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

The provisions permitting the imposition of the Philippine Law School Admission Test, as well as the entire concept of the Legal Education Board, are unconstitutional for intruding on the academic freedom of law schools and the universities and colleges to which they belong. The State has no business in deciding and substituting its judgment for the academic institutions. Any government attempt to dictate upon universities the qualifications of their studentry or interfere with their curriculum undermines the school's academic freedom.

Institutions of learning perform a vital function in nurturing and sharpening the people's understanding and intellect. They ensure an educated and thriving citizenry on whom a nation's civilization and life depend. Education leads to an economically productive populace through learned skill. More importantly, it gears the people toward thinking more prudently and critically.

Without educational institutions, our country will inevitably approach a shallow and dismal future. Thus, the State has a paramount interest in guaranteeing that they flourish and function robustly. Part and parcel of this guarantee is to allow them to freely determine for themselves their "aims and objectives and how best to attain them."1

One (1) of the four (4) essential academic freedoms is the academic institutions' right to determine who they will admit to study. In ascertaining who to admit in their institutions, law schools should be given autonomy in establishing their own policies, including the examination that they will employ.

The Philippine Law School Admission Test is an unwarranted intrusion into this essential freedom. The government's imposition of a passing score as a bar to admission violates the educational institutions' academic freedom to determine who to admit to study. The existence of the Legal Education Board, on the other hand, interferes with the right of academic institutions with respect to how to teach and who to teach.

Academic freedom, as enshrined in our present Constitution, guarantees the fundamental protection to academic institutions. Article XIV, Section 5(2) states that "[a]cademic freedom shall be enjoyed in all institutions of higher learning."

This provision is equivalent to its precursor, Article XV, Section 8(2) of the 1973 Constitution, which stated that "[a]ll institutions of higher learning shall enjoy academic freedom." This, in turn, was an expansion of its counterpart in the 1935 Constitution which limited the grant 'of academic freedom to state-established universities. Article XIII, Section 5 of the 1935 Constitution stated:

From this, the 1973 Constitution provided a broader protection by giving the same guarantee to private educational institutions.2

The nature and scope of academic freedom was first discussed at length in the 1975 case of Garcia v. The Faculty Admission Committee, Loyola School of Theology.3 This Court recognized academic freedom as an institutional facet, and not solely confined to individual academic freedom or the right of faculty members to pursue their studies without fear of reprisal. In interpreting the import of the constitutional provision, this Court said:

Garcia concerned a Petition for Mandamus filed by Epicharis Garcia, a woman, to compel the Loyola School of Theology to allow her to continue her studies in the seminary. In dismissing the Petition, this Court upheld the discretion of educational institutions to choose who may be admitted to study.5 Garcia referred to the four (4) essential freedoms as the parameters of academic freedom:

Justice Claudio Teehankee's concurring opinion in Garcia is also instructive. He recognized that courts have neither the competence nor the inclination to decide who shall be admitted to an educational institution. Instead, they will only overturn the judgment of academic institutions after an exhaustion of administrative remedies and upon showing of arbitrariness on the school's part. He explained:

Following the ruling in Garcia, this Court in Tangonan v. Paño8 reiterated that it cannot compel academic institutions to admit students who fail to meet standard policies and qualifications. To rule otherwise, it held, would violate the institution's discretion on the admission and enrollment of students as a major component of academic freedom:

In San Sebastian College v. Court of Appeals,10 this Court likewise ruled that a student's failure to comply with academic standards justifies the institution's refusal to admit him or her.

