[by Guylain Chevrier[1]]
One can only wonder about a situation of contestation of the principle of secularism which is worsening, as some testimonies indicate, in all sectors of activity including, at the University. Acts of proselytism have been condemned by the administrative judge because of "inciting by various forms of pressure to display signs of religious affiliation (...) disrupting teaching by protest movements in the name of religious beliefs (...) increasing acts of provocation, proselytism, propaganda preventing the ordinary functioning of courses and public service" reports the CPU Guide [2]. But the most difficult point arises when a person working in the university setting openly displays his or her religious affiliation, leading to the question of whether this is in accordance with the law, accompanied by the concern of whether this would not constitute discrimination. The Education Code seems unequivocal on this subject: "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 here, there are nevertheless grey areas. We will understand the importance of defusing them with regard to proselytizing individuals or groups likely to exploit them.
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 or service staff, whether statutory or bound by a public law contract, in contact or not with users, are required to respect the principle of neutrality” et that "Users who are students of higher education establishments are not required to be neutral, and can therefore wear items and clothing linked to their religious faith" Things get more complicated when it is stated that “Employees of private companies providing services to the University who perform occasional functions (troubleshooting, repairs, catering, etc.) are not subject to the principle.” What should we understand? That the private nature of the employment contract and the one-off nature of their intervention could justify non-compliance with the principle? We still find an approximate formula there : “Employees working as part of outsourced services over the long term (cleaning, IT maintenance, security, etc.) must, a priori, respect this principle of neutrality.”
The invocation of duration, arguing that it could depend on the punctual or continuous nature of the action to know whether the principle applies to these situations, coupled with a "a priori" which can offer a margin of uncertainty, does not help to define its scope of application. There is a need to secure the thing, as we know that it is the subject of conflicting claims. We also mention “People invited to provide a one-off service such as a conference or communication, for example, are exempt from the principle of neutrality.” A rule to be tempered, which could be questioned by the judge in the case, for example, where these "services" or "communications" are made in the name of the University, in the form of representation to a partner for example. This is not about "nitpicking", but about establishing the scope of application of a republican principle that could not be more fundamental, which guarantees the freedom of 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.
In an article published on the L'étudiant/l'EducPro website, from November 2020 on the subject [3] it is claimed that "The guide, updated in 2015, aims to respond to different scenarios and to issue opinions. For example, the veil, which is authorized to be worn at university by non-civil servants like any other religious symbol." We can see how much this statement contributes to the ambient confusion, since many non-civil servants employed on a private law contract, like some teachers, are subject to the principles of the public service of higher education, of which the principle of secularism is an integral part. We do not see how it could be any different than in any public service. Moreover, even a volunteer who, in a municipal social centre, takes the place of a facilitator at reception, is supposed to have to respect a convictional neutrality because of the function he occupies.
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, which was first produced in 2004, was updated in 2015, with the aim of being an aid to decision-making. Context in which the Observatory of Secularism with the then Prime Minister [4], communicated on “a global situation respectful of secularism”, with only 130 cases of “occasional disagreements or conflicts” for religious reasons in recent years. For others [5], it was emphasized that this Observatory had undoubtedly consulted "the President of the Universities" but not "the teachers" and other personnel who could, where appropriate, "bear witness to degraded situations in the establishments where they work". The Observatory of Secularism recommended the establishment of a "secularism referent in each university" whose mission is to “draw up an objective inventory of the situation within its establishment” and to participate "to the resolution of possible conflicts".
The existence of secularism referents does not seem to have significantly advanced the measurement of things. The "surprise report" of the Annual Cycle of IH2EF auditors 2021-2022, relating to “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, sees nothing new. If recent official notes, made public, report recurring and multifaceted facts of refusal to respect the principle of secularism in the public service of the school, the University, for its part, would be spared. In 2003, 24% of French women declaring themselves Muslim said they wore the veil, they were 31% in September 2019 (Ifop), an indicator of identity assertions inseparable from a rise in separatism. The annual reports of the Observatory of Religious Fact in Business show that between 2013 and 2021, the number of blocking cases for religious reasons has gone from 2% to 16% [6]. But at the University, nothing! The article from L'étudiant/l'EducPro already cited, had the following title on the subject: “Secularism: in the face of religious demands, diplomacy is required in universities”, "Diplomacy"? A term that already reveals that it is mainly about avoiding problems, but to what extent?
"Freedom of speech on campus carries the best and the worst" notes, in the aforementioned article, Isabelle de Mecquenem, professor of philosophy and secularism referent at the University of Reims Champagne-Ardenne, saying "disarmed" by "the perversion of a fundamental democratic freedom"The philosopher, who is also a member of the Council of Sages of Secularism, was particularly concerned about the challenges to the teachings. "It would be useful to determine through an investigation whether the phenomenon is getting worse or not.", she concludes. There is undeniably a lack of a real audit on the subject, because we know that nothing serious can really be undertaken without a prior diagnosis worthy of the name. A demand that remains to be heard.
