Tag: Teachers

  • Stephen Rohde: Federal court rejects lawsuit by Jewish parents and teachers that labelled an ethnic studies curriculum ‘anti-Semitic’ and ‘anti-Zionist’ – First Amendment News 452

    Stephen Rohde: Federal court rejects lawsuit by Jewish parents and teachers that labelled an ethnic studies curriculum ‘anti-Semitic’ and ‘anti-Zionist’ – First Amendment News 452

    From time to time, we here at FAN post op-eds on various timely issues. One such issue is who decides what is taught in public schools and what are the applicable constitutional restraints placed on attempts to restrict teachers’ educational objectives. A recent court ruling in Concerned Jewish Parents & Teachers of Los Angeles v. Liberated Ethnic Studies Model Curriculum Consortium, et al. (Cen. Dist., Nov. 30, 2024) places this issue in bold relief. 

    In the piece below, Stephen Rohde, a First Amendment authority, analyzes the case and the First Amendment issues raised in it. 

    News items and the Supreme Court’s docket follow the op-ed. – rklc

    Stephen Rohde

    An important recent court ruling rejected attempts by Jewish parents and teachers in the Los Angeles Unified School District to remove an ethnic studies curriculum they labelled “anti-Semitic” and “anti-Zionist.” On Nov. 30, 2024, a federal judge reaffirmed that a system of education “which discovers truth out of a multitude of tongues” must allow teachers and their students “to explore difficult and conflicting ideas.” 

    In his 49-page ruling, U.S. District Judge Fernando M. Olguin wrote: “[W]e must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.” Moreover, he stressed that “teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority,” but they “must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities” (citing C.F. ex rel. Farnan v. Capistrano Unified Sch. Dist. (9th. Cir., 2019)).

    An international controversy

    The lawsuit (filed by Lori Lowenthal Marcus and Robert Patrick Sticht) came in the midst of a national — and indeed international — debate surrounding who controls the telling of the complicated history of Israel and the Palestinians and how criticism of Israel and its policies is being attacked with epithets such as “anti-Semitism” and “anti-Zionism.” It was an unprecedented attempt to convince a federal court to force the second largest public school system in the United States to adopt a single, one-sided interpretation of the hotly-contested political, religious, legal, military, and cultural histories of Judaism (spanning thousands of years), Zionism (which emerged in the late nineteenth century), and the State of Israel (founded in 1948). And all of this has been marked throughout the years by an endless variety of shifting perspectives by Jews and non-Jews alike.

    Lori Lowenthal Marcus

    Lori Lowenthal Marcus (Plaintiff’s counsel)

    Not incidentally, the ruling also represents a welcome rebuke to the efforts of Republican state legislators and conservative parent groups to restrict the teaching of comprehensive American and world history in public schools. This campaign includes attempts to ban books that examine racism, sexism, and LGBTQ issues as well as their efforts to eliminate programs that seek to ensure diversity, equity, and inclusion in American education.

    The LAUSD lawsuit is part of a well-financed, well-resourced campaign in the United States and around the world to impose an official, dogmatic pro-Israel narrative not only on Israel’s current war in Gaza and the West Bank, but on its entire 76-year history, and to silence any contrary or pro-Palestinian perspectives in the name of fighting “anti-Semitism.” 

    Ominous nature of lawsuit

    The ominous nature of the lawsuit can be seen in the breathtakingly overbroad injunction the plaintiffs had requested. Had it been granted, the injunction, as described in the plaintiffs’ own words, would have enlisted the powerful authority of a federal court to require the indoctrination of an entire school district, and all of its teachers and students, with false, misleading, highly-contested, and controversial claims, by prohibiting the following: 

    [A]ny language, in any teaching materials, asserting that Zionism is not a Jewish belief; denouncing the Jewish belief in the land of Israel as the land promised by God to the Jewish people, or the Jewish belief in Zionism, or asserting that the State of Israel, as the Nation-State of the Jewish people, is illegitimate, or asserting as a fact that the Jewish State is guilty of committing such horrific crimes against others as ethnic cleansing, land theft, apartheid or genocide, or that the Jewish people are not indigenous to the land of Israel or to the Middle East, or denying the State of Israel the right to self-defense; and/or denying the historical or religious connection between the Jewish people and the land of Israel.

    Had this handful of parents and teachers succeeded, more than 24,000 LAUSD teachers would have been forced by court order to teach more than 565,000 students the single dogma that Zionism, a movement that emerged a little over a hundred years ago, is “a Jewish belief,” when in fact there is a wide diversity of views among Jews on the issue of Zionism.

    In addition, if the injunction had been granted, all LAUSD teachers would have been banned by law from teaching or debating, for example, the fact that in Feb. 2022 Amnesty International issued a comprehensive 280-page investigative report entitled “Israel’s Apartheid Against Palestinians: Cruel System of Domination and Crime Against Humanity.” As its title indicates, this report “analysed Israel’s intent to create and maintain a system of oppression and domination over Palestinians and examined its key components: territorial fragmentation; segregation and control; dispossession of land and property; and denial of economic and social rights.” The report then concluded that “Israel imposes a system of oppression and domination against Palestinians across all areas under its control: in Israel and the OPT [Occupied Palestinian Territory], and against Palestinian refugees, in order to benefit Jewish Israelis,” which “amounts to apartheid as prohibited in international law.”

