An outsider’s view: Goodbye, PhilSAT, goodbye!

Published December 10, 2019, 12:00 AM

by manilabulletin_admin

THE LEGAL FRONT

By JUSTICE ART D. BRION (RET.)

J. Art D. Brion (RET.)
Justice Art D. Brion (Ret.)

Education is once more in the news.  At the Programme for International Student Assessment (PISA) we recently participated in, our 15-year-olds were ranked last (79th out of 79) in reading literacy, and 78th in math and science.

The news came almost simultaneously with the Supreme Court’s ruling that the Legal Education Board’s (LEB) use of its Philippine Law School Admission Test (PhilSAT) to screen the admission of law school entrants, is unconstitutional. The unconstitutionality stemmed largely from the compulsory nature of the LEB’s admission requirement.

The court ruling likewise invalidated the 2017 LEB qualification requirement that law deans and law school teachers should have a master’s degree by year 2021.

The PISA announcement and the court ruling came opportunely. Despite the difference of the pool of students tested (15-year-olds in PISA and law school applicants in PhiLSAT), their results are related.

The PISA students constitute the pool from which, eight years from now, law school applicants will come. The Bar examinees of 2018 were the 15-year-olds of 2010.

The court aptly characterized the PhiLSAT rule and the master’s degree requirement as exercises of the LEB’s regulatory power or of the police power of the state.

Police power is generally defined as the authority to regulate behavior for the betterment of the health, safety, morals, and the general welfare of the state’s inhabitants.

The authority to regulate education emanates from this power. The progress of our society largely depends on education, particularly of our youth. Legal education, for its part, covers a more specific public interest – the protection of our justice system through the lawyers who largely man its ramparts.

Police power, an inherent state power, has no specifically defined boundaries.  Its scope expands and contracts, depending on the public need to be addressed.  Two tests determine the validity of its exercise.

First, it must address an objective that the state can validly regulate.  Education is an undisputed legitimate objective, as the court itself has repeatedly confirmed.

Second, the state must use reasonable means to attain its objective, i.e., the measures undertaken must be proportionate to the “evil” sought to be addressed.

The PhiLSAT and masteral requirements, in the court’s analysis, violate the reasonableness test; by acting unreasonably, the LEB exceeded its granted powers. The measures, the court declared, also violate the academic freedom of law schools and their students.

While a court ruling is supreme, I cannot help but share through this column my outsider’s misgivings on the question of how the LEB measures could have been disproportionate to the “evils” they sought to address, given the current legal education situation in the country.

Even granting that the LEB had erred in calibrating its steps, I likewise doubt if the LEB measures really amount to the “grave abuse of discretion” that the court’s direct intervention requires under the Constitution.

Grave abuse of discretion is more than a mere error or a wrongful calibration; it involves action characterized by grave and capriciously excessive abuse. The court saw such abuse in the LEB’s regulation of legal education.

In past columns, I have painstakingly outlined our legal education situation. I dwelt in particular with the Bar exams, the court’s qualifying test for admission to the practice of law. Law schools indirectly participate in the admission process by preparing law students for the Bar exam and the practice of law.

Unfortunately, the law schools miserably failed in their educational task.

In the past 20 or so years, the annual passing rate of Bar examinees has been a measly 25%.  In more graphic terms, for every 100 Bar examinees, 75 fail and only 25 pass. Compare this performance with the record of the top 10 law schools whose percentages are in the 70s to the 90s.

Consider, too, that the flunkers are students who spent eight years of their young lives studying the law: four preparatory years of college and four years of law school. They could have devoted themselves to more appropriate callings had effective law school screening been in place.

A main cause of failures suggests itself when the Bar results are correlated with the PISA assessment results. In PISA, four of five Filipino students (or 80%) were categorized as Level 2 or “low performers in reading literacy, i.e., “too low to enable them to participate effectively  and productively in every day life.

Legal education cannot but be directly influenced by our students’ early preparatory education as the PISA years and the Bar exam are the two ends of the legal education continuum.  Starting at the 80% failing rate at the PISA levels, our students – not surprisingly – end up with a 75% failure rate at the Bar exams.

I discussed the Bar exam in a previous article (Postscript to the Bar Oathtaking, Manila Bulletin, June 19, 2019) in relation with the performance of the 131 law schools whose graduates took the 2018 Bar exams.  I wrote:

“The starting shocker is that in 25 (or 19%) of our law schools, ALL the Bar candidates failed; thus, roughly one fifth (1/5) of our law schools had a 0% passing rate in the 2018 Bar exams.

Only less than 10% of the candidates in 32 (or 24.48%) of our law schools passed, while 37 (or 28.24%) law schools had passing rates ranging from 10% to less than 22.07% – the national Bar passing average.”                

Bar failures take place not only due to deficient knowledge of law, but largely due to the examinees’ failure to express themselves in English (the language of the law) and their underdeveloped reasoning capability.

Any Bar examiner will readily confirm these realities and I can speak from experience as I had been both Bar examiner and Bar chairman.

These results happened because the students had poor potentials to start with, and should have been screened, as the PhiLSAT had been doing. Pre-law education, too, has not at all prepared them for law school, while the law schools likewise dismally failed.

The worst cases happened because of an unfortunate pairing: students with hardly any aptitude for law studies, paired with educators ill-prepared to teach law. Disaster, under this formula, is inevitable – then, now, and in the future.

Consider, too, that legal knowledge and skills are mostly imparted by part-time law school teachers, i.e., those who teach law on the side, a situation that raises questions of focus. Questions of qualification likewise exist, together with the availability of qualified law teachers outside the law practice centers.

Isn’t teaching a separate discipline that requires a different set of skills from lawyering? Otherwise stated, does passing the Bar already qualify lawyers to teach law?  I think not, and I say this because I have practiced law and have been a law school teacher.

Shouldn’t the court recognize these ground realities and that the LEB only responded to an extremely adverse legal education situation? In fact, the more relevant question for the LEB should have been: what more should or could it have done, given the Bar exam situation and the dismal performance of many law schools.

Why hasn’t the LEB closed down the non-performing law schools? Was it because of the academic freedom of these law schools and their students?

A “yes” to this question really makes no sense; academic freedom cannot rise higher than police power and the general welfare of this nation.

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