It was not one of the freedoms heard much about, until Justice Frankfurter succinctly articulated its components: the right to determine what to teach, who to teach, how it should be taught and who should teach it. And then it found its way into the Philippine Constitution. The Supreme Court has been no less vigilant about its defense reminding the Civil Service Commission in one case—U.P. v. Civil Service Commission (2001)—that not even on the pretext of enforcing civil service rules may the commission curtail the right of a university to determine who should teach!
In charters of state universities and colleges, one common provision is the section that guarantees academic freedom both of the institution and of the scholar. But state higher education institutions face a thicket of rules from regulatory and supervisory agencies that all but render academic freedom an aspiration rather than a constitutionally protected reality. I had occasion to write about an excess of regulation that was smothering higher education in an earlier piece, but now that I am once more involved directly with the administration of a state university, I find myself face to face with the forbidding barrier of bureaucracy that constitutes one of the most lethal threats to academic freedom.
There is, first of all, the danger of a governing board that overreaches and micromanages. True, of course, R.A. 8292, or the Higher Education Modernization Act, grants the regents or trustees of state universities and colleges awesome powers—but this very same law, in granting corporate powers provided for in the Corporation Code to the governing boards of state educational institutions, maintains the crucial difference between “policy” and “operation.” Officers, not trustees, are agents of the corporation because it is they who run day-to-day corporate affairs. And the composition of the governing board insinuates the danger of overreach—venturing into operations. Aside from the Commission on Higher Education Chair, who is ex officio chair, two politicians sit: the House of Representatives and the Senate each has a seat. The regional directors of Agriculture, Science and Technology and National Economic and Development Authority have their own fixed places at the table. There are private sector representatives (who, by law, should be prominent citizens)—many times handpicked by the sitting president as well—as there is a student, alumni and faculty representative each. All in all, a merry medley and a confusing melee of parallel, contrasting and contradicting interests. When this body tells a president what deans must do, how long they must be in office, and the other minutiae of actual university operations, who to admit and on what terms to retain them, the results can be confusing, if not paralyzing for any institution of higher learning.
And if one should be inclined to think that the DBM would have little if any interest at all in matters academic, think again. Many a state university has lost the chance to keep a promising professor because the DBM has kept pending for a withering length of time any action on promotions and appointments. And since state universities subsist on government money, the DBM can actually cause a state university to defibrillate or slow its breathing down so badly that it is left gasping, on the brink of death by regulation. Then, there is the Civil Service Commission that chimes in—oftentimes very distractingly —into university life. Many who, by purely academic standards, are well-regarded in their own fields of specialization, recognized by academe and renowned by scholarly circles are spurned by the Civil Service Commission, denied rank, title and salary, because of missing on one or the other silly bureaucratic requisite. Finally, there is the Commission on Audit. While it cannot be denied that many heads of state institutions have lined their pockets handsomely by making of state universities their private ATMs, neither can it be denied that the government’s finance watchdog has often does more biting than it really should. Quality higher education needs plenty of fiscal support and ample fiscal flexibility—but of these two, CoA is extremely wary with the result that state universities and colleges must tread ever so testily and warily, lest the dreaded notices of suspension and disallowance come pouring in through the mailbox!
One American law author, bemoaning the surfeit of administrative regulation, mourned what he called “the death of common sense,” because it can happen—and has happened—that punctilious compliance with all administrative regulations makes institutions miss out on the elementary demands of common sense. Items badly needed that can be readily purchased cannot, except under severe limitations, be bought without complying with lengthy, complicated and tedious procurement procedures, and seeing that contracts are awarded to the lowest bidder have the sad result that many government buildings, in supertyphoon Lawin’s trail—have the ghastly look of the victims of France’s Reign of Terror and the efficiency of the guillotine! Davis, an expert in administrative law, put it well when he insisted that while regulation was necessary, as important was a zealous defense of discretion: what allows one to act as prudence—doing the right thing at the right time—demands. Inflexible insistence on rules has many times proved to be imprudent in the extreme!