G.R. No. 230642 - Concurring & Dissenting Opinion

G.R. No. 230642, September 10, 2019,
♦ Decision, J. Reyes, Jr., [J]
♦ Separate Concurring Opinion, Perlas-Bernabe, [J]
♦ Separate Concurring & Dissenting Opinion, Leonen, [J]
♦ Concurring & Dissenting Opinion, Jardeleza, [J]
♦ Separate Concurring Opinion, Caguioa, [J]
♦ Concurring Opinion, A. Reyes, Jr., [J]
♦ Separate Concurring & Dissenting Opinion, Gesmundo, [J]
♦ Concurring & Dissenting Opinion, Lazaro-Javier, [J]

ATTYS. ANTHONY D. BENGZON, FERDINAND M. NEGRE, MICHAEL Z. UNTALAN; JONATHAN Q. PEREZ, SAMANTHA WESLEY K. ROSALES, ERIKA M. ALFONSO, KRYS VALEN O. MARTINEZ, RYAN CEAZAR P. ROMANO, AND KENNETH C. VARONA, RESPONDENTS-IN-INTERVENTION;

APRIL D. CABALLERO, JEREY C. CASTARDO, MC WELLROE P. BRINGAS, RHUFFY D. FEDERE, CONRAD THEODORE A. MATUTINO AND NUMEROUS OTHERS SIMILARLY SITUATED, ST. THOMAS MORE SCHOOL OF LAW AND BUSINESS, INC., REPRESENTED BY ITS PRESIDENT RODOLFO C. RAPISTA, FOR HIMSELF AND AS FOUNDER, DEAN AND PROFESSOR, OF THE COLLEGE OF LAW, JUDY MARIE RAPISTA-TAN, LYNNART WALFORD A. TAN, IAN M. ENTERINA, NEIL JOHN VILLARICO AS LAW PROFESSORS AND AS CONCERNED CITIZENS, PETITIONERS-INTERVENORS;

FRANCIS JOSE LEAN L. ABAYATA,GRETCHEN M. VASQUEZ, SHEENAH S. ILUSTRISMO, RALPH LOUIE SALAÑO, AIREEN MONICA B. GUZMAN, DELFINO ODIAS, DARYL DELA CRUZ, CLAIRE SUICO, AIVIE S. PESCADERO, NIÑA CHRISTINE DELA PAZ, SHEMARK K. QUENIAHAN, AL JAY T. MEJOS, ROCELLYN L. DAÑO,* MICHAEL ADOLFO, RONALD A. ATIG, LYNNETTE C. LUMAYAG, MARY CHRIS LAGERA, TIMOTHY B. FRANCISCO, SHEILA MARIE C. DANDAN, MADELINE C. DELA PEÑA, DARLIN R. VILLAMOR, LORENZANA L. LLORICO, AND JAN IVAN M. SANTAMARIA, PETITIONERS, VS. HON. SALVADOR MEDIALDEA, EXECUTIVE SECRETARY, AND LEGAL EDUCATION BOARD, HEREIN REPRESENTED BY ITS CHAIRPERSON, EMERSON B. AQUENDE, RESPONDENTS.

Petitioners in the present consolidated cases1 seek the Court's issuance of a writ of prohibition and a writ of preliminary injunction or temporary restraining order to keep the Legal Education Board (herein after referred to as the "LEB Law") from holding the Nationwide Uniform Law School Admission Test (PhilSAT) for, among others, its violation of academic freedom. They also ultimately pray that Republic Act No. 7662,2 the LEB Law be stricken down as unconstitutional, for its encroachment on the exclusive jurisdiction of the Supreme Court in promulgating rules concerning the admission to the practice of law, as provided for in Article VIII, Section 5(5) of the 1987 Constitution.