An institution's discretion in determining who to admit extends to its decision on who to dismiss. In Ateneo De Manila University v. Capulong,11 this Court upheld the institution's discretion to dismiss erring students. It reiterated that schools have the right to establish academic and disciplinary standards, and in failing to comply with these standards, a student can be validly dismissed:

In Licup v. University of San Carlos,13 the petitioners were students who had been denied readmission to the university after a chaotic assembly that resulted in violations of the university handbook rules. They were also found to have academic deficiencies. In upholding the university's decision, this Court held that the students were not deprived of due process during the investigation, and that their serious breach of discipline and failure to maintain the academic standard forfeited their contractual right to continue studying in the university.14 This Court ruled similarly in Alcuaz v. Philippine School of Business Administration,15 Magtibay v. Garcia,16 University of San Agustin v. Court of Appeals,17 and Spouses Go v. Colegio de San Juan de Letran.18

In Miriam College Foundation, Inc. v. Court of Appeals,19 this Court further amplified the scope of academic freedom when it upheld the institution's right to discipline its students. It pronounced:

An academic institution's right to discipline its students was held applicable even to students' activities outside campus premises. In Angeles v. Sison,21 this Court ruled that the school's power over its students does not absolutely cease when they set foot outside the school premises. Moreover, the students' conduct, if directly affecting the school's good order and welfare, may be subject to its discipline:

In the more recent case of Cudia v. Superintendent of the Philippine Military Academy,23 this Court reiterated that a school's right to discipline its students is part of the third essential freedom. There, this Court upheld the Philippine Military Academy's enforcement of its internal rules pursuant to its academic freedom. The petitioner in Cudia was a graduating honor student who was dismissed for violating the institution's Honor Code. Affirming the dismissal, this Court ruled that the academy enjoys academic· freedom to impose disciplinary measures and punishment as it deems fit:

Nevertheless, in Villar v. Technological Institute of the Philippines,25 this Court clarified that the discretion of educational institutions is not absolute as to impinge on the students' constitutional rights. In Villar, the petitioners took part in an assembly and were subsequently denied admission by the university, which claimed that the students flunked. In finding that some of the petitioners did not violate the school's academic standards, this Court ruled that while the institution can deny admission to students with academic deficiencies, the academic freedom it enjoys cannot be used to discriminate against qualified students who exercise their constitutional rights.26 This Court held:

Similarly, in Isabelo, Jr. v. Perpetual Help College of Rizal, Inc.,28 this Court ruled against the university's refusal to admit the petitioner as its, student. Explaining that "academic freedom has never been meant to be an unabridged license[,]" it held that the university cannot hide behind the shroud of academic freedom to act arbitrarily in dismissing a student.29 Malabanan v. Ramento,30 Arreza v. Gregorio Araneta University,31 Guzman v. National University,32 Non v. Dames II33 were ruled in the same vein.

An academic institution's discretion applies not only to the admission and dismissal of its students, but also to its decision to confer academic recognition. In Morales v. Board of Regents,34 the petitioner was a University of the Philippines student who questioned the university's decision not to grant her the academic distinction of cum laude due to a contested grade computation. In upholding this decision, this Court emphasized that "the wide sphere of autonomy given to universities in the exercise of academic freedom extends to the right to confer academic honors." It held:

Nevertheless, this Court has affirmed in the past the State's power to intrude-in very limited circumstances-into the admission process of schools imbued with public interest. Specifically, students applying to medical schools have to take and pass a state-sponsored examination as a condition to their admission.

In Tablarin v. Gutierrez,36 the petitioners questioned the constitutionality of the National Medical Admission Test, a uniform admission test required by the Board of Medical Education and administered by the Center for Educational Measurement.37 They sought to declare as unconstitutional portions of Republic Act No. 2382 and Ministry of Education, Culture, and Sports Order No. 52-1985, which require "the taking and passing of the [National Medical Admission Test] as a condition for securing certificates of eligibility for admission."38 The order characterizes the test as an aptitude examination that aims to upgrade "the selection of applicants for admission into the medical schools and . . . to improve the quality of medical education in the country."39

In denying the Petition, this Court ruled that the requirement of taking and passing the National Medical Admission Test was a valid exercise of police power. It found the objectives cited in the order to be valid. It also found a reasonable relation between prescribing the test as a condition for admission to medical schools and securing the health and safety of the general public.40

Tablarin characterized state-sponsored admission tests as an exercise of police power that advanced legitimate interests.

This was further elaborated in Department of Education, Culture, and Sports v. San Diego,41 the issue of which also revolved around the National Medical Admission Test. In that case, the petitioners were students who questioned the three-flunk rule, which states that students may only take the exam thrice, and are barred from taking it again after three (3) successive failures.42 They argued that this limitation violates their constitutional right to academic freedom and education.

