[by Guylain Chevrier [1] ]
One cannot help but question the increasingly serious challenges to the principle of secularism, as evidenced by several accounts, across all sectors of activity, including the university. Acts of proselytism have been condemned by the administrative court for "inciting, through various forms of pressure, the display of religious symbols (...) disrupting classes through protests in the name of religious beliefs (...) multiplying acts of provocation, proselytism, and propaganda that prevent the normal functioning of classes and public services," reports the CPU Guide [2] . But the most thorny issue arises when someone working within the university system openly displays their religious affiliation, raising the question of whether this is in accordance with the law, along with concerns about whether it constitutes discrimination. The Education Code seems unequivocal on this point: “The public higher education service is secular and independent of any political, economic, religious, or ideological influence…” While we are supposed to be able to refer to a solid legal framework, there are nevertheless gray areas. The importance of addressing these gray areas, in the face of proselytizing individuals or groups likely to exploit them, is clear.
The principle of secularism applies to personnel according to the nature of the task to be accomplished
The CPU's Guide to Secularism, in a box concerning the application of the principle of secularism at the University, offers us food for thought. It recalls that:
“Teaching, administrative, and service staff, whether tenured or under a public-law contract, whether or not they are in contact with users, are bound by the principle of neutrality,” and that “Users, namely students of higher education institutions, are not bound by neutrality and may therefore wear items and clothing related to their religious beliefs.” The situation becomes more complicated when it is stated that “Employees of private companies contracted by the University for occasional services (troubleshooting, repairs, catering, etc.) are not subject to this principle.” What is this to make of it? That the private nature of their employment contract and the occasional nature of their work could justify not respecting the principle? There is also a vague formulation : “Employees working on outsourced services over an extended period (cleaning, IT maintenance, security, etc.) are required, in principle, to respect this principle of neutrality.”
Invoking the concept of duration, suggesting that the principle's applicability to these situations depends on whether the action is occasional or continuous, coupled with an "a priori" assumption that introduces a degree of uncertainty, does not help define its scope. There is a need to clarify this point, given the known conflicting claims surrounding it. It is also mentioned that "Individuals invited to perform a one-off service, such as a lecture or presentation, are exempt from the principle of neutrality." This rule needs to be qualified, as it could be questioned by a judge, for example, if these "services" or "presentations" are given on behalf of the University, such as representing it to a partner. This is not about quibbling, but about establishing the scope of application of a fundamental republican principle that guarantees freedom for all.
The Circular of March 15, 2017 relating to respect for the principle of secularism in the public service NOR: RDFF1708728C is clear:
"It should finally be stressed that the circumstance that a person is employed by a public person according to the provisions of the labor code, including under a subsidized contract, or that a public service is entrusted to a private person does not change the nature of the obligations inherent in the execution of the public service. The same applies to apprentices, trainees and civic service volunteers welcomed into administrations. The Social Chamber of the Court of Cassation thus recalled that "the principles of neutrality and secularism of the public service are applicable to all public services, including when these are provided by private law bodies and that, if the provisions of the Labour Code are intended to apply to the agents [that they employ], the latter are subject to specific constraints resulting from the fact that they participate in a public service mission, which prohibit them in particular from manifesting their religious beliefs by external signs, in particular clothing" (Cass. Soc., 19 March 2013, no. 12-11690, published in the bulletin).
It is not the status of employee of a private service provider, or the occasional nature or otherwise of the intervention of the latter, which defines the possibility or not of manifesting one's religious convictions in the public service, but the function occupied. In the same way as for many professions, it is the function which defines professional secrecy (specialist educator, medical secretary, etc.). It is the nature of the task to be accomplished which is important here. The requirement to respect the principle of secularism is closely linked to any action claiming the prerogatives of public authority. This is what must be hammered home to avoid any confusion.
An article published on the L'étudiant/l'EducPro website in November 2020 on this subject [3] ) states that "The guide, updated in 2015, aims to address various scenarios and provide guidance. For example, the headscarf, which is permitted for non-civil servants at university, just like any other religious symbol." This statement clearly contributes to the prevailing confusion, since many non-civil servants employed under private law contracts, like some teachers, are bound by the principles of the public higher education service, of which secularism is an integral part. It is difficult to see how this could be otherwise than in any other public service. Moreover, even a volunteer who, in a municipal community center, fills in for a staff member at the reception desk, is expected to maintain religious neutrality due to the nature of their role.
On the side of the rights of the user of the public service, we can verify it, of which the equality of treatment is one of the three essential dimensions (Equality, continuity and mutability), guaranteed by the neutrality of the public agent or of any person employed substituting themselves to act in their place. The public service is the expression of an impartial State, because religiously neutral, neutrality which thus applies to any person acting in its name, civil servant or not. A principle of equality which is enthroned in the first Article of our Constitution.
These approximations leave something uncertain. Here we could distinguish more precisely the intervention of a coffee machine repairman from a private company who is not subject to the principle, since he is carrying out a task specific to the maintenance of a private property even in the university, from the replacement of university catering staff (CROUS), who is, to show that clarification is necessary to avoid the risks of circumvention.
The need for an inventory of respect for the principle of secularism at the University
This Guide, first produced in 2004, was updated in 2015, with the aim of providing decision-making support. This occurred within the context of the Observatory of Secularism, attached to the then Prime Minister [4] , which reported "an overall situation respectful of secularism ," with only 130 cases of "disagreements or isolated conflicts" for religious reasons in recent years. For others [5] It was pointed out that this Observatory had likely consulted "the President of the Universities" but not "the professors" and other staff members who could, if necessary, "testify to deteriorating situations in the institutions where they work." The Observatory of Secularism recommended the establishment of a "secularism officer in each university" whose mission would be to "draw up an objective assessment of the situation within their institution" and to participate "in the resolution of any potential conflicts."
The existence of secularism advisors does not appear to have significantly improved the situation. The "report of observations" from the 2021-2022 IH2EF Annual Conference, focusing on "Secularism and the Values of the Republic from School to University," submitted to the Minister of National Education and Youth, Mr. Pap Ndiaye, last July, reveals nothing new. While recent official reports, made public, highlight recurring and multifaceted instances of disregard for the principle of secularism in public schools, universities seem to be spared. In 2003, 24% of French women who identified as Muslim said they wore a headscarf; this figure rose to 31% in September 2019 (Ifop), an indicator of identity assertions inextricably linked to the rise of separatism. The annual reports of the Observatory of Religious Practice in the Workplace show that between 2013 and 2021, the number of cases of refusal due to religious reasons increased from 2% to 16% [6] . But at the University, nothing! The article from L'étudiant/l'EducPro already cited had the headline: "Secularism: Faced with religious demands, diplomacy is essential in universities." "Diplomacy"? A term that already reveals that the main objective is to avoid problems, but to what extent?
“Freedom of expression on campuses brings with it the best and the worst,” observes Isabelle de Mecquenem, professor of philosophy and secularism advisor at the University of Reims Champagne-Ardenne, in the aforementioned article, adding that she was “dismayed” by “the perversion of a fundamental democratic freedom .” The philosopher, who is also a member of the Council of Wise Men on Secularism, was particularly concerned about challenges to teaching. “It would be useful to determine through an investigation whether the phenomenon is worsening or not,” she concludes. A genuine audit on the subject is undeniably lacking, because we know that nothing serious can be undertaken without a proper preliminary assessment. This is a requirement that still needs to be addressed.
