Yesterday, Friday, July 14, 2023, the Judicial Weekly of the Federation and his Gazette, published the jurisprudence 2a./J. 43/2023 (11a.), with digital registration 2026897, in which determined that private universities that are omissive in processing and delivering the professional title to their students are equated to an authority for the purposes of the origin of the amparo trial.
This jurisprudence was generated as a result of two Collegiate Circuit Courts ruling in a dissenting manner when determining whether the private higher education institutions that fail to process and deliver a professional degree are equated to an authority for the purposes of the judgment of protection.
One of the Courts considered that the issuance of the indicated documents is a power inherent to the powers that the Federal Constitution confers on it in its article 3º to the Private universitythis by authorizing him in terms of the General Education Law provide the educational service that originally corresponds to the State, so that by having among its functions the power to issue certificates and professional titles, it is equated to an authority for the origin of the amparo trial.
While the other Tribunal, on the contrary, pointed out that the fact that the private universities have authorization or recognition of official validity and, therefore, are authorized to issue the aforementioned professional titles, it only means that this is part of the activities that they can carry out in the exercise of the authorization granted by the State to provide the educational service Therefore, it does not constitute an act of authority, since it is not a function that has been entrusted to them to be exercised unilaterally and obligatorily, because its effectiveness is conditioned to the review carried out by the educational authorities.
In view of the contradiction of criteria held by both Collegiate Courts, the Second Chamber of the Supreme Court of Justice of the Nation determined that private universities, by omitting to process and deliver a professional title, are equated to an authority for the purposes of the amparo trial.
The foregoing is based on the fact that the Second Chamber has established as elements to be taken into account to consider that the individual is equated to an authority for the purposes of the amparo trial are those a) that the individual dictates, orders, executes or tries to execute an act that creates, modifies or extinguishes legal situations in a unilateral and obligatory manner; b) that omits acts that, if carried out, create, modify or extinguish said legal situations; c) that those functions that individuals perform are determined by a general rule; and, d) that his performance is located within a plane of supra to subordination with respect to the governed.
So, when private universities fail to process and deliver a professional title, they carry out acts comparable to those of an authority for purposes of the origin of the amparo proceeding.
This given that, if the omitted acts are carried out, legal situations are created, since individuals in favor of whom the professional title is issued are allowed to exercise their profession, process the corresponding professional certificate, as well as register such documents for its validity, not only in their place of residence, but also throughout the national territory, which will allow them, once the relevant legal requirements have been satisfied, to exercise the human right provided for in article 5 of the Federal Constitution.
In addition, the function of issuing professional titles that assists private higher education institutions is explicitly determined in the General Education Law and in the General Law of Higher Education and its action occurs on a plane of supra subordination with individuals and not of coordination.
As far as you know, if you are in the situation of having completed your career the educational institution, whether private or public (from my point of view), is omissive in processing and delivering your professional title, you can process protection indirectly before the competent district judge to oblige said institution to that he fulfill his obligation and give him his university degree.
As always, it is a pleasure to greet you, hoping that these few letters have been to your liking and, above all, useful. Until next time!
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