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WISCONSIN vs. YODER to override the interest claiming protection under the Free Exercise Clause. Fundamental right to religion is protected, sometimes even at the expense of other interests of admittedly high social importance. Only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. 2. Respondents have amply supported their claim that enforcement of the compulsory formal education requirement after the eighth grade would gravely endanger if not destroy the free exercise of their religious beliefs. It was necessary for the court to determine whether the Amish religious faith and their mode of life are, as they claim, inseparable and interdependent not merely philosophical nor personal. In this case, the Old Order Amish daily life and religious practice stem from their faith is shown by the fact that it is in response to their literal interpretation of the Biblical injunction from the Epistle of Paul to the Romans, "be not conformed to this world . . . ." This command is fundamental to the Amish faith. This virtually determines their entire way of life. Values and programs of the modern secondary school are in sharp conflict with the fundamental mode of life mandated by the Amish religion. Wisconsin law contravenes the basic religious tenets and practice of the Amish faith, both as to the parent and the child. Furthermore, Wisconsin law affirmatively compels them, under threat of criminal sanction, to perform acts undeniably at odds with fundamental tenets of their religious beliefs. The compulsory-attendance law carries with it precisely the kind of objective danger to the free exercise of religion that the First Amendment was designed to prevent. 3. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish have demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continuing survival of Old Order Amish communities, and the hazards presented by the State's enforcement of a statute generally valid as to others. Beyond this, they have carried the difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of the overall interests that the State relies on in support of its program of compulsory high school education. In light of this showing, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish.

FACTS: Respondents, members of the Old Order Amish religion and the Conservative Amish Mennonite Church, were convicted of violating Wisconsin's compulsory schoolattendance law (which requires a child's school attendance until age 16) by declining to send their children to public or private school after they had graduated from the eighth grade. The evidence showed that the Amish provide continuing informal vocational education to their children designed to prepare them for life in the rural Amish community (children ages 14 and 15). The evidence also showed that respondents sincerely believed that high school attendance was contrary to the Amish religion and way of life and that they would endanger their own salvation and that of their children by complying with the law. ISSUE: WON the compulsory-attendance law violated their rights under the First and Fourteenth Amendments. HELD: Yes. RATIO: (state supreme court muna total the US SC upheld their decision naman)

their children's attendance at high school, public or private, was contrary to the Amish religion and way of life. It poses danger of the censure of the church community and endanger their own salvation and that of their children. These religious belief were held to be sincere. Expert witnesses (scholars on religion) testified that this concept of life aloof from the world and its values is central to their faith. Amish objection to formal education beyond the eighth grade is firmly grounded in these central religious concepts. Formal high school education beyond the eighth grade is contrary to Amish beliefs because it takes them away from their community, physically and emotionally. During this period, the children must acquire skills needed to perform the adult role of an Amish farmer or housewife. And, at this time in life, the Amish child must also grow in his faith and his relationship to the Amish community.

(eto US SC ratio na) 1. The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children. In applying strict scrutiny, it was not shown that there is a state interest of sufficient magnitude

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It is true that activities of individuals, even when religiously based, are often subject to regulation by the States in the exercise of police power but religiously grounded conduct is protected by the Free Exercise Clause of the 1st Amendment. Re discrimination: A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion. Some degree of education is necessary to prepare citizens to participate effectively and intelligently in our open political system if we are to preserve freedom and independence. However, the evidence adduced by the Amish in this case is persuasively to the effect that an additional one or two years of formal high school for Amish children in place of their long-established program of informal vocational education would do little to serve those interests. Separated agrarian community is the keystone of the Amish faith. That they would become burden to society should they leave the community and join the mainstream world with educational shortcomings is highly speculative. 4. The State's claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise claim of the nature revealed by this record, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires. Parents have a right to direct the religious up-bringing of their children which may be subject to limitation ] if it appears that parental decisions will jeopardize the health or safety of the child, or have a potential for significant social burdens. But in this case, the Amish have introduced persuasive evidence undermining the arguments the State has advanced to support its claims in terms of the welfare of the child and society as a whole. we cannot accept a parens patriae claim of such all-encompassing scope and with such sweeping potential for broad and unforeseeable application as that urged by the State. (overinclusive) affirmed. U.S. vs. BALLARD FACTS:

-

Respondents, Edna W. Ballard and Donald Ballard were convicted of using and conspiring to use the mails to defraud. The indictment was in twelve counts. It charged a scheme to defraud by organizing and promoting the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the I Am movement sought 'by means of false and fraudulent representations, pretenses and promises' Misrepresentations: o That the words of 'ascended masters' and the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of the said Guy W. Ballard, Edna W. Ballard, and Donald Ballard through their high spiritual attainment and righteous conduct. That the respondent were able to cure hundreds of people of diseases classified either curable or incurable.

-

-

o

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Each of them, well knew that all of said aforementioned representations were false and untrue and were made with the intention on the part of the defendants, and each of them, to cheat, wrong, and defraud persons intended to be defrauded, and to obtain from persons intended to be defrauded by the defendants, money, property, and other things of value and to convert the same to the use and the benefit of the defendants, and each of them. Defense: There was a demurrer and a motion to quash each of which asserted among other things that the indictment attacked the religious beliefs of respondents and sought to restrict the free exercise of their religion in violation of the Constitution of the United States. Lower Court: Did not want to rule on the truth or validity of the religious claims made by the respondents but rather limited the scope of the case to this issue: “WON these defendants honestly and in good faith believe those things? If they did, they should be acquitted. I cannot make it any clearer than that”

-

-

o

'If these defendants did not believe those things, they did not believe that Jesus

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came down and dictated, should find them guilty. the jury on a different course once that one turned out to be unsuccessful

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The Lower court convicted the respondents. The latter, initially acquiesced to the verdict but soon filed for a motion for retrial since the withdrawal of the issue of truth and verity would run contrary to the nature of the indictment itself. “'it was necessary to prove that they schemed to make some, at least, of the (eighteen) representations * * * and that some, at least, of the representations which they schemed to make were false” Court of Appeals reversed the decision and granted a new trial, with one judge dissenting.

o

-

Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704. That case stands for the proposition that, apart from situations involving an unfair trial, an appellate court will not grant a new trial to a defendant on the ground of improper introduction of evidence or improper comment by the prosecutor, where the defendant acquiesced in that course and made no objection to it. In fairness to respondents that principle cannot be applied here

ISSUE: WON the 1st Amendment precluded the court from judging upon the truth, verity, and validity of the beliefs of the respondent. Yes, decision of the Court of Appeals reversed.

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Supreme court: Ruled that Johnson v. United States cannot be applied in the case at bar. The real objection of respondents is not that the truth of their religious doctrines or beliefs should have been submitted to the jury. Their demurrer and motion to quash made clear their position that that issue should be withheld from the jury on the basis of the First Amendment. o We do not agree that the truth or verity of respondents' religious doctrines or beliefs should have been submitted to the jury. Whatever this particular indictment might require, the First Amendment precludes such a course, as the United States seems to concede. The First Amendment has a dual aspect. It not only 'forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship' but also 'safeguards the free exercise of the chosen form of religion.' Cantwell v. State of Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352. 'Thus the Amendment embraces two concepts,--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.' Freedom of thought, which includes freedom of religious belief, is basic in a society of free men The First Amendment does not select any one group or any one type of religion for preferred treatment. It puts them all in that position.

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Misrepresentations Supreme Court: o

ascertained

by

the

o

o

(1) A portion of the scheme as to healing which we have already quoted and which alleged that respondents 'had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments'; (2) The portion of the scheme relating to certain religious experiences described in certain books (Unveiled Mysteries and The Magic Presence) and concerning which the indictment alleged 'that the defendants represented that Guy W. Ballard, Edna W. Ballard, and Donald Ballard actually encountered the experiences pertaining to each of their said names as related and set forth in said books, whereas in truth and in fact none of said persons did encounter the experiences'; (3) The part of the scheme concerning phonograph records sold by respondents on representations that they would bestow on purchasers 'great blessings and rewards in their aim to achieve salvation' whereas respondents 'well knew that said * * * records were manmade and had no ability to aid in achieving salvation.'

o

o

o

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The United States contends that respondents acquiesced in the withdrawal from the jury of the truth of their religious doctrines or beliefs and that their consent bars them from insisting

