THE Supreme Court was asked in Pimentel v. Legal Education Board (2019) to rule on the constitutionality of a regulatory pre-determined passing mark for the Philippine Law School admission test. The Supreme Court swung the scythe. It declared unconstitutional any interference with the academic freedom of law schools and colleges. It forbade the Legal Education Board from imposing sanctions on law schools that did not require its professors to earn master’s degrees in law as a condition for teaching.
It rejected regulatory gatekeeping in respect to admission to graduate studies in law, ruling, quite felicitously, that professionals from other professions with an interest in the law should not be barred from following courses offered by graduate schools of law. Pimentel — both the 2019 decision and the 2021 resolution — can correctly be considered the magna carta of academic freedom.
Since the Commission on Higher Education (CHED) was not a party to the case, it was not impleaded. But there is a fundamental rule of constitutional law: When the Supreme Court lays down doctrine interpreting the Constitution, such a pronouncement binds all departments, offices, agencies and instrumentalities of government. What the Supreme Court has ruled in respect to academic freedom should be read, understood and applied by the Commission on Higher Education. In this respect, Senior Associate Justice Marvic Leonen’s separate opinion, though not mandatory authority, should be persuasive. The less the interference of the State in higher education, the better for academe. And at the moment, the Commission on Higher Education — having compiled so many CHED Memorandum Orders as well as Policies, Standards and Guidelines (PSGs) — virtually controls every aspect of higher education. It is required, for example, that all who teach in college or university-level courses should have master’s degrees, no matter their expertise or the wealth of their experience. The ranking of professors and instructors is hardly in the hands of academic institutions, because the CHED lays down criteria that include such items as number of publications and the number of items one’s articles are cited.
Even the manner of conducting classes is regulated. Despite the fact that the pandemic taught us valuable lessons on distance-delivery and virtual instruction — and we have learned valuable lessons as well as adopted useful technologies — to offer online courses, authority from CHED must be granted. To accept foreign students and to send our students to universities abroad, yet another kind of permit is required. The present chairman of CHED is not to be blamed. She inherited a ton-full of asphyxiating regulations from administrations past. But it is time to do what needs to be done.
I therefore urge the commission, on its own, to review Pimentel v. LEB and thereafter to revisit its regulatory scheme. The Frankfurter indicia of academic freedom remain normative: the freedom to determine what to teach, who to teach, who should teach and how to teach. No ifs or buts. No qualifications, derogations or provisos.
Let us be clear about what Pimentel v. LEB held:
First: It is unconstitutional for regulatory authority to prescribe faculty qualification standards in a way that derogates from the academic freedom of the institution to determine who should teach.
Second: It is unconstitutional for a regulatory agency to determine how students should be chosen for admission to a program of study.
Third: It is unconstitutional for an administrative agency to substitute its judgement for that of the institution in regard to a standardized admission test.
Fourth: And, in reliance on earlier jurisprudence, particularly Camacho v. Coresis (2002), it is unconstitutional for a regulatory agency to determine for an institution how instruction should be delivered.
The constitutional basis for the exercise of regulatory power is police power — and as a principally protective and limiting power, powers should be construed narrowly and strictly, in favor of greater freedom, flexibility and adaptability on the part of higher education institutions.
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph
