France’s Héran report on racial and ethnic statistics

France’s Committee on the Assessment of Diversity and Discriminations (Comedd) issued its report on ethnic statistics last week, stating that legislative reform is not needed in order to permit the State to better assess and combat discriminations on racial and other grounds in various contexts. Le Monde noted that “the defenders of the single and indivisible Republic had rejected the idea that distinctions could be made between French citizens on the basis of their ethnic origins. They were opposed by those who believed that discrimination could only be combated through such distinctions.” The committee argued that statistical methods currently permitted under French law – such as the assessment persons’ origins on the basis of their nationality, parents’ nationality or country of birth – was sufficient in order to measure diversity and discrimination, as an alternative to the controversial use of ethnic and racial criteria in state censes.

The 1978 law governing the use of ethnic and racial statistics allows for exceptions to the general prohibition on the use of such criteria, insisting on conditions such as individual consent to the gathering of such information, as well as a requirement of public interest, subject to review by the National Council for Information Technology and Liberties The Conseil Constitutionnel has held that while “the a priori definition of an ethno-racial criterion” is incompatible with the French Constitution, it permits the use of “subjective” criteria, relating to “sentiment of belonging” (“ressenti d’appartenance”). The report emphasised that information could not be assessed on the basis of the “perception” or assignment of ethnic or racial status on the part of officials. Thus, while French law appears to permit the gathering of ethnic and racial statistics on the basis of “self-identification” rather than on the basis of any objective or “a priori” categories of origin – what François Héran himself disparagingly termed the “American-style nomenclature of groups attaining the administration’s favour” – the Héran report rejects the need to further extend this domain of intervention. The “end point” of any such statistical analysis, writes Van Eeckhout in Le Monde, “must not be the placing of individuals in ethno-racial categories, nor their ‘profiling’, but simply better combating discrimimation.”

This report would appear to further frustrate, albeit inadvertently, Nicolas Sarkozy’s initial stance, as Minister of the Interior, on ethnicity and race. He initially promoted “affirmative action” policies in universities and the public sector, which he later re-cast as positive discrimination on territorial rather than racial grounds. The commission presided by Simone Veil recommended in 2008 that positive discrimination use social rather than ethno-racial criteria, in view of its fear of “enclosing each in his identity and history.” In response to this latest report on the question of ethnic and racial distinctions, Patrick Lozès, head of CRAN, the Conseil représentatif des associations noires (representative council of black associations), has stated that the report signals “the closing of the scientific phase, and the opening of the political phase”, arguing that a law on ethnic statistics is necessary to the effective combating and evaluation of discrimination.