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he considered this belief superior to his obligation to the state. U.S. vs. SEEGER FACTS: Seeger was convicted in the District Court for the Southern District of New York of having refused to submit to induction in the armed forces. He first claimed exemption as a conscientious objector in 1957 after successive annual renewals of his student classification. Although he did not adopt verbatim the printed Selective Service System form, he declared that he was conscientiously opposed to participation in war in any form by reason of his 'religious' belief; that he preferred to leave the question as to his belief in a Supreme Being open, 'rather than answer 'yes' or 'no"; that his 'skepticism or disbelief in the existence of God' did 'not necessarily mean lack of faith in anything whatsoever'; that his was a 'belief in and devotion to goodness and virtue for their own sakes, and a religious faith in a purely ethical creed. He was convicted and the Court of Appeals reversed, holding that the Supreme Being requirement of the section distinguished 'between internally derived and externally compelled beliefs' and was, therefore, an 'impermissible classification' under the Due Process Clause of the Fifth Amendment. Jakobson was also convicted in the Southern District of New York on a charge of refusing to submit to induction. On his appeal the Court of Appeals reversed on the ground that rejection of his claim may have rested on the factual finding, erroneously made, that he did not believe in a Supreme Being as required He explained that his religious *168 and social thinking had developed after much meditation and thought. He had concluded that man must be 'partly spiritual' and, therefore, 'partly akin to the Supreme Reality'; and that his 'most important religious law' was that 'no man ought ever to wilfully sacrifice another man's life as a means to any other end The Court of Appeals reversed, finding that his claim came within the requirements of s 6(j). Because it could not determine whether the Appeal Board had found that Jakobson's beliefs failed to come within the statutory definition, or whether it had concluded that he lacked sincerity, it directed dismissal of the indictment. Forest Britt Peter was convicted in the Northern District of California on a charge of refusing to submit to induction. In his Selective Service System form he stated that he was not a member of a religious sect or organization; he failed to execute section VII of the questionnaire but attached to it a quotation expressing opposition to war, in which he stated that he concurred In a later form he hedged the question as to his belief in a Supreme Being by saying that it depended on the definition and he appended a statement that he felt it a violation of his moral code to take human life and that Conscientious Objector 'personal scruples against war' Individual belief--rather than membership in a church or sect--determined the duties that God imposed upon a person in his everyday conduct; and that 'there is a higher loyalty than loyalty to this country, loyalty to God.' Thus, while shifting the test from membership in such a church to one's individual belief the Congress nevertheless continued its historic practice of excusing from armed service those who believed that they owed an obligation, superior to that due the state, of not participating in war in any form. ”religious training and belief” 'belief in a relation to a Supreme Being involving duties superior to those arising from any human relation.' In assigning meaning to this statutory language we may narrow the inquiry by noting briefly those scruples expressly excepted from the definition. The section excludes those persons who, disavowing religious belief, decide on the basis of essentially political, sociological or economic considerations that war is wrong and that they will have no part of it. These judgments have historically been reserved for the Government, and in matters which can be said to fall within these areas the conviction of the individual has never been permitted to override that of the state. 'The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation.' By comparing the statutory definition with those words, however, it becomes readily apparent that the Congress deliberately broaden them by substituting the phrase 'Supreme Being' for the appellation 'God.' And in so doing it is also significant that Congress did not elaborate on the form or nature of this higher authority which it chose to designate as 'Supreme Being.' By so refraining it must have had in mind the admonitions of the Chief Justice when he said in the same opinion that even the word 'God' had myriad meanings for men of faith: '(P)utting aside dogmas with their particular conceptions of deity, freedom of conscience itself implies respect for an innate conviction of paramount duty. The test might be stated in these words: A sincere and meaningful belief which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption comes within the statutory definition. This construction avoids imputing to Congress an intent to classify different religious beliefs, exempting some and excluding others, and is in accord with the well-established congressional policy of equal treatment for those whose opposition to service is grounded in their religious tenets. The test is simple of application. It is essentially an objective one, namely, does the claimed belief occupy the same place in the life of the objector as an orthodox belief in God holds in the life of one clearly qualified for exemption?

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Petitioner was being drafted to fight in the Vietnam War. To avoid it, he requested to be classified as a ‘conscientious objector’. The local draft board turned down his request. He appealed. State Appeal Board still classified him as eligible for unrestricted service then passed it on to Justice Dep’t. FBI made an inquiry. Hearing officer recommended that he be classified a conscientious objector because of testimony from ‘inquiry’ of petitioner, parents, attorney and religious minister proved that petitioner was sincere. Nevertheless Justice Dep’t advised denial of request. Appeal Board denied the request w/o stating reasons for such a claim. Petitioner refused to be drafted and was convicted. ISSUE: HELD: RATIONALE: In order to be classified as a conscientious objector, a registrant must satisfy three basic tests. He must show 1) that he is conscientiously opposed to war in any form; 2) that this opposition is based upon religious training and belief; 3) and that this objection is sincere. In applying the test, the Selective Service System must be concerned with the registrant as an individual, not with its own interpretation of the dogma of the religious sect, if any, to which he may belong. Justice Dep’t believed that Clay did not satisfy any requirement. 1) Clays belief did not preclude war in any form but are limited to service in the US Armed Forces. He objects to certain types of war in certain circumstances, rather than a general scruple against participation in war in any form. 2) Clays religion did not preclude fighting for the US because of political and racial objectives to US policies instead of objections to participate in war in any form. 3) Clay as a conscientious objector only surfaced when drafting was imminent. He has not shown ‘overt manifestation’ of his opposition. However, in this Court, the gov’t has conceded that petitioners belief are based on religious training. His beliefs, like those in US vs Seeger, are clearly founded on the tenets of the Muslim religion as he understands them. The gov’t also conceded that it no longer questions the sincerity of petitioners belief. The hearing officer who decided on the sincerity of the petitioner with info from FBI inquiry was convinced of his sincerity and recommended his classification as a conscientious objector. Justice dep’t was wrong to disregard such a finding. Since the Appeal Board gave no reasons for denying Clays request, no one knows which ground he did not pass. But since two of the grounds no longer hold, it is clear that the dep’t was wrong. This case then falls in Sicurella vs US. There, the Court was asked to hold that an error in an advice letter prepared by the Justice Dep’t did not require reversal of

ISSUES: W/O the plaintiffs religious beliefs exempted them from induction in U.S military training? HELD: Seager Seeger professed 'religious belief' and 'religious faith.' He did not disavow any belief 'in a relation to a Supreme Being'; indeed he stated that 'the cosmic order does, perhaps, suggest a creative intelligence.' He decried the tremendous 'spiritual' price man must pay for his willingness to destroy human life. In light of his beliefs and the unquestioned sincerity with which he held them, we think the Board, had it applied the test we propose today, would have granted him the exemption. We think it clear that the beliefs which prompted his objection occupy the same place in his life as the belief in a traditional deity holds in the lives of his friends, the Quakers. We are reminded once more of Dr. Tillich's thoughts: 'And if that word (God) has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, or your ultimate concern, of what you take seriously without any reservation. Perhaps, in order to do so, you must forget everything traditional that you have learned about God * * *'. Tillich, The Shaking of the Foundations. It may be that Seeger did not clearly demonstrate what his beliefs were with regard to the usual understanding of the term 'Supreme Being.' But as we have said Congress did not intend that to be the test. We therefore affirm the judgment. Peter It will be remembered that Peter acknowledged 'some power manifest in nature * * * the supreme expression' that helps man in ordering his life. As to whether he would call that belief in a Supreme Being, he replied, 'you could call that a belief in the Supreme Being or God. These just do not happen to be the words I use.' We think that under the test we establish here the Board would grant the exemption to Peter and we therefore reverse the judgment in No. 29 Jakobson The Court of Appeals found that the registrant demonstrated that his belief as to opposition to war was related to a Supreme Being. We agree and affirm that judgment.

CASSIUS CLAY (MUHAMMAD ALI) vs. U.S (1971) Per curiam FACTS:

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a criminal conviction because there was a ground on which the Appeal Board might properly have denied a conscientious objector classification. This Court refused because in cases where it is impossible to determine exactly which grounds the Appeal Board decided, the integrity of the Selective Service System demands, at least, that the gov’t not recommend illegal grounds. (in other words: the grounds must be clearly legitimate from the first and finding a clearly legitimate ground afterwards won’t work.) DISPOSITION: Judgment reversed. Ali is free! SEPARATE OPINIONS Douglas, concurs: Sicurella vs US: Congress couldn’t possibly mean conscientious objector must go to ‘participation in war in any form’. Negre v Larsen: Petitioners church did not oppose war in Vietnam but provided guidelines for unjust wars. His conscience did not allow him to go to Vietnam. Court said screw his conscience, go and fight! Clay is different. As a Muslim he follows Koran. Koran proclaims jihad by believers against non-believers. All other wars are unjust. Clays believes only in war sanctioned by the Koran. Therefore, it becomes a matter of belief, of conscience, of religious principle. Harlan, concurs in the result: Justice dep’t gives bad advice. Not all conscientious objectors are weasels trying to get out of fighting in Vietnam.

