Rethinking Academic Freedom in the Public schools: The Matter of Pedagogical Methods
by Donal M. Sacken - 1989
This article investigates the uncertain history of academic freedom in public schools, from the viewpoint of the courts' understanding and related commentaries. Also considered is the magnitude of teachers' classroom discretion, and whether courts are likely to treat content and pedagogical conflicts differently. (Source: ERIC)
In a recent study on the implementation of reading programs, Fraatz identifies a paradox in teachers working lives. Although the teachers in her study were de facto the preeminent wielders of power in public schools, the teachers reported feeling surprisingly powerless.1 This theme has been sounded before; indeed, educational sociologists from Waller to Lortie have described the classroom as peculiarly the domain of teachers influence and control.2 Many commentators have remarked also on the absence of close scrutiny of classroom practices by administrators. The schools instructional processes are loosely coupled to the administrative system.3 Against this enduring descriptive background, the phenomenon of teachers sense of powerlessness is anomalous.
Another enduring if more sporadic aspect of public schools has been curricular conflict. Historically, local boards have been delegated substantial control over the schools curricula, as would be expected in light of our societys ideological preference for local control in education. No aspect of schooling would appear more essential to meaningful community control than curricular choice. Although states have gradually eroded local autonomy through state-level textbook selection committees, inter alia, substantial discretion still remains at the local board level.
Unsurprisingly, then, local boards have been the usual forum for attempts by parents and community groups to control or limit curricular choice. Most frequently seeking to censor or restrict the scope of available curricula, such groups often are linked with national networks, and derive support or direction from national movements. In recent years the most highly publicized movement toward curricular censorship has been associated with fundamentalist Christians, who normally invoke secular humanism, sexuality, and profanity as their concerns. However, the struggles between schools and censors are perennial.
When a dispute erupts in a school district over an individual teachers curricular choice or a districtwide set of materials (e.g., a basal reading series), the teachers who are implicated by the censors normally use professional expertise as their primary defense, and in many instances, their demand for discretion is tied to academic freedom, an expression that has long symbolized the social worth of teachers as well as the importance of granting them classroom autonomy. As will subsequently be discussed in greater detail, the structure of authority for reconciling conflicts between parents and teachers leaves a school board with virtually unchecked, perhaps even undelegable power. As most boards are elected locally, they will utilize political criteria every bit as readily as educational ones in resolving these dilemmas.
This dynamic may explain, in part, the sense of powerlessness among Fraatzs teachers. It may be that teachers enjoy substantial control over their classroom lives only so long as their conduct does not precipitate organized parental dissatisfaction, but when a curricular issue emerges, teachers can quickly lose that control if the problem escalates to the board, a more explicitly political forum. Further, if the board concurs with the censors and limits teachers choices, courts will support the board against subsequent legal challenges, almost reflexively it seems.4
Thus, academic freedom has proved a poor bulwark for teachers against invasions of classroom discretion by parents or boards. Such has been the result in virtually all instances, irrespective of the details of a particular conflict. In general, judicial rationales have focused on the legitimacy and desirability of allowing local communities, acting through elected representatives, to shape the curriculum chosen to inculcate local values in each succeeding generation of students. Teachers claims of special expertise have been unavailing, a result congruent with an original premise of public schools that inculcating local values is a legitimate goal.
In one type of curricular dispute, however, teachers claims should be viewed differently. If a teacher chooses a particular pedagogical method to convey content to students, an attack on the teachers methodology should be evaluated on a basis of effects (or effectiveness), rather than merely on local majority preferences. At least that is the argument this article will advance. Neither courts nor commentators have divided teaching disputes into those involving content control and those involving pedagogical choice. Yet Justice Frankfurters classic articulation of the four components of academic freedom included who may teach, what may be taught, how it shall be taught, and who may be admitted to study.5 So many of the classroom or school disputes that have culminated in court cases have involved content censorship that courts have treated the what and how of teaching as indistinguishable. In the context of public schools, that conflation appears unwarranted.
In the remainder of this article, I will first investigate the uncertain history of academic freedom in public schools, from both the courts understandings of that concept and those of the commentaries arising from court cases. A particular issue will be whether academic freedom has been viewed as a uni-dimensional or a multidimensional concept. Then I will consider the magnitude of teachers classroom discretion, with reference especially to the curiously bimodal pattern of recent reform agenda, in which teachers autonomy has been diminished through greater supervision or pedagogical specification, notwithstanding a rhetoric urging policies that treat teachers as professionals. Finally, I will consider whether courts are likely to treat content and pedagogical conflicts differentially, and, if not, what potential may exist in collective bargaining processes for achieving greater teacher autonomy.
