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19.04.2021 | KPMG Law Insights

VG Frankfurt am Main: No general political statements without reference to the university by the AStA

VG Frankfurt am Main: No general political statements without reference to the university by the AStA

In a nutshell:

The student representation of a university (AStA) is also subject to the neutrality requirement with regard to general political statements. Only those statements that have a direct university connection may reflect a political opinion of the student body. The bridge theory developed by the Federal Administrative Court applies only to expressions of opinion that already have an objective university connection due to their content. It is not enough to address students and members of the universities.

Background:

The AStA of Goethe University Frankfurt am Main had referred to a demonstration via its Facebook presence and encouraged participation. This was directed against the arrests and possible investigative measures of suspected members of the “Black Block”, which occurred in connection with the G20 protests in Hamburg. In response to the call, the president of the defendant had issued a legal supervisory order in which she called on the plaintiff to refrain from making such general political calls. Furthermore, the threat of an administrative fine was pronounced if the plaintiff did not comply with the cease-and-desist order. The defendant further argues that there is a concrete risk of repetition. Even after repeated requests to cease and desist, the AStA had continued to violate § 77 II No. 2 HGG with statements, publications and event advertisements, according to which only the consideration of university policy concerns is permitted, but not those that involve a general political positioning.

The plaintiff considers the legal supervision order to be unlawful and relies on the bridge theory, according to which it is perfectly possible to express general political opinions as long as they involve a university context. This is the case. The order was also too vague and there was no danger of repetition, if only because of the change in the staffing of the AStA.

Decision:

After unsuccessful appeal proceedings against the respondent’s order, the plaintiff brought an action before the Administrative Court. The Administrative Court considers the action (judgment of 11.02.2021 – 4 K461/19.F) to be admissible, but not well-founded. The call for participation in the demonstration “United we stand – our solidarity against their repression” does not meet the requirements of neutrality, as it is generally politically motivated and does not relate to university policy issues. Accordingly, the cease-and-desist order issued by the University’s Presidential Board was free of discretionary error and the necessary risk of repetition was to be assumed. In the recent past, the AStA had repeatedly made deliberately general political statements, and had disregarded the order of the Presidium. This, he said, is made clear by, among other things, publishing event advertisements, magazine articles, and solidarizing with political campaigns, with clearly left-leaning political opinions. As a result of this most recent behavior and a general lack of understanding that can be inferred from the plaintiff’s Internet presence, the risk of repetition must be assumed and it must be assumed that the plaintiff will continue to express itself accordingly in the future. A change in personnel would not change this.

Although the bridging theory developed by the Federal Administrative Court makes it possible in principle to make general political statements, this is only possible if a bridge is built between higher education policy issues and general policy issues. However, university policy concerns must be the focus for this.

However, statements on general political topics are not permitted, with a sorry address to the student body. With the advertisement for the specific event, the plaintiff thus violated its duty to exclusively perceive university-political interests, these principles were misunderstood, § 77 II No. 2 HGG. The topics of the advertised demonstration were objectively not related to the specific concerns of the student body, but were of a general political nature. For this reason, the bridge theory was not relevant in the present case.

This is what readers can take away:

In its decision, the Administrative Court confirms the student representation’s duty of neutrality with regard to general political statements and substantiates the bridge theory. Merely selecting a specific group of addressees, namely university members, is not sufficient for the assumption of a statement of university policy. Even in the case of personnel changes, a risk of repetition in the future must be assumed if this has already been confirmed several times by actions of the Asta, despite a change in the personnel line-up.

The decision part of the judgment shall be subject to review by way of appeal, provided that the time limits have not yet expired.

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