National Union of Students of France v. France
A case on accessing a school admissions algorithm
Forum: Constitutional Council (Le Conseil Constitutionel)
In 2018, the French Ministry of Education and the French Ministry of Higher Education, Research and Innovation rolled out an algorithmic process to help allocate high school students and other candidates to undergraduate places in France.
The system had come in for criticism and had been blamed for increased student anxiety. For example, the system had been called out for the lack of transparency around how allocation decisions were reached and the algorithmic procedures underpinning such decisions.
A case was brought to the Constitutional Council (Le Conseil Constitutionel) of France, the highest constitutional court in the country, to challenge the limitations placed on accessing information on the algorithmic process. It was argued that these limitations were unconstitutional, since they did not comply with the right to access administrative documents and the right to hold public entities to account.
The Constitutional Council did not find the limitations on access unconstitutional. It reasoned that the limitations were serving an objective of general interest in maintaining the independence and authority of the selection process. It was also reassured by the fact that the allocation process was not fully automated.
Finally, it implied that the system was sufficiently transparent because, among other things, candidates could, upon request, receive information on the “criteria and procedures” for examining their applications as well as the “educational reasons” for the decision reached.
When applying for undergraduate courses in France, students had to go through a digital platform called Parcoursup. This platform was used by educational establishments to select and assign students for undergraduate courses. The platform included algorithmic processes that could aid the selection and allocation of places at different educational establishments.
These algorithmic processes were significantly lacking in transparency. Students could only learn more about the decision-making process carried out by Parcoursup after an adverse decision had been made against them. Even then, they would only be provided with “the criteria and procedures for examining their applications” alongside the “educational justification for the decision.” They were not provided with precise information on the rules defining the algorithmic process used and its operational characteristics.
A case was brought before the Constitutional Council by the National Union of Students, which sought to challenge a provision of France’s education law that placed limitations on the French law on algorithmic transparency. A number of organisations intervened in the case, including the digital rights organisation La Quadrature du Net and the Conference of University Presidents.
Under French law, where a government body makes an individual decision using an algorithm, the individual subject to the decision must be informed. Furthermore, where this individual requests it, they must be informed of the rules that define the process followed by the algorithm and its main operational characteristics. It is also a requirement that the government publish online the rules defining the main processes carried out by algorithms in public life and the decisions that are usually taken on the basis of algorithmic processes.
This sits in contrast to French education law, which includes provisions aimed at guaranteeing the secrecy of how teaching teams consider and discuss applications for undergraduate study. According to the education law, the French transparency law described above will be deemed satisfied where candidates are told that they can, upon request, receive information on the “criteria and procedures” for examining their applications as well as the “educational reasons” for the decision reached. In other words, French education law places limitations on the information that can be accessed on algorithmic decision-making by government bodies.
It is a settled principle of French constitutional law that “society has the right to require of every public agent an account of his administration.” In this case, it was argued that the Parcoursup system was used in such a way that hindered students from understanding and challenging important decisions about their education. This limited their ability to hold public education establishments to account. The case sought to challenge the constitutionality of the specific provisions of education law that narrowed algorithmic transparency that was otherwise required of government bodies under French law.
Article 15 of the Declaration of the Rights of Man and of the Citizen (which forms part of the French Constitution): Society has the right to ask a public official for an accounting of his administration
Article L 612-3 of the French Education Code: In order to guarantee the necessary protection of the secrecy of deliberations of the teaching teams responsible for examining applications submitted under the national procedure for pre-registration …, the obligations arising from Articles L. 311-3-1 and L. 312-1-3 of the code of relations between the public and the administration are deemed to be satisfied as soon as the candidates are informed of the possibility to obtain on request, communication of information relating to the criteria and procedures for the examination of their applications as well as the educational reasons which justify the decision in their case.
Article L. 311-3-1 of the French Code of Relations between the Public and the Administration: an individual decision taken on the basis of algorithmic processing [must include] an explicit mention [of such processing] informing the interested party. The rules defining this treatment as well as the main characteristics of its implementation [must be] communicated by the administration to the interested party if he so requests.
Article L. 312-1-3 of the French Code of Relations between the Public and the Administration: [government bodies must] publish online the rules defining the main algorithmic processing used in making individual decisions in the performance of activities.
The Constitutional Council did not find the education law to be unconstitutional. Instead, it found that the limitations placed on algorithmic transparency in this case served an “objective of general interest” and were proportionate to this purpose.
In finding the narrowing of algorithmic transparency requirements in the Parcoursup context to be lawful, the Constitutional Council made a number of findings.
First, it noted that the law was intended to ensure the independence of teaching teams and the authority of their decisions in relation to applications. It did this by maintaining the secrecy of such decision-making. In reaching this finding, it recognised that the relevant algorithmic processes could not be dissociated from the assessment of each application. The Constitutional Council recognised that ensuring secrecy of these deliberations was an “objective of general interest.”
Second, it observed that the process of examining applications was not fully automated. Furthermore, the use algorithmic processes was only a possibility when these decisions were made. Moreover, when appealed, the decision taken on each application could not be exclusively based on an algorithm.
Third, it took into account that students were made aware of the characteristics of the process for admissions before applying and that the decisions on admissions were subject to a publicly available, national framework setting out the criteria for admissions. On this basis, the Constitutional Council found that students could inform themselves of the considerations by which institutions would assess their applications. The Constitutional Council clarified that although there was limited access to information on the process, it was not completely secret.
Lastly, the Constitutional Council found that students, who have had an adverse decision made against them, could request access to information on the criteria and procedures for examining their applications as well as the “educational reasons” for the decision reached. It reasoned that students could, therefore, inform themselves of the prioritisation and weighting of the different criteria in reaching the decision against them. It went on to surmise that this information could include information relating to the criteria used by the algorithm.
The Constitutional Council then went on to make a strong caveat to accompany these findings. It noted that the French education law could not be interpreted in such a way as to prevent the public from accessing information on this decision-making process after the entire admissions process had been carried out and completed. If it were interpreted this way, it would be a disproportionate restriction on the right to access administrative documents.
Therefore, at the end of the process and respecting the privacy of candidates, educational establishments should publish the criteria according to which applications were reviewed and, if so, to what extent algorithmic processing was used to carry out the examination of applications.
The Constitutional Council upheld the education law that limited the algorithmic transparency requirements placed on government bodies.