ACADEMIC FREEDOM AMONG THE COURTS
There are structural difficulties with importing academic freedom into public schools. Its original focus and easiest organizational application are tied to inquiry rights in higher education. Even there the scope of professional discretion in the classroom is problematic. It has been argued that individual faculty autonomy over both pedagogy and content in university classrooms should be subordinate to collective and institutional interests.6 Whatever the merits of that perspective, the public schools institutional interests in safeguarding captive, immature students as well as promoting a complex mix of societal goals are powerful counterpoints to teachers aspirations for autonomy or expectations of judicial protection in the instances of curricular conflict.7
Judicial discussion and protection of academic freedom in conjunction with public school curricular or pedagogical disputes has hardly been consistent or coherent. A small set of cases, primarily in lower federal courts, permitted teachers to utilize academic freedom as a defense to dismissal or to board censorship actions. Such cases are fairly described as outliers that never collected a following within federal courts, nor among legal scholars.8 Where the question is who can decide what is taught in public schools, the answer has been the local board (where permitted or delegated that duty by the state legislature).
That is not to say that courts have not discovered some general inhibitions to board discretion. Two apparent limitations are that boards decisions may not be improperly motivated or reached through procedures that reasonably imply inappropriate motives. These interlocking principles, which were clearly articulated by the Supreme Court in Board of Education, Island Trees v. Pico,9 should provoke boards to regularize procedures surrounding curriculum conflicts, including challenges to an individual teachers decisions. Of course, recent objections of a more systemic nature, such as those resulting in the highly publicized secular humanism decisions Mozert v. Hawkins County Board of Education and Smith v. Board of School Commissioners, should produce similar behaviors.10
Beyond regularizing decision making, however, the emergent force of judicial doctrine on the control of public school curricula is unpromising for a teacher who wishes to utilize classroom materials that a local board finds objectionable. Continued use of forbidden or even unapproved materials (given access to an adequate approval process) should render the teacher subject to dismissal, probably on insubordination grounds. While courts have described an interest in teachers enjoyment of classroom autonomy, as well as in students right to receive information, these interests are largely interstitial. They exist so long as official policy or determinative decisions have not issued from a board or legislature. One way to view these privileges, as Smalls characterized teachers academic freedom interest,11 is that they thrive in fluid situations, in the absence of comprehensive policy, systematic scrutiny, or voluble parental response. Given that such circumstances may represent a modal description of public schools, the operational reality of teacher autonomy may be substantial, so long as it remains inchoate within the policy and formal authority structures of the school.
Recently, the Supreme Court introduced a concept in the context of evaluating student speech rights that could solidify the boards claim to full authority over curriculum. In Pico, Justice Brennan almost parenthetically observed that a school board might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values.12 That observation, coming from one of the Courts most liberal members, would certainly augur ill for teachers resisting a boards hegemony. More recently, in Hazelwood School District v. Kuhlmeier, the Court concluded that school censorship of student newspapers would be subject only to a requirement of a reasonable relationship to legitimate pedagogical concerns when students expressive activity was school-sponsored.13 In rejecting a standard of heightened judicial scrutiny, the Court noted that the question whether the First Amendment requires a school to tolerate particular student speech . . . is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.14
The sponsorship criterion in Kuhlmeier reiterates a perspective evident in Bethel School District No. 403 v. Fraser, where the context of a students speech in a school-sponsored assembly was an influential factor in the Courts decision to permit punishment of the remarks.15 The Kuhlmeier Court described Fraser as recognizing that the determination of what manner of speech in the classroom or in the school assembly properly rests with the school board, . . . rather than with the federal courts.16 Notably, the decision maker designated by the Court for controlling such issues is the board, not the school professionals.
