Who is responsible for order on campus? Who should a demonstration be reported to? What are students’ rights in this area? How do universities ensure freedom of expression? Some legal insights.

While various 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 establishments to remind them “of their responsibility in preserving academic freedoms and their role in preventing possible risks.”

These events provide 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 recognised by French texts of constitutional value. The Constitutional Council considers, however, that it arises from the freedom of expression and communication arising from Article 11 of the Declaration of the Rights of Man and of the Citizen of 1789.

Like any freedom, it is regulated. First of all, it cannot give rise to the expression of criminally reprehensible remarks such as defamation, insult, contesting the existence of certain crimes or incitement to acts of terrorism and apology for these acts.

Any civil servant – and in particular any head of a public institution – who becomes aware of the commission of such offences in the context of a student demonstration organised within his institution would be required to notify the public prosecutor without delay, in accordance with Article 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. Its article L. 211-1 thus requires the declaration of “all processions, parades and gatherings of people, and, in general, all demonstrations on the public highway.” 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 demonstration” ( article L. 211-2 of the same code ).

In principle, it is therefore not necessary to obtain any authorisation to be able to demonstrate; a declaration is sufficient. 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 authorisation.

How does this legal regime apply to students?

Student protesters must naturally respect criminal law and the limits it places on freedom of expression. They must then submit to the applicable declaration and even authorisation regimes. If, for example, they wish to gather in front of their school premises to express their demands, they must declare this to the competent authority within the time limit imposed in accordance with the internal security code.

On the other hand, the declaration system at the town hall or prefecture does not apply inside the establishments since it is no longer a question of demonstrating “on the public highway”. In this case, it is necessary to refer to the rules applicable inside university premises.

Within them, the administrative police are the responsibility of the head of the establishment  : the texts entrust him with the responsibility of maintaining order and security within the premises of his 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 “in conditions that do not undermine teaching and research activities and that do not disturb public order”

It is therefore their responsibility to inform the head of the establishment of their project in advance so that the latter can, if necessary, use his police powers. Such powers first allow him to take preventive measures: call on security personnel to supervise the event; prohibit the demonstration, etc. They then authorize him to take measures intended to put an end to a disturbance of public order: in particular, the texts recognize the head of the establishment’s power to call on the police. The “police franchise” enjoyed by higher education establishments 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 specific requirements resulting from the police of establishments receiving the public (ERP). The safety regulations against the risks of fire and panic in ERP provide in particular that the use of an establishment “for an operation other than that authorized […] must be the subject of an application for authorization submitted at least two months before the event or series of events”.

Therefore, when students wish to organize an event that is outside the usual practices of the establishment, it is necessary for the operator (the head of the establishment) and the organizer (the students, possibly organized in the form of an association) to request authorization, generally from the town hall.

However, a demonstration of a political nature seems to be able to be qualified as “an operation other than that authorized”. Indeed, the purpose of higher education establishments – classified “R” – is “teaching or […] training”. Since political demonstrations do not fall within this purpose, they seem to have to be subject to the prior authorization regime for exceptional use. However, such an authorization regime seems contrary to the freedom to demonstrate, especially since, since November 2023, the application must be filed at least two months before the demonstration, compared to fifteen days previously.

Freedom of expression, from which freedom to demonstrate derives, presupposes a certain spontaneity that is difficult to reconcile with such an authorisation 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 the public highway, possibly in front of establishments, remains theirs. Then, other modes of expression exempt from any authorisation remain conceivable: for example, the organisation of a debate, notably involving specialists in the issue concerned, does not have to be subject to the regulations relating to ERPs insofar as it can be considered as participating in the teaching or training activity of “R” establishments.

What about the neutrality of educational institutions?

In an opinion dated June 19, 2024, the College of Ethics for 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 influence.”

In the same spirit, the new Minister of Higher Education “firmly” condemned the pro-Palestinian student demonstrations which, according to him, would go “against the principles of neutrality and secularism of the public higher education service” . This question of neutrality – political and/or religious – within the public higher education service requires clarification involving 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 that runs it (universities and major institutions in particular).

First of all, 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 ethics college, based on Article L. 121-2 of the General Civil Service Code , concerns public officials. It therefore does not apply to users, to whom the law expressly recognizes, as has been recalled, freedom of information and expression .

The fact that the ban on wearing signs or clothing that ostentatiously demonstrate religious affiliation does not apply to students is in this respect 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]).

Then, regarding the neutrality of institutions, while it is true that Article L. 141-6 specifies that the public higher education service 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 concepts can be differentiated:

• independence is understood in an exogenous approach and means that institutions must be protected from external interference (for example, their decision-making cannot be dictated by purely economic requirements of profitability imposed by third-party financiers or donors);
• Neutrality is endogenous and implies a ban on expressing one’s opinions, whether political, religious or philosophical.

The two concepts are, it is true, sometimes closely 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, who is also a university professor and priest of the Catholic Church, from expressing his religious opinions when he exercises his mandate and outside it .

Neutrality cannot, however, limit any expression of opinion on the part of an institution; it must be reconciled with other imperatives. Firstly, it is necessary to take into account the mission of the public higher education service, which is in particular to contribute,

“within the international scientific and cultural community, to [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 refusal to provide rooms to pro-Palestinian student groups ”  in order not to associate its establishment in public opinion with an international political campaign in favour of boycotting scientific and economic exchanges with a State”, it cannot justify the refusal to organise a conference on the sole grounds “that the communications of the two speakers are part of a political debate”.

Secondly, neutrality does not seem to prohibit positions in favour of the defence of republican principles, such as those set out in Article 1 of the Constitution . This breach of neutrality, described by Professor Thomas Hochmann as a principle of “militant democracy” , justifies, for example, the fact that university presidents were able to publicly and collectively express their opposition to the so-called “immigration” law by recalling their attachment

“to the values ​​on which the French University is founded: those of universalism, openness and hospitality, the free and fruitful circulation of knowledge, those of the spirit of the Enlightenment.”

Author Bio: Camille Fernandes is a Lecturer in public law, member of the CRJFC at the University of Franche-Comté – UBFC