I concur with the ponencia insofar as it holds that the Court has no jurisdiction over legal education.3 Both statutory history and legislative intent contemplate a separation between legal education and the law profession; and the regulation and supervision of legal education, including admissions thereto, fall within the scope of the State's police power. However, and for reasons I shall hereinafter set out, I must dissent from the majority's ruling to partially nullify Legal Education Board Memorandum Order (LEBMO) No. 7-2015 "insofar as it absolutely prescribes the passing of the PhiLSAT x x x as a pre-requisite for admission to any law school which, on its face, run directly counter to institutional academic freedom."4

With respect, I submit that: (I) the invocation of academic freedom as a ground for the partial nullification of the challenged LEBMO is misplaced; (II) the provision by the State of a standardized exclusionary exam for purposes of admission to a law school is a valid exercise of police power; and (III) the resolution of the challenge against the State regulation's reasonableness involve underlying questions of fact which cannot be resolved by this Court at the first instance.

My above reservation is heightened by my own research which yields a conclusion different from the conclusion of fact reached by the ponencia5 that the National Medical Admission Test (NMAT) upheld in Tablarin v. Gutierrez6 does not have a cut-off or passing score requirement. As I shall also hereinafter show, the NMAT is no different from the PhiLSAT insofar as it also employs an exclusionary (or, in the words of the ponencia, "totalitarian") scheme in terms of student admissions.7 I see no reason why both tests should merit different treatment.

My survey of its venerable history and application in Philippine jurisprudence convince me that the concept of academic freedom has different applications, depending on the character of the party invoking it as a right. And, in instances when academic freedom has been invoked as a personal right-that is, one in favor of individuals (whether an educator or a student), the same has been always been inextricably linked (or discussed in relation) to said individual's broader freedom of expression.

The concept of academic freedom began in medieval Europe, where it was used as to protect universities as a community of scholars against ecclesiastical and political intrusion. It was then carried over to Latin America, where it was used to create sanctuaries out of universities for people who were under political persecution.8 Academic freedom thereafter developed as a legal right consisting of three key concepts: (1) the philosophy of intellectual freedom for teachers and scholars; (2) the idea of autonomy for the university as a community of scholars; and (3) the guarantee of free expression in the Constitution.9

Similarly, the conceptualization of academic freedom in the United States (U.S.) is that it exists to protect scholarship in higher education from untoward political intrusions, mainly through allowing universities to enjoy autonomy over policies of education.10 Furthermore, while it is conceded to overlap with civic free speech, academic freedom is delineated from the former by limiting it as professional speech within higher education, rather than the rights of expression granted to citizens against broader governmental interference.11

The first mention of academic freedom in a U.S. Supreme Court case came with the promulgation of Adler v. Board of Education of the City of New York.12 This case involved a New York State statute13 which required public employees to take loyalty oaths as a condition for their continued employment, and effectively banned state employees from belonging to "subversive groups" under pains of termination. Although the statute was upheld by the Court as a valid exercise of police power,14 Justice William Douglas,15 in his key Dissenting Opinion, couched the discourse of academic freedom within the context of freedom of thought and expression. He opined:

In the same year, the U.S. Supreme Court decided the case of Wieman v. Updegraff,17 where it struck down as unconstitutional a "loyalty oath" statute18 required of state employees, including the faculty and staff of Oklahoma Agricultural and Mechanical College, which had the effect of excluding persons from state employment solely on the basis of membership in organizations tagged as "subversive," regardless of their knowledge of the activities and purposes of said organizations.19

Justice Hugo Black, in his Concurring Opinion in Wieman, explained that test oaths were notorious tools of tyranny that inevitably stifle freedom of expression and freedom of the press, and is counter to the crucial uncompromising interpretation of the Bill of Rights.20 In support, Justice Felix Frankfurter cautioned that statutes that unwarrantedly inhibit the free spirit of teachers will create a chilling effect on that spirit, which is what teachers "ought to especially cultivate and practice." He added that such "fundamental principles of liberty" inevitably go into the nature of the role that teachers play in any given democratic society, and that these freedoms of thought and expression importantly bear on the teachers' capacity to encourage open-mindedness and critical inquiry in the people.21

