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Government's Observations On The Appeal Against The Act To Ensure Parity Of Funding Between Public And Private Elementary Schools With Partnership Contracts When They Take Pupils Out Of School ...

Original Language Title: Observations du Gouvernement sur le recours dirigé contre la loi tendant à garantir la parité de financement entre les écoles élémentaires publiques et privées sous contrat d'association lorsqu'elles accueillent des élèves scolarisés hors d...

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JORF n°0251 du 29 octobre 2009 page 18309
text No. 9



Government's observations on the appeal against the law to guarantee the parity of funding between public and private elementary schools under an association contract when they receive students out of their community of residence

NOR: CSCL0924235X ELI: Not available

The Constitutional Council has received, by more than sixty members, an appeal against the law to guarantee the parity of funding between public and private elementary schools under an association contract when they receive students who are schooled outside their commune of residence.
The use tends to censor the law as a whole, stating that it ignores the principle of secularism, the principle of free administration of the territorial authorities by not providing for the transfer of resources corresponding to the burden imposed on the municipalities and the principle of equality before the law.
The appeal by the Government calls for the following comments.

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Before exposing the answers that seem to have to be made to the grievances made by the petitioners, the Government considers it useful, in order to clarify the context in which the bill comes into being, to recall the various steps that have marked the financing regime of elementary schools private by the municipalities.
1. Until the intervention of the Act No. 59-1557 of 31 December 1959 on the relationship between the state and the educational institutions, no funding for private elementary schools was provided. For these schools, the principle, derived from the so-called Goblet law of 30 October 1886, was summarized in the public school formula: public funds; private school, private funds. The so-called Falloux Act of March 15, 1850 allowed public authorities to pay subsidies only to private educational institutions of the second degree.
Article 4 of the Act of 31 December 1959 introduced an important innovation by providing that the operating expenses of the classes of private establishments of the first degree having passed a contract of association with the State would now be borne under the same conditions as those of the corresponding classes of public education. These provisions were amended by the so-called Guermeur Act of 25 November 1977, before being reinstated in their original drafting by Act No. 85-97 of 25 January 1985 amending and supplementing the Act of 22 July 1983 and introducing various provisions relating to relations between the State and the territorial authorities. They are now on the listArticle L. 442-5 of the Education Code.
2. No difficulty in interpreting the law has ever been observed with regard to the care of students when the private educational institution is located in the student's residential community.
Uncertainties have emerged, on the other hand, about the distribution of financial expenses between municipalities in the event that children are schooled outside their home community.In fact, uncertainties have affected both the conditions of care for students in the public and private sectors.
With regard to the care of school fees Public school non-resident children, Act No. 83-663 of 22 July 1983 supplementing the law of 7 January 1983 on the division of competence between municipalities, departments, regions and the State dispelled much of the ambiguities.
Article 23 of this law has in fact laid down the principle of a friendly sharing between the commune of residence and the commune of reception and a mechanism of fixation by the prefect of the respective contributions of the two communes in case of disagreement. The provisions of this Article 23, subsequently amended by the Acts of 25 January 1985 referred to above (Article 16) and No. 86-29 of 9 January 1986 relating to various provisions relating to territorial authorities (Article 37) were codified in article 37Article L. 212-8 of the Education Code.
On the other hand, with regard to schooling in a private school The Act of 25 January 1985 (in its section 18 inserting section 27-5 in the Act of 22 July 1983) merely indicated that only the first paragraph of section 23 of the Act of 22 July 1983 was applicable, i.e., the paragraph providing for an agreement between the host commune and the municipality of residence. These provisions are today (before repealed by the law referred) to first paragraph of Article L. 442-9 of the Education Code.
This minimal intervention by the legislator has led to divergent interpretations of the scope of the obligation on residential communes.
Indeed, in the light of the principle laid down in Article 4 of the Act of 31 December 1959 codified in Article L. 442-5 of the Code of Education, it was possible to estimate that school fees in a private school of non-resident children were to be borne by the municipality of residence without agreement between that commune and the host commune.
But it was also possible to deduct from article L. 442-9 the consequence that, in the absence of an agreement between the municipality of residence and the host municipality, neither of the two was required to cover the operating expenses of a private school related to students not residing in the municipality of the institution. This is in any case the interpretation that was retained by the administrative judge (EC 19 April 1991, National Union of Christian Education [CFTC] et al., Lebon T., p. 653).
In fact, the absence of an arbitration arrangement in the event of a lack of amicable agreement has often led to the fact that expenses related to students of private elementary education outside their commune are not borne by the municipalities of residence or by the host communes. The contribution was due only when the school in question was a public school, the lack of symmetry of the funding regime could result in a perverse effect leading municipalities without schools to advise parents of students to enrol their children in private education outside the commune to exempt themselves from any financial burden.
TheArticle 89 of Act No. 2004-809 of 13 August 2004 relating to local freedoms and responsibilities has closed the way for this undesirable effect of the funding regime, by making applicable the first three paragraphs of Article L. 212-8 of the Education Code to the calculation of the contributions of municipalities to the mandatory expenses concerning the classes of private schools under association contract.
But the only partial resumption of the content of article L. 212-8 gave in turn two different interpretations.
It was, in fact, possible to estimate that the absence of explicit reference to the two major categories, limiting, making funding mandatory in the case of public school (the absence of capacity to accommodate in a public school, on the one hand, the three reasons for the professional constraints of parents, the schooling in the same commune of brothers or sisters or for medical reasons, on the other hand) imposed an unconditional obligation of children to pay for their children.
But another interpretation, more respectful of the general economy of the law of December 31, 1959, came for her part, by combining article 89 of the law of August 13, 2004 with the provisions of article L. 442-5 of the Code of Education, to ask for principle that the commune of residence was not required to take charge of the operating expenses related to a school student in the private school of a neighbouring commune. This is the interpretation that was retained by the Government in two circulars dated 2 December 2005 and 27 August 2007.
The deferred law takes on its account the latter interpretation, and explicates it by inserting in the education code an article L. 442-5-1 that the contribution of the commune of residence for a student who attends school in another commune in an elementary class of a private institution of the first degree under association contract constitutes a mandatory expense when this contribution would also have been due if that student had been schooled in one of the public schools of the commune.
The article further specifies the consequences to be derived from this principle: it is indicated that the contribution is mandatory only when the commune of residence does not have the capacity to accommodate in its public schools or when schooling in the host commune is justified by constraints related to the professional obligations of the parents, to schooling in the same commune of brothers and sisters or to medical reasons, which constitutes the exact resumption of the conditions laid down in article L. 212-8.

