NO, this is not going to be some dreary piece on the philosophy of law — but it does have to do with the spirit of the law, particularly the intendment of the constitutional provision on academic freedom. Thanks to a robust interpretation of this dimension of human freedom by the Supreme Court, we do not lag behind other jurisdictions that have recognized it and applied it to controversies, one of the latest of which was Pimentel v. Legal Education Board — both the main decision and the resolution disposing of the motions for reconsideration filed by the contending parties.

One necessary starting point is the recognition that the right is justiciable — it can be claimed before and enforced by the courts. And the Supreme Court has not dealt with academic freedom in niggardly fashion. Aside from accepting the classic formulation of Justice Frankfurter — the freedom to decide what to teach, who to teach, how to teach and who should teach — the Court has dwelt on other facets, recognizing, principally that academic freedom includes two freedoms, actually: there is the freedom of the scholar to conduct research and study, and to publish and disseminate the results of his research, on the one hand, and institutional academic freedom on the other that the 1987 Constitution guarantees all institutions of higher education.

For the longest time now, I have insisted that the jurisprudence enunciated by the LEB case had to apply — both by the requirements of parity of reasoning as well as by reason of the equal protection clause — to the Commission on Higher Education. In regard to the Philippine Law School admission test, for example, the Supreme Court did not really outlaw the test. What it did rule, however, is that the LEB could not substitute its judgment for that of law schools in the matter of who to admit as law students. It is true, of course, that equally part of Philippine jurisprudence is the Court's decision challenging the National Medical Admission Test (NMAT), but if it has been held — and rightly so, I believe — that it is for the university, in the exercise of its academic freedom, to determine who to admit as students, then the Commission on Higher Education (CHEd) has no business prescribing a minimum NMAT score for entering medical students. If it should be facetiously argued that the danger to life posed by incompetents makes prescribing a minimum acceptable passing mark imperative, then the matter of the administration of justice — or its maladministration — by incompetent officers of the Court is not any less serious!

One merely has to go over the roster of CHEd memorandum orders as well as policies, standards and guidelines to be convinced that every doctrine enunciated by the Supreme Court in the LEB case — as well as in earlier cases — is transgressed. The Court significantly held that while a master's degree could be required of professors of law, it was not within the purview of the LEB's authority to prescribe sanctions for non-compliance with this requirement because, once more, this would run afoul of the institution's right to determine "who should teach." But CHEd policies, standards and guidelines do exactly that: they determine who is qualified to teach certain courses and who is not — and it has an armory full of sanctions in varying degrees of subtlety with which to deal with non-compliant colleges and universities. A college that does not comply with CHEd's requirements on the qualifications of professors for certain courses can be denied the coveted certificate of program completion or accreditation status.

It is time, I believe, to take to heart Justice Marvic Leonen's separate — really dissenting — opinion. Justice Leonen, who was an academic before his appointment to the Supreme Court, knows whereof he speaks. Very boldly, he asserts that any state interference in higher education is unwanted, unnecessary and unwelcome. Higher education institutions should, as in other mature jurisdictions, be recognized as zones of freedom. Within their precincts, Jean-Francois Lyotard writes in his "The Post-Modern Condition: A Report on Knowledge," state decrees, prescriptions and orders are mere static — unwanted disturbances and interferences with the clarity of academic and intellectual discourse.

In fact, the very concept of a regulatory authority for higher education rests on the unwarranted assumption that the men and women appointed to the agency, board or commission are repositories of privileged insight into higher education — an assumption that would be downright hilarious if it were not tragic because of the imperiousness with which CHEd has dominated and colonized higher education. A community of academics is self-policing. Michael Polanyi writes powerfully on this point: The community of scientists cleanses its own ranks of quacks and frauds whose scribblings and cackling receive no attention, paid no heed! The more power is given a central agency of control, remarks Polanyi, the more the academic exchange is deprived of the richness that would inure to it were each intellectual, scientist, researcher and academic free to convince his peers and to establish his own reputation instead of having it conferred upon him by the organs of State.

In one decision, the Supreme Court was asked whether an academic institution could permissibly confer a degree on one who did not attend classes. The Supreme Court ruled that if the academic policies of the institution allowed for alternative modes of delivery, then, yes, the institution could licitly confer a degree. In another, the Supreme Court was asked to rule on the future of a professor of a state university who, while impeded by a Civil Service Commission, was, in fact, promoted by the university. Once more, the Court sided with the institution and affirmed its right to choose "who would teach," the objections of the Civil Service Commission notwithstanding.

That there is a yawning abyss between the spirit of the law on academic freedom and praxis can be blamed partly on colleges and universities themselves, which, fearful of reprisals and disincentives, have been diffident about challenging CHEd rules and regulations and seeking relief from its stranglehold over higher education.

rannie_aquino@sanbeda.edu.ph

rannie_aquino@csu.edu.ph

rannie_aquino@outlook.com