Who is responsible for order on a campus? Who should an event be reported to? What are the rights of students in this matter? How do universities ensure freedom of expression? Some legal insights.
While different student gatherings “in support of the Palestinian people” were organized at the beginning of October, the new Minister of Higher Education Patrick Hetzel addressed the heads of establishment to remind them of “their responsibility in preserving academic freedom and their role in preventing possible risks”.
These events are an opportunity to review the legal framework that applies to student demonstrations and the requirement for neutrality within this public service.
What is freedom of demonstration and what are its limits?
Freedom of demonstration is not expressly recognized by French texts of constitutional value. The Constitutional Council considers, however, that it arises from the freedom of expression and communication resulting from article 11 of the Declaration of the Rights of Man and of the Citizen of 1789.
Like all freedom, it is supervised. First of all, it cannot give rise to the expression of criminally reprehensible comments such as defamation, insult, contestation of the existence of certain crimes or provocation to acts of terrorism and the apology of these actions.
Any civil servant – and in particular any head of a public establishment – who becomes aware of the commission of such offenses in the context of a student demonstration organized within his or her institution would be required to give notice without delay to the public prosecutor in application of thearticle 40 of the code of criminal procedure.
Then, the freedom to demonstrate must be done in compliance with the provisions of the internal security code. Her article L. 211-1 thus requires the declaration of “all processions, parades and gatherings of people, and, in general, all demonstrations on public roads. » This declaration must be made at the town hall or prefecture depending on the territory concerned, “at least three clear days and at most fifteen clear days before the date of the event” (article L. 211-2 of the same code).
In principle, it is therefore not necessary to obtain any authorization to be able to demonstrate; a declaration is enough. However, the authorities can always prohibit a demonstration likely to disturb public order (article L. 211-4 of the same code), which ultimately brings the declaration regime closer to that of authorization.
How does this legal regime apply to students?
Student demonstrators must naturally respect criminal law and the limits it places on freedom of expression. They must then submit to the applicable declaration or even authorization regimes. For example, if they wish to gather in front of the premises of their establishment to express demands, they must make a declaration to the competent authority within the time limit imposed in accordance with the internal security code.
On the other hand, the declaration regime at the town hall or prefecture does not apply inside establishments since it is no longer a question of demonstrating “on the public highway”. In this case, you must rely on the rules applicable within university premises.
Within them, the administrative police are of the competence of the head of the establishment : the texts entrust him with responsibility for maintaining order and security within the confines of its establishment. Therefore, if students wish to organize a particular event within it, they must inform the head of the establishment. Indeed, although they benefit from freedom of information and expression, they must exercise it “under conditions which do not harm teaching and research activities and which do not disturb public order”
It is therefore their responsibility to inform the head of the establishment of their project in advance so that he can, if necessary, use his police powers. Such powers first allow him to take preventive measures: call on security personnel to supervise the event; ban demonstrations, etc. They then authorize him to take measures intended to put an end to a disturbance of public order: in particular, texts recognize the head of the establishment as having the right to call upon the public force. There “policy franchise” from which higher education establishments benefit in no way prevents this.
In the event of a demonstration within the establishment, the question also arises of the need to comply with the special requirements resulting from the policy of establishments open to the public (ERP). The safety regulations against the risks of fire and panic in ERPs provide in particular that the use of an establishment “for an operation other than that authorized (…) must be the subject of an authorization request submitted at least two months before the demonstration or series of demonstrations.
Thus, as soon as students wish to organize an event which goes beyond the usual uses of the establishment, it is necessary that the operator (the head of the establishment) and the organizer (the students, possibly organized in the form of an association ) request authorization, generally from the town hall.
However, a demonstration of a political nature seems to be able to be qualified as “exploitation other than that authorized”. In fact, the destination of higher education establishments – classified “R” – is “teaching or (…) training”. Since political demonstrations do not fall within this destination, they seem to have to be subject to the prior authorization regime for exceptional use. Such an authorization regime, however, seems contrary to the freedom to demonstrate, especially since, since November 2023, the request must be submitted at least two months before the demonstration, compared to fifteen days previously.
Freedom of expression, from which freedom of demonstration derives, presupposes a certain spontaneity that is difficult to reconcile with such an authorization regime. However, even if such a regime were to apply within establishments, students would not be deprived of all freedom of expression. On the one hand, the freedom to demonstrate on public roads, possibly in front of establishments, remains theirs. Then, other modes of expression exempt from any authorization remain possible: for example, the organization of a debate, notably involving specialists on the issue concerned, does not have to be subject to the regulations relating to ERP to the extent that it can be considered as participating in the teaching or training activity of “R” establishments.
What about the neutrality of educational establishments?
In an opinion dated June 19, 2024, the college of ethics of higher education and research indicated that by virtue of the principle of neutrality recalled in article L. 121-2 of the general civil service code, “ a public establishment cannot endorse the claim of political opinions” and recalled the content of article L. 141-6 according to which “the public service of higher education is secular and independent of any political, economic, religious or ideological.
In the same spirit, the new Minister of Higher Education “strongly” condemned the pro-Palestinian student demonstrations which, according to him, would go “contrary to the principles of neutrality and secularism of the public service of higher education”. This question of neutrality – political and/or religious – within the public service of higher education requires clarification implying a distinction between the neutrality of the natural persons who make up this public service (students and academics) and the neutrality of the legal entity which executes it (universities and large establishments in particular).
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Firstly, regarding the neutrality of students and academics, this does not seem to be able to be imposed on them. On the one hand, the duty of neutrality invoked by the college of ethics, based on article L. 121-2 of the general civil service codeconcerns public officials. It therefore does not apply to users, to whom the law expressly recognizes, as has been recalled, the freedom of information and expression.
The fact that the ban on the wearing of signs or outfits ostensibly demonstrating religious affiliation does not apply to students is therefore topical. On the other hand, it does not apply, most of the time, to teacher-researchers, teachers and researchers, who “enjoy full independence and complete freedom of expression in the exercise of their teaching functions and their research activities » ((article L. 952-2 of the education code)).
Regarding the neutrality of establishments, if it is true that article L. 141-6 specifies that the public service of higher education must be “independent of any political, economic, religious or ideological influence”, it does not, strictly speaking, establish a requirement for neutrality, but for independence. These two notions can be differentiated:
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independence is conceived in an exogenous approach and means that establishments must be protected from external interference (for example, their decision-making cannot be dictated by purely economic requirements of profitability imposed by financiers or third-party donors);
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neutrality is endogenous and implies a ban on expressing one’s opinions, whether political, religious or philosophical.
The two notions are, it is true, sometimes intimately linked: a manifestation of opinion can in particular reveal a lack of independence. This is the reason why the administrative judge decided that the duties of reserve and neutrality prohibited a university president, also a university professor and priest of the Catholic Church, to express his religious opinions while exercising his mandate and outside.
Neutrality cannot, however, limit any expression of opinion on the part of an establishment; it must be reconciled with other imperatives. Firstly, we must take into account the mission of the public service of higher education which is in particular to contribute,
“within the international scientific and cultural community, for the (debate of ideas, the progress of research and the meeting of cultures)”.
It follows that, if the principle of independence can justify a certain neutrality of the establishment implying refusing the provision of rooms by pro-Palestinian student collectives “ so as not to associate its establishment in public opinion with an international political campaign in favor of the boycott of scientific and economic exchanges with a State”, he cannot found the refusal to organize a conference for the sole reason “that the communications of the two speakers are part of a political debate”.
Secondly, neutrality does not seem to prohibit positions taken in favor of the defense of republican principles, such as those set out in article 1ᵉʳ of the Constitution. This breach of neutrality, described by the Professor Thomas Hochmann of the principle of “militant democracy”justifies, for example, that university presidents were able to publicly and collectively express their opposition to the so-called “immigration” law. remembering their attachment
“to the values on which the French University is based: those of universalism, openness and welcome, the free and fruitful circulation of knowledge, those of the spirit of the Enlightenment. “.
