Conscience Clause for Academics? The Legal Nature and Scope of Article 275 section 1a of the Law on Higher Education and Science

Abstract

One of the first outcomes of implementing Article 275 section 1a of the Law on Higher Education and Science was the termination of disciplinary proceedings against Professor Ewa Budzyńska by the Disciplinary Committee of the Minister of National Education on 5 September 2022. Due to the peculiar dual nature of the issues under analysis, the study adopts a slightly different structure of consideration from the traditional one. The first part discusses the disciplinary case of Professor Ewa Budzyńska and attempts to assess her comments in the light of the provisions of the Law on Higher Education and Science prior to the introduction of the academic freedom clause. The second part offers a critical analysis of the newly introduced Article 275 section 1a, focusing on its assumptions, legal nature, and the negative consequences arising from the amendment. The considerable public attention surrounding the case-as well as the significance attributed to it by the state authorities, Church representatives, and a number of publicists-warrants a re-examination of the rationale, legal nature and scope of Article 275 section 1athrough the lens of a single disciplinary case. This case provides a basis for further analysis using classical methods of legal interpretation, including textual analysis, the identification of the provision’s ratio legis, a demonstration of its internal inconsistencies, and formulation of a de lege ferenda proposals. The analysis led to the following conclusions: Article 275 section 1a constitutes a statutory superfluity and functions as a sort of academic conscience clause. Its presence in the legal system results in, or has the potential to result in, numerous negative consequences; thus there is a call for its removal.