    And if the plaintiffs had had their way, all LAUSD teachers would have been breaking the law if they taught that on Jan. 26, 2024, the United Nations International Court of Justice issued a detailed ruling, which found it “plausible” that Israel has committed “acts of genocide” that violated the Genocide Convention and ordered Israel to ensure that the IDF not commit any of the acts of genocide prohibited by the convention.

    And all those teachers would have been prohibited from teaching that on Nov. 21, 2024, the International Criminal Court issued arrest warrants against Israeli Prime Minister Benjamin Netanyahu and Yoav Gallant, former Minister of Defence of Israel, accusing them of being “responsible for the war crimes of starvation as a method of warfare and of intentionally directing an attack against the civilian population; and the crimes against humanity of murder, persecution, and other inhumane acts from at least 8 October 2023 until at least 20 May 2024.”

    The plaintiffs and their lawsuit

    In May 2022 a group calling itself “Concerned Jewish Parents and Teachers of Los Angeles,” comprised of what the lawsuit called “Jewish, Zionist” teachers in the LAUSD and “Jewish, Zionist” parents of students in the LAUSD, sued the school district, the United Teachers of Los Angeles, its president Cecily Myart-Cruz, the Liberated Ethnic Studies Model Curriculum Consortium, the Consortium’s secretary Theresa Montaño, and Guadalupe Carrasco, its co-founder. The defendants were represented by Mark Kleiman.

    As summarized by Judge Olguin, the plaintiffs claimed that the ethnic studies curriculum “denounces capitalism, the nuclear family, and the territorial integrity of the lower 48 states of the United States[,]” and is designed “to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]” They claimed that the challenged curriculum “seeks to make it unsafe and ultimately impossible for any person to express Zionist ideas or Zionist commitment in public in general and within LAUSD public schools in particular.”

    In addition to taking issue with the content of the challenged curriculum, the plaintiffs decried the individual defendants’ support for the challenged curriculum. According to the plaintiffs: “Defendants are injecting their views into the LAUSD curriculum” and “disseminating [the challenged curriculum] to teachers throughout Los Angeles” under the authority of the LAUSD, and “at times through stealth[.]” Plaintiffs also alleged that the defendants supported or participated in workshops that “led teachers to bring the [challenged curriculum] to their own classrooms.”

    It is noteworthy that the plaintiffs did acknowledge that the LAUSD “has the right to control the content of all Ethnic Studies classes taught in LAUSD schools” and specifically admitted that the LAUSD “has ultimate control over and responsibility for the use and public disclosure of any teaching materials in Los Angeles public schools other than those materials whose use is directed by the California State Board of Education.”

    Mark Kleiman

     Mark Kleiman (Defense counsel)

    The plaintiffs also conceded that the challenged curriculum had not been formally adopted by LAUSD, but nevertheless they claimed that they “are being harmed” and “will be harmed” by it. And they alleged that the challenged curriculum is being taught by at least two LAUSD teachers, one of whom is currently “using the LESMC including the discriminatory, hateful material on Israel at issue in this case.” Additionally, they alleged that defendant Cardona confirmed that “she is teaching from LESMC materials and would continue doing so in her LAUSD classroom.”

    As for their legal claims, the plaintiffs alleged that the challenged curriculum is “discriminatory” and violates their rights under the Equal Protection Clauses of the U.S. Constitution and California Constitution, the Free Exercise Clause of the U.S. Constitution, Title VI of the Civil Rights Act, and California Education Code.

    The court ruling

    At the outset of his decision, Judge Olguin called the lawsuit “confusing” and noted that the complaint is “difficult to understand and contains a morass of largely irrelevant — and sometimes contradictory — allegations, few of which state with any degree of clarity precisely what plaintiffs believe defendants have done or, more importantly, how plaintiffs have been harmed.” He pointed out that the lack of clarity was particularly troubling given that this was the plaintiffs’ fourth attempt to allege a valid complaint.

    The lack of standing issue

    Addressing threshold procedural issues, Judge Olguin found that the plaintiffs did not have standing to bring the lawsuit in the first place and that their claims were not ripe for adjudication. He observed that the “essence of plaintiffs’ alleged injuries appears to be that they are aware of the challenged curriculum, disagree with it, and fear it will be adopted or used in LAUSD classrooms.” But he found “it is far from clear that learning about Israel and Palestine or encountering teaching materials with which one disagrees constitutes an injury, citing long-standing Supreme Court and appellate precedents.” And he found that neither the parent-plaintiffs nor the teacher-plaintiffs identified “any personal injury suffered by them as a consequence of the alleged constitutional error.” Plaintiffs may not “sue merely because their legal objection is accompanied by a strong moral, ideological, or policy objection to a [purported] government action.” In other words, “the individual plaintiffs’ potential exposure to ideas with which they disagree is insufficient to support standing.”