The trial court first ruled in favor of petitioners, finding that the three flunk rule was an arbitrary exercise of police power.43 However, this Court reversed its decision and, reiterating its pronouncements in Tablarin, found the National Medical Admission Test to be a valid exercise of police power:

Department of Education, Culture, and Sports highlighted the special character of the medical profession, which justifies the three-flunk rule in the National Medical Admission Test in force at that time. As the medical profession "directly affects the very lives of the people,"45 this Court found that the three-flunk rule was valid insofar as it seeks to admit only those who are academically qualified to study in a medical school.

Tablarin and Department of Education, Culture, and Sports both resolved issues on the right to quality education and the right to choose a profession vis-a-vis the State's power to regulate admission to schools through a uniform aptitude test. In both cases, this Court found that administering the National Medical Admission Test was a reasonable exercise of police power.

However, it should be remembered that the parties in these cases were student-applicants who asserted their right to the course of study of their own choosing. The issue of institutional academic freedom in relation to a standardized test imposed by the State was not discussed. The medical schools covered by the order that institutionalizes the National Medical Admission Test have not asserted their exclusive right to determine who may be admitted to their institutions pursuant to their academic freedom.

Reyes v. Court of Appeals46 comes close. There, students of the University of the Philippines College of Medicine questioned the National Medical Admission Test's cutoff grade for admission, which was prescribed by the college faculty but was not approved by the University Council. The faculty, for its part, asserted institutional academic freedom in arguing that it had the power to determine the admission requirements of the college. However, this Court found that this power was vested in the University Council, not the faculty:

Reyes, therefore, resolved an issue that was not so much a question of whether the State violated institutional academic freedom, but whether it was the proper academic unit that asserted this freedom.

The crucial question before this Court now is whether the state-sponsored Philippine Law School Admission Test, in its current configuration, violates institutional academic freedom.

As found by the majority, the Philippine Law School Admission Test, unlike the National Medical Admission Test, violates institutional academic freedom48 insofar as it prescribes a passing score that must be followed by law schools.49 Failure to reach the passing score will disqualify the examinee from admission to any Philippine law school. This is because a Certificate of Eligibility is necessary for enrollment as a first year law student.50 Respondent Legal Education Board, which administers the test, only allows law schools to impose additional requirements for admission, but passing the test is still mandatory.51 The failure of law schools to abide by these requirements exposes them to administrative sanctions.52

In contrast, failure to achieve a certain score in the National Medical Admission Test no longer disqualifies an examinee from applying to all medical schools. For one, test scores are reported with a corresponding percentile rank that ranges from 1 to 99+. It "indicates the percentage of [National Medical Admission Test] examinees who have [test] scores the same as or lower than the examinee."53 This percentile rank is evaluated by the medical schools against the cutoff grade that they themselves determine.54 Hence, the percentile rank cutoff is only a "minimum score that qualifies an examinee as a bonafide applicant for admission into his/her preferred medical school."55 The test score only determines the available medical schools where a person may apply; the higher the score, the more options the applicant has.

Thus, I agree with the majority's characterization that the Philippine Law School Admission Test employs a "totalitarian scheme"56 that leaves the actions of law schools entirely dependent on the test results.57 It usurps the right of law schools to determine the admission requirements for its would-be students-ultimately infringing on the institutional academic freedom they possess, as guaranteed by the Constitution.

However, the majority ruled that the Philippine Law School Admission Test is unconstitutional only insofar as it is a mandatory requirement for the law schools' admissions processes.

I disagree. The Philippine Law School Admission Test-or, for that matter, any national admission test-even if not made mandatory, still infringes on academic freedom.

Academic freedom as a constitutional right should be interpreted with the understanding that this guarantee lies within the broader sphere of the Bill of Rights.

