Has the TUP crossed the line when it comes to cross-dressing?

LAST week, the Technological University of the Philippines (TUP) Manila faced intense criticism online after it issued a student dress code that banned long hair for men and cross-dressing. While many students expressed their disdain for the policy, I also saw comments from netizens defending the state university's policy as part of student discipline.

In the academic environment, both the students and the university have rights that are protected by the Constitution. Institutions such as TUP are guaranteed the exercise of academic freedom, free from external pressure and control. Since the influential case of Sweezy v. Hampshire, jurisprudence in education law has long held that the dynamic notion of academic freedom also includes the freedom of the university to determine, on an academic basis, who may teach, what may be taught, how may be taught, and who may be admitted to study. Relevant to the issue of TUP is its freedom to determine the admission and disciplinary policies of its own students. The Constitution likewise provides for the role of educational institutions in disciplining students to, among other things, reinforce ethical and spiritual values, develop moral character and personal discipline, and encourage critical and creative thinking. On the other hand, the Constitution also provides that every citizen has the right to choose a profession or course of study, subject to fair, reasonable, and equitable admission and academic requirements.

At first glance, it seems as if the academic freedom of institutions takes precedence over the academic freedom of students.

However, the matter could be more complicated. It would be a different matter if it were a private university, where academic freedom is likely to be upheld in imposing disciplinary measures on students, as long as they are reasonable and fair. However, TUP is a state or public university, so discussion of another important fundamental principle, namely the right of citizens to freedom of speech and expression, is crucial. As part of the Constitution's Bill of Rights, freedom of expression can be asserted by students against the state, in this case a state university.

In the landmark case Tinker v. Des Moines in the United States in 1969, the court decision announced by Justice Abe Fortas was instructive: “It can hardly be argued that students or teachers gave up their constitutional rights to free speech and expression at the school gate.” However, the decision states that student conduct that causes significant or substantial disruption to the school and its policies does not fall under the protection of free speech and expression. In 2021, in Mahanoy Area School District v. BL, which addressed the question of whether the public school could discipline the student for swearing, the U.S. Supreme Court reaffirmed its decision in Tinker, concluding that student Brandi Levy was free to swear, and the public school cannot deny her readmission for that reason because it violates her free speech and expression. The Supreme Court's decision states that the public school's interest in teaching good manners in this case is not enough to overcome the student's interest in free speech.

In light of these discussions, the question arises whether TUP, a public and state university, overstepped the boundaries of students' freedom of speech and expression with its anti-cross-dressing policy. Or was it a legitimate use of its constitutional academic freedom to set its own admission and disciplinary policies?

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