    At its core, plaintiffs’ lawsuit sought to have the court “weigh in on whether instruction that may be critical of Zionism or Israel is antisemitic.” Judge Olguin recognized that courts do on occasion determine whether beliefs are religious in nature and whether they are sincerely held, but here, without a justiciable case or controversy that presented a cognizable, redressable injury, he could not — and would not — entertain “a generalized grievance.”

    Throughout his decision, Judge Olguin relied heavily on the Ninth Circuit appellate decision in Monteiro v. Tempe Union School District (1998). In that case, a parent sued a school district, on behalf of her daughter and other Black students, over the high-school curriculum’s inclusion of certain literary works, such as The Adventures of Huckleberry Finn and A Rose for Emily. The plaintiff in that case argued that because these works contain racially derogatory terms, their inclusion in the curriculum violated the Black students’ rights under the Equal Protection Clause. The Ninth Circuit rejected this argument and held that “objections to curriculum assignments cannot form the basis of a viable Equal Protection claim, because curriculum decisions must remain the province of school authorities.” Absent an allegation of an underlying racist policy, “plaintiffs cannot challenge the assignment of material deemed to have educational value by school authorities.” 

    In Monteiro, no underlying racist policy was found. Similarly, in the LAUSD case, Judge Olguin found that the plaintiffs “do not allege the existence of an underlying racist policy; instead, they challenge unspecified portions of a hypothetical curricular offering.” Although the plaintiffs asserted that they were targeting a curriculum “infected from top to bottom with racism and bias[,]” they did not direct the court to any allegations that supported their assertion. Nor were there any allegations to support an inference of a discriminatory policy. Thus, the lawsuit was a direct attack on curricula, and under Monteiro, “absent evidence of unlawful intentional discrimination, parents are not entitled to bring Equal Protection claims challenging curriculum content.”

    Failure to raise a free exercise claim

    Judge Olguin also found that the plaintiffs failed to allege a violation of their right to the free exercise of religion. According to the Supreme Court, “a plaintiff may carry the burden of proving a free exercise violation in various ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not neutral or generally applicable.” But the courts have also held that “offensive content” that “does not penalize, interfere with, or otherwise burden religious exercise does not violate Free Exercise rights,” even where such content contains material that plaintiffs may find “offensive to their religious beliefs.”

    In the LAUSD case, the plaintiffs did not allege that they “have somehow been prevented from practicing their faith, or that the parent-plaintiffs have been barred in any way from instructing their children at home.” In effect, the only hardship plaintiffs alleged was that the existence of the challenged curriculum — and its possible adoption — offended them. “But mere offense is insufficient to allege a burden on religious exercise,” stated Judge Olguin, citing court decisions holding that class materials offensive to Hindu or Muslim plaintiffs did not violate Free Exercise Clause. As Chief Judge Pierce Lively put it in a 1987 case: “[D]istinctions must be drawn between those governmental actions that actually interfere with the exercise of religion, and those that merely require or result in exposure to attitudes and outlooks at odds with perspective prompted by religion.”

    It is important to note that Judge Olguin could have simply found that the plaintiffs lacked standing to bring the lawsuit and dismissed it entirely. Instead, he went on to explain that even if the plaintiffs had established standing, they could not overcome the “significant First Amendment” obstacles their complaint presented. Because the non-LAUSD defendants are private parties, their speech and conduct are protected by the First Amendment. The court “cannot enjoin private parties from expressing their views on what an ethnic studies curriculum should or should not contain, let alone from using any ‘elements’ of the challenged curriculum, because doing so would violate the First Amendment.”

    Three First Amendment issues

    Judge Olguin then explained in detail the various First Amendment violations that the plaintiffs’ requests raised: 

    First, plaintiffs “take issue with the non-District defendants’ forms of discussion, expression, and petitioning in relation to the challenged curriculum,” such as “various UTLA and Consortium activities, including funding, supporting, promoting, and hosting of workshops and events that discuss Palestine and Israel.” The plaintiffs sought to have the court impose restrictions on the non-District defendants’ protected speech by requesting an injunction “prohibiting all Defendants from using the elements of the LESMC at issue in this case . . . in any training sessions funded by public funds, or for which salary points are awarded by LAUSD. 

    Judge Olguin made it clear, however, that “the non-District defendants have a right to express their views about the curriculum under the First Amendment and to petition for curricular changes.” And he went even further: “[E]ven if teaching the challenged curriculum were unlawful, and the non-District defendants encouraged the material to be taught, the non-District defendants’ activities would be protected, as plaintiffs have not alleged incitement to imminent lawlessness action.”