Academic discussions and other forms of scholarship are manifestations and extensions of an individual's thoughts and beliefs. Thus, academic freedom is constitutionally granted to students, faculty, and academic institutions alike:

Academic freedom is anchored on the recognition that academic institutions perform a social function and its business is conducted for the common good; that is, it is a necessary tool for critical inquiry of truth and its free exposition. The guarantee of academic freedom is complementary to freedom of expression and of the mind.

Thus, to foster an environment of critical discussion and inquiry, the faculty must be given a degree of independence from their employers, and universities must have a degree of independence from the State.59 This constitutional protection guaranteed for the students, faculty, and institutions is not merely a job-related concern or an institutional interest; rather, it "promotes First Amendment values of general concern to all citizens in a democracy."60

As eloquently discussed by then Justice Felix Makasiar in his dissenting opinion in Garcia, blows against academic freedom inevitably strike at the core of freedom of expression:

Academic freedom is intertwined with intellectual liberty. It is inseparable from one's freedom of thought, speech, expression, and the press.62 Thus, the institutions' and individuals' right to pursue learning must be "free from internal and external interference or pressure."63

In American jurisprudence, the protection of academic freedom has been identified as a subset of the First Amendment.64 In Sweezy v. New Hampshire,65 the U.S. Supreme Court tied the First Amendment values of critical inquiry and search for truth to the autonomy of academic institutions and its faculty from the State's intrusion:

Freedom of expression is a cognate of academic freedom. Hence, the zealous protection accorded to freedom of expression must necessarily be reflected in the level of protection that covers academic freedom. Any form of State intrusion against academic freedom must be treated suspect.

Central to the resolution of this case is the freedom of academic institutions, particularly law schools, to determine who may be admitted to study. As part of their academic self-government, law schools are given the discretion to come up with an autonomous decision on their admission policies, including the examination they will administer. A state-sponsored examination like the Philippine Law School Admission Test, which tends to control the internal affairs of academic institutions, runs afoul of that essential freedom.

Moreover, according to the majority, "[t]he subject of the [Philippine Law School Admission Test] is to improve the quality of legal education."67 Thus, under the State's police power, the imposition of the test is justified by the State's interest to improve the quality of legal education.68

I view that the thesis that changing the admissions policy will improve the quality of law schools is non-sequitur.

The standards for choosing who to admit are entirely different from the standards for maintaining or ensuring the quality of instruction. The process of admitting students is unrelated to the quality of the law school. Even if it were indeed related, respondent Legal Education Board has done no specific study to justify the administration of the Philippine Law School Admission Test. Test makers even admit that admission tests do not measure "smartness."69 It is not an accurate barometer of merit, but only a measure of correlation between the exam scores and the students' first-year grades.70 At best, respondent Legal Education Board relied on anecdotal evidence, which, in academic circles, is the worst way to justify policy. The Philippine Law School Admission Test is, therefore, arbitrary.

A closer look shows that the Philippine Law School Admission Test does not merely recommend, but dictates on law schools who are qualified to be admitted. By prescribing a passing score and predetermining who may enroll in law schools, the State forces its judgment on the institutions, when it has no business doing so. Any governmental attempt to dictate upon schools the composition of their studentry undermines their institutional academic freedom.71

Moreover, the final basis of the administration of the Philippine Law School Admission Test, regardless of whether there have been consultants, will always rest on the government-appointed members of respondent Legal Education Board. Yet, as this case shows, the Chair of the Board may not have the postgraduate academic, teaching, or college or university administrator credentials. Being government appointees, its members are prone to influences by their appointing power, consequently undermining the academe's most significant roles: to inquire into the truth, to powerfully disseminate this truth, and to speak this truth to power.

In the United States, admission to law schools is usually preceded by taking a standardized aptitude examination called the Law School Admission Test. While it may seem similar to our own test, important distinctions must be made. First, the U.S. Law School Admission Test is not a state-sponsored exam. It is administered by the Law School Admission Council, a private nonprofit that promotes "quality, access, and equity in law and education[.]"72 Hence, the Law School Admission Test is a mere creation of law schools.73

In some cases, an aspiring student may even be accepted to a law school without taking the test.74 Thus, unlike in the Philippines, the adherence of U.S. law schools to the Law School Admission Test is purely voluntary. The test results may be used merely as one (1) of the many criteria for admission, which a law school may determine for itself.75 The Law School Admission Test is designed merely as a tool to help law schools make sound admission decisions.76

The Philippine Law School Admission Test, by contrast, undermines the critical function of law schools to provide pieces of truth that may ripen into critique of government. The State's intrusion, whatever form it may be, stifles the ability of the academic institution to be critical. This Court should remain ever so vigilant on any infraction of the Constitution disguised with good intentions.

