University autonomy and scientific freedom in the sphere of assessment for teaching appointments and promotion in the academic career structure
Assessment of absolute and relative merit
RULING Nº 491/08
7 of October of 2008
University autonomy is a fundamental constitutional guarantee, the subjective scope of which goes beyond the purely institutional level since it also extends to the status of university staff, notably with regard to freedom of research, teaching, thought and pedagogy, in accordance with the Constitution, constituting what is usually designated "academic freedom".
However, university autonomy and scientific freedom require that evaluation of teaching proficiency, for career advancement purposes, should continue to be performed by the traditional method, that is to say according to the rule of appraisal of absolute and relative merit.
The question raised in this judgment is the constitutionality of the interpretation of two rules contained in the legislation on the Status of Civil Service Managerial Staff, whereby members of teaching staff of public universities can be promoted without sitting a competitive examination aimed at assessing their absolute and relative merit.
The appeal was based on two separate grounds.
Firstly, it argued that the unconstitutionality in substance of the challenged legislation resulted from the fact that this situation should have been governed by a law, since it came within parliament's reserved legislative jurisdiction and went beyond the law delegating legislative powers, which merely stated that its aim was to clarify the right to a career and to remuneration without making any reference to the scope of these rights or the possibility of extending the legal rules to the special professions. This accordingly breached the constitutional provision whereby "Laws delegating powers of legislation shall determine the subject, the purpose, the extent and the period of the delegation..." With regard to this ground, the judgment, based firstly on elements of comparative law and Portuguese doctrine regarding the nature of delegations and secondly on the concept of university autonomy, ruled that the legislature had not acted outside the scope of the delegating law.
The second argument of de facto unconstitutionality "for having breached the constitutional principles of justice, equality and universities' autonomy" required an analysis of university autonomy within the meaning of the Constitution and in particular of its limits, as a parameter to be observed by the ordinary legislature - whether the author of the delegating law or of the delegated legislation. With regard to this ground, the judgment points out that university autonomy is aimed at affording institutional guarantees of freedom of research and teaching. Universities are therefore institutions which simultaneously exercise scientific freedom and the freedom to teach the knowledge obtained through it.
This teaching puts into practice the right to education and to instruction. To this extent it corresponds to the service provision role of universities, as public services. It is nonetheless a service of a different kind from those proposed by other public bodies and must therefore be supplied under different conditions, although universities are part and parcel of the education system.
Equality of access to the teaching profession and to career advancement must be achieved through selection methods based solely on the criteria of merit and scientific proficiency, assessed through examinations open to all.
Since autonomy is an attribute of all universities - which is why it is simultaneously an individual right and a collective institutional right (of all universities) - the ordinary legislature must be acknowledged to have the competence and the discretionary power to identify a method which "while being general in nature also guarantees everyone concerned equality of opportunity and public comparison of their respective merits and capabilities".
The judgment then raises the question whether the rules under consideration respect these constitutional criteria. It bases its reasoning, inter alia, on the concept that the equality requirement is not synonymous with egalitarianism, and consequently "the principle of equality does not prohibit distinctions, except where they have no tangible foundation" and finds that, in the case under consideration, there is no tangible ground for failing to apply to "university teaching staff, who are also civil servants, albeit members of a special profession" the "special entitlement conferred solely on civil service managers", which the legislature established in recognition of the performance of managerial functions for a certain time.
The Constitutional Court nonetheless considers that university autonomy and scientific and academic freedom require that the evaluation continue to be performed by the general method of public comparison of capabilities and merit, that is to say according to the principle of appraisal of absolute and relative merit.
This being the case, scientific or teaching proficiency that may have been acquired outside the university by a member of faculty who has held a civil service managerial post can be of only limited importance when applying the general method for appraising merit and scientific capabilities. The reasoning behind the regulatory provision that periods of service in managerial posts must be taken into account for career advancement purposes is completely divorced from that underlying the criterion of appraisal according to merit and scientific proficiency, imposed in connection with university autonomy. Consequently, the two are in no way related.
There is therefore no sufficient tangible ground for exempting a member of university teaching staff from a competitive examination, the aim being to assess his or her merit and scientific proficiency in absolute and relative terms.
The Constitutional Court accordingly held that the interpretation of the challenged legislation, whereby members of the teaching staff of public universities could be promoted without having to sit a competitive examination aimed at assessing their absolute and relative merit was unconstitutional since it breached the principle of equal access to the civil service, as a corollary to the constitutional principle of equality, and the principle of university autonomy.
The judgment's interest lies, inter alia, in its references to comparative law.