathematics. One could argue that is also a restriction on the "freedom of profession" because the courses and exams are too difficult and it is not necessary to fail that many students.
  • failure to provide the necessary funds. The states could easily enlarge the study programs e.g. for medicine by giving more money to the universities. But I never heard that a court ordered another million EUR for a university so that the university can accept all students that want to come.

So my question is: What exactly is the legal idea of "freedom of profession" and how does it apply to universities?

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    Maybe a better question for the law stack exchange? Commented May 16, 2023 at 21:04
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    In fact, much of this is covered by this recent Law.SE post.
    – cag51
    Commented May 16, 2023 at 21:48
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    "One could argue that is also a restriction on the "freedom of profession" because the courses and exams are too difficult and it is not necessary to fail that many students." The freedom to choose ones own profession does not preclude the requirement of proper qualifications. If you cannot attain those qualifications, you cannot work in that profession. That is completely constitutional.
    – Polygnome
    Commented May 17, 2023 at 0:11
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    Arguing that in court will be a very hard sell, because one would need to argue that having such high failures rates on a large scale is indicative of a unnecessary filtering to prevent students from doing their needed professions, while arguing that it is unreasonable to use the complaint procedures in place for the individual exams. Oh, and while at the same time, students could switch to a university of applied science which are said to be somewhat easier to graduate from in maths, which also confer legally valid B.Sc. degrees. And all that on top on the "grundgesetzlich ...
    – DCTLib
    Commented May 17, 2023 at 7:29
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    ... garantierte Freiheit der Forschung und Lehre" which gives professors a lot of freedom which can essentially only be overruled (in the respective committee) if they behave in an unreasonable way, which needs to be proven. Hard to imagine defending such a claim in court.
    – DCTLib
    Commented May 17, 2023 at 7:31

2 Answers 2

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Courts will be very reluctant to assume a problem solving competency over the experts in the field. In your instance, prescribing to Mathematicians what basic competency is for a B.A. in Mathematics is left to the Mathematicians to define. Finding a way how to provide them is also beyond the courts competency, especially since there is a constitutional right to freedom of teaching. Besides, university mathematicians will claim bad preparation and just blame the high schools for not developing Mathematical skills with resulting bad numbers in the first classes. How could a court decide that since Mathematical skills are not developed sufficiently in the Gymnasium, the minimum competency of professional mathematicians would have to be reduced. This would violate the constitutional rights of all who have to rely on the certification.

Constitutional rights are never absolute because sometimes nature restricts them. Blind people cannot obtain driver's licenses and Germany has never recognized my right to a profession as the nation's teenage girl heartthrob.

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There is a misconception here. The law is in place to give everyone who has the aptitude for a certain profession the opportunity to become that profession---and not just those that went to specific schools, have more money, have connections, etc. It is not meant in a way that everyone can become everything, even though they aren't able to do it (for wathever reason).

If it were like that, all professions would have to be so easy to learn that every conceivable person could learn it, which would completely devaluate any profession. I wouldn't like to live in a house planned by an engenieer who only learned the most basic of math so that noone failed the test, build by a mason whith two left hands with a color concept designed by a colorblind interior designer and then when said house comes crashing down on me I would not want to got to the hospital where the doctors did'nt have to learn all the bones in body and all the diseases, because otherwise not everyone would have passed the test.

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