Law schools are the principal institutions that have the space to analyze, deconstruct, and even critique our laws and jurisprudence. They not only teach doctrine, but examine its fundamentals.

The kind of freedom of expression contained in academic freedom is different from political expression. Within political or creative spaces, freedom of expression takes an almost unqualified immunity. Any thought, whether or not it is hated by the dominant, finds protection without regard to its slant or falsity. In the sphere of political debate, falsehoods are platforms for testing reason and providing opportunities to publicly advocate what is true persuasively.

On the other hand, within the academe, falsities in method and content are deliberately rooted out, exposed, and marginalized so that the public debate is enriched, whether among the institution's students or the world beyond its walls. Academic freedom is the constitutional canon that protects this space from politics. It is the freedom that assures academic intellectual debate without fear of any governmental intervention of any kind, be it coercive or suggestive.

Government-sponsored standardized admission tests infringe on this freedom without reason.

Due process is guaranteed under our Constitution. Its Article III, Section 1 states:

The due process clause is commonly referred to as the "right to be let alone" from the State's interference.77 The essence of due process is the freedom from arbitrariness. In Morfe v. Mutuc:78

Due process is the protection of the sphere of individual autonomy. It aims to "prevent arbitrary governmental encroachment against the life, liberty and property of individuals."80 Thus, it imposes a burden on the government to observe two (2) separate limits: (1) procedural and (2) substantive due process. In White Light Corporation v. City of Manila:81

Substantive due process answers the question of whether "the government has an adequate reason for taking away a person's life, liberty, or property."83 To pass this test, the State must provide a sufficient justification for enforcing a governmental regulation.84

While the State's intrusion is not absolutely proscribed, due process requires that the intrusion on an individual's right to life, liberty, and property is neither arbitrary nor unreasonable.85 In Ichong v. Hernandez:86

When governmental action is checked against the due process requirement under the Constitution - particularly substantive due process - it must be shown that such action was neither arbitrary nor unreasonable. Respondent failed to show this.

The creation of the Philippine Law School Admission Test was not based on scientific research. The State has not given any justification for the propriety of conducting the examination, other than it being copied from the Law School Admission Test administered in the United States. The Chairperson of respondent Legal Education Board, during the oral arguments, admitted to this:

Respondent Legal Education Board has not conducted any scientific and empirical study prior to its decision to impose a national standardized test for the admission of students in law schools. All that it has as basis is the study for the Law School Admission Test of the United States. There was no showing of how this foreign experience is applicable, or even relevant, to the Philippine context. For lack of any substantial basis, the administration of the Philippine Law School Admission Test is arbitrary.

Moreover, the Philippine Law School Admission Test transgresses due process for being unreasonable. At the core of this test is the enforcement of a written exam that supposedly sifts and sets apart individuals who are likely to survive law school. The exclusionary result is based on a single criterion-if the applicants pass the written exam, they are deemed qualified. There is no other basis used for the evaluation of applicants. Through the Philippine Law School Admission Test, the government imposes a single determinant to ascertain who can pursue legal education. This is insufficient to hurdle the requirement of due process. Reasonableness demands that a multi-varying approach is used in evaluating law school applicants.

American jurisprudence sheds more light on this. In Grutter v. Bollinger,89 the U.S. Supreme Court upheld the University of Michigan Law School's use of an applicant's race as among the criteria in its admission policy. It agreed with the use of race as a factor in its admission decisions, as it serves a "compelling interest in attaining a diverse student body."90

In Grutter, the law school's admission policy sought to admit more students from disadvantaged backgrounds, not to meet a desired quota for diversity, but to enroll a "critical mass" of minority students. Its concept of critical mass is anchored on the important educational benefits that flow from having a diverse studentry. The law school used race as one (1) of the criteria in its admission policy to avoid a monolithic student demographic that is typically admitted by traditional admissions processes.