The Kuhlmeier Court also noted once again that childrens speech rights are not coterminous with those of adults, a point Justice Stewart believed was left unclear in Tinker v. Des Moines.17 However, even in Tinker, the Court acknowledged that both teachers and students enjoyed such free speech as was appropriate in light of the special characteristics of the school environment.18 Thus, since Tinker, there have been contextually shaped limits to free expression imposed on all who teach or study in public schools. Given that, the concept that sponsored speech is subject to greater institutional control is directly antithetical to even a residual notion of classroom academic freedom. One can hardly imagine a more sponsored mode of speech than formal curricular activities enacted by a teacher in a school classroom.19 Thus, although as adult citizens teachers may have broader speech freedoms than their students (a proposition not altogether evidently true), when acting directly as pedagogue and conveyor of approved community values teachers are fully subordinated to expressed board preferences, unless those requirements independently violate the constitutional rights of the students (e.g., a requirement to teach racial inferiority doctrines). Such limitations on teachers appear congruent with the general erosion of-public employees expressive rights while on the job that has occurred through Supreme Court decisions during the last decade.20
The inherent potential for applying Kuhlmeier in a curriculum-oriented dispute was quickly realized. In Vergil v. School Board of Columbia County,21 a Florida federal district court concluded that Kuhlmeier resolves any doubt as to the appropriate standard to be applied whenever a curriculum decision is subject to First Amendment review.22 The case arose when a local board capitulated to community pressures by removing a humanities textbook from the high school curriculum because it contained excerpts from Chaucer and Aristophanes judged inappropriate for students due to sexual content and vulgar language. The court denied a parental23 challenge to the boards decision on the ground that content-based curricular censorship was tolerable because the board had legitimately concluded that the works were inconsistent with community values. Presumably, an error of judgment by the board would be correctable through political processes. This resolution echoes two themes in the potpourri of cases involving curricular conflict. First, these curricular decisions are ultimately political questions,24 and second, as there are no national community standards that could resolve these cases, local diversity of values should be tolerated.25
The power of Kuhlmeier, then, lies both in its emphasis on school sponsorship as a basis for relaxing constitutional restraints on content censorship, and the articulation of a reduced burden of justification for boards that censor the curriculum, one that explicitly accepts a regime of local values imposed through ad hoc censorship. Moreover, given the Courts unwillingness generally to impute improper motives to elective boards,26 combined with its imprimatur to boards to invoke their version of community values, academic freedom values appeared reduced to a judicial preference for procedural regularity and fairness (e.g., permitting open debate and providing adequate prior notice of standards). Furthermore, the Court has apparently concluded that no group of petitionersteachers, students, or parents and other organizational outsiderswill be accorded a preferred status in conflict regarding curricular content; the process will be explicitly delegalized (to the extent possible, given other potential constitutional problems) in favor of politicization.
FOCUSING ON TEACHERS METHODS
The dominant orientation of cases and commentary on curricular conflict has been content censorship. The typical dispute has focused on who has the authority to designate whether particular items within the curriculum, or present in a school library, are appropriate for the children in a given school. It is in this context that teacher advocates will often raise academic freedom values as a leverage point in arguing for teachers to make such judgments. As noted, such advocacy will normally be unavailing. However, disputes also emerge respecting the how of classroom instruction. Although pedagogical method normally coexists with content discretion in most commentators definition of academic freedom (including that of Justice Frankfurter), the analysis suggested for resolving teaching conflicts either subsumes method within content, or simply ignores it as essentially epiphenomenal. Yet it is not altogether obvious that the two sets of teacher decisions should be uncritically conflated, simply because they are inextricably linked in behavior.
Where issues involving choice of pedagogic methods have arisen in a discrete fashion, some courts have even defined those teacher interests as falling outside academic freedom. Two recent occasions of this judicial perspective can be found in cases arising in the presumably more tolerant domains of higher education. In Martin v. Parrish, the Fifth Circuit sustained the dismissal of a college instructor whose classroom behaviors included inveterate use of profane language, as well as abusive statements toward his classes (e.g., the attitude of the class sucks).27 Seeking academic freedom protection, the instructor argued that cussing out his students was a chosen motivational device, intended to convey his frustration with their progress. The court gave brief consideration to this argument, concluding that the language had no educational function, was unprofessional, and constituted a deliberate, superfluous attack on a captive audience with no academic purpose or justification. This broad conclusion was grounded on testimony from the colleges administrators, who were described as drawing on strong educational credentials and years of experience.28 Also, some students testified to their unhappy reactions to this motivational tool. Given that the instructor had received ample notice of institutional displeasure, neither academic freedom nor free expression claims were successful.