I. ― On the grievance from unknowing
the principle of secularism

A. ― The authors of the referral believe that by strengthening the financial transfers of public funds to organizations attached to cult or faith associations, the referred law would contravene the principle of secularism.
B. ― The Constitutional Council cannot follow this analysis.
The above-mentioned law respects the principles enshrined in the jurisprudence of the Constitutional Council, including its three decisions No. 77-87 DC of 23 November 1977, No.° 84-185 DC of 18 January 1985 and No. 93-329 DC of 13 January 1994.
in fact, the three decisions point out that if the freedom of education, which is a fundamental principle recognized by the laws of the Republic, does not necessarily have a strict parity of financing between public institutions and private institutions even under an association contract, no constitutional principle precludes that particular modalities of financing of these institutions are provided in their principle or that they are close to or equal in their amount of public institutions.
Without a doubt, it is prohibited for legislators to reserve more favourable treatment for private educational institutions (decision 93-329 of 13 January 1994). Undoubtedly, it may be argued that freedom of education would be deprived of a legal guarantee if the legislator refrained from any public funding initiative. But, between these extremes, the legislator has a margin of appreciation, in accordance with the principle of equality, with regard to the missions and charges that weigh on private educational institutions under contract of association and public institutions.
In this case, the referred law does not, at most, align the funding regime for students who attend school outside their municipality of residence in private elementary education (under an association contract) with the regime applicable to public school. It respects the framework laid down by the jurisprudence of the Constitutional Council.
In addition, it should be emphasized that by clarifying in this sense the rule of law the deferred law hinders the other unconditional interpretation that could have been given under section 89 of the Act of 13 August 2004. To this extent, the deferred law can be seen as a conciliation between the freedom of teaching and the principle of secularism more favourable to this latter principle than the state of previous law.
This first grievance will therefore be dismissed.