In upholding the policy, the U.S. Supreme Court ruled that the law school's educational judgment that diversity is essential to its educational mission must be respected, and that universities must be given' a degree of deference when it comes to academic decisions:

In Grutter, the U.S. Supreme Court upheld a holistic evaluation of an applicant by considering several factors such as academic ability, talents, experiences, including other information through a personal statement, letters of recommendation, together with the applicant's undergraduate grade point average, Law School Admission Test score, and other "soft variables," including the applicant's racial and ethnic status. In effect, the law school affords an individualized consideration to all applicants regardless of race. There is no policy of automatic acceptance or rejection based on a single variable.

In this case, by enforcing an arbitrary and unreasonable measure in the law schools' admission process, the government violates the applicants' right to due process.

The choice of pursuing an education is within the ambit of one's right to life and liberty. Liberty includes the "right to exist and the right to be free· from arbitrary restraint or servitude."92 It embraces the right of individuals, to enjoy the faculties they are endowed with such as the right to live, right to be married, right to choose a profession, and the right to pursue an education.93 In City of Manila v. Laguio, Jr.:94

In my concurring opinion in Samahan ng mga Progresibong Kabataan v. Quezon City:96

Ultimately, the right to life is intertwined with the right to pursue an education. Right to life, after all, is not merely the right to exist, but the right to achieve the "fullness of human potential[.]"98 This is real in attaining a degree of one's own choice. Education does not only enhance and sharpen intellect, but also opens up better opportunities. It improves the quality of life. When a person obtains a degree, there is economic and social mobility. Thus, when the State interferes and prevents an individual from accessing education, it impliedly infringes on the right to life and liberty.

In the same vein, imposing an arbitrary and unreasonable government-sponsored standardized test violates the right to property. Applicants, forced to take the mandatory examination, are likewise required to pay testing fees. This means additional financial cost that acts as another unnecessary obstacle to aspiring law students.

Yet, more than the financial barrier, going through the bureaucracy of studying for, applying for, and actually taking the test also entails opportunity cost. This includes, among others, the foregone time, prospects, and other possibilities that could have been realized.99 These additional costs only serve as exclusionary measures that unreasonably weed out those who simply cannot afford them.

Thus, the Philippine Law School Admission Test must be struck down for infringing on the rights to life, liberty, and property without due process of law.

Moreover, standardized tests as a measure of merit should be taken with a grain of salt. A meritocratic method based on these tests does not necessarily mean that the most qualified students are admitted.100 For one, meritocracy was originally a term of abuse, used to describe a "ludicrously unequal state."101 Rather than measure fairness, it disproportionately benefits those who are well-off.102 For another, entrance tests have historically been skewed in favor of elite applicants who have significant advantage and access to better education, resources, and wealth.103

Merit is a manifestation of elitism. Meritocracy opposes democratization and opportunity for all.105

Even if national standardized tests were non-exclusionary, and were designed only to guide law schools, harm still persists in their mandatory character. Obviously, they entail both financial and opportunity cost for the applicant. An admission exam like the Philippine Law School Admission Test presents another financial barrier for an applicant.

This Court cannot ignore the greater disparity that prevails among income classes, ethnicities, and even geographical differences. The cost of taking the Philippine Law School Admission Test creates an additional burden and prevents applicants from the middle to low-income strata from pursuing legal education. The test morphs into a selective mechanism that unduly favors the wealthy. Even if the results of the exams are non-exclusionary, the costs virtually make the exam itself exclusionary.

Moreover, students with low scores in the national test, which was created without the participation of true academics who understand test metrics, will consider themselves inferior. Because the results are ranked, the test creates a stigma on those who received low scores and excludes them. A national standardized exam, even as a non-exclusionary list, when state-sponsored, creates an unnecessary hierarchy.