An Arizona court of appeals was even more preclusory toward a faculty member who argued that the universitys use of negative student evaluations as a primary basis for deciding not to renew his contract was improper.29 As the students were challenging his choice of methods, his academic freedom rights were implicated. The court reviewed cases raising academic freedom issues and decided that each involved conduct closely identified with speech content rather than teaching method, and that challenges to institutional decisions . . . relating to teaching methods, course content and grading policies have been notably unsuccessful.30 Then, it also counterpointed the faculty members claim with the institutions academic freedom, ironically quoting the same Frankfurter language regarding a universitys freedom to determine for itself on academic grounds who may teach.31 The court was satisfied that the university had concluded that this faculty member was an ineffective teacher, and their professional opinion was that his chosen methodology was not effective.32
These cases illustrate difficulties both with academic freedom as an operational principle and with any effort to segment method and content. In these cases both the individual and the institution sought to shelter their discretion from judicial scrutiny under academic freedom. As Yudof has recently argued, academic freedom is a value with at least three faces.33 That obviously has created difficulty for a court that must unpack the term and allocate its protections in a given context. This definitional problem is merely complex in postsecondary institutions, but, as Shiffrin argues, divining precise methods of adequately treating the problems of academic freedom at the I grammar school level is probably not possible.34 The term has a persistent presence, however, in school conflicts, perhaps indicating its association with important images of teaching and potentially with viable policy choices, a prospect to which I will subsequently return.
An effort to separate methods and content is perhaps destined to deteriorate, much as the establishment clauses wall of separation degenerated into a line of demarcation that can only dimly be perceived.35 For instance, in Burns v. Rovaldi,36 an elementary school teacher was dismissed after having his students each write a letter to his fiancee, who dutifully responded with an exhortation to embrace communist philosophy. The teacher sought to cover this conduct with academic freedom, but the court characterized his behavior as an indoctrinative introduction of a controversial subject wholly unrelated to penmanship. Quoting an earlier decision, the court reasoned that educational decisions must be made by someone; there is no reason to create a constitutional preference for the view of teachers over their employers. 37
What if this teacher were dismissed not for the content of his fiancees reply, but simply for the pedagogic decision of having students write letters to her, instead of copying rows of letters as a means of teaching penmanship? Would a boards decision to fire a teacher as insubordinate because he would not restrict penmanship lessons to rote copying implicate academic freedom? If so, should the judicial analysis of the proper degrees of autonomy and authority to grant the contending parties vary from the ostensibly simple, power-based analysis in content disputes? Goldstein, no particular proponent of teacher autonomy, almost inadvertently highlights the policy differential: Although teachers professional training and experience may give them special competence in matters of pedagogical methodology, often curricular decisions involve important value judgments.38 Having suggested the distinction, he returns to his primary focus, content decisions.
A NEW ORGANIZATIONAL MILIEU
Looking at the cases discussed earlier, one might conclude that methodologically based claims are villains defenses. That is, they are the last-gasp measure of unsuccessful, irresponsible teachers who wish to avoid accountability for classroom behaviors. One might also assume that a methods issue would rarely arise, given teachers substantial classroom discretion and norms of tolerance for diverse instructional strategies.39 As to the former assumption, episodic cases such as Mailloux v. Kiley, where a teacher was dismissed for using the word fuck to explain taboos, frustrate the generalization.40 Arguably, Mailloux was a methods issue (although it also demonstrates the difficulty of distinguishing), but there is no evidence that Mailloux was an indifferent teacher or raised the academic freedom defense to buffer unconscionably poor methods. Indeed, he procured Harvard professors who testified as experts to the serious educational purpose served by his method.41
As to the autonomy assumption, keyed to the sociology of teaching, the classroom autonomy enjoyed by teachers is always a contingent privilege. The key contingency is maintaining the acquiescence of students and parents. Stetter and Willower have argued that principals act as threshold guardians, diligently preserving the problematic legitimacy of the schools.42 Principals reported intervening quickly against teacher behaviors that threatened to disrupt a schools equilibrium with its clientele. Although their data were keyed to noninstructional teacher conduct (and certainly not to the subtleties of methodological choices), they are not the only scholars to question the generalizability of the loosely coupled school hypothesis.43
Moreover, reform initiatives might well be readjusting the coupling linkages in instructional processes. Efforts to create accountability, effective schools/instructional leadership theories, and aggressive marketing of evaluation and methodology models are among the simultaneous pressures on schools to increase the publicness of teaching. Accordingly, some districts have imposed measures of accountability and prescriptions for behavior on principals. Often these various forces lead a district to adopt a model of teaching. In a recent study of superintendents perceptions in effective school districts, Peterson, Murphy, and Hallinger reported that seven of the twelve sample districts specified a centrally selected method of instruction.44 Two others emphasized a method and only one district had permitted its teachers to select the districtwide model. Moreover, these superintendents were quite insistent that the principals would ensure proper implementation of the model at the classroom level, thus breaking a tradition of district policies being largely unpredictive of teacher conduct in the classroom.