BYRNE article: ACADEMIC FREEDOM: A SPECIAL CONCERN OF THE 1ST AMMENDMENT J. Peter Byrne I. INTRODUCTION

The First Amendment protects academic freedom but there has been no adequate analysis of what academic freedom the Constitution protects or why it protects it. Lacking definition or guiding principle, the doctrine floats in the law. Author’s definition of academic freedom: non-legal term referring to the liberties claimed by professors through professional channels against administrative or political interference with research, teaching and governance. Of constitutional academic freedom: essence is the insulation of scholarship and liberal education from extramural political interference  insulate the university in core academic affairs from state interference II. FIRST AMENDMENT ON CAMPUS

Concern is only with the substantive protection of academic freedom by the 1st Amendment isolating which has been difficult because 1) courts have used legal doctrines not based on academic freedom to protect liberties of professors and students; 2) courts have declined to recognize a constitutional shield for many forms of classroom speech that seem at first blush to implicate general principles of free expression. Central paradox: The institutional right seems to give a university the authority to hire and fire without government interference those very individuals apparently granted a personal right to write and teach without institutional hindrance.  Nonetheless, this paradox should be seen as neither collateral nor embarrassing; academic discourse benefits from the tension between the independence of a scholar's judgment and the university's evaluation of her professional competence. A. Academic Speech

Academic Freedom
ARTICLE XIV – EDUCATION, SCIENCE TECHNOLOGY, ARTS, CULTURE AND SPORTS EDUCATION AND

Sec 1. The State shall protect and promote the right of all citizens to quality education at all levels, and shall take appropriate steps to make such education accessible to all. Sec 5(2) Academic freedom shall be enjoyed in all institutions of higher learning.

Students and junior professors (considered neophytes in the field) suffer real punishment for speech deemed inadequate by the masters. Compared to general civil society where the 1st Amendment opposes prior and subsequent restraint based on determination if the speech is valuable or not. The First Amendment value of academic speech rests on its commitment to truth (however partially understood by the discipline), its honesty and carefulness, its richness of meaning, its doctrinal freedom, and its

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invitation to criticism.  society ought to strive towards speech that is truthful. Academic freedom resembles other free expression values insofar as it protects the individual scholar's point of view; it is distinct insofar as it protects those structures that permit the individual scholar to engage with others in collective scholarship

B.

The

Rise

of the

Scientific

Research

Value

Higher education began to be seen as scientific training for practical jobs rather than moral training of gentlemen for elite professions.  The change is usefully, if simple-mindedly, expressed as a movement from a paradigm of fixed values vouchsafed by religious faith to one of relative truths continuously revised by scientific endeavor. Changes in the structure enlarged the status of the faculty – now highly-trained professionals. Yet low salary and uncertain tenure remained  They were no longer dependent on the will of clergymen but answerable to businessmen. Academic freedom became rallying cry for professors seeking more control over their professional lives.

B.

Student Speech and Extracurricular Political Activity

The term "academic freedom" should be reserved for those rights necessary for the preservation of the unique functions of the university, particularly the goals of disinterested scholarship and teaching. First Amendment rights w/c should not properly be a part of constitutional academic freedom: 1) no recognized student rights of free speech are properly part of constitutional academic freedom, because none of them has anything to do with scholarship or systematic learning (e.g. wearing of armbands, demonstrations, etc.)  while the Constitution affords students at public institutions extensive civil rights, it affords them no rights of academic freedom at all. 2) the right of a professor to participate in political activity off campus and on her own time without institutional reprisal should not be viewed as a matter of constitutional academic freedom  academic freedom should be understood to include only rights unique or necessary to the functions of higher education; exist as a necessary incident to university's commitment to the pursuit of truth and the controvertibility of dogma. C. Tenure Tenure is not equal to academic freedom but it promotes academic freedom since it requires public airing of explicit and categorically neutral reasons for dismissal.  does not protect academic freedom of untenured since they will direct their scholarship to those likely to be accepted by the tenured. III. THE AMERICAN TRADITION ACADEMIC FREEDOM Early History and Structure OF

C.

Development Freedom

of

the

Concept

of

Academic

Problem was the interference by the lay board of trustees or regents. Professors demanded that no ideological test be applied and evaluation done by professional peers. The American concept of academic freedom emerged from this ideological and practical conflict between academic social scientists and their lay employers. American Assoc. of University Professors (AAUP) insisted on a clear distinction between speech that was academic and that which was merely political or sectarian. AAUP’s vision of academic freedom: 1) noble vision of the academic calling; 2) eliminates gravest evils of lay control over universities; 3) concept of peer review according to professional standards.

D.

The Challenge of other Academic Values

Humanistic values: valuable knowledge includes ideas that aren’t scientifically demonstrable and that students must receive a coherent education in the traditions of civilized thought, writing and art. The democratic value in higher education reflects the demands placed on our colleges and universities by the society at large that they help fulfill broad goals of social mobility and general prosperity.

A.

The structural elements that would give shape to academic freedom were established early: legal control by non-academic trustees; effective governance by administrators set apart from the faculty by political allegiance and professional orientation; dependent and insecure faculty.

E.

Professional Standard

Competence

as

a

Regulatory

The integrity of academic freedom depends on the good faith of the professorate and on its collective ability to distinguish between scholars who disagree with accepted findings and those who do not understand them.  what

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defines competence? When this question arises trouble develops. Without agreement about basic paradigms, competence loses much of the neutrality that might ordinarily be assumed, as there may be no shared criterion for evaluation. rights against their institutions while faculty and students at private institutions enjoy none. Thus, the state action doctrine mandates judicial enforcement of constitutional liberties against institutional infringements for half the nation's academics and denies it to the other half for reasons which, if desirable at all, are very far removed from the realities of academic life The Proper Scope of Judicial Intervention Courts seem entirely ill-equipped to resolve these disputes. Asked to protect the academic freedom of a candidate denied tenure by faculty vote, a court would need to determine what, in fact, are the requirements for tenure, whether the candidate met the requirements, and whether the faculty rejected the candidate for some non-academic reason. Such an inquiry, backed by the coercive power of the state, would put the department or school into intellectual receivership, with the court determining the appropriate paradigms of thought.  Courts then should only ascertain if the administrators can establish that they in good faith rejected the candidate on academic grounds. The Court has come to limit the judiciary's role to excluding non-academics from imposing ideological criteria on academic decision-making, while refusing to impose substantive limits on academic administrators who in good faith penalize faculty for academic speech V. CONSTITUTIONAL ACADEMIC FREEDOM AND THE PROTECTION OF INSTITUTIONAL AUTONOMY

IV.

CONSTITUTIONAL ACADEMIC FREEDOM AND THE INDIVIDUAL SCHOLAR

Concurring opinion of Justice Frankfurter in Sweezy: university freedom for teaching and scholarship without interference from government is a positive right and that the state here had failed to provide a compelling justification for questioning an academic about the content of a lecture  the four essential freedoms" of a university--to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study Three significant oddities about the plurality and concurring opinions in Sweezy: 1) never before had the Court suggested that academic freedom was protected by the 1st Amendment. 2) Frankfurter’s decision looks solely to non-legal sources to describe the contents of acad. freedom 3) Although the content of acad. freedom was drawn from non-legal sources, they praised acad freedom by stressing the social utility of free universities. Sweezy endowed the new constitutional right of academic freedom with a legacy of triumphant rhetoric but also with an ambiguous description of the relationship between academic custom and positive legal right. The Court's decision not to ground its ruling on a positive right of academic freedom, moreover, presaged the Court's refusal to give this right the practical force that its rhetorical enthusiasms promised. Also in other cases, Barenblatt and Keyishian, the Court's use of rhetoric to define the content of academic freedom increases the ambiguity already created by basing the case's holding upon vagueness. However, despite their analytical shortcomings, Sweezy and Keyishian contributed substantially to the virtual extinction of overt efforts by non-academic government officials to prescribe political orthodoxy in university teaching and research. Constitutional Academic Freedom and the State Action Doctrine: An Aside Faculty and students at state universities enjoy extensive substantive and procedural constitutional

While the right to institutional academic freedom has arisen at the time in our history when universities have been most subject to federal regulation, no federal regulation has been invalidated under the right. As in Sweezy and Keyishian, the new turn in academic freedom has flowered in dicta and rhetoric more than in holdings and rules

A.