Besides, that a law school is producing good lawyers does not automatically mean that it is a good law school. On the contrary, having a standardized national admission exam hides the defects and inadequacies of a law school. Students who ranked high in the Philippine Law School Admission Test, but went on to study in a school that may not exactly have good standards of education, may still likely pass the bar examinations. This is because students who topped the Philippine Law School Admission Test are not a random sample. Right at the start, they have already enjoyed a good foundation of education and a conducive environment to excel, equipped with the advantage of financial resources.106

Thus, the Philippine Law School Admission Test effectively screens applicants not on the basis of merit alone, but on the resources they possess. Through it, law schools are encouraged to work with better-equipped students. They are incentivized in catering to the elite in our society.

Justice Clarence Thomas' (Justice Thomas) dissent in Grutter is likewise illuminating. Proposing that law schools must end their reliance on the Law School Admission Test, he suggested adopting different methods of admission "such as accepting all students who meet minimum qualifications,"107 instead of betting on the highest scores.

Justice Thomas questioned whether standardized admission tests are reliable in predicting the success of applicants in law school. He does not believe that the test serves any real educational significance, but is only used to admit high scorers. The test, he notes, translates to selectivity-a marker of elitism:

Here in the Philippines, our education system's obsession with examination-based meritocracy must be tempered, not further celebrated. Legal education must not be an exclusive good for the elite. There must be a conscious move to eliminate the socio-economic barriers that cement this elitism. The Philippine Law School Admission Test does the exact opposite by reinforcing a faulty method that does not necessarily admit the most qualified students, but only favors the economically privileged.

National standardized admission tests reward this blind and corrosive meritocracy. Crudely rewarding merit without understanding its context undermines the constitutional goal of achieving social justice. Rewarding merit alone or privileging it results in more inequality.

There has never been a level playing field in basic, secondary, and tertiary education. In the first place, not all poor and rural students who enter basic education make it to college. Fewer still are those that finish their college degrees. Most of the poor rural students will not rank high in a national standardized test due to limited access to resources in their communities. This does not mean, however, that they are so mentally deficient that they will not make it in law school. Rather, the national standardized test will most likely exclude them because they will be put in the proverbial back of the line.

Those from privileged families, by contrast, are more likely to grow up in an environment that nurtures cognitive development.109 They have likely received social and cultural capital that propel them to do better in school.110 Chances are they attended good schools staffed with competent teachers and professionals, learning with other privileged students.111

The inevitably low ranking of poor students adds to their burden. In the meantime, rich, privileged students will, as usual, get better chances. This situation only perpetuates the status quo, ultimately putting meritocracy as a barrier to the principle of equality.112

On its surface, the contemporary idea of meritocracy is appealing because "it carries with it the idea of moving beyond where you start in life, of creative flourishing and fairness."113 But this understanding is a myth, as our system rewards through wealth and it increases inequality.114 Financially privileged students are way ahead of those who have much less, and any merit-based system will only serve to further highlight this privilege:

An educational system that rewards on the basis of loosely defined merits assumes an equality of educational opportunity.116 It fails to recognize that the most privileged in society are provided with much greater opportunities to succeed and fewer chances to fail compared with those from less privileged backgrounds.117

All these privileges that are attached to a person simply by the circumstances of his or her birth snowball within an educational system that hides behind the sanitized concept of meritocracy. In truth, such concept only widens the existing economic, social, and cultural inequality.

It is, thus, inaccurate to use the results of a standardized test as proxies for measuring the capability of students to do well in law school. The competitive and individualistic meritocracy that standardized tests espouse rests on the neoliberal assumption that hard work and effort alone will result in success. It is, however, almost deliberately blind to the reality that the starting line for success is unequal, and the path toward it more challenging for those disfavored by the system. In reality, a national standardized test only rewards crude meritocracy. Meritocracy, then, disguises prejudice.

