                             TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                   OFFICE OF THE ATTORNEY GENERAL

                                             State of California


                                               DANIEL E. LUNGREN

                                                 Attorney General


                                 ______________________________________

                      OPINION           :
                                        :          No. 94-501
                   of                   :
                                        :          August 31, 1994
          DANIEL E. LUNGREN             :
            Attorney General            :
                                        :
         ANTHONY S. Da VIGO             :
         Deputy Attorney General        :
                                        :
______________________________________________________________________________


           THE HONORABLE K. MAURICE JOHANNESSEN, MEMBER OF THE
CALIFORNIA STATE SENATE, has requested an opinion on the following question:

                 Where a school district has included an abstinence-based sex education program as part
of its prescribed curriculum, may a classroom teacher decline to present the program material on the
basis of an "academic freedom" clause contained in the school district's collective bargaining
agreement with its teachers?

                                                    CONCLUSION

                 Where a school district has included an abstinence-based sex education program as part
of its prescribed curriculum, a classroom teacher may not decline to present the program material on
the basis of an "academic freedom" clause contained in the school district's collective bargaining
agreement with its teachers.

                                                      ANALYSIS

              Every school district in California is under the control of a board of school trustees or a
board of education. (Ed. Code, ' 35010, subd. (a).) 1 For purposes of this discourse, the term

    1
     Except as otherwise designated, unidentified section references are to the Education Code.


                                                             1.                                   94-501

"governing board" refers to a board of education of a city, county, or district which has the duty to
prescribe the course of study for the schools within its jurisdiction. (' 51017.) The course of study for
elementary, middle, or high school must be "prescribed and enforced" by, or "prepared under the
direction" of, the governing board having control thereof. ('' 51053, 51054; see also ' 51210, subd.
(h); ' 51220, subd. (k).)

                We are asked to consider whether a school teacher may decline, based on an "academic
freedom" clause in the school district's collective bargaining agreement, to present an abstinence-based
sex education program which the governing board has prescribed as part of the curriculum. We
conclude that such a provision, to the extent that it may be so interpreted, would be unauthorized and
void.2

                 Under the Education Employment Relations Act (Gov. Code, '' 3540-3549.3;
"EERA"), public school employees have the right to form, join, and participate in the activities of
employee organizations of their own choosing for the purpose of representation on all matters of
employer-employee relations. (Gov. Code, ' 3543.) Government Code Section 3543.2, subdivision
(a) provides as follows:

              "The scope of representation shall be limited to matters relating to wages, hours of
         employment, and other terms and conditions of employment. `Terms and conditions
         of employment' mean health and welfare benefits as defined by Section 53200, leave,
         transfer and reassignment policies, safety conditions of employment, class size,
         procedures to be used for the evaluation of employees, organizational security pursuant
         to Section 3546, procedures for processing grievances pursuant to Sections 3548.5,
         3548.6, 3548.7, and 3548.8, the layoff of probationary certificated school employees,
         pursuant to Section 44959.5 of the Education Code, and alternative compensation or
         benefits for employees adversely affected by pension limitations pursuant to Section
         22515 of the Education Code, to the extent deemed reasonable and without violating
         the intent and purposes of Section 415 of the Internal Revenue Code. In addition, the
         exclusive representative of certificated personnel has the right to consult on the
         definition of educational objectives, the determination of the content of courses and
         curriculum, and the selection of textbooks to the extent such matters are within the
         discretion of the public school employer under the law. All matters not specifically
         enumerated are reserved to the public school employer and may not be a subject of
         meeting and negotiating, provided that nothing herein may be construed to limit the
         right of the public school employer to consult with any employees or employee
         organization on any matter outside the scope of representation."

                The EERA "distributes potential subjects among three statutory categories (subject to
negotiation, subject to mandatory consultation and reserved to management)." (See San Mateo City

    2
      We make no attempt to examine a teacher's refusal based upon any ground other than the "academic freedom" clause of
the collective bargaining agreement. Since we are concerned only with the refusal to teach, no issue respecting exemption
from attendance (cf. '' 51240, 51550) is presented.


                                                           2.                                                   94-501

School District v. Public Employment Relations Board (1983) 33 Cal.3d 850, 858-859.) Government
Code section 3543.2, subdivision (a) expressly provides that certificated employees have "the right to
consult on the definition of educational objectives, [and] the determination of the content of courses
and curriculum . . . ." With respect thereto, the court in San Mateo City School District v. Public
Employment Relations Board, supra, 33 Cal.3d 850, stated:

             "Under the EERA the `definition of educational objectives, the determination of
        the content of courses and curriculum . . . ' are matters on which the exclusive
        representative has only the right to consult. `All matters not specifically enumerated
        are reserved to the public school employer and may not be a subject of meeting and
        negotiating . . .' under the current law." (Id., at p. 862.)