One can posit, then, that in some districts a teacher might have difficulty achieving favorable evaluations or even confront dismissal for noncompliance or incompetence with a chosen model of teaching.45 Is the concept of academic freedom relevant and, if so, can it be reasonably operationalized? Protecting a teachers discretion appears much more intuitively reasonable in this context. The societal and institutional interests in value inculcation and other learned content can be achieved in more than one manner. Indeed, despite continuous efforts to "scientize pedagogy, teacher educators have observed that defining a predictive knowledge base for teachers remains elusive.46 Fenstermacher has warned that research findings cannot remove all the mystique and ambiguity from the act of teaching. 47 Thus, a districts decision to adopt Madeleine Hunters Essential Element of Instruction (EEI) across all its schools (as well as embedding that system in its evaluative processes) could substantially constrain or potentially injure a teacher operating from a different model,48 and it would be extraordinarily problematic to demonstrate a priori the superiority of EEI or the inferiority of a competing model. Such a decision is a quintessential policy choice where the decision must be based on partial knowledge at best.49
Should a court be solicitous of the injured non-EEI classroom teacher who is now experiencing intraorganizational pressures to restructure pedagogical behaviors? If the teacher is dismissed and raises academic freedom, what burden of justification might such a defense place on the board? A court could require that the board demonstrate either the necessity or clear superiority of its model. To pose such a burden is to place a requirement that is empirically impossible now, and perhaps forever. Teaching models are best viewed as alternatives in a highly competitive, entrepreneurial marketplace and as products with remarkably quick obsolescence. As Cohen and Weiss observed, the improvement of research on social policy does not lead to greater clarity about what to think or what to do. Instead, it usually tends to produce a greater sense of complexity.50 However, it is highly unlikely that a court would invert authority relationships by investing so heavily in teacher autonomy under the academic freedom rubric. For one thing, if the administrators were supportive of board policy, their professional expertise could justify displacing teacher desires.
A less cataclysmic judicial response would mirror the experimentalist orientation often adopted in language-instruction litigation. For instance, in Casteneda v. Pickard the Fifth Circuit had to decide what district services for limited English proficient students (LEPs) would satisfy a statutory requirements of an appropriate program.51 After complaining about the congressional penchant for nonspecificity, the court adopted a standard of approving any program informed by an educational theory recognized as sound by some experts in the field, or, at least, deemed a legitimate experimental strategy, at least long enough for the program to receive a legitimate trial.52
A court might take the same position toward defining the scope of a teachers asserted right to deviate from officially orthodox methodology. However, such a prospect is unlikely. In Mailloux v. Kiley, the teacher would have easily met such a burden of proof through supportive experts. The district court raised the ante, requiring a teacher who uses unorthodox, methods53 to show that the method has the support of the preponderant opinion of the teaching profession or of the part of it to which he belongs. Unless that were shown, a district could dismiss the teacher, despite proof that the disputed method was described by experts as relevant and serving a serious educational purpose.54
The apparent dilemma is that determining an appropriate substantive burden of proof for either party to justify selection of a given method is frustrated by a weak technology, one without clear, dominant causal models. In such a situation, it is highly likely that the authority to choose will be lodged with the board, and the teachers protection will essentially be procedural (e.g., prior notice), unless a fact finder suspects impermissible or pretextual motives on the boards part (which is more likely in methods censorship than for content control). The individual teacher or even the collectivity of teachers who wish to defy or defeat administrative/board policies defining prescriptively the how of teaching will probably find no receptivity in the courts to an expertise or professionalism argument for academic freedom. There is every reason to believe that a teacher may be dismissed as incompetent or insubordinate for failing to exhibit capably a set of prescribed methods. From a courts position, any other resolution would plunge it into a maze of comparative, expert evaluations of an undefined professional domain (a dilemma it has increasingly resisted in testing cases). In this regard, it is not irrelevant that courts have also resisted professional malpractice claims against both districts and teachers, in part because of the perceived weakness of the professions knowledge base.55
TURNING TO COLLECTIVE BARGAININGNEGOTIATING ACADEMIC FREEDOM
If current reform agenda genuinely threaten methodological discretion of classroom teachers and courts are unlikely to respond to claims for autonomy, then oneperhaps the onlyviable means of securing discretion may be collective bargaining processes.56 Traditionally, teachers enjoyed substantial, if fragile, classroom discretion as a function of informal, normative processes within the school.57 Those processes were normally quite resistant to incongruent policy initiatives. Now a confluence of endogenous and exogenous pressures on school systems threatens to disrupt these familiar patterns, subjecting teachers to both closer administrative monitoring and comprehensive, required instructional models. If some degree of the status quo is to be preserved, or an alternative consensus forged, a logical choice is open negotiative processes where teachers interests are explicitly represented.