In this case, the majority declared unconstitutional several provisions of the Legal Education Reform Act and Memorandum Orders of respondent Legal Education Board. However, it essentially retained the Philippine Law School Admission Test. It ruled that Section 7(e) of the Legal Education Reform Act118 is faithful to the reasonable supervision and regulation clause under the Constitution. It found that the provision only empowers respondent Legal Education Board to prescribe minimum requirements, which does not equate to control.119

The majority concludes that while the State may administer the Philippine Law School Admission Test, it should not be imposed on law schools as a mandatory part of their admission process.120 Relying on Tablarin, it sustained admission tests as a legitimate exercise of the State's regulatory power.121

I find that the majority's pronouncements readily allow unwarranted State incursion on academic freedom.

An educational institution's right to determine who to admit as its students is an integral part of its institutional academic freedom. It is absolute. Any form of State intrusion into an educational institution's admission policies, no matter how benign, should be rejected.

In this regard, I view that Tablarin and Department of Education, Culture, and Sports122 should be overturned. Just like the Philippine Law School Admission Test, the National Medical Admission Test, and any kind of government-sponsored standardized admission test-mandatory or not-should be rejected for infringing on academic freedom.

The State cannot sponsor an admission exam under the guise of prescribing minimum qualifications when, right from the start, it already excludes those who cannot pay to take the test.

Ultimately, the results of the Philippine Law School Admission Test will affect the schools' admission decisions. To recapitulate, its mandatory character means that if an applicant fails, he or she is disqualified from enrolling in any law school, even when a law school determines that the unsuccessful examinee should be admitted as its student. Removing its mandatory character, but retaining the test nonetheless, perpetuates the stigma that attaches to an applicant who passes but scores low relative to other examinees. Thus, the power of respondent Legal Education Board to implement the Philippine Law School Admission Test, even as a minimum requirement for admission, is already a demonstration of State control over the law schools.

The academic institutions' right to determine who they will admit to study remains among their four (4) essential freedoms. In ascertaining who to admit, law schools must have autonomy in establishing their own policies, including the examination that they will employ.

The Philippine Law School Admission Test presents an unwarranted intrusion into this essential freedom. The government's imposition of a passing score as a bar to admission is a violation of the institutions' academic freedom.

The rationale of this decision in relation to the significance of academic freedom in our jurisdiction also applies to the entire concept of the Legal Education Board.

The teaching of law as an academic degree is protected by Article XIV, Section 5(2)123 of the Constitution, which also relates to Article III, Section 4124 under the Bill of Rights. On the other hand, the requirements for a license to practice law is broadly covered by Article XIV, Section 5(3)125 of the Constitution, and more specifically as a power granted to this Court under Article VIII, Section 5(5).126

The regulation on the teaching of law as an academic degree is different from the regulation on the practice of law as a profession. The former is an aspect of higher education leading to a degree, while the latter may require a degree, yet the degree alone does not qualify one to practice law.

Quality legal education should be guaranteed by the faculty and administration of a law school. A law school, on the other hand, may be part of a university or college. Thus, the law school is accountable to its academic councils for its approaches to teaching, qualifications and promotion of its professors, as well as the full contents of its curriculum.

The broad and ambiguous rubric of police power should not be an excuse to provide government oversight on purely academic matters, or even· academic matters that appear to be administrative issues. Academic supervision cannot be done by a statutorily appointed Legal Education Board restricting the academic freedom of institutions of higher learning which offer what amounts to a postgraduate degree. Legal education cannot be supervised in the way institutions offering pre-school or basic elementary education are supervised. The entire concept of the Legal Education Board-appointed public officials interfering with law schools' academic freedoms as if the appointment from an elective official gives them the academic expertise-is precisely what Article XIV, Section 5(2) of the Constitution proscribes.

The entire Legal Education Reform Act clearly violates the Constitution. It is, therefore, surprising that the majority is unwilling to strike it down.ℒαwρhi৷ It is likewise astounding that the majority seems to put its trust on the evolution of law as an academic discipline to political appointees.

There are better ways to ensure the quality of legal education, none of which involves a super body similar to the Legal Education Board. While it appears to be a mere guidance for law schools, the State's infringement on academic freedom through the Philippine Law School Admission Test has far-reaching implications.

ACCORDINGLY, I vote to GRANT the Petitions. The entire Republic Act No. 7662, or the Legal Education Reform Act, is unconstitutional.