Four years after Adler and Wieman,22 the U.S. Supreme Court, in the case of Sweezy v. New Hampshire23 gave a landmark pronouncement in its recognition and acceptance of academic freedom and its grounding in the Constitution. This case involved a New Hampshire statute, pursuant to which Paul Sweezy (Sweezy), then a professor at the University of New Hampshire, was interrogated by the New Hampshire Attorney General about his suspected affiliations with communism. Sweezy refused to answer a number of questions about his lectures in class, on the ground that they were unrelated to the purpose of the investigation and that the questions infringed upon an area protected by the First Amendment. The U.S. Supreme Court ruled in Sweezy's favor and, echoing Justice Frankfurter's concurring opinion in Wieman, held that academic inquiries must be left "as unfettered as possible" where "political power must abstain from intrusion into this activity of freedom."24

Two years after Sweezy, the U.S. Supreme Court, in the case of Barenblatt v. United States,25 a case involving alleged infringement of First Amendment rights,26 had occasion to qualify the liberal approach on academic freedom. Speaking through Justice John Marshall Harlan, the Court moderated the safeguarding of academic freedom, and held that it was not immune to warranted interrogation by the legislature, to wit:

Finally, in the 1967 case of Keyishian v. Board of Regents,28 the Supreme Court overturned its decision in Adler, and extended First Amendment protection to academic freedom. Keyishian involved faculty members and a non-teaching employee of the State University of New York whose employment contracts were terminated or not renewed when they refused (or failed) to submit a "Feinberg Certificate"29 required under Section 3021 of the New York Education Law. Under such document, the individual certifies that he is not a Communist and that he has never advocated or been a member of a group which advocated forceful overthrow of the Government.30 In striking down the statute as unconstitutional, the Supreme Court, citing Shelton v. Tucker,31 held that though the governmental purpose may have been legitimate and substantial, that purpose could not be undertaken too broadly as to "stifle fundamental personal liberties."32

In the Philippines, the term "academic freedom" first appeared in the 1935 Constitution, under Article XIV, Section 5, as a liberty to be enjoyed by state universities:

It was restated in the 1973 Constitution in Article XV, Section 8(2) and. was expanded in application to cover both private and public institutions of higher learning, to wit:

The above provision on academic freedom as a constitutional right was further refined and developed through its amendment in the 1987 Constitution in Article XIV, Section 5(2):

(2) Academic freedom shall be enjoyed in all institutions of higher learning. (Emphasis supplied.)

This amendment in the academic freedom clause was explained as a categorical shift from the previous conception that academic freedom was solely institutional in nature, to be enjoyed only by the institutions themselves, to the present belief that said grant is given not only to the institutions themselves, but to the individual stakeholders (teachers, researchers and students) within said institution as well.33

Among others, the critical import of academic freedom has been seen in the dynamics of Philippine national life, where it became a necessary tool used by faculty members and students of an institution to "re-examine existing knowledge and reweigh the prevailing values so dearly cherished by the majority."34 During the period of Martial Law, for instance, especially during the. rise of student activism during the First Quarter Storm, universities served as refuge for those who were politically targeted by the ruling regime, under the protection of the academic freedom that the universities enjoyed. The nature of academic freedom as a right has been seen as a furtherance of the right to freedom of expression, that is, faculty members and students, as stakeholders of the institutions of higher learning, enjoy the freedom of expression even if they are within the university.35 The general perception, in fact, appears to be that academic freedom is not only enshrined in the Constitution, but is part and parcel of one's freedom of expression.36

In the case of Garcia v. The Faculty Admission Committee, Loyola School of Theology,37 the Court, in discussing the concept of academic freedom, held:

Garcia and subsequent cases would show the Court's attempts to outline the distinction between academic freedom as a right enjoyed by the educational institution,39 or its individual stakeholders such as the teacher/researcher/educator40 or student.41