Similarly, the court in Cumero v. Public Employment Relations Board (1989) 49 Cal.3d 575, 591,
stated:

             "The Education Code also directly affects the representative's right to `consult' on
        educational objectives, curriculum, and textbooks because that right is expressly limited
        to consultation on matters within the discretion of the school district (' 3543.2) and the
        scope of that discretion is controlled by numerous provisions of the code. (See, e.g.,
        Ed. Code, '' 51000 et seq. [general instruction programs], 60000 et seq. [instructional
        materials and testing].)"

                 To the extent that a clause or provision in a collective bargaining agreement purports to
confer upon teachers collectively or an individual teacher unilaterally the right to determine the content
of courses and curriculum, it would lack the authority of law. An agreement made without authority of
law in force at the time it is executed is void. (Pacific Inter-Club Yacht Association v. Richards (1961)
192 Cal.App.2d 616, 619; 63 Ops.Cal.Atty.Gen. 633, 638 (1980).)

                 In addition, it is apparent that abstinence-based sex education is the subject of
established legislative policy. In this regard, section 51553 specifically provides:

             "(a) All elementary, junior high, and senior high school classes that teach sex
        education and discuss sexual intercourse shall emphasize that abstinence from sexual
        intercourse is the only protection that is 100 percent effective against unwanted teenage
        pregnancy, sexually transmitted diseases, and acquired immune deficiency syndrome
        (AIDS) when transmitted         sexually. . . .

             "(b) All sex education courses that discuss sexual intercourse shall satisfy the
        following criteria:

             "(1) Course material and instruction shall be age appropriate.

             "(2) Course instruction and material shall stress that abstinence is the only
        contraceptive method which is 100 percent effective, and that all other methods of
        contraception carry a risk of failure in preventing unwanted teenage pregnancy. . . .

                                                    3.                                               94-501

            ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

           "(5) Course material and instruction shall stress that pupils should abstain from
       sexual intercourse until they are ready for marriage.

            ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

Section 51229 additionally provides:

            "(a) The Legislature hereby finds and declares all of the following:

            "(1) That abstinence is the only completely effective method of preventing
       pregnancy, acquired immune deficiency syndrome (AIDS), and other sexually
       transmitted diseases.

            "(2) That existing law does not provide for either specific instruction or
       instructional materials in the curriculum to address the issue of abstinence from sexual
       intercourse, exclusive from other sexual behavior.

            "(b) The Superintendent of Public Instruction shall contract with an organization
       to develop a video tape and supplementary materials that would teach abstinence from
       sexual activity.

          "(c) Schools electing to use this video tape may use it within the context of
       comprehensive health education programs.

            "(d) The video tape and supplementary materials shall . . . do all of the following:

            ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

            "(6) Discuss the topic of abstinence and encourage teens to take responsibility
        and make ethical and reasoned decisions in the prevention of teen pregnancy . . . .

            ". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ."

Other related statutory provisions include section 8902, subdivision (b)(5) [abstinence as prevention for
pregnancy] and 51201.5, subdivision (b)(3) [abstinence as prevention for AIDS].

                In our view, this statutory language "clearly evidences an intent to set an inflexible
standard or insure immutable provisions" so as to preclude negotiability on the subject. (See San
Mateo City School District v. Public Employment Relations Board, supra, 33 Cal.3d at 864-865.)
Hence, where provisions of the Education Code are mandatory, as are these (e.g., ' 51553, subd. (a),
supra), a contract proposal which would alter the statutory scheme, or replace, set aside, or annul any


                                                                         4.                                     94-501
such provision, is nonnegotiable. (See San Mateo City School District v. Public Employment
Relations Board, supra, 33 Cal.3d at 866.)

                Finally, while the concept of academic freedom may derive as an adjunct of free
speech, it is not an independent First Amendment right which may be extrapolated to deny schools
command of their own courses. (Bishop v. Aronov (11th Cir. 1991) 926 F.2d 1066, 1075.) We find
no judicial precedent for the notion that a secondary school teacher has a constitutional right to
academic freedom. (Miles v. Denver Public Schools (10th Cir. 1991) 944 F.2d 773, 779; cf. Ward v.
Hickey (1st Cir. 1993) 996 F.2d 448; Bradley v. Pittsburgh Board of Education (3d Cir. 1990) 910 F.2d
1172; Kirkland v. Northside Independent School District (5th Cir. 1989) 890 F.2d 794; 77
Ops.Cal.Atty.Gen. 56, 60-61 (1994).)

                It is concluded that where a school district has included an abstinence-based sex
education program as part of its prescribed curriculum, a classroom teacher may not decline to present
the program material on the basis of an "academic freedom" clause contained in the school district's
collective bargaining agreement with its teachers.

                                              *****




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