    Second, the plaintiffs had relied on the seminal 1969 Supreme Court decision in Brandenburg v. Ohio, arguing that the court may “prevent a speaker from counseling the commission of imminent lawless action [by LAUSD] when such counseling is likely to incite or produce such action.” But Judge Olguin found there were “no plausible allegations” in the complaint “to support such an assertion.” And in any event, “the assertion conflicts with plaintiffs’ contention that they, for example, ‘do not claim that UTLA is acting wrongfully by petitioning the government to include the challenged materials in the classroom, or to discuss with others what the curriculum should be or whether the law should be changed to allow Defendants to teach what they want.” Indeed, according to plaintiffs, “[t]here is no claim that it is illegal for UTLA to speak to teachers about Ethnic Studies and there is no request that this Court order UTLA to stop doing so.” Nor is there any claim “that the law is violated by Defendants’ conduct of seminars showing teachers how to teach [the challenged curriculum], and no relief is sought from the Court asking anyone to stop conducting such seminars.”

    Third, plaintiffs specifically targeted “classroom expression by public school teachers, on the clock and paid for with public money” and asked the court to enjoin LAUSD teachers from teaching the challenged curriculum.

    Judge Olguin held that “this request raises serious concerns about the First Amendment and principles of academic freedom.” Although high school teachers do not have freedom of speech to the full extent of the First Amendment, nonetheless according to Monteiro, there is no doubt that “allowing the judicial system to process complaints that seek to enjoin or attach civil liability to a school district’s assignment of” curricular material could have broader, potentially chilling effects on speech. In other words, “while teachers’ speech rights in the classroom may be reasonably abridged by their employers, such limitations are fundamentally different than speech restrictions imposed by a court at the behest of a group of private citizens.” 

    He added: “[S]tudents have a right to receive information and ‘lawsuits threatening to attach civil liability on the basis of the assignment of [curricular material] would severely restrict a student’s right to receive material that his school board or other educational authority determines to be of legitimate educational value,’” citing Monteiro.

    Judge Olguin recognized that “determining the content of curricula is a complicated, important matter, and it is for this reason that school boards generally retain broad discretion in doing so.” He stressed that “teachers must have some discretion and academic freedom in implementing and teaching the curriculum,” because “teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.” He also warned that “it would be of great concern for the educational project and for academic freedom if every offended party could sue every time they did not like a curriculum or the way it was taught.”

    Teaching provocative and challenging ideas is painful but necessary

    Citing a 1949 Supreme Court decision that recognized that “[s]peech is often provocative and challenging,” Judge Olguin recognized that while the plaintiffs clearly considered the challenged curriculum to be “provocative and challenging,” nonetheless, “our legal tradition recognizes the importance of speech and other expressive activity even when — perhaps especially when — it is uncomfortable or inconvenient.”

    Consequently, Judge Olguin dismissed all of plaintiffs’ claims with prejudice, preventing them from filing a fifth amended complaint.

    No doubt the Jewish parents and teachers who brought this lawsuit were deeply concerned that their children and students would be exposed to sharply different and indeed highly negative perspectives about the State of Israel and the nature and history of Zionism — perspectives that conflict with what may have been taught at home. But when it comes to public education in America, no particular group of parents or teachers can restrict the curriculum designed for all students based on their personal views or because they are offended by some aspect of the curriculum.

    “At their best, public schools in the United States serve to produce a literate and informed citizenry imbued not only with knowledge but with a spirit of inquiry,” according to Jonathan Friedman, Director of Free Expression and Education at PEN America. “Diversity of thought has been the core of our pluralistic identity, and free expression — one of the central tenets of American democracy — is an essential value that ensures both the quality of our children’s education and the ability of our schools to prepare them to become engaged citizens in an increasingly complex world.”

    Friedman went on to explain that while there is no question that “parents have a central role in guiding, supporting, nurturing, and educating their children,” the so-called “parents’ rights” movement seeks to elevate “individual parents’ beliefs or preferences over the rights of all other parents.” He also noted that in many parts of the country, “individual parents are demanding the removal of books from schools they find unfavorable.” But in the United States, “it has been an abiding principle of our democracy to side with free speech over those who wish to restrict it. The freedom to learn, the freedom to read, and the freedom to think are inextricably bound.”

    “Preventing students from learning about the real world won’t protect them from it,” Friedman pointed out. Students “don’t deserve a chilled environment where teachers are unable to speak honestly for fear of upsetting any one parent.”

    Thirty-three years ago, the American Association of University Professors reiterated its long-held view that the “freedom of thought and expression” upon which education is based “often inspires vigorous debate on those social, economic, and political issues that arouse the strongest passions. In the process, views will be expressed that may seem to many wrong, distasteful, or offensive. Such is the nature of freedom to sift and winnow ideas.”

    The AAUP reminded us that on “a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed.”

    The debate over Israel, Zionism, and the Palestinians, like all debates on serious issues, will not be resolved by convincing courts to mandate the views of one side or to silence the voices of the other side. The debate must be a free and open discussion informed by a rigorous and unflinching examination of history that respects the human rights and dignity of everyone.

    Sixth Circuit rules FCC lacked the authority to reinstate Net Neutrality rules

    A federal appeals court struck down the Federal Communications Commission’s landmark net neutrality rules on Thursday, ending a nearly two-decade effort to regulate broadband internet providers as utilities.