The Supreme Court and Institutional Academic Freedom

Academic freedom is described by Frankfurter not as a limitation on the grounds or procedures by which academics may be sanctioned but as "the exclusion of governmental intervention in the intellectual life of a university." Justice Stevens' concurring opinion in Widmar v. Vincent represents both a refreshing acknowledgment that universities must and should distinguish among speakers on the basis of the content of their speech and a pioneering inquiry into which university administrative decisions the First Amendment should protect. Thus, core academic administrative decisions-determining who may teach, what may be taught, how it shall be taught, and who may be admitted to study--

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cannot be interfered with by civil authorities without impairing the unique virtues of academic speech. When judges are asked to review the substance of a genuinely academic decision, such as this one, they should show great respect for the faculty's professional judgment. Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment. Academic Abstention It describes the traditional refusal of courts to extend common law rules of liability to colleges where doing so would interfere with the college administration's good faith performance of its core functions. The recognition of authority over internal affairs and the exclusion of judicial governance go hand in hand; they amount to a substantial degree of common law autonomy. Institutional academic freedom can be viewed as academic abstention raised to constitutional status, so that judges can consider whether statutes or regulations fail to give sufficient consideration to the special needs or prerogatives of the academic community. State Constitutional Law The tradition of constitutional autonomy for state universities seems to have contributed to the development of the federal right of institutional academic freedom. At a minimum, it confirms the persistence of the view, inherent in academic abstention, that civil authorities ought to respect the special needs and values of universities, even when erected and supported by the state. Constitutional academic freedom can perhaps best be seen as a principle that regulation should not proceed so far as to deprive the university of control over its academic destiny. This principle has been fashioned by courts, explaining why they restrain themselves from imposing farreaching constitutional or common law duties on the university. As such, it represents academic abstention raised to a constitutional level. Institutional Academic Freedom and the First Amendment And what are the indigenous values served by universities? 1) the university is the preeminent institution in our society where knowledge and understanding are pursued with detachment or disinterestedness. 2) The disinterested search for knowledge fosters a manner of discourse that, at its best, is careful, critical, and ambitious

3)

The university aspires to instill in those entering adulthood a capacity for mature and independent judgment.

Preserving the fundamental academic values of disinterested inquiry, reasoned and critical discourse, and liberal education justifies a constitutional right of academic freedom. These goals give intellectual and educational expression to the vision of human reason implicit in the Constitution. Who are do be protected by constitutional academic freedom? Universities that do not respect the academic freedom of professors (understood as the core of the doctrine developed by the AAUP) or the essential intellectual freedom of students (a concept barely developed) ought not to be afforded institutional autonomy. VI. CONCLUSION

Through repetition, the scope of institutional autonomy has come to be understood as the four freedoms offered by Justice Frankfurter: "'to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. The four freedoms adequately express the degree of autonomy necessary for a university to harbor liberal studies. The great virtue of these freedoms is that they recognize that liberal studies involve more than the simple act of speaking--that they require "'that atmosphere which is most *340 conducive to speculation, experiment and creation. This requires security, stimulation, tolerance, generosity of mind, the hiring of competent people, and the reward of excellence. Constitutional protection can preserve the possibility that academics might attain the goals of learning and scholarship. It cannot do more; it should not do less.

SWEEZY vs. NEW HAMPSHIRE June 15, 1957 Ponente: Warren, CJ: FACTS:  Defendant, Paul Sweezy, was convicted of contempt for failure to answer questions asked by the Attorney General of New Hampshire  In 1951 a statute was passed by the New Hampshire legislature to regulate subversive acts. In 1953, legislature adopted a joint resolution authorizing the attorney general to make full and complete investigations with respect to violations of the subversive activities act of 1951 which includes among others authorizing him “to act upon his own motion and upon such information as in his judgment may be reasonable or reliable.”

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o Statute defines a person to be subversive if he, by any means, aids in the commission of any act intended to assist in the alteration of the constitutional form of gov’t by force or violence.  Whether the Attorney General of New Hampshire acted within the scope of the authority given him by the state legislature is not for the US SC to determine but is a matter for the decision of the courts of that State. Petitioner as mentioned answered most of the questions asked of him, making it known that he had never been a Communist, never taught the violent overthrow of the Government, never knowingly associated with Communists in the State, but was a socialist believer in peaceful change… He refused to answer questions regarding: 1) a lecture given by him at the University of New Hampshire, 2) activities of himself and others in the Progressive political organizations, and 3) “opinions and beliefs,” invoking the constitutional guarantees of free speech SC stated that: For society’s good – if understanding be essential need of society— inquiries and speculations into the natural sciences, into anthropology, economics, law, etc. must be left as unfettered as possible except for reasons that are exigent and obviously compelling.  exclusion of governmental intrusion into the intellectual life of a university. Cites a quote from the Open Universities in South Africa: “In a university knowledge is its own end, not merely a means to an end… A university is characterized by the spirit of free inquiry, it ideal being the ideal of Socrates – ‘to follow the argument where it leads.’ This implies the right to examine, question, modify or reject traditional ideas and beliefs… Freedom to reason and freedom for disputation on the basis of observation and experiment are the necessary conditions for the advancement of scientific knowledge… It is the business of a university to provide that atmosphere which is most conducive to speculation, experiment and creation. It is an atmosphere in which prevail ‘the four essential freedoms’ of a university – to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

Sweezy was summoned to appear on two separate occasions in 1954 under suspicion of subversion in connection with the membership of his wife in the Progressive Party, an article he wrote wherein he affirmed that “he styled himself as a ‘classical Marxist’ and a ‘socialist’”, and a lecture he delivered on March 22, 1954 for a humanities course at the university. Petitioner answered most of the questions but declined to answer certain questions about his knowledge regarding the Progressive Party in his 1st appearance and about the lecture he delivered and his opinions or beliefs in his 2nd appearance stating only that he hat never been a member of the Communist Party. Because of his continuous decline to answer he was cited in contempt.

ISSUE: W/N the investigation deprived Sweezy of due process of law under the 14th Amendment HELD: Yes.  It is recognized that the right to lecture or associate are civil liberties guaranteed by the Constitution but they are not absolute rights. o In this case, it is believed that there was an unquestionable invasion of the petitioner’s liberties in the areas of academic freedom and political expression – areas in which the government should be extremely reticent to tread.  To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. 

In this case, the record does no reveal what reasonable or reliable information led the Attorney General to question petitioner (no showing of probable cause) therefore, if the interrogation of the Attorney General was in fact entirely unrelated to the object of the legislature in authorizing such inquiry, the Due Process Clause would preclude the endangering of constitutional liberties and can be treated as an absence of authority to conduct the inquiry. Because of this there can be no showing of a sufficient state interest to infringe the constitutional rights of the petitioner.

Concurring opinion of Justice Frankfurter:

The inviolability of privacy belonging to a citizen’s political loyalties has so overwhelming an importance to the well-being of our kind of society that it cannot be constitutionally encroached upon on the basis of so meager a countervailing interest of the State as may be argumentatively found in the remote, shadowy threat to the security of New Hampshire allegedly presented in the origins and contributing elements of the Progressive Party and the petitioner’s relations to these.

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Issues: WON the Faculty Admissions Committee had authority and discretion in allowing Pet. to continue studying or not? GARCIA vs. FACULTY ADMISSION COMMITTEE Epicharis (wat a name) Garcia vs. The Faculty Admission Committee represented by Fr. Lambino 1. That in summer, 1975, Respondent admitted Petitioner for studies leading to an M.A. in Theology; 2. That on May 30, 1975, when Petitioner wanted to enroll for the same course for the first semester, 197576, Respondent told her about the letter he had written her, informing her of the faculty's decision to bar her from re-admission in their school; reason in the letter: Pet.’s frequent questions and difficulties had the effect of slowing down the progress of the class although she ahd the requisite intellectual capability 3. That the reasons stated in said letter, dated May 19, 1975 ... do not constitute valid legal ground for expulsion, for they neither present any violation of any of the school's regulation, nor are they indicative of gross misconduct; 4. That from June 25, 1975, Petitioner spent much time and effort in said school for the purpose of arriving at a compromise that would not duly inconvenience the professors and still allow her to enjoy the benefits of the kind of instruction that the school has to offer, but all in vain; she was in fact told by Fr. Pedro Sevilla, the school's Director, that the compromises she was offering were unacceptable, their decision was final, and that it were better for her to seek for admission at the UST Graduate School; 5. Petitioner then subsequently made inquiries in said school, as to the possibilities for her pursuing her graduate studies for an for M.A. in Theology, and she was informed that she could enroll at the UST Ecclesiastical Faculties, but that she would have to fulfill their requirements for Baccalaureate in Philosophy in order to have her degree later in Theology — which would entail about four to five years more of studies — whereas in the Loyola School of Studies to which she is being unlawfully refused readmission, it would entail only about two years more; 6. Considering that time was of the essence in her case, and not wanting to be deprived of an opportunity for gaining knowledge necessary for her life's work, enrolled as a special student at said UST Ecclesiastical Faculties, even if she would not thereby be credited with any academic units for the subject she would take; 7. That Petitioner could have recourse neither to the President of her school, Fr. Jose Cruz, he being with the First Couple's entourage now in Red China, nor with the Secretary of Education, since this is his busiest time of the year, and June 11, 1975 is the last day for registration; ... " 8. She prayed for a writ of mandamus for the purpose of allowing her to enroll in the current semester Held: Yes. Being a particular educational institution (seminary). Petition dismissed for lack of merit Ratio: 1. Pet. cannot compel the res by mandamus to admit her into further studies since the respondent had no clear duty to admit the pet. -That respondent Fr. Antonio B. Lambino, S.J., and/or the Loyola School of Theology thru its Faculty Admission Committee, necessarily has discretion as to whether to admit and/or to continue admitting in the said school any particular student, considering not only academic or intellectual standards but also other considerations such as personality traits and character orientation in relation with other students as well as considering the nature of Loyola School of Theology as a seminary.

