The Subordination of Private to Public Universities in Panama

Panama’s private universities are subordinated to public universities. According to Article 99 of the Constitution "the Official University of the State shall supervise the degrees of private universities officially approved, to guarantee the degrees they use, and shall revalidate those of foreign universities in the cases established by law." This formula was introduced in 1972 and it has already survived four Constitutional reforms.

Normative Review

The Constitution’s article on supervision of public over private universities has its precedent in Law 11 of 1981 (Organic Law of the University of Panama) and in regulations issued by the same university, including one in 1992 and another one in 2001.

In 2006 Panama’s Legislative issued Law 30, by which the National System for Accreditation and Assessment for Improvement of University Education was created. The Consejo Nacional de Acreditación Universitaria de Panamá (CONEAUPA) was also created "as an evaluating and accrediting body, rector of the National System of Evaluation and Accreditation for the Improvement of the Quality of Higher University Education..." (Art. 13). 

The Comisión Técnica de Fiscalización (Technical Commission of Control) is also part of the System as the "organism through which the University of Panama, in coordination with the rest of the official [public] universities, will carry out the supervision and monitoring of the academic development of the private universities, will approve the plans and programs of study and will supervise the fulfillment of the minimum requirements [of quality]... "( Law 52 of 2015, Article 28). The CONEAUPA submits reports to the Ministry of Education that (subsequently) determines sanctions applicable to private universities that are not in compliance the law. The Commission is chaired by the rector of the University of Panama and integrated by the rectors of the other four public universities of Panama.

It is not strange that Latin American constitutions devote a section to higher education. Exceptionally, some constitutions assign public universities a role of supervision over private universities. The Constitution of Bolivia devotes articles 91 to 98 to higher education and says that “For the granting of academic diplomas in all modalities of titles in private universities, examination tribunals shall be formed which shall be composed of full professors, appointed by the public universities, under the conditions established by the law” (Art. 94).

Some Latin American countries have conferred by law certain influence to public universities. In Colombia higher education law awards the National University of Colombia a special organic regime and grants the National Pedagogical University the role of "adviser to the Ministry of National Education in the definition of policies related to the training and improvement of non-university teachers". In several countries public universities have special functions in terms of degree recognition, something that also happens in Panama. Likewise, it is not strange that the creation requirements of public universities are different from those of private universities.

Distrust in private universities (and other private institutions of higher education) is partly explained by the explosion of the educational offer that the region has experienced since the last third of the twentieth century. This explosion was accompanied, in many cases, by low quality supply. In order to address this fact, educational systems evolved and created quality assurance systems that, although imperfect, have contributed to the quality of education and to stimulate its continuing improvement.

Two assumptions that are not necessarily true

Panama’s constitution’s article granting public universities the supervision (fiscalización) of private universities is based on two implicit assumptions: 1) that public universities are intrinsically better than private universities and 2) that public universities have the knowledge and capacity to adequately perform the supervisory function. These assumptions are not necessarily true.

Many countries in the region have private universities that are as good or better than public universities. The Pontifical Catholic University of Chile, the University of the Andes (Colombia), the Technological Institute and of Superior Studies of Monterrey (Mexico) are examples. Subordinating the development of their academic programs to the control of public universities would have been an error and would have affected their ability to develop autonomously.

This does not mean that private universities do not have quality problems that, in some cases, have been serious. When Panama started the application of the rules on quality assurance, many low-quality private universities were exposed and several were closed. The same has happened in other countries, for example, Ecuador and Peru.

However, at present, private universities have established themselves as an alternative. A study by the Research Institute of the Association of Private Universities of Panama (IDIA) showed that between 2014 and 2016, these universities invested $359 million dollars in infrastructure and operation, and generated 6.7 thousand jobs throughout the country. The opinion about the quality of official and private universities in Panama seems to be divided. While some affirm that " Private universities are a fraud" others report "mass migration to private universities" motivated by "technology and better quality of study in the field" as well as more lax admission criteria.

With respect to the second assumption that official universities have the knowledge and operational capacity to perform the audit function adequately, it is important to emphasize that universities are not inspection bodies; their mission is to teach, conduct research and provide service. These public institutions have neither capacity nor resources to provide appropriate supervision of other (and different types of) institutions.

Conclusion

Many things have changed in Panama since the approval of the 1972 Constitution. The number of public universities has grown from one to five. The number of private universities has increased from one to more than 22. The number of students in university education in 2015 was 156,635 with just over a third (53,822) enrolled in private universities.

Although the concern for the quality of education in private universities was common to several countries since the sixties and seventies, the inclusion of a constitutional article subordinating them to public universities is anchored to the reality of that time. The current international trend towards flexible standards allows institutions to adapt to the increasingly rapid changes in higher education. Allowing one university or the public sector to supervise the private sector introduces too many obstacles to the natural evolution of quality assurance schemes.

By retaining the subordination of an entire sector, Panama limits development and innovation in private higher education by implicitly setting the current public model of the university as the model to emulate.

Of course the private higher education institutions cannot operate without control or regulation but they must be allowed  to participate as peers in the process of developing quality standards and developing national strategy for sustainable development. It is not easy to change the Constitution of a country. However, the 1972 Constitution has already undergone four reforms. Perhaps in the fifth reform there is an opportunity to correct this situation.

Iván Pacheco is research fellow of the Center for International Higher Education (CIHE) of Boston College; co-founder and President of Synergy E & D. and a lawyer. He also edits ESAL, a biannual journal published in Spanish and Portuguese that addresses current issues in higher education in Latin America.