What is a disciplinary council at the University?
At the University, students are subject to rules that are monitored for compliance. In case of breach of these rules, the university can decide to appeal to the disciplinary council (the disciplinary section) to sanction the student who has committed a disciplinary fault.
The disciplinary procedure in public universities, which are public institutions of higher education, is provided for in articles L.712-4 and R.712-8 of the Education Code.
The court of first instance is the university’s disciplinary board. The law provides that this disciplinary section is composed of six representatives of the teaching staff, and six representatives of the students.
The court of appeal is the disciplinary CNESER (Conseil National de l’Enseignement Supérieur et de la Recherche), which is composed of four faculty representatives and four student representatives. This body can therefore be seized by any student who has been the subject of a disciplinary procedure and who challenges the decision rendered by the disciplinary section of his or her university.
Finally, the disciplinary decisions of the CNESER can be appealed to the Conseil d’Etat.
Until a decree of June 26, 2020, the appeal jurisdiction was the disciplinary CNESER (Conseil National de l’Enseignement Supérieur et de la Recherche), which was composed of four faculty representatives and four student representatives.
Since the decree of June 26, 2020, students can no longer appeal to the disciplinary CNESER, but must, if they wish to contest the decision rendered against them, refer to the administrative court.
When the disciplinary decision rendered against a student emanates from a higher education institution under private law, the competent jurisdiction to hear a challenge depends on the type of sanction that was rendered: if the sanction is taken on the basis of a prerogative of the public power, it must be referred to the administrative court, whereas if it is not taken on such a basis, it must be referred to the judicial court.
The disciplinary CNESER is now only competent for sanctions taken against professors.
Appeals against disciplinary boards in private schools
When a disciplinary decision is taken against a student by a private institution of higher education, the competent court to hear the case depends on the type of sanction: if the sanction is based on public authority prerogatives, the case must be referred to the administrative court, whereas if it is not based on public authority prerogatives, the case must be referred to the judicial court.
When the disciplinary decision rendered against a student emanates from a higher education institution under private law, the competent jurisdiction to hear a challenge depends on the type of sanction that was rendered: if the sanction is taken on the basis of a prerogative of the public power, it must be referred to the administrative court, whereas if it is not taken on such a basis, it must be referred to the judicial court.
In what cases do we go to the disciplinary board?
In practice, students are subject to disciplinary procedures mainly in the case of fraud (during a university exam, a competition, a registration…).
Such fraud can be a classic attempt to cheat in an exam, or plagiarism (plagiarism of a thesis, plagiarism in an internship report, in a thesis…), falsification of a diploma…
Beyond that, the disciplinary procedure concerns all facts likely to undermine the order or the proper functioning of the university. This very broad definition includes violence committed by students.
Under the influence of the “me too” phenomenon, many students are being prosecuted for acts of a sexual nature. While it’s a good thing that people are speaking out and that aggressors no longer go unpunished, it is essential to respect the presumption of innocence, including in the educational environment.
Depending on the seriousness of the student’s misconduct, the applicable sanctions can range from a simple warning to permanent exclusion from the institution of higher education, as well as bans from taking exams.
What is the role of the lawyer during a disciplinary board at the university?
For a student who goes before a disciplinary committee at the university, it is essential to have a good defense. This defense can be provided by a lawyer, whose presence is useful to help the student prepare his or her own statements, raise any procedural nullities and, of course, plead the case.
Alexandre-M. BRAUN knows these procedures because he was himself a member of the disciplinary CNESER during his studies.
Here are a few examples of recent cases:
– Defense of a student suspected of sexual assault at a leading Parisian school: no sanction was imposed, the disciplinary committee noting that it did not have “sufficient, precise and detailed evidence”.
– Defense of a student prosecuted for fraud at a university: at the request of the defense, the Disciplinary Committee ruled that the investigations were null and void and acquitted the student.
– Defense of a student who used a smartphone during an exam: penalty limited to a one-year suspended ban, given the circumstances presented by the defense.