Can academics take a public stand for a political party or candidate? Are they, in their capacity as civil servants, subject to the duty of confidentiality? Can they participate in political demonstrations? At each electoral period, questions emerge around the freedom of expression of teacher-researchers, which is one of the components of academic freedom , and its scope.

The campaign which opens following the dissolution of the National Assembly is an opportunity to shed legal light on these issues. Return in four questions on the latitude available to academics to express their opinions , even though they are civil servants.

What about the freedom of opinion of public officials?

Public officials are guaranteed freedom of opinion ( article L. 111-1 of the general civil service code (CGFP)). The result is that public agents – whether civil servants or public law contractors – are, like all other citizens, free to think as they see fit. As a result, the administration is prohibited from taking their opinions into account, for example when recruiting or making decisions regarding their careers. This freedom of opinion, however, has limits, which result from the duty of neutrality and the obligation of reserve.

The duty of neutrality – which is described by the administrative judge as “strict” – prohibits public officials from expressing their opinions in the exercise of their functions. It is explained by the imperatives of equality of all before the public service: all users of the public service must be treated equally, so that the agents of this service must not express their opinions in the exercise of their functions so as not to suggest that they could treat users differently because of their adherence or non-adherence to said opinions.

The Constitutional Council expressly made the link between these two principles by evoking the “principle of equality and […] its corollary, the principle of neutrality of the service” (Constitutional Council, decision no. 86-217 DC of September 18, 1996, Freedom of Communication Act ). The duty of neutrality is therefore above all a principle which limits the freedom of expression of public officials within the framework of their functions.

The obligation of reserve , which is not enshrined in the texts and results from a jurisprudential construction, on the other hand applies within, but especially outside, the service. It requires public officials to show a certain restraint in expressing their opinions.

This duty, which therefore does not impose a ban on expressing a certain content but only a certain way of expressing oneself, is explained by the hierarchical subordination of public agents and by the neutrality of public services. Its application depends on the nature of the functions performed by the agents and the circumstances. The large variation in the effects of the resulting duty of reserve explains, in part, the decision not to have included it in the CGFP in 2021.

Are academics subject to the obligation of neutrality and the duty of confidentiality?

Not quite. French academics, whom the texts describe as “teacher-researchers”, are state civil servants. However, they are not subject to the duties of neutrality and reserve in the same way as other civil servants. In this sense, they are public agents “not quite like the others”.

When they carry out their teaching and research missions, the freedom of expression of teacher-researchers is “complete”, “subject to the reservations imposed on them […] by the principles of tolerance and objectivity” ( article L. 952-2 of the education code ). This is the legal translation, into French law, of academic freedom of expression, one of the components of academic freedom. Since academic missions imply, by their very nature, that academics can express themselves freely, it is obvious that no neutrality can be imposed on them when they teach and research.

In a ministerial response dating from 1953, it was thus specified that with regard to them, “the rule of neutrality must be interpreted in an extremely broad manner and is reduced in the final analysis to an obligation of objectivity and measurement in the expression of ideas. Objectivity, for example, prohibits any form of propaganda in the context of teaching.

The singularity of the freedom of expression of teacher-researchers is, however, more difficult to justify outside of their functions: what would make it possible, in this case, not to apply the obligation of confidentiality to them?

In reality, as has been explained, the duty of confidentiality applies differently depending on the nature of the functions exercised by public officials. However, academic functions are unique in several ways. On the one hand, as expressly recognized by the Constitutional Council, they not only “allow but require, in the very interest of the service”, that the free expression and independence of academics be guaranteed ( Constitutional Council, decision no. ° 83-165 DC of January 20, 1984, Law on higher education ). On the other hand, they exclude any logic of obedience and loyalty: being independent, teacher-researchers are not subject to the hierarchical principle in the strict sense of the term. It is moreover this independence which explains why they can embrace a parliamentary mandate while continuing to carry out their academic missions (see below). Thus, outside of service, academics remain relatively free in the way they express their opinions. The only real constraints weighing on them result from “university ethics” (see below).

The obligation of neutrality and the duty of confidentiality do not really limit the freedom of expression of academics. It is only different when they represent the public service of higher education, for example when they are elected presidents of a university. Indeed, the said service “is secular and independent of any political, economic, religious or ideological influence; it tends towards the objectivity of knowledge; it respects the diversity of opinions” ( article L. 141-6 of the education code ).

The Council of State thus ruled that the duties of reserve and neutrality prohibited a university president, also a university professor and priest of the Catholic Church, from expressing his religious opinions when exercising his mandate and outside: the university president is “required, having regard to the neutrality of public services which arises […] from the principle of secularism, not to manifest his religious opinions in the exercise of his functions as well as a duty reserve outside the exercise of these functions” ( Council of State, June 27, 2018, no. 419595 ).

The same reasoning should apply when it comes to the expression of political opinions: university presidents should refrain from using their office to influence the vote of students and staff members during a ballot. But, more than the obligations arising from civil service law, it is undoubtedly university ethics which prohibits this type of behavior.

Can teacher-researchers express their political opinions in the media or participate in political demonstrations?

Yes, but… Like all citizens, civil servants can express their political opinions and participate in demonstrations in their private time, but while respecting the duty of confidentiality. As has been explained, this reserve constraint has little effect on teacher-researchers, so much so that they can state their political opinions in the media and participate in demonstrations, without being able to demand from them a real restraint.

This does not mean, however, that their freedom of expression and demonstration is absolute. First of all, and like any citizen, they remain subject to criminal provisions which punish certain abuses of expression: such as defamation, insult, or even provocation to acts of terrorism and apology for these acts. .

Secondly, academic ethics are required of them, implying respect for certain essential principles intended to maintain public confidence in the university institution. For example, when publicly expressing their political opinions, which are personal and their own, they should avoid highlighting their status as an academic or, as illustrated above, their capacity as university president.

In his work relating to the Ethics of public functions , Christian Vigouroux thus evokes “the prohibition of this mixture of genres where the public agent intends to reinforce by the statement of his “qualities” the force of his political choices”.

Can teacher-researchers carry out their academic missions while exercising a political mandate?

Yes. This is a possibility that derogates from electoral and civil service rights.

In principle, the exercise of non-elective public functions is incompatible with the mandate of deputy and senator. But, with regard to academics, the legislator has long recognized the possibility of combining the exercise of a parliamentary mandate with university functions: they can therefore all be elected to the French Parliament at the same time – and express themselves in a partisan manner on all the subjects that such a mandate requires – and continue to teach and conduct their research within the university (articles LO142 and LO297 of the Electoral Code).

It is on the basis of these derogatory provisions, the origin of which dates back to the middle of the 19th ^century  , that the Constitutional Council ranked the principle of independence of teacher-researchers among the fundamental principles recognized by the laws of the Republic ( Constitutional Council, decision no. 83-165 DC of January 20, 1984 , Law on higher education).

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