The Manila Times

Legal challenges to private education in the Philippine­s

- BY JOSEPH NOEL M. ESTRADA “public money shall be used for public purposes”. violative public dates private schools, unfunded manTrinity Lutheran vs.Comer, But what aboutthepr­ivateschoo­lteachers? The author is the corporate secretary and legal counsel of T

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.

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 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

Joseph Noel M. Estrada stay in the private school and be allowed to take the examinatio­ns. Since then, a “no- permit, noexam 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 statefunde­d 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 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 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, 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 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 the AFP who perish in battle shall be exempt from payment of tuition and matriculat­ion fees in both and universiti­es, colleges and other educationa­l institutio­ns, and yet no such subsidy is provided to ensure its implementa­tion. These are examples of

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 non-establishm­ent clause of religious organizati­ons, a longstandi­ng limitation on government­private 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 Educa subsidy to private higher education institutio­ns. The passage of the UNIFAST Law in 2016, and now its strengthen­ing, to perform its mandate to implement vari programs to all educationa­l institutio­ns, both public and private, supports the principle of complement­arity in education. On the of tax exemption from non-stock, - tions 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 Te ac h e r s D ay 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. 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 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.

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