- technical aspect of admissions: the Chairman of the Faculty Admission Committee of the Loyola School of Theology, which is a religious seminary situated in Loyola Heights, Quezon Cityis in in collaboration with the Ateneo de Manila University, the Loyola School of Theology allows some lay students to attend its classes and/or take courses in said Loyola School of Theology but the degree, if any, to be obtained from such courses is granted by the Ateneo de Manila University and not by the Loyola School of Theology; For the reason above given, lay students admitted to the Loyola School of Theology to take up courses for credit therein have to be officially admitted by the Assistant Dean of the Graduate School of the Ateneo de Manila University in order for them to be considered as admitted to a degree program Petitioner in the summer of 1975 was admitted by respondent to take some courses for credit but said admission was not an admission to a degree program because only the Assistant Dean of the Ateneo de Manila Graduate School can make such admission; That in the case of petitioner, no acceptance by the Assistant Dean of the Ateneo de Manila Graduate School was given, so that she was not accepted to a degree program but was merely allowed to take some courses for credit during the summer of 1975; Being admitted to the school is a privilege and not a right. -There are standards that must be met. There are policies to be pursued. Discretion appears to be of the essence. In terms of Hohfeld's terminology,

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what a student in the position of petitioner possesses is a privilege rather than a right. She cannot therefore satisfy the prime and indispensable requisite of a mandamus proceeding. Such being the case, there is no duty imposed on the Loyola School of Theology. In a rather comprehensive memorandum of petitioner, who unfortunately did not have counsel, an attempt was made to dispute the contention of respondent. There was a labored effort to sustain her stand, but it was not sufficiently persuasive. It is understandable why. It was the skill of a lay person rather than a practitioner that was evident. While she pressed her points with vigor, she was unable to demonstrate the existence of the clear legal right that must exist to justify the grant of this writ. 2. the recognition in the Constitution of institutions of higher learning enjoying academic freedom. -It is more often identified with the right of a faculty member to pursue his studies in his particular specialty and thereafter to make known or publish the result of his endeavors without fear that retribution would be visited on him in the event that his conclusions are found distasteful or objectionable to the powers that be, whether in the political, economic, or academic establishments - For the sociologist, Robert McIver it is "a right claimed by the accredited educator, as teacher and as investigator, to interpret his findings and to communicate his conclusions without being subjected to any interference, molestation, or penalization because these conclusions are unacceptable to some constituted authority within or beyond the institution - philosopher Sidney Hook, this is his version: "What is academic freedom? Briefly put, it is the freedom of professionally qualified persons to inquire, discover, publish and teach the truth as they see it in the field of their competence. It is subject to no control or authority except the control or authority of the rational methods by which truths or conclusions are sought and established in these disciplines 3. Court further discusses “academic freedom” that its reference is to the "institutions of higher learning" as the recipients of this boon. - Former President Vicente G. Sinco of the University of the Philippines, in his Philippine Political Law, is similarly of the view that it "definitely grants the right of academic freedom to the university as an institution as distinguished from the academic freedom of a university professor." - Dr. Marcel Bouchard, Rector of the University of Dijon, France, "It is a well-established fact, and yet one which sometimes tends to be obscured in discussions of the problems of freedom, that the collective liberty of an organization is by no means the same thing as the freedom of the individual members within it; in fact, the two kinds of freedom are not even necessarily connected. In considering the problems of academic freedom one must distinguish, therefore, between the autonomy of the university, as a corporate body, and the freedom of the individual university teacher." (2 types) - "the four essential freedoms" of a university — to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study. 4. The decision is not to be construed as in any way reflecting on the scholastic standing of petitioner. There was on the part of respondent due acknowledgment of her intelligence. Nonetheless, for reasons explained in the letter of Father Lambino, it was deemed best, considering the interest of the school as well as of the other students and her own welfare, that she continue her graduate work elsewhere. There was nothing arbitrary in such appraisal of the circumstances deemed relevant. It could be that on more mature reflection, even petitioner would realize that her transfer to some other institution would redound to the benefit of all concerned. At any rate, as indicated earlier, only the legal aspect of the controversy was touched upon in this decision.

ISABELO vs. PERPETUAL HELP J. Vitug FACTS: Petitioner Isabelo was a criminology student in Perpetual Help College of Rizal (PHCR). Being the PRO and acting Secretary of the student council, he was asked to sign Resolution No. 105, which would increase tuition payments by 20%. He refused to sign and asked for a 2week period to talk it over with his fellow officers. After they met on the matter, the council presented a 9-point proposal. With an assurance that the request of the student council would be considered favorably, the petitioner finally signed Resolution No. 105. PHCR then announced that its application to increase school fees was approved by DECS. The student council then filed a motion for consideration. DECS then put the implementation on hold pending talks on the matter. In the meantime the CMT commandant gave a list of students with CMT deficiencies, with petitioner Isabelo being on the list. As such, he was expelled and not allowed to enroll for the next semester on the following grounds: * Non compliance of CMT requirement as per DECS Order No. 9, S. 1990 and DECS Memorandum No. 80, S.

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1991 and PHCR Internal Memo. No. 891-007; * No NCEE during the admission in the BS Criminology course; * Official Admission Credential not yet submitted; * Void declaration of CMT subjects (MS 11, 12, 21 and 22) which are docketed in the registration card. Not being allowed into the school premises, Isabelo sent a letter to DECS. Director Rosas of DECS then issued Order No. 9 which stated: . . . concerning the dropping from the rolls without due process of the students petitioners . . . , Manuelito Isabelo, Jr., . . ., please be advised that pending resolution thereof, the propriety of allowing the students to continue attending their classes to protect their interest as well as that of the school, is hereby enjoined. In this connection, it is hereby directed that the abovenamed students be re-admitted to classes and be allowed to take all examinations that they have missed pending final resolution of this case/issue. PHCR did not comply with the directive. Petitioner claims that the reason why he was not being admitted was due to his being against the increase on tuition payments. Respondent school invokes academic freedom in the expulsion of Isabelo. ISSUE: WON Isabelo’s expulsion academic freedom. HELD: NO RATIO: Here the court sites Garcia v. Faculty Admission Committee, which upheld the rule that admission to an institution of higher learning is discretionary upon the school and that such an admission is a mere privilege, rather than a right, on the part of the student. Like any other right, however, academic freedom has never been meant to be an unabridged license. It is a privilege that assumes a correlative duty to exercise it responsibly. With regards to contracts, the court said that the contract between student and school is not one that is only on a semestral basis, but the student has a right to be enrolled for the entire period in order to complete his course. Finally the court says that the punishment of expulsion appears to us rather disproportionate to his having had some deficiencies in his CMT course. There is, however, an administrative determination to be made whether petitioner does indeed deserve to be a senior in PHCR. In the interim, the RTC's order was questioned before the SC by the UPCM Committee on Admissions, which was dismissed. Hence, the students were admitted to the UPCM and passed three years in the college. Before the onset of school year 1990-91, the students, upon advice of the U.P. President and burdened with "three agonizing years of uncertain relationship in the College" as well as the BOR's 1001st resolution, wrote a letter to the UPCM Faculty where they manifested that they never intended to question the Faculty's right to academic freedom; that they believed the issue was simply on the question of observance of the proper procedure in implementing admission requirements; that they felt they no longer have any moral right to pursue the court action; that they would leave to the Faculty the determination of humanitarian consideration of their case; that they apologized for offending the Faculty and that they would like to appeal for a chance to remain in the college.” was within the school’s (Ponente: Medialdea, 1991) FACTS: Respondent-students as then applicants to the University of the Philippines College of Medicine (UPCM) obtained scores higher than 70 percentile in the NMAT which was the cutoff score prescribed for academic year 1986-1987 by the UPCM Faculty in its meeting of January 17, 1986 as approved by the University Council (UC) on April 8, 1986. However, their scores were lower than the 90 percentile cut-off score prescribed by the UPCM Faculty in its meeting of October 8, 1986 effective for academic year 1987-88. Upon appeal of some concerned Pre-Med students, the BOR in its 996th resolution reverted to the NMAT cut-off score of 70 percentile. The Dean of the UPCM and the Faculty did not heed the BOR directive for them to admit the students. This prompted the students to file a petition for mandamus with the RTC. The RTC issued a writ of preliminary injunction for their admission. After the RTC issued the writ of preliminary injunction, the BOR in its 1001st meeting resolved that "the act of fixing cut-off scores in any entrance examination required in any college of the University is within the authority of the College Faculty. Any question regarding the exercise of such act should be elevated and resolved finally by the University Council of the autonomous campus." Case remanded to DECS for further proceedings.