Initially, it is worth asking whether academic freedom provisions are prevalent in negotiated contracts, and, if so, what the provisions say. In a recent study, McDonnell and Pascal reviewed a nationally representative sample of 151 bargained agreements at four intervals across a fifteen-year period (1970-1985).58 One of the studys purposes was to gauge the degree of professionalism reflected in the agreements, and a provision incorporating academic freedom assurances was one criterion measure. In 1985, slightly more than half (52 percent) of the sample contracts had such a provision, a figure that had grown only 3 percent during the prior five years.59
Earlier studies had suggested that collective bargaining has not generally increased teachers participation in building-level curricular and instructional matters. Goldschmidt et al. studied contracts in eighty districts and found policies governing curriculum (i.e., provisions that prescribe educational program, personnel, materials or teaching methods) in 46 percent of their sample, but only 23 percent of the contracts contained clauses focusing on teaching methods or materials.60 Such provisions ranged from simply requiring compliance with a state law on testing students knowledge of the Constitution to giving teachers full authority to determine who would teach particular students and what methods would be used. Parenthetically, in that last mentioned provision, the decisions were made collectively by all members of a team teaching unit.61 No greater specificity on the nature of such provisions, however, was provided. Overall, evidence on the effects of collective bargaining on policy control or professionalism for teachers is variable, influenced by local factors that frustrate generalizable understandings. Venturing a generality nonetheless, such bargaining is not the core of the negotiations process, nor is it the expectation of rank-and-file teachers that it should be.
Yet provisions directly touching teachers classroom discretion do exist, and some are couched in academic freedom language. What do such provisions attempt to regulate? Gaining aggregate information on that question is not easy, but there are some reasons to believe that academic freedom as a protectable interest for individual teachers is defined in essentially content-oriented terms.62 An example of this form of clause, present in a contract negotiated in an urban school district in Arizona, promised that academic freedom shall be guaranteed to [teachers] within the Districts instructional program and no limitation shall be placed upon the study and investigation of facts and ideas except where contrary to statute or board policy. The concomitant responsibility assumed by teachers was to ensure that class materials be relevant to the course and appropriate to the maturity level of the students. Further, teachers promised to strive to promote tolerance for the views and opinions of others and for the rights of individuals to form and hold differing views and opinions.63 A telephone conversation with a state-level union official in another state confirmed that this language was characteristic of academic freedom provisions in that state too where they exist.64
How can one assess this protective language? The language is extremely vague and abstract, almost homiletic. In that respect, it is not discrepant with language on this issue used in other contexts, including judicial opinions. Katz suggests that the extravagant language of the Supreme Court . . . has created expectations of meaningful classroom liberty that cannot be met.65 The same criticism might well be lodged here, with the caveat that the districts assurances do explicitly leave the board with the power to create policies limiting a teachers freedom to study or investigate facts or ideas.
