Constitutional case ‘puts brakes on more anti-precarity laws’

Search for wider solutions must continue while Berlin’s postdoc contract law faces judicial scrutiny, experts say

January 13, 2022
Land windsurfer practices in Tempelhofer Feld to illustrate Constitutional case ‘puts brakes on more anti-precarity laws’
Source: Getty

As a German saying goes, “in court and on the high seas, you are in God’s hands”. A constitutional complaint has just put precarious academic careers into divine hands, but experts say solutions to the thorny issue lie elsewhere.

Recent changes to Berlin law require universities to offer permanent contracts to eligible postdocs. Sabine Kunst resigned as president of the Humboldt University of Berlin over the changes, which she said were an unworkable and unfunded solution imposed by the state’s politicians, later submitting the legal complaint.

The ruling on her case by the Federal Constitutional Court will have significance for universities nationwide, particularly elite institutions funded under the national Excellence Initiative, which depend on a workforce of postdocs on short-term contracts, said Frank Ziegele, executive director of the Centre for Higher Education (CHE) thinktank.

While Professor Kunst said that politicians’ intention to address mid-career precarity was good, her legal argument is that they exceeded their law-making powers and interfered in institutions’ autonomy in doing so.

The president of the Free University of Berlin, Günter Ziegler, echoed Professor Kunst’s concerns about precarity and the law. “We fully support the objective of the state of Berlin to create more reliable career paths for junior academics, but the solution implemented with the new act is not tenable in practice,” he said.

Sigrun Nickel, head of higher education research at the CHE, said universities’ pushback and the legal challenge would deter other states from following Berlin. “It’s not a good example for imitating by other Bundesländer, because university autonomy depends a lot on trust between the state and universities,” she said.

“They will wait and see what the outcome in constitutional law terms will be, that’s for sure,” agreed Franz Mayer, chair of public law at Bielefeld University. “It’s the sensible thing to do, in order to have a comprehensive system, to avoid competition between the Bundesländer for the best and brightest.”

Constitutional decisions take months, and court staff said that the date of the ruling was “currently not foreseeable”, but experts said the chances of success were good.

“There are very good arguments for this complaint and therefore I can imagine that they will win the case,” said Lothar Zechlin, former rector and professor emeritus for public law at the University of Duisburg-Essen.

If the law is struck down, it will clarify legislative responsibilities, but universities must still face an army of disgruntled and exhausted postdocs. The ruling cannot resolve political decisions about university careers or funding, Professor Zechlin said.

“This case puts pressure on this political situation between the Bund and Länder”, he said, referring to the central and state governments, which generally provide competitive or predictable funding, respectively.

“There will be more pressure directed to the politicians in order to change this disproportion between money from the Bund and low basic funding from the Länder.”

In the meantime, Professor Ziegler said he expected talks with Berlin’s new senator for higher education to find “more practical” solutions to precarity. For supporters of the law, the constitutional case is also a sideshow, with focus shifting to how the changes should be implemented by Berlin universities.

“This is the job of the universities now,” said Martin Grund, a PhD student at the Max Planck Institute for Human Cognitive and Brain Sciences and an activist for the Social Democratic Party. “They already started this discussion and in their committees they are working on this. I am pretty sure they will find nice solutions.”

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