REYES vs. COURT of APPEALS

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The students filed with the RTC a motion to dismiss and attached was the letter to the UPCM Faculty. The RTC dismissed their case with prejudice. In view of this development, the UPCM Faculty held an emergency meeting where it denied the appeal of the students by a vote of 86 on the ground that they were not qualified for admission to the UPCM. The students filed with the RTC a motion to reconsider its order of dismissal. The RTC issued an order for the admission of the students to the college. The BOR in its 1031st meeting resolved to approve the admission of the students in the interest of justice and equity and to order the petitioners to admit them. The petitioners questioned the said BOR order with the CA. The Dean and Secretary of the UPCM refused to follow the BOR directive. Consequently, the UP President issued a formal charge of Grave Misconduct against them and later, issued an Order for their Preventive Suspension. The CA dismissed the petition of the petitioners. The petitioners brought the issue before the SC. ISSUE: WoN the BOR violated the academic freedom of the petitioners. – NO. The BOR could validly direct the petitioners to admit the students to the college of medicine. RATIO: 5. The UC has the final say in admission requirements provided the same conforms with law, rules and regulations of the university. In the event the power is abused or misused, it becomes the duty of the BOR, being the highest governing body in the university, to step in and to correct the anomaly. The questioned order of the Board of Regents in upholding the admission requirement approved by the University Council in 1986 is supportive of right of the University Council to fix or approve admission requirements, against the UPCM faculty and Dean who changed the admission requirements approved by the University Council without following the prescribed rules and procedures of the University. We are, likewise, unconvinced by petitioners' arguments that the BOR's 1031st is contrary to justice and equity because the students themselves judicially confessed that they have no right to admission. In their letter to the Faculty, The student's aforesaid feeling does not amount to a categorical admission of the absence of a legal right. Considering such antagonistic conditions, We can empathize with the students' mental anxiety and emotional strain in their three years in college in the company of some professors who looked down on them as academic pretenders. Furthermore, the students were pressed for time as they have only one more year before graduation. These circumstances combined with the advice of the U.P. President unduly influenced the students to write this reconciling letter.

6.

7.

1.

2.

3.

4.

The powers vested in the BOR and the UC by the UP Charter (Act No. 1870) are clear: to the BOR belongs the governance and the general powers of administration of the university and to the UC the power to fix the admission requirements to any college in the university. The University Code grants to the College Faculty the power to determine the entrance requirements of the college subject to the approval of the autonomous UC. Any entrance requirement that may be imposed by the College Faculty must bear the UC's approval. Otherwise, the same becomes unenforceable. At the time the students took the NMAT, the new UPCM Faculty prescribed NMAT cut-off score of 90 percentile was without the UC'S and University President’s approval. Under the UP Charter, the power to fix admission requirements is vested in the University Council of the autonomous campus which is composed of the President of the University of the Philippines and of all instructors holding the rank of professor, associate professor or assistant professor (Section 9, Act 1870).

U.P. vs. COURT of APPEALS Ponente: J. Romero FACTS: Petitioner UP questions, in this petition for review on certiorari the Order of the lower court denying the motion to dismiss the complaint for damages filed against two of its professors for alleged derogatory statement uttered concerning the Tasadays, the cave-dwelling inhabitants of the rain forest of Mindanao. August 15-17, 1986: The "International Conference on the Tasaday Controversy and Other Urgent Anthropological Issues" was held at the Philippine Social Science Center in Diliman, Quezon City. Jerome Bailen, Professor of the University of the Philippines (UP) Dept of Anthropology was the designated conference chairman. He presented therein the "Tasaday Folio," a collection of studies on Tasadays done by leading anthropologists who disputed the authenticity of the Tasaday find and suggested that the "discovery" in 1971

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by a team led by former Presidential Assistant on National Minorities (PANAMIN) Minister Manuel Elizalde, Jr. was nothing more than a fabrication made possible by inducing Manobo and T'boli tribesmen to pose as primitive, G-stringed, leaf-clad cave dwellers. In the same conference, UP history professor, Zeus Salazar, traced in a publication the actual genealogy of the Tasadays to T'boli and Manobo ethnic groups. He likewise presented ABC's "20/20" videotaped television documentary showing interviews with natives claiming to have been asked by Elizalde to pose as Tasadays. Almost a year later or in July 1988, UP allegedly sent Salazar and Bailen to Zagreb, Yugoslavia to attend the 12th Int’l Congress of Anthropological and Ethnological Sciences. There, Salazar and Bailen reiterated their claim that the Tasaday find was a hoax. Their allegations were widely publicized in several dailies. In their complaint, plaintiffs allege the ff causes of action: 1. defendants' conduct and statements that the Tasadays were nonexistent or frauds deprived them of their peace of mind and defiled the Tasadays' “dignity and personality” 2. defendants' contention that Elizalde caused the Tasadays to pose and pretend was defamatory and pictured the plaintiffs as dishonest and publicityseeking persons, thereby besmirching their reputation and causing them serious anxiety 3. defendants' "concerted efforts to publicly deny plaintiff Tasadays' personality and their existence as a distinct ethnic community within the forest area reserved under the Proclamation (No. 995) unjustly becloud or tend to becloud their rights thereunder 4. defendants' "deliberate and continuing campaign to vex and annoy" the Tasadays and the use of "false and perjured 'evidence' to debase and malign" them, caused them to incur attorney's fees and expenses of litigation. The plaintiffs invoked Art. 26 of the Civil Code and pegged their claims for moral and nominal damages at the "amount equivalent to defendants' combined salaries for two (2) months, estimated at P32,000.00." Procedural crap: Plaintiffs (defendants herein) filed a complaint for damages and declaratory relief against the UP professors stating the above causes of action. UP filed a motion to intervene, stating that the UP profs were under their supervision. Salazar and Bailen filed a motion to dismiss, which was denied. With the MFR denied in the lower court, they filed a petition for certiorari for gadalej, which was dismissed by the SC. Meanwhile, UP filed a motion to dismiss in the lower court, but it was struck off the record. In the CA, everything else was denied, because petitioners’ allegations were not stated in the complaint. Hence, this instant petition. ISSUE  HELD:

1.

WON res judicata applies as regards the denial of the UP profs’ petition for certiorari  NO 2. WON the UP professors are covered by the protective mantle of Academic Freedom  YES, but UP should have defended its profs in the course of the trial case, instead of trying to terminate the proceedings prematurely Hence, the CA’s denial of the profs’ motion to dismiss is AFFIRMED and the case is remanded. RATIO: 1. Super daming procedural crap… nakakahilo. While it is true that the instant petition and the previous case revolve around the issue of WON the lower court correctly denied the motion to of the UP profs, there is an aspect of the case which takes it out of the ambit of the principle of res judicata (final judgment by a court of competent jurisdiction is conclusive upon the parties in any subsequent litigation involving the same cause of action). The said principle applies when there is, among others, identity of parties and subject matter in two cases. Concededly, the fact that UP is the petitioner here while Salazar and Bailen were the petitioners in the previous case is not a hindrance to the application of res judicata because the situation is akin to the adding of other parties to a case which had been finally resolved in a previous one. UP was not an original party-defendant in the original suit, but it intervened and made common cause with Bailen and Salazar in alleging that the case should be dismissed in order to hold inviolate academic freedom, both individual and institutional. There is, therefore, a resultant substantial identity of parties, as both UP, on the one hand, and Bailen and Salazar, on the other hand, represent the same interests in the two petitions. However, the requisite of identity of subject matter in the two petitions is wanting. Private respondents identify the subject matter as "the trial judge's refusal . . . to dismiss the complaint against Bailen and Salazar. It should be noted, however, that two motions to dismiss the same complaint were filed in this case and they were separately resolved. The first was the one filed by Bailen and Salazar. The second motion to dismiss was filed by UP but on February 15, 1989, the lower court struck it off the record. Thus, to hold that res judicata applies to herein facts would be stretching to its limits the requirement of identity of subject matter. 2. Academic Freedom UP has no cause of action because there are insufficient allegations in its new complaint. It cannot invoke the same allegations in its original complaint because that has been previously struck off the record by the lower court. On its face, herein complaint, however, does not allege any right or interest of the petitioner that is affected by the complaint simply because it was not an original defendant. As correctly observed by the lower court, the complaint does not even show that petitioner authorized Bailen and Salazar to conduct a study on the Tasaday. Neither does it even appear that the trip to Zagreb, Yugoslavia of Bailen and Salazar was sanctioned or sponsored by the petitioner. Hence, by filing the