    The U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said the F.C.C. lacked the authority to reinstate rules that prevented broadband providers from slowing or blocking access to internet content. In its opinion, a three-judge panel pointed to a Supreme Court decision in June, known as Loper Bright, that overturned a 1984 legal precedent that gave deference to government agencies on regulations.

    “Applying Loper Bright means we can end the F.C.C.’s vacillations,” the court ruled.

    The court’s decision put an end to the Biden administration’s hallmark tech policy, which had drawn impassioned support from consumer groups and tech giants like Google and fierce protests from telecommunications giants like Comcast and AT&T.

    Levine and Schafer on ‘central meaning of the First Amendment’

    Last month, Carson Holloway argued in Law & Liberty’s forum on New York Times v. Sullivan that the Supreme Court “owes it to the nation” to reconsider and ultimately overrule this defining First Amendment case. He has made this argument in Law & Liberty before. He is mistaken.

    Sullivan declared that the First Amendment has a “central meaning”: that citizens in a democracy have a right to criticize government officials without fear of ruin. The Court made this principle a reality by establishing the “actual malice” requirement. Before enforcing a damages judgment or sending a citizen to jail, courts going forward were to require clear and convincing proof that the alleged defamer of a public official published the defamatory statement knowing it was false or with a high degree of awareness of its probable falsity.

    The rule has proven a potent protection for press freedom. But for Holloway, it is a modern invention that is not “based on the original understanding of the First Amendment.” We agree with Angel Eduardo that this argument is “at best . . . highly contested.” Having spent our careers defending press freedom (in the case of one of us, that includes two trips to the Supreme Court), we write to explain what exactly Holloway got wrong.

    Initially, Holloway’s originalism argument is a red herring. The defamation tort is a creature of state law and the First Amendment at the Founding only imposed limits on the federal government. (It is noteworthy, though, that Madison viewed his unsuccessful amendment that would have prohibited state infringements on liberty of the press as more valuable than the First Amendment.) So it should be expected that there is no evidence that the Founding generation understood the First Amendment as a limit on state libel law. (Even so, Jefferson, perhaps anticipating the Sedition Act of 1798, thought the First Amendment ought to impose limits on libel.)

    The TikTok case

    More in the News

    2024-2025 SCOTUS term: Free expression and related cases

    Cases decided

    • Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
    • Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam).”)

    Review granted

    Pending petitions

    Petitions denied

    Last scheduled FAN

    FAN 451: “Media on the run: A sign of things to come in Trump times?”

    This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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  • Universities and the Teachers Pension Scheme: the time for change is now

    Universities and the Teachers Pension Scheme: the time for change is now

    Welcome back. The HEPI blog is now up and running again on a daily basis, landing in your inbox at 6:30am. (The pieces we ran over the break are available here.) If you are not already subscribed, you can sign up at the bottom of this page.

    Spaces are still open for our in-person Symposium with CBDU on Thursday 16th January: you can register here.

    Today’s piece is by Jane Embley, Chief People Officer, Northumbria University and Professor Tom Lawson, Deputy Vice-Chancellor and Provost, Northumbria University.

    The end of the Universities Superannuation Scheme (USS) pensions dispute in the summer of 2023 was the source of much relief in the sector. University employees in the scheme saw both their pension benefits restored to the levels they had been before the USS valuation of 2017 and a reduction in their contributions (from January 2024) from 9.8% to 6.1%. Employers could reverse the significant liabilities that had previously been skewing their financial statements and their contributions to USS were reduced from 21.6% to 14.5%. The Financial Times declared that ‘the cost to UK universities of providing pensions for employees is poised to fall by hundreds of millions of pounds after the sector’s main retirement plan swung into surplus after more than a decade of being in deficit’.

    But for many institutions the great pensions crisis was not over: indeed it had only just begun. For at least 80 universities, USS is not their main pension scheme, because those that gained university status through the 1992 Higher Education Act are required to offer Teachers Pension Scheme (TPS) to their academic staff. This includes institutions like Northumbria University, which has significantly developed its research intensity over the last decade and seeks to compete with other research intensives. The disparity in the costs of TPS and USS means that competition is no longer on a level playing field.

    Northumbria has more than 200 staff who are members of USS, but all of those have joined the university as existing members of that scheme. All other academic colleagues must be enrolled in TPS and cannot, at present, voluntarily become members of USS. Indeed those who join as members of USS also retain a right to be enrolled in TPS if they wish. Around 50 modern institutions employ some members of USS however the underlying requirement to make TPS available to university-employed academic staff is the same.

    Since 2023 the cost of TPS to both employees and employers has significantly diverged from USS. While employers’ contributions to the two schemes tracked one another closely until October 2019, they then began to diverge radically when TPS employer contributions rose to 23.68% while USS was at 21.1%. But in April 2024 the gulf between the two schemes became a chasm – TPS contributions rose by 5% to 28.68% as USS employer contributions went down to 14.5%.