One could even argue that a board could not ultimately surrender the measure of control that such a conception of academic freedom appears to embody. Although courts have occasionally used board actions that are ad hoc or violate stated policy to impute improper motivation to them (Pico, e.g.), they have been generally quite sensitive to the politically accountable status of boards, as well as to their direct statutory obligations in control of curriculum. Yudof, who believes that courts should enforce a boards procedural promises in content regulation matters (e.g., a review committee that handles book challenges), acknowledges that courts have not always clearly applied such a doctrine.66 Instead, courts often allow the board to recapture its position as the ultimate arbiter unless improper motives exist. Whereas an irrevocable delegation doctrine, as Yudof labels it, may exist after Pico as to book removals from school libraries, there is little reason to expect that the board does not possess absolute discretion in curricular decisions, particularly those decisions arising from disputes involving parents or community groups. Instead of irrevocable delegation, the Alaska Supreme Court has held explicitly that selection of instructional materials is nonbargainable as a nondelegable authority of the board.67
The alternative this article promotes is employing the academic freedom rubric to protect a teachers methodological choices. Seeking pedagogic autonomy through negotiations does not pose the same problems as seeking content control, for reasons set out previously in evaluating this alternative as a legal doctrine. If one assumes that methods are mechanisms or vehicles for achieving educational goals, their selection at the classroom level is a technical question (albeit a difficult one, given the level of the technology), one that professionals have a legitimate claim to controlling based on their expertise, experience, and responsibility for accomplishing the desired outcomes. As Smalls argues, The selection of methodologies . . . is peculiarly within the bailiwick of the teacher . . . what is effective is determined by a host of considerations that only the teacher on the firing line can evaluate.68 These fluid, contextual judgments remain the appropriate responsibilities of the proximal agents of the schoolteachersrather than the layers of distal agents that often seek to control teacher behaviors.69
A PLAUSIBLE POLICY?
Until recently, to suggest protecting teachers methodological preferences through explicit policymaking would have appeared a superfluous codification of the routine, internal dynamics of schoolsan example of the excessive, formalistic rule-making that Wise described as hyperrationalized policy.70 More recently, he observed that new reforms have introduced two trends in educational policy: increasing exercise of original powers by state-level officials and increasing client control.71 The former is arguably the dominant mode of the 1980s reform period (unsurprisingly, as legislatures have always had the authority to make statewide changes if they wished to exercise it). While the state governments have produced an abundance of accountability regulations, central administrators in school systems have responded by mandating one best system pedagogical packages. That phenomenon was identified by a state-level union official as a rapidly emerging dilemma for teachers in his state.72 Commentary on the reform movement would indicate that this concern is widespread.73 Thus, the old negotiated order in schools between teachers and administrators may be forcibly renegotiated as a result of these external pressures.
Assuming that mitigating this policy impact might be desirable, there are several reasons to be cautious about expecting that outcome. First, there is little in the history of schooling that predicts a formal reordering of authority relationships consistent with academic freedom principles. This policy both derives from notions of teacher professionalism and depends on the formal participation of teachers in important decision-making processes within the school. The former assumption is and has been the basis of a debate exceeding a century in length. As well, the absence of meaningful participation by teachers in essential decisional processes has endured despite continuous espousal of its virtues and several decades of collective bargaining.74 Retsinas argues that a transfer of job control is exceptionally unlikely for teachers, whom she describes as proletarian professionals.75 McDonnell and Pascal suggest that teachers do not even associate changes in job participation or control with collective negotiations or their unions; instead, teachers expectations are traditional, keyed to the economic elements of industrial unionism.76 To be sure, as Johnson has shown, there is intrasystem variability under the same contract, indicating the accuracy of seeing schools as negotiated orders.77 However, teachers receptivity to formalized efforts at defining classroom autonomy in district-level policy may well increase if district-level intrusions on the traditionally loosely coupled instructional order intensify.