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motion to Bailen or amounted ground for allegations dismiss the complaint against Salazar and by alleging defenses in its answer which to invoking lack of cause of action as a dismissal, the petitioner confined itself to the of the complaint. FACTS: Roberto Rey C. San Diego is a graduate of the University of the East with a degree of Bachelor of Science in Zoology. He took the NMAT THREE times and flunked all of them [Court found that he actually failed FOUR times – a ‘misplaced persistence’ like a ‘hopeless love’]. When he applied for the FIFTH time, the DECS and the Director of Center for Educational Measurement rejected his application on the basis of the ‘three-flunk rule’: MECS [Minister of Education, Culture and Sports] Order No. 12, Series of 1972: ‘A student shall be allowed only three (3) chances to take the NMAT. After three (3) consecutive failures, a student shall not be allowed to take the NMAT for the fourth time.’ San Diego went to the RTC to compel his admission to the test. Through a petition for mandamus, he invoked his rights to academic freedom and quality education. He also raised the issues of due process and equal protection. By agreement of the parties, he was allowed to take the NMAT. RTC declared the Order invalid because it deprived San Diego’s of his right to pursue a medical education through an arbitrary exercise of police power. ‘Angles’ of the Case : 1. MECS Order No. 12 creating the ‘three-flunk rule’ is a valid exercise of police power. - In Tablarin v. Gutierrez, which upheld the constitutionality of the NMAR in limiting the admission to medical schools to those that initially proved their competence and preparation for a medical school, Justice Florentino Feliciano raised the following point: - The test is the reasonable relation between the lawful method, which is prescribing the passing of the NMAR as condition for admission to medical schools, and the lawful subject – the securing of the health and safety of the general community. - The regulation of the practice of medicine in all its branches has long been recognized as a reasonable method of protecting the health and safety of the public. - The power to regulate and control the practice of medicine includes also covers the admission to the practice. - For MECS Order No. 52, s. 1985, the lawful subject is the improvement of the professional and technical quality of the graduates of medical schools by upgrading through selectivity in the process of admission like limiting admission to those who passed the NMAT (lawful method).

On the other hand, a cause of action against Bailen and Salazar can be made out from the complaint: their acts and utterances allegedly besmirched the reputation of the plaintiffs as they were shown therein to have staged a fraud. This is not to say, however, that UP's intervention was improper. Coming to the defense of its faculty members, it had to prove that the alleged damaging acts and utterances of Bailen and Salazar were circumscribed by the constitutionally-protected principle of academic freedom. However, it should have championed the cause of Bailen and Salazar in the course of the trial of the case. It erred in trying to abort the proceedings at its inception through the device of filing the motion to dismiss. This procedural lapse, notwithstanding, no irremediable injury has been inflicted on the petitioner as, during the trial, it may still invoke and prove the special defense of institutional academic freedom as defined in Tangonan v. Paño and in Garcia v. The Faculty Admission Committee, Loyola School of Theology. Since Bailen and Salazar had defaulted and thereby forfeited their right to notice of subsequent proceedings and to participate in the trial, petitioner's answer in intervention shall be the gauge in determining whether issues have been joined. With respect to the prayer of the complaint for "judgment declaring plaintiff Tasadays to be a distinct ethnic community within the territory defined under Presidential Proclamation No. 995" the lower court is cautioned that the same is akin to a prayer for a judicial declaration of Philippine citizenship which may not be granted in a petition for declaratory relief. The issue of WON Bailen and Salazar infringed on plaintiffs' civil and human rights when they maliciously and falsely spoke and intrigued to present plaintiffs Tasaday as fakers and impostors collaborating in a hoax or fraud upon the public with and under the supervision of plaintiff Elizalde, is not within the province of the court to make pronouncements on for these are matters beyond its expertise.

DECS vs. SAN DIEGO J. Cruz The basic issue of the case is whether or not a person who failed the National Medical Admission Test (NMAT) thrice, in violation of the ‘three-flunk rule’, is entitled to take it again.

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- Furthermore, the use of admission tests is widely used in the United States (Medical College Admission Test) and in other countries with more educational resources than that of the Philippines. - Ultimately, the measure contributes to the protection of the public from the potentially deadly effects of incompetence and ignorance that could infiltrate the medical profession. - Test for the valid exercise police power involves the concurrence between: a. b. the interest of the of public generally, as distinguished from those of a particular class, require the interference of the State; the means employed are reasonably necessary to the attainment of the object sought to be accomplished and not unduly oppressive upon individuals. TABLARIN vs. GUTIERREZ J. Feliciano FACTS: Teresita Tablarin and other students, in their behalf and in behalf of other applicants for admission into the Medical Colleges who have not taken or taken but failed the NMAT during 1987-88 and for the future years to come, wants to be admitted into schools of medicine for the school year 1987-1988. However, Tablarin and company either did not take or failed the NMAT which is required by the Board of Medical Education (Board) and conducted by the Center for Educational Measurement (CEM). The petitioners sought to enjoin the Secretary of Education, Culture and Sports, the Board of Medical Education and the CEM from: a. enforcing Section 5 (a) and (f) of Republic Act No. 2382, as amended by Republic Acts Nos. 4224 and 5946, known as the ‘Medical Act of 1959’ provides that one of its objectives the standardization and regulation of the medical education. It created the Board of Medical Education composed by representatives from education government institutions, private medical specialty societies, association of medical schools and dean of the UP College of Medicine. The one of the administrative functions of the Board is to prescribe requirements for admission with necessary rules and regulations for proper implementation. The Medical Act of 1959 provides that one of the minimum requirements is certificate of eligibility given by the Board. requiring the taking and passing of the NMAT as a condition for securing certificates of eligibility for admission. MECS Order No. 52, s. of 1985 provided a uniform admission test called the NMAT as an additional requirement for the issuance of the certificate of eligibility. proceeding with accepting applications for taking the NMA, and administering the NMAT.

2. Right to quality education is not absolute - While every person is entitled to aspire to be a doctor, he does not have a constitutional right to be a doctor… A person cannot insist on being a physician if he will be a menace to his patients. If one who want to be a lawyer may prove better a plumber, he should be so advised and advised. - San Diego must yield to the rule and the fact that there are other people who are more prepared than him, considering the crowded medical schools that we have today.

3.

The order does not violate the equal protection clause - A law does not have to operate with equal force on all persons or things. There are substantial distinctions between medical students and other students who are not required to take the NMAT and not subjected to the three-flunk rule. The medical profession have a delicate responsibility towards society that warrants a different treatment towards them.

b.

c. d.

Holding: The three-flunk rule is a valid exercise of police power. Court said that San Diego’s intellectual capacity is not ‘depreciated’, rather, he may be meant for another calling. The rule is intended to avoid a nation of misfits – square pegs trying to fit into round holds. The decision of the RTC declaring MECS Order No. 12 invalid is reversed.

The petition was denied by the RTC and the NMAT was conducted and administered. It was noted that the petitioners were not able to present a case of unconstitutionality strong enough to overcome the presumption of constitutionality. ‘Angles’ of the case: 1. Section 5 (a) and (f) of Republic Act No. 2382 , as amended [Medical Act of 1959], and MECS Order No.

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52, s. of 1985 do not violate the provisions of the 1987 Constitution presented by the petitioners. - The petitioners cited ‘State Policies’ which include Article II, Section 11 on the dignity of every human person and human rights, Article II, Section 13 on the vital role of the youth in nation building, Article II, Section 17 on the priority to education. They also cited Article XIV, Section 1 giving emphasis to the phrase ‘right of ALL citizens to quality education.’ Furthermore, the NMAT requirement is challenged as a violation of the ‘fair, reasonable and equitable admission and academic requirements’ stated by Article XIV, Section 5 (3). - Court said that the petitioners did not demonstrated how the measures provided by the Board collide with these relatively specific State policies. In short, they were not able to present a prima facie case with regards to the State Policies angle. - About the ‘right of all citizens to quality education’, this phrase should not be construed as compelling to State to make quality education available across the board. Quality education, will be shouldered by the State in so far that the citizens were able to quality under ‘fair, reasonable and equitable admission and academic requirements.’ 2. Section 5 (a) and (f) of Republic Act No. 2382 , as amended [Medical Act of 1959], is not an undue delegation of legislative power. - The general principle of non-delegation of powers (delegates non potest delegare or delegati potestas non potest delegare – a delegated power may not be further delegated by the person to whom such power is delegated) flows from the fundamental rule of the separation of and allocation of powers among the three great departments of government. However, this rule was made to adapt to the complexities of the modern government referred to by Justice Laurel in Pangasinan Transportation Co., Inc. vs. The Public Service Commission. This is known as the principle of subordinate legislation. - Standards for subordinate legislation may be expressed or implied. The body of the statute and the goal to standardize and regulate the medical profession satisfy the necessary standards required. 3. The NMAT is not an “unfair, unreasonable and inequitable requirement” which results in a denial of due process. - The petitioners did not specify what factors in the NMAT support their claim. If they are questioning the burden imposed by the NMAT, which would pertain to the utility and wisdom of the NMAT, then these are matters that should be addressed by the administrative and legislative bodies – not by the Court. 4. The provisions questioned are part of the valid exercise of the police power of the State. - Police power is the pervasive and non-waivable power of the sovereign to promote the important interests and needs – the general order of the general community. - The provisions pass the test for the valid exercise of police power: concurrence test between lawful subject and lawful method. 5. The flexible cut-off score that can be changed by the Board after consultation with the Association of Philippine Medical Colleges does not violate the equal protection clause. - The measure is not arbitrary or capricious. It is a flexible measure that takes into consideration changes of different factors that would merit a commensurate change in the cut-off score like: number of students who reached the cut-off score in the previous year, available slots, average scores, level of difficulty of the examination. Setting a permanent cut-off scores would result to unreasonable rigidity. HOLDING: Prescribing the NMAT and requiring to pass successfully pass it as requirements for entering medical schools are not unconstitutional impositions. Decision of the RTC DENYING the petition for a writ of preliminary injunction is AFFIRMED.