    The difference in percentage terms is stark. But when you start to think about the financial cost for institutions it is all the more so. The pension cost (to employers) for a typical academic salary of £57,500 is £8,300 per annum for USS. For a TPS employee, it is £16,500. At an institutional level that means that for every 1000 staff earning this salary in TPS, the annual cost is £8.2 million greater than if those same employees were members of USS. For a professor earning £85,000 the difference is as much as £12,000 per full-time colleague. As Northumbria’s experience shows, these are additional costs being carried in one part of the sector for essentially the same staff.

    The situation is compounded by the nature of TPS as a scheme. Unlike USS, employers have no say in how the TPS is run and have no levers to keep employer (and indeed employee) contributions down. This is simply a cost handed down to universities by the Treasury. But unlike schools, to which the Treasury through the Department for Education provides additional funding to cover TPS cost increases, universities receive no relief and simply have to absorb these costs into their already stretched budgets. And unlike schools in the independent sector, which were permitted to stop offering TPS to new staff, universities are obliged to continue to offer TPS – whatever alternatives they can develop for their staff.

    The impact of this is extraordinary. It essentially means that in one part of the sector, it costs employers the same amount in on-costs to employ 503 staff as it costs to employ 1000 staff elsewhere. Quite apart from the burden this places on institutions, it is deeply anti-competitive.

    What then is to be done? The path forward is beset by problems. Unless there is legislative change, modern universities will be required to continue to make TPS available to all academic colleagues and, it bears repeating, will continue to have no say at all in the running of the scheme.  

    Of course, one option is to do nothing, but the finances of the sector mean the status quo is extraordinarily difficult to justify. Doing nothing embeds an unfairness that makes the government’s stated priorities for university reform more difficult to achieve. To put it crudely, it costs more for some institutions than others to employ academic staff, and as that resource is derived (at least in part) from student fee income then those institutions will require more students to fund the salaries of staff. For every 1000 staff earning £57,500 it would require all of the fees from 859 additional UK undergraduate students just to fund the difference in employer pension contributions.

    Institutions can employ new colleagues via subsidiary companies in order to give themselves the freedom to offer more affordable pensions to new employees. But this approach has many potential pitfalls. It would not help to reduce the costs in relation to existing staff, so would be slow to have any impact, and in any case it remains unclear what the status of such employees is according to HESA – which could among other things impact the ability of individuals to make a contribution to future REF exercises with the attendant implications for future funding. Employment through a subsidiary, even with all terms and conditions being the same but being out of scope for recognition within the REF, is also likely to be a less attractive prospect for employees.

    It seems likely that until solutions are found, many institutions might find themselves having to rethink their ability to participate in national collective pay bargaining. With higher pension costs and higher National Insurance contributions, it may be necessary, for now at least, for institutions to take control of salary increases to contain the total costs of employment. This is not an attractive option, but it is hard to think of any others that would be as swift and effective in containing cost increases, although of course it would come with its own industrial relations challenges.  

    Ultimately all institutions value their academic staff immensely and we want to provide access to attractive pension schemes. However, the lack of institutional control over which pension scheme can be offered, and the high, fixed nature of the employer contribution to TPS (which is not directly linked to any improvement in benefits for the individual) cannot be sustained. The timing of the current challenge could also not be worse. Institutions are grappling with a whole range of financial pressures, and as a consequence dealing with TPS remains in the ‘too hard’ box for many, not least because we genuinely cannot find the solutions without some form of intervention. But as the sustainability of institutions becomes all the more scrutinised, and as the sector needs to find financial efficiencies to address the concerns expressed by the Secretary of State for Education earlier in 2024, we do urgently need to find a way forward.

    Obliging institutions to continue to offer TPS places greater financial constraints on precisely those universities that might do the most to widen access and give greater opportunity to those from disadvantaged backgrounds as per the government’s priorities. It is an obvious unfairness that some of students will go to institutions where it is substantially more expensive to employ staff than in other institutions that are more traditionally regarded as elite. The time is now to remove this inbuilt, and presumably unintended, unfairness and end the obligation upon modern universities to offer TPS. If that happens individual institutions and the sector as a whole can begin to chart a path to a more sustainable position in the future.

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  • 2025 Teacher of the Year is first Indigenous honoree

    2025 Teacher of the Year is first Indigenous honoree

    By Kenn Rodriguez
    For NMEducation.com

    Halloween 2024 is a holiday that won’t be soon forgotten by Bernalillo High School teacher Lorilei Chavez. You see, October 31 was the day she was honored as the first Indigenous teacher named New Mexico Teacher of the Year.

    Sixth period was going as usual for Lorilei and her social studies class. The group was in the middle of a lesson when BHS principal, Alyssa Sanchez-Padilla, and her secretary came to the door with an urgent request: Bring your students to the school’s black box theater to bump up attendance for a guest speaker.

    “And so, you know, as a teacher, I’m like, ‘Oh no, we’re in the middle of a lesson,’” she related. “You know, I don’t want to lose valuable teaching time. But if the principal is asking you to take your students somewhere, you know, you get going.”

    As she walked with her students to the theater and the seventh-period bell rang, her principal asked to detour to sign some tutoring paperwork. While walking, Chavez noticed a few extra student resource officers. 

