The first step in determining appropriate language is to examine current state law to determine what protections currently exist. At the K-12 level, protections are usually provided by state tenure laws that shield employees from adverse employment actions for good-faith compliance with established standards or for lawful conduct that does not affect their work performance. At the higher education level, tenure protections – often set by the institution's policy – provide similar but stronger protections. In addition, some states require by statute that higher education institutions adopt policies on academic freedom, but do not specify the content of those policies, providing a procedural avenue for securing protection, but no guarantee as to the substance of that protection.
At the K-12 level, one potential approach would be to protect educators from adverse employment actions for providing instruction, selecting curriculum, or offering or developing educational programming that they believe in good faith is aligned with relevant state standards and accepted teaching standards as reflected in prior instructional practice. Language along these lines could read as follows:
No teacher or other school employee may be dismissed, demoted, suspended, disciplined, reassigned, transferred, or otherwise retaliated against for providing instruction, selecting curriculum, or offering or developing educational programming that they believe in good faith is aligned with relevant state standards and accepted teaching standards. Such accepted teaching standards shall include the teacher’s own prior instructional practice as well as that of other teachers instructing similar classes.
At both the K-12 and higher education level, the off-duty conduct of educators could be protected by way of language along the following lines.
No teacher or other school employee, or employee of a higher education institution, may be dismissed, demoted, suspended, disciplined, reassigned, transferred, or otherwise retaliated against for their lawful off-duty speech or conduct unless their employer shows that the speech or conduct actually did, and was reasonably likely to, substantially disrupt their ability to provide instruction or otherwise perform their regular job duties.
This language would both place the burden on the employer to prove disruption and require that the employer show that the disruption was substantial and that it was both reasonably likely to, and in fact did, disrupt student instruction in some way. Specifying that the locus of disruption must be the student’s instruction, rather than the institution’s operations, should help guard against employers targeting employees based on complaints from third parties that may be disruptive to school operations generally but do not disrupt student instruction.
A longer variant on protections for both on and off-duty speech and conduct at the K-12 and higher education level would be something like the following:
Affiliate Model Contract Language
Contract language concerning academic freedom usually focuses on the amount of flexibility an educator has to teach and discuss certain subject matter. One of the more prevalent approaches is to develop language that specifies that the teacher has the freedom to present relevant subject material that is appropriate for the students.
The following are NEA affiliate model language examples showing these and other approaches:
Bargaining for Protections
1. Education Minnesota Model
- Educator responsibility for providing students with the opportunity to investigate various sides of the topics presented in their courses.
- Permission to select relevant materials and curriculum based on their professional judgement.
- Academic freedom implies that educator must teach with an understanding and respect for the individuality of each pupil & with a scrupulous regard for honesty and accuracy, without distortion or falsification.
- Culturally-responsive teaching practices are both responsible and necessary in classrooms for the welfare of all students and are protected under this agreement.
2. Colorado Education Association Model
- Both parties acknowledge the fundamental need to protect teachers from any censorship or restraint, in order to ensure thoughtful discussion and intellectual inquiry in the classroom.
- No discipline due to teaching controversial topics, or expressing their opinions on those topics so long as they
- present a balanced lesson consistent with recognized and accredited scholarship on the topic;
- use materials which are relevant to the levels of ability and maturity of the students;
- maintain a classroom environment which is conductive to the free exchange and examination of ideas.
- Right to fully participate in the political process.
- Right to publicly present opinions on matters of public concern or which have significant artistic value outside of work without discrimination, intimidation, or retaliation.