NON vs. JUDGE DAMES FACTS: • Petitioner students of Mabini Colleges were not allowed to re-enroll because they participated in student mass actions against their school the preceding sem • On Feb 22, 1988, the date of the resumption of classes at Mabini College, petitioners continued their rally picketing, even though without any renewal permit, physically coercing students not to attend their classes, thereby disrupting the scheduled classes and depriving a great majority of students of their right to be present in their classes • Together with the abovementioned fact, the lower court considered that in signing their enrollment forms, they waived the privilege to be re-enrolled. “The Mabini College reserves the right to deny admission of students xxx whose activities unduly disrupts or interfere with the efficient operation of the college xxx”

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• In addition the students signed pledges saying they respect their alma matter, that they will conduct themselves in a manner that would not put the college in a bad light. Judge Dames’ decision considering these facts said that what the students assert is a mere privileges not a legal right. Respondent Mabini College is free to admit or not to admit the petitioners for re-enrollment in view of the academic freedom enjoyed by the school.

ISSUE/HELD: WON the doctrine laid down in Alcuaz insofar as it allowed schools to bar the re-admission or re-enrollment of students on the ground of termination of contract should be reversed. The re-admission or re-enrollment of students on the ground of termination of contract should be reversed. YES RATIO: • In Alcuaz, it was said that enrollment is a written contract for one semester and contracts are respected as the law between the contracting parties. At the end of each sem, the contract is deemed terminated. • However, this case is not a simple case about a school refusing re-admission. The refusal to readmit or to re-enroll petitioners was decided upon and implemented by school authorities as a reaction to student mass actions • This is a case that focuses on the right to speech and assembly as exercised by students vis-à-vis the right of school officials to discipline them.

The nature of contract between a school and its students is not an ordinary contract but is imbued with public interest. The Consti allows the State supervisory and regulatory powers over all educational institutions. [see art XIV sec1-2, 4(1) ]. According to par 107 and 137 of the respondent school’s manual, a student is enrolled not just for one sem but for the entire period necessary for the student to complete his/her course. BP blg 232 gives the students the right to continue their course up to graduation. Academic freedom not a ground for denying students’ rights. In Villar, the right of an institution of higher learning to set academic standards cannot be utilized to discriminate against students who exercise their constitutional rights to speech and assembly, for otherwise there will be a violation of their right to equal protection. School said most of them had failing grades anyway. In answer students say they are graduating students and if there are any deficiencies these do not warrant nonreadmission. Also there are more students with sores deficiencies who are re-admitted. And some of the petitioners had no failing marks. The court held that the students were denied due process in that there was no due investigation. In fact it would appear from the pleadings that the decision to refuse them reenrollment because of failing grades was a mere afterthought. Discipline may be warranted but penalty shld be commensurate to the offense committed with due process. But penalty, if any is deserved should not anymore be enforced. Moot and academic. They’ve already suffered enough.

The student does not shed his constitutionally protected rights at the schoolgate. In protesting grievances disorder is more or less expected because emotions run high. That the protection to the cognate rights of speech and assembly guaranteed by the Consti is similarly available to students is well-settled in our jurisdiction. Right to discipline cannot override constitutional safeguards. Citing Malabanan and Villar the court reiterated that the exercise of the freedom of assembly could not be a basis for barring students from enrolling. Under academic freedom, students my be barred from reenrollment based on academic deficiencies. Permissible limitations on student exercise of constitutional rights within the school. Constitutional freedom of free speech and assembly also not absolute. However, imposition of disciplinary sanctions requires observance of procedural due process and penalty imposed must be proportionate to the offense committed. (procedural due process: right to be informed in writing, right to ans the charges, right to be informed of the charges against them, right to adduce evidence, and for this evidence to be duly considered)

• •

ALCUAZ vs. PSBA Justice Paras: FACTS: • Students and some teachers of PSBA rallied and barricaded the school because they wanted to admin to hear their grievances with regards to “not being able to participate in the policymaking of the school”, despite the regulations set by the admin with regards to protest actions • During the regular enrollment period, petitioners and other students similarly situated were allegedly blacklisted and denied admission for the second semester of school year 1986-1987. • court ordered the school authorities to create a special investigating committee to conduct an investigation, who made recommendations which the school adopted

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• • a lot of procedural crap, petitioners and respondents filing and answering the complaints petitioners claim that they have been deprived of due process when they were barred from re-enrollment and for intervenors teachers whose services have been terminated as faculty members, on account of their participation in the demonstration or protest charged by respondents as "anarchic" rallies, and a violation of their constitutional rights of expression and assembly. Petitioners allege that they have been deprived of procedural due process which requires that there be due notice and hear hearing and of substantive due process which requires that the person or body to conduct the investigation be competent to act and decide free from bias or prejudice. e.the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. 3. Printed Rules and Regulations of the PSBA-Q.C. were distributed at the beginning of each school Enrollment in the PSBA is contractual in nature and upon admission to the School, the Student is deemed to have agreed to bind himself to all rules/regulations promulgated by the Ministry of Education, Culture and Sports. Furthermore, he agrees that he may be required to withdraw from the School at any time for reasons deemed sufficiently serious by the School Administration. Petitioners clearly violated the rules set out by the school with regard to the protest actions. Necessary action was taken by the school when the court issued a temporary mandatory injunction to accept the petitioners for the first sem & the creation of an investigating body. 4. The Court, to insure that full justice is done both to the students and teachers on the one hand and the school on the other, ordered an investigation to be conducted by the school authorities, in the resolution of November 12, 1986. Findings of the investigating committee: 1. 2. students disrupted classes petitioners involved were found to be academically deficient & the teachers are found to have committed various acts of misconduct.

ISSUE: A. Whether or not there has been deprivation of due process ? B. WON there was contempt of Court by the respondents HELD: A. NO. there was no deprivation of due process. 1. There is no existing contract between the two parties. Par 137 of Manual of Regulations for Private Schools states that when a college student registers in a school, it is understood that he is enrolling for the entire semester. Likewise, it is provided in the Manual, that the "written contracts" required for college teachers are for 'one semester. after the close of the first semester, the PSBA-QC no longer has any existing contract either with the students or with the intervening teachers. It is a time-honored principle that contracts are respected as the law between the contracting parties The contract having been terminated, there is no more contract to speak of. The school cannot be compelled to enter into another contract with said students and teachers. "The courts, be they the original trial court or the appellate court, have no power to make contracts for the parties." 2. The Court has stressed, that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. Standards of procedural due process are: a. the students must be informed in writing of the nature and cause of any accusation against them; b. they shall have the right to answer the charges against them, with the assistance of counsel, if desired: c. they shall be informed of the evidence against them; d. they shall have the right to adduce evidence in their own behalf and

5. The right of the school to refuse re-enrollment of students for academic delinquency and violation of disciplinary regulations has always been recognized by this Court Thus, the Court has ruled that the school's refusal is sanctioned by law. Sec. 107 of the Manual of Regulations for Private Schools considers academic delinquency and violation of disciplinary regulations vs as valid grounds for refusing re-enrollment of students. The opposite view would do violence to the academic freedom enjoyed by the school and enshrined under the Constitution. Court ordinarily accords respect if not finality to factual findings of administrative tribunals, unless : 1. the factual findings are not supported by evidence; 2. where the findings are vitiated by fraud, imposition or collusion; 3. where the procedure which led to the factual findings is irregular; 4. when palpable errors are committed; or 5. when a grave abuse of discretion, arbitrariness, or capriciousness is manifest.

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investigation conducted was fair, open, exhaustive and adequate. .B. No. The urgent motion of petitioners and intervenors to cite respondents in contempt of court is likewise untenable. 1. no defiance of authority by mere filing of MOR coz respondent school explained that the intervenors were actually reinstated as such faculty members after the issuance of the temporary mandatory injunction. 2. respondent school has fully complied with its duties under the temporary mandatory injunction The school manifested that while the investigation was going on, the intervenors-faculty members were teaching and it was only after the investigation, that the recommendations of the Committee were adopted by the school and the latter moved for the dismissal of the case for having become moot and academic

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