    “Like I was getting kind of like an inclination that something was going on, you know?” she said, noting she was dressed in 1980s style for Halloween, with a side ponytail and an off-the-shoulder shirt.

    Still thinking there was a guest speaker, Lorelei came to the theater and saw the “shimmer of cheerleading pompoms” and a huge cheer erupted as she entered the room. Assuming the cheer was for the “guest,” she got a bit spooked and started to back out of the room, she said.

    “My principal was behind me and she just put her hands on my shoulders and softly nudged me forward,” she recalled. “I saw my mom and rushed over to her. Then she points up at the ceiling and there was this huge banner that says ‘Lorelei Chavez, Teacher of the Year.’”

    “And that’s when it all just hit and took me over. And then it went from joy, like surprise to joy to like pure happy tears,” she said. 

    “It’s a life moment I’ll never forget.”

    From Bernalillo and back

    Lorilei describes herself as a “very proud product of Bernalillo Public Schools.” Beginning with kindergarten near home on the Kewa Pueblo (Santo Domingo Pueblo), she spent all but one year of her young life in the BPS system, beginning with Santo Domingo School and ending with graduation from Bernalillo High in 2008.

    “It’s funny because I remember being in high school thinking, ‘Oh, I want to go as far as I can. Like, I want to go to school in California. I want to go to college in Washington, D.C. And I don’t want to come back to Bernalillo,’” she recalled with a chuckle. “And then six years later, I ended up (substitute teaching) while going to college. I’ve been there ever since.”

    Beginning her college career at Central New Mexico Community College, Lorilei got her basics taken care of before transferring to the University of New Mexico. She graduated in 2018 with a degree in Native American Studies and a minor in History. Though she started as an education major and shifted away, her experiences as a substitute convinced her to go through CNM’s Alternative Licensure program, which she finished in 2020.

    “When I started subbing as I was going to (UNM), I realized that I had a really deep ability to connect with students on a level that maybe some of my colleagues weren’t able to,” she said. “Because our district is 48% Indigenous, a lot of the students that I worked with didn’t really have Indigenous teachers or teacher aides or even substitutes that looked like them.”

    Since the Bernalillo school system works with seven different tribes, Lorilei said she feels it’s important that Native students have Indigenous role models in the school setting. She used simple examples, like seeing her dressed in Native regalia or “big Native earrings” and beaded medallions to honor Native heritage.

    “I think that’s what allowed me to see that I would be a good educator,” she said. “I would have an impact on students if I did a shift and got my teacher certification.

    “And so that I think is my main drive even to today, is my ability to connect with students, uplift them, hear their voices, allow them to feel seen in the classroom, which I think creates the motivation to continue their goals and succeed in whatever they’re trying to accomplish.”

    Serving her community 

    Lorilei said being named the first Indigenous teacher to win the statewide Teacher of the Year award was obviously an honor. But because “a core value of Pueblo people is the idea of service,” she said she feels that she is representing more than herself in accepting the award. 

    “As I serve my community, I wake up every day knowing that I’m going to serve my students, my future generations as I represent Santo Domingo Pueblo,” she said. “I wake up every day thinking, ‘What impact am I going to make on my community and what impact am I able to make today on the future generation?’ So, winning an award like this has been really hard for me to accept and value the honor. Because I feel it doesn’t just belong to me. It comes from a community of educators that has raised me and taught me.”

    With her Native American Studies background, she said she strives to balance Indigenous culture and Western education in a school setting.

    “The people, the past EAs, the language teachers, the teachers who’ve taught me that have poured into my education, I think is what brought me to today,” Lorilei said. “With this title and this beautiful award, I’m able to bring home not only Santo Domingo but to the Bernalillo Public Schools. I think the pressure of being the first Indigenous Teacher of the Year is making sure I’m honoring not only my school but my students and the community that I come from.”

    ‘Indigenizing’ the Education System

    Lorilei said that as Teacher of the Year, she will emphasize “Indigenizing” education in New Mexico, as well as supporting teachers’ mental health. The desire to bring more Native experiences, stories, and perspectives into public education is something that grew from her time in the UNM Native Studies program.

    “Going to (UNM’s) Native American studies program as a college student really opened my mind to this understanding of needing to know your culture, your history, the laws and the narrative that existed in Native community,” she said. “Things that weren’t necessarily told in the history books that I studied or in the papers that I wrote. Things not in the curriculum that I was offered as a public school student.”

    “So graduating from UNM NAS instilled this understanding that going back into the public schools that I work at… I had no choice but an obligation to encourage our district and hold our district accountable when adopting curriculums and encouraging Native history in the core curriculum,” she concluded.

    Lorilei said she and her fellow educators in the Bernalillo Public Schools “are blessed” to have a district leadership that understands the equity and value of bringing in Native languages and history as a core content. 

    She also said she feels very fortunate for the opportunity to work in a district that allows her the opportunity to build a curriculum that includes Indigenous history – subjects like the Pueblo Revolt, boarding schools, Native removal, sovereignty and decolonization, in a “school building that was not necessarily built for Indigenous education but built for Western education.”

