Legal challenges to private education in the Philippines

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EDUCATION is perhaps the most important function of the State. This function is realized through the schools, whether it be in public or private or religious schools. The cost of delivering basic education to 27 million Filipino learners and college education to 4 million students is high that even the government cannot afford entirely. Even as we await the President’s signature on the Universal Access to Quality Tertiary Education bill, free education is still only up to secondary level. The mandate of the Constitution is to protect and promote the right of all citizens to accessible and quality education at all levels.

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Accessible education is a shared responsibility among the parents, government, and the private sector. But even as the State recognizes the complementary roles of the public and the private schools, this principle has yet to be operationalized. We need to legislate complementarity. While the private and religious schools share in the responsibility of government to deliver education, it should be able to thrive and maintain its distinctiveness, as non-government schools. Over the past few decades, the private schools have been fighting against legislative measures and administrative issuances that make them look like public schools.

Unreasonable laws and regulations

I have seen them all as a lawyer in the field of education. For example, a parent enrolls a child in a private school and avails of its installment plan, reneges on the obligation, and insists as a matter of right to stay in the private school and be allowed to take the examinations. Since then, a “no-permit, no-exam bill” has been proposed in Congress making it unlawful for a private school to refuse examination on account of unpaid tuition. A student who has unpaid and outstanding financial accountabilities with a private school cannot obtain his transfer credentials, and yet, is able to validly transfer and be accepted in a public school without them. And the unending abhorrence to tuition increases. Tuition regulation stifles quality initiatives in private schools because private schools are fully tuition- funded by the parents. Because of these restrictions, the quality of education in the private schools are pushed down to the minimum.

We live in a litigious society. Complaints against private schools are brought into the legal system. The Department of Education (DepEd) and the Commission on Higher Education (CHEd) are forced to adjudicate on rights of students and schools like courts of law. Courts and administrative agencies are compelled to determine how much of the government control and supervision that applies to state-funded universities and DepEd schools should also apply to private schools and universities.

When education is delivered in the public schools, the public school students have every right to demand from the government free education, free admission, and provide for their educational needs. But it ought to be different when education is delivered in the private schools, because a contractual relationship is created between the students/parents and the schools where they all have obligations. While these contractual relationships should not go beyond government scrutiny and regulation, such limitation should be reasonable and not one that impairs obligations and contracts. An abrupt moratorium on all field trips implemented in all schools due to a single incident involving a bus carrying students is an example of unreasonable regulation that impairs obligations and contracts of the schools that have nothing to do with the accident.

Education as a matter of right may be invoked against the State in the public schools, but not in the private schools. The right to continue education in the private schools is conditioned on meeting obligations and requirements set by the school based on its definition and standards of quality. As long as “fundamental fairness” is observed in the private schools, and there is “color of due process,” government intervention should be sparingly exercised. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against private entities.

Govt support of private education

As to government support, our country is guided by the dictum, “public money shall be used for public purposes”. While this protects government money against corruption, it blocks government support of students in the private schools. Government subsidy to private education should not be viewed as violative of this principle. Education is a public good and a public function even when it is delivered in the private sector. Thus, public and private schools should compete for quality of their educational services and not for government resources.

For example, the department order mandating schools to train teachers to address bullying incidents in schools pursuant to the Anti-Bullying Act and the child protection policy, but there’s no gov’t subsidy to implement such training and implementation of a lawful mandate; or the implementation of Presidential Decree 577 which provides that bona fide dependents of members of the AFP who perish in battle shall be exempt from payment of tuition and matriculation fees in both public and private schools, universities, colleges and other educational institutions, and yet no such subsidy is provided to ensure its implementation. These are examples of unfunded mandates in the private schools. This is equivalent to government taking of private property for public purposes without payment of just compensation.

We are now in an era where deregulation is a popular mantra. Legal problems in the private schools have undergone many changes. In the United States case of Trinity Lutheran vs. Comer, non-establishment clause of religious organizations, a longstanding limitation on government-private schools interaction, now permits government resources on religious school premises. In the Philippines, we are waiting the signing into law of the Universal Access to Quality Tertiary Education which significantly includes subsidy to private higher education institutions. The passage of the UNIFAST Law in 2016, and now its strengthening, to perform its mandate to implement various student financial assistance programs to all educational institutions, both public and private, supports the principle of complementarity in education. On the other hand, requiring certificate of tax exemption from non-stock, non-profit educational institutions before they can enjoy the tax exemption conferred upon them by the Constitution no less, does not. The imposition of LGUs on schools in the form of various exorbitant fees is a tax in disguise and an undue burden on the private schools.

Teacher salary increases

Lastly, on teachers. At every National Teachers Day celebration, we hear proposals to legislate a raise in the salary of public school teachers. The last proposal is to increase it to P39,000 for entry-level teachers in the public schools. But what about the private school teachers? Not all private schools can afford such increase in their pay. Even with the current rate of salaries for public school teachers, the private school teachers are lured to migrate to the public schools. The current starting salary for public schools is P23,000 (inclusive of benefits and allowances), while the average salary in the private schools is P13,000.00 (across all regions). In creating an artificial raising of teachers’ pay in the public schools, and by making the difference considerably high, the primary consideration for teaching is unduly focused on who pays higher. In the declining teaching profession, adopting a higher salary is not always key to encourage more teachers to join the force.

My humble proposal is for the government to subsidize salaries of private school teachers and make them at par with their public school counterparts. After all they are all mandated to teach the core curriculum prescribed by the DepEd. The impassioned debate against public funding of private school teachers is centered mainly on academic elitism. However, it is also worth considering that when private schools provide education services, it eases the government burden of hiring more teachers in the public schools. Private school teachers should therefore be compensated for performing a public function in the form of salary subsidies.

In conclusion, if the government can remove the unnecessary regulatory and legal barriers to allow more complementary participation of the private schools, we will be at par with our Asean neighbors in providing quality and accessible education to the Filipino youth. I appeal to our legislators today to look at private schools as partners of the government in the delivery of education. This complementarity may be finally operationalized if the President signs the Universal Access to Quality Tertiary Education bill into law on or before August 5, 2017. And of course, if this Congress was able to draw up a tax reform amending the Tax Code despite heavy criticisms, perhaps it is time to look at legislating a comprehensive education reform law where public and private education complement each other in the delivery of accessible quality education to help the government perform its mandate.

The author is the corporate secretary and legal counsel of The Manila Times, and managing partner of Estrada & Aquino Law, Co.

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