In this case, and save for petitioner-intervenor St. Thomas More School of Law and Business (St. Thomas More), all petitioners appear to be individual educators and students. There is no assertion (much less proof) from any of them that the challenged LEB Law, in general, and the imposition of the PhiLSAT passing requirement, in particular, infringes on their personal rights to freedom of expression. This, to my mind, is precisely the reason why the ponencia itself focused on the concept of academic freedom as enjoyed by an educational institution, specifically, the "freedom of law schools to determine for itself who may be admitted to legal education x x x."42

On this score, I have examined the petition-in-intervention filed by St. Thomas More, which raised the following causes of action and arguments:

Of the six foregoing issues, only one (issue No.2) textually references the concept of academic freedom. Indeed, the freedom to determine who may be admitted to study is among the "four essential freedoms" accorded an educational institution. This freedom, however, is by no means absolute; it must be balanced with important state interests "which cannot also be ignored for they serve the interest of the greater majority."50 It is beyond cavil that the State has an interest in prescribing regulations to promote the education and the general welfare of the people.51

In this case, the ponencia itself declares that "the PhiLSAT, when administered as an aptitude test, is reasonably related to the State's unimpeachable interest in improving the quality of legal education."52 I find that, in addition to the avowed policy to improve legal education, the provision of the PhiLSAT Passing Requirement may also serve to discourage the proliferation of the "great evil" sought to be corrected by the "permit system."53 As the ponencia cites, Act No. 3162, back in 1924, created the Board of Educational Survey which made "factual findings" that "a great majority of schools from primary grade to the university are money-making devices of persons who organize and administer them."54 Dean Sedfrey M. Candelaria, in his report to the Legal Education Summit on July 31, 2019, representing the Legal Education Board Charter Cluster, admitted to the continued existence of "non-performing" law schools. Thus, it is my view that the Court should carefully weigh casting in stone a rule leaving to a law school the unbridled discretion to determine for itself the PhilSAT passing score for purposes of admission to legal education. In fact, I would argue that the provision of minimum standards (such as a minimum PhiLSAT passing score) for admission to law schools is, in principle, no different from the provision of standards on matters such as the maximum rates of tuition fee increases55 the location and construction of school buildings, the adequacy of library, laboratory and classroom facilities, the maximum number of students per teacher, and qualifications of teachers, among others. Such standards, which are also police power measures instituted in furtherance of the public interest, arguably have some effect on an educational institution's "essential freedoms."

While the ponencia would hold that the PhiLSAT, as an aptitude test, passes the test of reasonableness, it declares the challenged LEB Law issuance unreasonable to the extent that it is exclusionary, that is, it provides a cut-off score which effectively forces law schools, under pain of administrative sanctions, to choose students only from a "[s]tate-determined pool of applicants x x x."56

There is nothing constitutionally abhorrent with the provision by the State of a standardized exclusionary exam. This has long been settled in the case of Tablarin v. Gutierrez.57 There, the Court upheld the taking and passing of the National Medical Admission Test (NMAT) as a national prerequisite for admission to all medical schools in the Philippines since academic year 1986-1987, pursuant to the Republic Act No. 2382, otherwise known as the "Medical Act of 1959," and under Department of Education, Culture and Sports (DECS) Order No. 52 series of 1985:

Furthermore, contrary to the ponencia's findings, I do not see any difference in how the NMAT and the PhiLSAT are meant to (or even actually) operate.58 Both are, in fact, exclusionary exams. Permit me to explain.

Under Department of Education (DepEd) Department Order (DO) No. 52, Series of 1985, the NMAT, as a uniform admission test, was required to be "successfully hurdled by all college graduates seeking admission into medical schools in the Philippines, beginning the school year 1986-1987." Although the same DO provides that the NMAT rating of an applicant will be considered "with other admission requirements" as basis for the issuance of a Certificate of Eligibility, it also provides that no such Certificate will be issued without the required NMAT qualification (that is, meeting the cut-off score-which shall be determined by the Board of Medical Education on a yearly basis). That the NMAT, similar to the PhiLSAT, was meant to be exclusionary in nature is clear from DepEd DO No. 11, issued subsequently in 1987, which provides that the cut-off score of 45th percentile shall he followed for the December 6, 1987 and April 24, 1988 NMAT examinations.