    “As the first Indigenous teacher of the year, I feel like that also is my obligation and duty, is to work to continue to advocate, to educate, so that we can uplift Native narrative, history, stories in curriculum,” she said. “Not just in high student of color populations, but in districts across the state. 

    “It is a passion of mine to Indigenize education and bring Indigenous perspective in Western curriculum. And so that’s something that I’m going to really push toward and be passionate about and continue to advocate for moving forward,” she related.

    Prioritizing balance for teachers

    Lorilei also said she is “super passionate” about state leadership and school districts starting a movement around prioritizing teacher mental health. She said she plans to “really pour some energy in as Teacher of the Year.” As a teacher working at the high school level, she said implementing teaching materials and testing guides, and “doing all the things that I need to do as a teacher to be the best teacher” leaves her drained at times. 

    “Balancing all of that with my life and my culture and everything that I am as a human being, an auntie, a sister, a cousin, is very difficult,” she said. “I really think as a state and as a nation, we really need to take a deeper look into how we are healing our teachers. How are we showing up for them in capacities that include mental wellness? And that includes body health and that includes spiritual strength in whatever capacity that they connect to.”

    She concluded: “My goal and my hope is to really work with school districts, including mine, to have wellness days, wellness fairs, professional development days where teachers are paid to take time to take care of their mental health… because we’re so spread thin from the many, many things we have to do as educators. 

    “I’d really like to see us looking at an innovative way to address teacher wellness in ways that maybe the state and the nation haven’t before.”

    The New Mexico Teacher of the Year program is sponsored by The New Mexico Oil and Gas Association. The award of $ 10,000 will go to Lorilei to help with professional development opportunities and support her travel needs.

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  • What Early Education Teachers Need to Know About Technology 

    What Early Education Teachers Need to Know About Technology 

    Early childhood educators are responsible for the positive development, health, and well-being of many children, making critical the appropriate use of technology in those settings.

    Michelle Kang

    CEO, National Association for the Education of Young Children (NAEYC)

    Alissa Mwenelupembe

    Managing Director of Early Learning, NAEYC

    When we were children — and even when our own children were little — educational television shows like “Sesame Street,” “Mr. Rogers’ Neighborhood,” and “Reading Rainbow” provided time-limited relief for busy parents and an opportunity for children to learn.  

    Now, screens are ubiquitous as adults carry them in pockets and purses, and the content coming from those screens has changed considerably to become more interactive, brighter, and more likely to encourage continued engagement with the screen. It’s no longer as straightforward as turning off the corner television set. 

    The research on children and technology is ongoing, and the American Academy of Pediatrics has declined to set recommended screen time hours for children — not because unlimited screen time is good, but because not all screen time is equal. 

    For parents, this presents an individual challenge, but for early childhood educators, it is magnified across a whole program, where teachers are responsible for the positive development, health, and well-being of many young children at once. 

    What is appropriate? 

    A guiding rule is that the use of technology in an early childhood education setting, whether in a center, home, or school, should be in service to developmentally appropriate practices around learning. 

    That takes professional judgment by early educators who, through expertise and experience, can identify the value of incorporating active, hands-on technology into activities based on the readiness of the children and whether it will support their learning.  That also means early educators must have appropriate training, support, and digital literacy themselves. 

    Any technological engagement by children should support creativity and/or cognitive and social development. Special consideration should be given to how it can help create equity, particularly by using translation and assistive technology supports to engage with multi-language learners or children with identified disabilities. 

    One great example of technology use in a preschool classroom was from a teacher who shared a story with the National Association for the Education of Young Children (NAEYC) of assigning a classroom job of “journalist” to one of the preschoolers in her integrated special education classroom. The child would document the day by taking photos on a tablet, and then report on one of the pictures during the closing circle. It’s interactive, sparks conversation, inspires creativity, and is adaptable to different developmental levels. 

    What are some guidelines? 

    NAEYC and the Fred Rogers Center for Early Learning and Children’s Media issued a technology and interactive media position statement in 2012. While it is on the docket for a renewal and refresh, the fundamentals still hold even as technology has advanced. 

    Early childhood educators should:  

    • Select, use, integrate, and evaluate technology and interactive media tools in intentional and developmentally appropriate ways, giving careful attention to the appropriateness and the quality of the content, the child’s experience, and the opportunities for co-engagement. 
    • Provide a balance of activities in programs for young children, recognizing that technology and interactive media can be valuable tools when used intentionally with children to extend and support active, hands-on, creative, and authentic engagement with those around them and with their world. 
    • Prohibit the passive use of screens in early childhood programs for children younger than two, and discourage passive and non-interactive uses with children ages two through five. 
    • Limit any use of technology and interactive media in programs for children younger than two to those that appropriately support responsive interactions between caregivers and children and that strengthen adult-child relationships. 
    • Provide leadership in ensuring equitable access to technology and interactive media experiences for the children in their care and for parents and families. 

    There is no one-size-fits-all way to address technology in early education programs, even and especially as technology expands to include AI. However, well-prepared and supported educators using their professional judgment will remain the critical link between children and safe, effective engagement with technology.

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