Bargaining for assurances of autonomy in the current political environment might be interpreted as an effort by teachers to elude accountability measures and to revive the status quo ante of prereform movement schools. That prospect, seemingly an overwhelming likelihood, suggests that autonomy will have costs. One should note that, as Corwin has argued,78 the old-style unofficial autonomy had costs as well. Beyond familiar lamentations about teachers isolation, Corwin persuasively argues that teachers purchase discretion within classrooms by relinquishing their opportunity to influence school policy.79
Whether bargaining for formal discretion would have this same effect might depend on the accountability measures coupled to that autonomy. One model of accountability would parallel the self-regulatory approaches characteristic of the major professions. A process of increasing the publicness of teaching, including peer observation and discussion of means and ends of methods, could be built into school processes. To some extent, master teacher plans have some of these purposes. Corollary effects would be enhanced professionalism and reduced isolation; some would argue that these ancillary effects might transform the school.80 Such an approach is reflected by many of the proposals accompanying the second wave of reform. This accountability device, then, implicates much more profound reconstruction of organizational behaviors within the school; as such it is more problematic to envision it happening.81
A more incremental approach would rely on student-outcome measures of some nature, most likely achievement test scores. Teacher associations have resisted such policies, although the intractable resistance by national union officials has not always been echoed faithfully at local or state levels.82 Outcome measures have been tolerated in the context of career ladders and other policies that opened up salary prospects for teachers. However, it is fair to say that test scores are not a preferred policy mechanism for most teacher groups. For the truly unorthodox teacher who would have difficulty persuading management of the virtues of a chosen methodology, acquiescing to a post hoc evaluative measure may be the only safe option. For instance, although some researchers disagree,83 Kerchner and Mitchell have argued that the interests of teachers of special populations are not especially well represented in collective bargaining processes.84 A pertinent example, where outcome measures may be the only leverage against bias and skepticism, would be teachers who are committed to first language instruction for students with limited English proficiency in a district with English as a Second Language policies (or vice versa). A difficult tension for the outlier teacher could exist if the philosophical premises of the preferred method conflict with standardized achievement measures. One might have to conclude that public schools may be inhospitable places for such teachers at this point.
This last hypothetical dilemma, that of the estranged methodologist in a strange environment, helped crystallize a tentative resolution to a query that had accompanied the conceptual phases of this article: Why use academic freedom in attacking this problem, apart from its compatibility with my training? The term is riddled with ambiguity, the subject of a contradictory mass of sophisticated commentary, and perhaps permanently resistant to theoretical coherence. Yet it endures, as a salient symbol to those at every level in the teaching profession. I began ruminations leading to these arguments when a group of teachers who felt threatened by a newly adopted, funneling evaluation system (tied to a single model of pedagogy) raised the question of discretion as an academic freedom issue. These elementary school teachers conceived the basis of their professional discretion in this legalistic term.85 Moreover, this symbol is multifacetedthree-faced as Yudof would have it,86 rich with meanings, some even contradictory; it is virtually metaphoric in that respect. To construct the meaning argued for here does not exceed the range of plausible usages.
Most importantly, an academic freedom principle should sensitize policymakers to the inherently competing interests at issue in so mundane a matter as methodology. The collective bargaining process more or less assumes teachers are an undifferentiated, fungible cohort. As well, arguments about empowering teachers by enhancing their role in decision making do not necessarily dovetail with a professionalism ethos. The former emerges from communal images, deeply embedded in the complex demands of collective interests;87 the latter is linked to discretion for elite individuals or groups, whose autonomy is predicated on expertise.88 The same tension is replicated, of course, in the individual-rights versus common-good dilemmas intrinsic to modern democratic cultures.
The potential for intragroup conflict among teachers over what is a reasonable method for resolving a particular instructional problem is mitigated now by isolation, a lack of real interdependence, and a deeply contextual egalitarianism about peers methods (you do it your own way in your particular situation). An academic freedom process that opened colleagues methods to scrutiny and debate is not necessarily a comfortable prospect, particularly to the unorthodox methodologist. Presumably, such a teacher must fear tyranny by colleagues as much as by central or site administrators (particularly as the latter% tyranny largely never developed in schools). The virtue of academic freedom as an organizing symbol, as Yudof demonstrated so adeptly, is that it incorporates both institutional and individual faces.89 It carries at once the interests of the school, the teachers, and the teacher.
Academic freedom is a dialectical concept, and used in this manner it promotes a replication of dialectical processes in the school, an enhancement of the critical and reflective behaviors of teachers in the domain of their special expertise. There are many reasons why the quality of that expertise, as a professional technology, may not have progressed in a satisfactory manner, but the privateness of teachers knowledge is a reasonably significant factor. Developing a language sufficient to warrant methodological academic freedom will occur as teachers are granted autonomy tied to public accountability. Purging the content-censorship dimension of academic freedom, at least as a concept for public schools, eradicates an inextricable confusion of individual or group with larger collectivist interests over wholly normative issues. Pedagogical disputes can be viewed as professional debates over the various means through which educators- can discharge their societal responsibilities. This article argues that academic freedom serves as a useful anticipatory set for such a debate.90