OSCAR B. PIMENTEL v. LEB; G.R. No.

230642; September 10, 2019

Separate Concurring Opinion: PERLAS-BERNABE, J.:

Academic freedom

The mandatory requirement of passing the PhiLSAT as a pre-requisite for admission to any law school
violate institutional academic freedom and hence, unconstitutional.

Section 5 (2), Article XIV of the 1987 Constitution guarantees that “academic freedom shall be enjoyed
in all institutions pf higher learning.”

This institutional academic freedom includes the right of the schools to decide for itself and how to best
attain them free from outside coercion or interference save possibly when the overriding public
welfare calls for some restraint.

Academic freedom encompasses the freedom to determine:

1. Who may teach;
2. What may be taught;
3. How it shall be taught; and
4. Who may be admitted to study.

This fourth freedom is at the core of the present controversy involving the PhiLSAT.

One of the provisions of PhiLSAT states that no applicant shall be admitted for enrollment as a first year
law student unless he/she passed the PhiLSAT. Non-compliance would result into potential
consequences.

Compliance with the PhiLSAT effectively means surrender of the law schools’ academic freedom to
determine who to admit to their institutions for study.

The surrender of this facet of academic freedom is clearly compulsory because failing to subscribe is
tantamount to the law schools risking complete closure.

This effectively results in the complete control – not mere supervision – of the State over a significant
aspect of the institutions’ academic freedom.

Reasonable supervision vis-à-vis academic freedom

Notably, the core legal basis for the PhiLSAT is derived from Section 4 (1), Article XIV of the 1987
Constitution which provides that “the State shall exercise reasonable supervision and regulation of all
educational institutions.”
“Reasonable supervision,” meant only external and not internal governance; as such, it is meant to
exclude the right to manage, dictate, overrule, prohibit, and dominate.

Reasonable supervision may include State’s determination of the:

a. Minimum unit requirement for specific academic program;
b. General education distribution requirements; and
c. Specific professional subjects.

These activities may fall under the category of “external governance” and hence, “reasonable
supervision,” as compared to a mandatory, exclusively State-crafted aptitude test which not only
operates as a predetermination of the school’s potential candidates but also brandishes the total
closure of the institution.

The latter is a form of State-domination that translates to “internal governance” and hence, the exercise
of the State’s control over academic freedom.

Academic freedom vis-à-vis freedom of expression

The ties between academic freedom and freedom of expression has yet to be definitively settled in our
jurisprudence.

Nevertheless, academic freedom may be construed as an aspect of freedom of expression, and hence,
any regulation thereof is subject to strict scrutiny.

Academic freedom is anchored on the recognition that academic institutions perform a social function,
and its business is conducted for common good.

Thus, the guarantee of the academic freedom is complementary to the freedom of expression and the
freedom of the mind.

Strict scrutiny test; compelling state interest

Strict scrutiny entails that the presumed law must be justified by a compelling state interest, that such
law or policy must be narrowly tailored to achieve that goal or interest, and that the law must be the
least intrusive means for achieving that interest.

While the policy of the State to “uplift the standard of legal education” may be characterized as a
compelling State interest, the means of achieving its goal, through the PhiLSAT, together with its
mandatory and exclusionary features, do not appear to be narrowly tailored or the least intrusive means
for achieving this interest.
PhiLSAT , NMAT, LSAT

There is no showing why the implementation of a standardized but optional State aptitude exam, which
schools may freely adopt in their discretion (such as the NMAT or LSAT in the US), would be less of a
“sifting” measure than a mandatory and exclusively state-determined one (such as the PhiLSAT).

Conclusion

Again, the State’s role is limited to reasonable supervision, not control.

For these reasons, the provisions of LEBMO No. 7-2016 on the PhiLSAT clearly transgress institutional
academic freedom.

Note:

This is a personal digest without any authority or supervision from any law professor. Discreet reading is advised.

Some underscoring supplied to emphasize the details of the ponencia.

References were omitted.

See full text: http://sc.judiciary.gov.ph/8986/