teaching: legal status

I had a long discussion with a lawyer about the teaching business and want to disucss the outvome here.

I will try to answer the following questions:

1. Can the faculty force PhD students to teach?
2. Do all teaching students have an insurance?
3. How could one argue on legal terms against the faculty/university?
4. What can we do?

I hope these give us more clarity about the status and possible ways to proceed. Additionally, my friend advised my consult other lawyers, too.

1. Can the faculty force PhD students to teach?
The university could take §6(3) of the Promotionsordnung to justify teaching, saying that students being part of a PhD program need to follow its rules. But actually this is not necessary, since the students agreed volontarily by signingg the application form, that they "will perform the required teaching, as listed in the Attachment “Teaching Requirements for Doctoral Students”."
This has the positive effect that every teaching students has an automatic insurance (legally, signing this is an automatic contract). But on the other hand the faculty does not need any justification or reason for the students' teaching anymore, since they agreed volontarily. In addition, the university is not forcing the students to teach. The argument that we are forced implicitly, since without signing it we could not get a PhD was also rejected, since we do not need to persue a PhD here.

2. Do all teaching students have an insurance?
Since all teaching student signed this application form, they are (according to my lawyer) automatically insured the teaching requirements as stated in the application form include an automatic (unwritten) contract.

3. How could one argue on legal terms against the faculty/university?
It appears very difficult to argue that PhD students are forced to teach (which would might be contradictory art. 12 of the german constitution: no forced labour) since applicants signed the application form volontarily. And students do not need to go for their PhD here, i.e. they are not hindered to obtain any PhD, only they cannot do it here, if they do not accept the terms.

One might also argue that the distribution of teaching duties is distributed unevenly. Is this violating the right of equal treatment (art. 3 of the german basic law)? Well, one could take two students, with similar background and equal teaching experiences who have to do different amounts of teaching (e.g. 3 semesters vs. 1 semester). First of all, it seems that this human right is very difficult to persue in court since it is usually only taken as a very last resort by lawyers (and accepted by court only in heavy mistreatments). Anyway, it would be difficult to get very far with this argument, since a court might accept that it is an unequal treatment, but the difference would be considered minimal, and sufficient to accept it as an instance of unequal treatment as meant by art. 3 of the basic law.

I asked finally, whether students had any rights at all. And the lawyer's answer is: certainly, but there is no severe mistreatment going on that would stand in court.

4. What can we do?
There is one further major point that came out of that discussion. If a student has external funding with a contract that explicitly forbids him to follow activities other than research, like teaching or using university facilities for work, he is breaking his funding contract when he signs that application form. Because he is then entering a contract with teaching where his funding contract explicitly forbids it.
Generally, it is not a crime to have two contradictory contracts, e.g. you can sell the same car to different people. But if you do so, people can come and demand their rights (e.g. that car) or ask for compensation. That means the external funding agency can claim its money back. To repeat: the university is not making these students break the law, but it forces them to break their funding contract. And this is not the universities fault, since the student signed the application form (with that important teaching paragraph) volontarily. My friend suggested that these students should not sign this form because they would break their funding contract. They should strike-through that paragraph or sign an application form not containing that paragraph. They could easily deny the signature because they would otherwise break their contract under these terms.

So here is a possible route for argumentation open for our discussion: The teaching requirements have a weak legal support as is clear from the way the faculty acts upon it. But, importantly, the teaching requirement paragraph in the application form is forcing students to break a contract. This paragraph should be erased for at least these students. If the faculty is insisting on this paragraph,

a) it invites some students to break their contract (which the faculty should not want), or
b) it cannot take some of the students since they cannot become PhD students under these terms.

The faculty might accept the second point of view and simply say: If they don't want to be our students, we don't need them. But still it should seem weird for the faculty to make (some of the) students break their contract. This is all under the assumption that the university shares my lawyer's account of the situation.
NB: If we follow this line of argument, we cannot ask for "one semester teaching for all and the rest is paid".

Want can we do? We should make this part of any leaflet, warning students about these legal issues. They should not sign the application form with that paragraph when their contract forbids teaching or non-research activities. They should be very careful, since they may break this contract otherwise. To sue the university seems very unlikely to be successful.