What is Low isn’t Free
Does raising tuition fees violate the French constitution?
Emmanuel Macron’s proposition to raise university tuition fees in France was met with much criticism, including that it would be unconstitutional. Yet, French law is not very clear on this point. In fact, the latest case law provides a path for the government to dramatically raise tuition fees. This results from a recent decision of the highest administrative court, the Conseil d’Etat, whose implications went largely unnoticed. What the Conseil d’Etat decided regarding the massive raise of foreign students’ tuition fees, effectively amounted to overturning a landmark preliminary ruling of the French constitutional court, the Conseil Constitutionnel.
Welcome in France
“A systemic transformation of our universities” is what Emmanuel Macron suggested in his address to the French Conference of University Presidents last week. In this address he took stock of the reforms undertaken in his first term and provided a blueprint for the coming years. As such, it was widely understood to be part of his (covert) campaign for reelection as French President. Macron’s most remarkable suggestion is to get rid of France’s low tuition fees, which, according to him, force the state to “invest at a loss” in universities, leaving students without perspectives and jobs.
While the president carefully avoided to give any details on what will certainly be a politically sensitive decision, he said that France “cannot sustainably retain a system, in which higher education comes at no price for quasi-all students”, but which can neither reduce student precarity, nor confront international competition. Macron also criticized the “waste” of having a high dropout rate in the first year of study, despite significant public investment. On Tuesday the government was repeatedly questioned on this precise matter at the National Assembly. It denied that the president had openly proposed a raise in tuition fees, but also carefully avoided any commitment in this respect. While the future is hard to predict, Macron – if reelected in April – could face few legal obstacles to raise tuition fees.
In Association UNEDESEP e.a., student unions challenged before the Conseil d’Etat a law on which Macron’s government in 2019 based the decision to multiply the tuition fees of foreign students that are not EEA nationals by more than fifteen, from €170 (bachelor) and €243 (master) to €2,770 and €3,770 respectively per year. This decision was issued in the context of the government’s new strategy “Bienvenue en France” (sic!) to boost the attractiveness of French higher education by increasing the number of services delivered to foreign students. The government’s strategy was highly controversial and some already feared that it could be the first step of a wider raise of tuition fees, in line with a neoliberal trend that has been noticed in Anglo-Saxon countries. The controversy forced the government to partly backtrack by exempting PhD students and students already registered in a French university as well as by leaving some leeway for universities to exempt students from the new tuition fees. The student unions’ legal challenge of the decision continued nonetheless.
What is low isn’t free
Following a preliminary reference from the Conseil d’Etat, the Conseil Constitutionnel was asked to interpret the 13th recital of the Preamble to the 1946 Constitution, which is part of the corpus of constitutional norms against which the Conseil Constitutionnel examines the constitutionality of legislation (pursuant to its 1975 IVG decision). This norm provides that “The Nation guarantees equal access for children and adults to instruction, vocational training and culture. The provision of free, public and secular education at all levels is a duty of the State.” Hence, the applicant’s question was essentially whether this implied that higher education in France should be free of all tuition fees? Traditionally, the French doctrine considered that higher education was not concerned by the provision of free education, as “instruction” was usually understood as referring to school education in French.
It is a very short response, even by French standards, that the Conseil Constitutionnel delivered in its decision n°2019-809 QPC of 11 October 2019. As such, it deserves to be cited in extenso: “It results from this provision that the constitutional requirement of free provision applies to public higher education. This requirement does not preclude, for this level of education, that low tuition fees are charged taking into account, however, the students’ financial abilities.” The reasoning is a bit odd prima facie, as there is a significant distinction between what is free and what is low. Yet, the Conseil Constitutionnel interpreted the constitutional norm as precluding the government from charging expensive tuition fees.
Defining what is “low” is the gordian nod of the Conseil Constitutionnel’s decision, which used the French term “modique”. Modique is defined in French as “what is low” (Larousse) and comes from the Latin word modicus, translated as “moderate” by the French Latinist Félix Gaffiot in his dictionary of 1934. The exact and potential fee range is, thus, not defined by the Conseil Constitutionnel, even though it referred to “students’ financial abilities”.
The Conseil Constitutionnel concluded its decision by considering that the challenged legislation was not unconstitutional. Although that legislation, specifically Article 48(3) of the budget law for 1951 (law n° 51-598), was the basis of the government’s decision, it is merely enabling ministers to set the amount of tuition fees, “which they must do, under the judge’s control, (…) in accordance with the constitutional requirement of free higher education”. This landmark ruling was widely interpreted as a blow to the government and potentially the beginning of a reconsideration of the French system of tuition fees, depending on how strictly the Conseil d’Etat would apply the constitutional requirement.
Stabbing constitutional interpretation in the back
Nine months later, it turned out that the Conseil d’Etat did not see things that way at all. In its final decision n°430121, Association UNEDESEP e.a., the Conseil d’Etat decided that the government’s decision to raise tuition fees for non-EEA students was constitutional and did not violate the requirement of free higher education as interpreted by the Conseil Constitutionnel. Interestingly, the Conseil d’Etat’s English version of the decision uses “modest” to translate “modique”. According to the court, it results from the constitutional ruling that “the modest nature of the registration fees charged to users […] must be assessed in the light of the cost of those courses, taking into account all the provisions under which users may be exempted from the payment of those fees”. The Conseil d’Etat continued by calculating that the higher tuition fees charged to non-EEA students represented only a fraction (30% to 40%) of the “real cost” of the courses provided in public higher education. It also referred to several arrangements that could provide for tuition waivers at the discretion of the minister or the universities.
Thus, the Conseil d’Etat’s reasoning shows critical differences from the interpretation delivered by the Conseil Constitutionnel, which casts doubt on the extent to which the Conseil d’Etat abided by the constitutional res judicata. Whereas the Conseil Constitutionnel required a maxima low tuition fees that take into account students’ financial abilities, the Conseil d’Etat ruled that the modest character of the tuition fees must be determined by the real cost of the courses – a consideration that is absent from the Conseil Constitutionnel’s decision and which leads to much higher tuition fees being seen as constitutional of course. What the Conseil d’Etat examines is not so much if the government’s decision complies with the requirement of free higher education, but more if it is in line with an equal access to instruction. The court also casts doubt on whether foreign students can benefit from this constitutional requirement. A differentiation that the Conseil Constitutionnel did not make. As a result, non-EEA students are now effectively charged tuition fees that are neither low, nor modest, and that do not take into account their financial abilities, given that most of them come from emerging and least developed countries.
By deciding this case with a substantially different reasoning from the Conseil Constitutionnel, the Conseil d’Etat committed an act close to judicial disobedience that reflects poorly on its responsibility as France’s highest administrative court and legal advisor to the government. But most importantly, it paves the way for a significant increase of tuition fees in the future for French and EEA students as well. Even if this would be a politically sensitive move, it seems that the government could well rely on the support of the Conseil d’Etat. Provided that some scholarships and exemptions are offered, the government could multiply tuition fees by 15 as it did with non-EEA students and still claim that these are “low” given the actual cost of the courses.