In recent months, academic freedom has been the subject of particular attention, in an entirely new way in France. This sudden interest in a hitherto unrecognized freedom is mainly explained by the emergence of various threats that come from the political, economic and militant spheres. This climate of tension goes against the necessary independence of academics in their fields of research and teaching.

One of the most emblematic examples was given by the debate on “Islamo-leftism” during which, in February 2021, the minister responsible for higher education requested a report on the spread of this current within French universities. This event, although it logically aroused the astonishment of part of the university community, paradoxically had the merit of leading the legislator to introduce, for the first time in French law, the notion of “academic freedom”. Article 15 of the research programming law of December 24, 2020 has indeed amended the education code which now states that “academic freedom is the guarantee of excellence in higher education and French research.

The imprecise nature of the formula adopted, which is manifested in particular by the use of the plural to designate “academic freedom”, illustrates, however, the lack of knowledge that surrounds the concept of academic freedom in France.

The academics themselves are struggling to grasp its content and scope, as evidenced by the current affair within the IEP of Grenoble . Academic freedom was brandished to challenge the decision to suspend a professor, when in reality freedom of expression under common law was at stake, as public law professor Olivier Beaud pointed out .

This case justifies bringing some elements of legal definition on the content and scope of academic freedom: what does it cover and how far does it apply?

A universal concept

Academic freedom is consubstantial with any liberal democracy. In fact, it has no other objective than to enable research and the free transmission of knowledge within universities, not only for the benefit of the users of this public service, but also, more broadly, for the benefit of society as a whole. together.

Consequently, most liberal democracies define academic freedom in their domestic law and do so in similar legal terms.

Inspired by the definition proposed by German law, which was the first to specify its content in writing, academic freedom is systematically defined as a set of freedoms including, first, freedom of research and freedom of education, which include freedom of expression. This first set of freedoms constitutes the individual dimension of academic freedom in that it protects academics.

Academic freedom then includes the autonomy of universities which, although ultimately guaranteeing the independence of academics, is an institutional principle insofar as it concerns the organization and functioning of institutions.

French specificities

In France, it is only since 2020 that the expression “academic freedom” has expressly entered into domestic law. However, French academics – legally qualified as “teacher-researchers” – have enjoyed, for a long time and well before the adoption of the law of December 24, 2020, a set of freedoms which were until now designated under the term “academic freedom”.

Whatever name is chosen – which ultimately matters little – the content of these freedoms is close to that found in other liberal democracies, subject to a few minor specificities specific to French law. In its individual dimension, academic freedom is first described as comprising the “full independence” and the “entire freedom of expression” of teacher-researchers ( article L.952-2 of the education code ).

The French originality lies in the fact that, on the one hand, a central place is given to the principle of the independence of teacher-researchers – whose constitutional value even ended up being recognized by the Constitutional Council in 1984 – and, on the other hand, that the existence of freedom of research and teaching is not expressly recognised. However, these are largely covered by freedom of expression.

In its institutional dimension, academic freedom is then enshrined in a completely traditional way through the autonomy of universities ( article L.711-1 of the education code ). Thus, even though the expression “academic freedom” has only recently appeared in the law, France is well in line with those liberal democracies which recognize the existence of academic freedom. It remains to specify its scope: when can it be claimed and produce its effects?

What scope?

To delimit the field of application of academic freedom, it is necessary to look at its very purpose. As already noted, academic freedom has no other purpose than to serve the pursuit of truth without any hindrance or coercion. However, this objective can only be achieved if academics are free to carry out their research and to share the results, just as freely, in particular during their teaching.

As a result, academic freedom only has meaning and can only be applied when professors carry out their research activities and teach. This is what French written law states: the independence and complete freedom of expression enjoyed by teacher-researchers apply only in “the exercise of their teaching functions and their activities”. research” ( article L.952-2 of the aforementioned education code ).

Outside, academic freedom is no longer justified; it cannot then apply or be claimed. The highest French administrative court has confirmed this approach. The Council of State has in fact ruled that the fact, for an academic, of having had “a humiliating attitude towards two students, including personal allusions of a sexual nature, likely to undermine their dignity [ …] was to be regarded as detachable from the teaching duties of this professor” who could not, therefore, “benefit from the protection of the freedom of expression of teacher-researchers guaranteed by article L.952-2 of the code education” ( CE, June 21, 2019, Req. n° 424582 ).

While it is obvious that academic freedom could not cover such remarks, the link between the expression of a point of view and teaching and research activities is sometimes more difficult to establish. The fact remains that the protection afforded by academic freedom does indeed stop at the borders of university missions.

Civil service rules

Outside of their duties, academics are not deprived of all freedom; they actually enjoy “common law” freedoms which are necessarily limited. Thus, they are first of all subject, like any other citizen and as when they exercise their academic functions, to the penal provisions sanctioning abuses of freedom of expression: they must, for example, refrain from making abusive remarks , defamatory or racist.

They are then subject, in their capacity as civil servants, to the rules resulting from civil service law, which require academics to respect a certain number of constraints and obligations outside their functions, such as duties of reserve , neutrality, loyalty, or even professional discretion.

In the event of a breach of these professional obligations, academics expose themselves to disciplinary sanctions. This hypothesis is far from being fictitious and certain emblematic examples punctuate the history of university law.

We can cite the case of this teacher-researcher, who also holds elected office, who was banned from exercising any teaching or research function within his university for a period of five years for having made remarks which were “likely to cast doubt on the existence of the gas chambers” during a meeting with the press organized in his political office ( CE, March 19, 2008, Gollnisch ).

This example – like other more recent ones – highlights the importance of identifying and assimilating the content and scope of academic freedom. In order for this freedom, which is essential to any democratic society, to preserve its full legitimacy, it should not be invoked, like a talisman which would authorize any behavior, in circumstances where it clearly does not apply.

Author Bio: Camille Fernandes is a Doctor in Public Law, member of the CRJFC at the University of Franche-Comté – UBFC