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I am in the process of finding out the legal framework surrounding anti-discrimination statutes in German public universities as it pertains to students (not employees of the university as they are covered by the Allgemeinen Gleichbehandlungsgesetz (AGG) as a matter of law). As part of a larger question, I would like to understand the applicability &/or effect of § 2 (1) 7 AGG, to wit:

§ 2 Anwendungsbereich

(1) Benachteiligungen aus einem in § 1 genannten Grund sind nach Maßgabe dieses Gesetzes unzulässig in Bezug auf:
      …
      7. die Bildung,
      …

According to a publication from the Federal Antidiscrimination Body (Antidiskriminierungsstelle des Bundes), the law is only exercisable at private higher education institutions. It states however, that the law does apply to students at public institutions, but has no legal consequences:

Bei Benachteiligungen von Studierenden ist das AGG nur dann anwendbar, wenn es sich um private Hochschulen handelt, die zivilrechtliche Verträge mit den Studierenden abschließen […] Bei öffent­lich­rechtlichen Bildungsträgern findet das AGG hingegen für die Studie­renden zwar über § 2 Absatz 1 Nummer 7 AGG Anwendung, enthält jedoch keine Rechtsfolgen.

I'm confused how the statute can "only be applicable to private schools" (andwendbar), and at the same time "find applicability" (Anwendung finden) at public schols.

  • What does it mean for a law to be excercisable/applicable without it having legal consequences?
  • Under what circumstances can such a law be used without the need for legal consequences?
  • Could, for example, a student at a public university affirm that s/he is protected under § 2 (1) 7 AGG, or that s/he has a right not to be discriminated against under the statute if s/he doesn't necessarily care that the counterpart/offender faces legal consequences?
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What does it mean for a law to be excercisable/applicable without it having legal consequences?

This means that violating the law does not give rise to a private cause of action or criminal liability.

Under what circumstances can such a law be used without the need for legal consequences?

The job description of every government employee, including administrators at public universities, is to administer the law faithfully in connection with his or her duties. A government employee who follows the law sees himself or herself, and is seen by supervisors and peers and members of the public encountered on the job, as doing a good job, and is likely to be praised and promoted. In contrast, one who does not follow the law will feel bad about himself or herself and scorned by supervisors and peers and members of the public encountered on the job. So, if non-discrimination is the law, even if violations of it don't have direct legal consequences to the violator, that person will try to obey the law anyway.

A good U.S. analogy is a common law judge. A common law judge has no civil liability for making a decision contrary to the law and has criminal liability only in extreme cases like taking bribes to ignore the law. But, judges overwhelmingly try to obey and implement the law anyway, because that is their job and role in the system. And, judges who knowingly don't implement the law as they believe it to be will feel guilty or bad about it personally in most cases, will be scorned by people who participate in the court system and the public, and in a non-corrupt healthy system of judicial appointments will not be promoted or have fixed terms of service renewed.

The same process is at work in understanding why a government employee at a public university might decide to follow an unenforceable law.

Could, for example, a student at a public university affirm that s/he is protected under § 2 (1) 7 AGG, or that s/he has a right not to be discriminated against under the statute if s/he doesn't necessarily care that the counterpart/offender faces legal consequences?

Yes and no.

A student could and likely would tell an administrator at a public university that the administrator has a legal obligation not to discriminate, which the administrator should honor. In response, the administrator might very well agree and affirm that he or she has this obligation.

For example, the administrator might take very seriously a student suggestion to have blind auditions for the college symphony, in order to reduce discrimination in the audition process.

But, the only way that the student could do anything about this if the administrator was discovered to have discriminated would be to complain to the supervisor of the administrator and to ask the supervisor to overrule the administrator's discriminatory actions.

If there were credible complaints to the supervisor of the administrator alleging discriminatory conduct by the administrator, that might also cause the administrator to receive a poor performance evaluation from his or her supervisor, which could result in being passed over for a promotion, being chosen to be laid off if lay offs were necessary, or even denied a contract renewal at the end of an academic term.

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