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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. 

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"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. 

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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. . . . 

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

"(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 

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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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