In fact, this exclusionary nature appears to subsist to this day. Memorandum Order No. 18, Series of 201659 issued by the Commission on Higher Education60 provides, to wit:

Thus, even under the present rule, students who fail to get an NMAT score of 40th percentile (or the declared cut-off score of their chosen medical school, whichever is higher) will not be issued a Certificate of Eligibility and therefore cannot be admitted to medical school. Clearly, the NMAT is no different from the PhiLSAT insofar as it also employs an exclusionary (or, in the words of the ponencia, "totalitarian") scheme in terms of student admissions.61 I therefore see no reason why both tests should merit different treatment. The principle behind this Court's ruling in Tablarin should be applied here.

The other allegations against the LEB Law, in general, and the PhiLSAT passing requirement, in particular, seem to be challenges against its reasonableness as a police power measure. What is "reasonable," however, is not subject to exact definition or scientific formulation. There is no all-embracing test of reasonableness;62 its determination rests upon human judgment as applied to the facts and circumstances of each particular case.63

The consolidated petitions all sought direct recourse with this Court. As We have most recently reaffirmed in Gios-Samar, Inc. v. Department of Transportation and Communications,64 direct resort to this Court is proper only to seek resolution of questions of law:

I submit that the Court should refrain from resolving the challenges against the reasonableness of the LEB Law (and related issuances) at this time. Taking issue at reasonableness, equity or fairness of a state action, in a vacuum and divorced from the factual circumstances that suffer the same, would mean that this Court will have to adjudicate (in my view, wrongly) based on conjectures and unsupported presuppositions. As it appears, this Court will be settling controversies based on unsupported allegations66 or, worse, grounds not even pleaded or raised by the parties.67 Allegations and counter-allegations against the constitutionality and/or reasonableness of a challenged state action need to be proven in evidence, otherwise they may be no more than uncorroborated rhetoric.

Given this fact-based nature of the question of reasonableness of an exercise of police power, the present questions pertaining to the propriety or validity of the PhiLSAT should be dismissed at this point and given its turn in a trial, where the equipped lower court may first resolve questions of fact, such as whether the PhiLSAT as administered by the LEB meets the careful design that our legislators intended.

Mere invocation of a constitutional right, in this case academic freedom, does not excuse the parties so invoking from actually proving their case through evidence.1aшphi1 This is chiefly true in a petition that seeks the invalidation of a law that enjoys the presumption of constitutionality. The burden of proving one's cause through evidence must rise against the bar that gives the challenged law default constitutionality. As We held in the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila,68 citing O'Gorman & Young v. Hartford Fire Insurance Co.:69

The tall order, therefore, to overturn the constitutional presumption in favor of a law must be through a conclusive "factual foundation," the absence of which must inevitably result in the upholding of the constitutionality of the challenged law.

Until the decisive factual questions are determined in the context of a trial, this Court should refrain from making an effective pronouncement as to the validity or invalidity of the PhiLSAT. The wide-ranging consequences of the issues raised in these petitions, when decided, all the more call for prudence and constitutionally-intended restraint until all the factual components that bear on these issues are ascertained and definitively settled. The Philippine legal education and the legal profession are worthy of no less.

Finally, to strike down a legislative act on the basis of unalleged or unestablished factual conclusions that essentially came nowhere near their burdens of proof is the height of disservice to the causes these parties before Us sought to protect, whether that be a student's right to education, a law school's institutional academic freedom or the State's duty to supervise and regulate education that is invested with public interest.

This Court will serve no other end but expediency in insisting to deem ripe the unquestionably paramount but undoubtedly premature question of whether an examination that fundamentally seeks to improve the state of the country's legal education is succeeding or failing on its promise.