II. ― On the Grievance of the Principle
free administration of territorial authorities


A. ― The authors of the referral argue that by imposing on residential municipalities the financing of private schools located in neighbouring municipalities, without foreseeing the transfer of resources for consideration, the law would ignore the principle of free administration of local authorities.
B. – Such a grievance is in fact missing.
It will be noted, first of all, that a transfer of resources is required by theArticle 72 (2) of the Constitution in case of transfer of competence between the State and the territorial authorities. However, there is no transfer of powers under the law.
It is true that section 72-2 also provides that the creation or extension of competencies resulting in an increase in the expenses of territorial authorities must be accompanied by resources determined by law. But the deferred law is limited, as it has just been said, to explain the state of the existing law: it has neither the object nor the effect of creating additional burden for the municipalities. It therefore did not have to provide for any funding under Article 72-2 of the Constitution.

III. ― On the Grievance of Unknowledge
the principle of equality


A. ― The authors of the case at last argue that the law referred to would ignore the principle of equality before public office.
B. The Government does not share this view.
1. First of all, it will be observed that, under constant jurisprudence, the constitutional principle of equality is not an obstacle to the equal treatment of different situations by the legislature. Consequently, it cannot be usefully argued that it would be contrary to the principle of equality to treat public education and private education in a comparable manner. The law referred merely to place in an equivalent situation private institutions under contract and public institutions, without dealing more favourably with the former, it is not contrary to the principle of equality and respects the limit imposed by the constitutional jurisprudence on freedom of education.
2. As to the specific criticism from what the mayor could oppose the financing in the case of a public institution and not in that of a private institution, at the expense of the principle of equality, it proceeds with an inaccurate analysis of the law referred to.
It should be noted that the mayor's agreement mentioned by the authors of the referral is required by article L. 212-8 of the Education Code in the event of a child's schooling in a public school in a community of reception only in the case where the commune of residence has the capacity to accommodate in its public schools.
On the other hand, in the case where the municipality of residence has no capacity to accommodate, or if one of the three reasons derived from particular constraints (parents' professional obligations, fratrie grouping, medical reasons) is satisfied, the mayor of the commune of residence does not have to give prior agreement to schooling in the public school of a neighbouring commune.
The only particularity that will affect private schools in the regime provided for by the above-mentioned law will be the fact that the mayor of the commune of residence has no prior agreement to give to a family who wishes to enrol his child in the private school of a neighbouring commune in the case where there is still a capacity to accommodate in public schools in the commune of residence.
But this situation does not have a financial consequence: if the mayor of the commune of residence who has the capacity to accommodate in public schools will not be able to oppose the schooling of a child resident in a private school in a host community, he will not, however, have to take charge of the related defences.
It will be observed, however, that the requirement for such an agreement by the mayor would have met a constitutional obstacle, respect for the freedom of education prohibiting the legislator from predicting that communes might oppose the free choice of parents.

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The authors of the case claim, in fine, that, under the guise of a critique of the law referred to, they also hear that the Constitutional Council is seized of the constitutionality of articles 87 and 89 of the law of 13 August 2004 by application of its jurisprudence resulting from the Decision No. 85-187 DC of 25 January 1985 relating to the state of emergency in New Caledonia, which authorizes that "regularity under the Constitution of the terms of a law promulgated [or] usefully contested in the examination of legislative provisions that amend it, supplement it or affect its area".
The challenge, on the assumption of its operation, is not serious as it relates to section 87 of the Act of 13 August 2004. In fact, this article limited itself to the partial rewriting of Article L. 212-8 of the Code of Education in order to provide for the case in which municipalities of reception or residence are members of a public intercommunal cooperation institution responsible for the functioning of public schools. However, no grievance is directly articulated in the referral against the Distribution mechanism expenses between residential municipalities and host communes.
As to the challenge of Article 89 of the Act of 13 August 2004, it does not appear to be permitted by the jurisprudence of Decision No. 85-187 DC, which only understands itself to the extent that it allows the Constitutional Council, seized by action of a provision not yet promulgated and amending an earlier provision still in force, to exercise constitutional control over the consolidated provision. However, this case law cannot lead the Constitutional Council to make a decision on a repealed provision that will no longer be subject to application. However, the deferred law is specifically intended to repeal section 89 of the Act of 13 August 2004.
For these reasons, the Government is of the opinion that the grievances articulated in the referral are not likely to lead neither to the censorship of the referred law nor to that of sections 87 and 89 of the Act of August 13, 2004.
He therefore considered that the Constitutional Council should reject the appeal before it.


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