NEA Policy Statements

13. Distance Education

Preamble

Distance education is now widely used in elementary/secondary school education, higher education, and professional development for education employees.  With the increasing sophistication of the Internet and other digital communication technologies, the use of distance education in all of these contexts undoubtedly will expand dramatically in the years ahead.  NEA enthusiastically supports the continued and expanded use of distance education because it believes that distance education has the potential to improve learning opportunities for students, the quality of instruction, and the effectiveness of education employees.  The positions taken in this Policy Statement are designed to assure that distance education is used in a manner that enables it to fulfill this potential.[1]

Definitions

 For purposes of this Policy Statement, the following definitions apply:

1. The term "distance education" means a form of education in which courses are delivered via the Internet (or other forms of digital technologies that may evolve from the Internet that exists today) without face-to-face interaction between student and instructor;
2. The term "traditional education" means the delivery of educational services by means that involve face-to-face interaction between student and instructor; and
3. The term "intellectual property" means certain legal rights protecting original works of the human intellect.  One of these legal rights is "copyright," which means the protection given to original works of authorship, such as literary, musical, or artistic works, by conferring on the owner of a copyright the exclusive right to (a) reproduce the work, (b) distribute or sell the work, (c) make derivative works from the work, (d) perform the work, and (e) display the work.

Criteria For Acceptability

This Policy Statement sets forth certain criteria that NEA believes should be used to determine whether the use of distance education is acceptable.  These criteria are specific to distance education, and unless otherwise indicated are intended to supplement -- not supplant -- the criteria set forth in other NEA policies for determining the acceptability of educational programs in other contexts.  For purposes of discussion, the distance education criteria are grouped into two categories, relating to (A) student learning and (B) educational employment. [2]

1. When properly used, distance education can enrich and enhance the education provided to students, but distance education is not an alternative to traditional education that can in all respects and in all contexts fulfill the mission of traditional education.  In addition to providing instruction in academic subjects, a traditional education in a public elementary/secondary school is designed to prepare students for citizenship by instilling certain fundamental democratic values; to expose students to wide-ranging political, religious, and cultural views; to teach them tolerance and respect for those different from themselves; and to help students develop a sense of community.  Because these purposes can be served only when students have regular face-to-face interaction with peers, teachers, and other education employees, NEA opposes -- as a general matter -- any arrangement pursuant to which elementary/secondary school students receive all or most of their education at home through distance education, and rarely if ever convene in an actual school building.  In taking this position, NEA recognizes that exceptions may be necessary for certain students who cannot be adequately served by a traditional education program.

2.  Although the importance of the face-to-face interaction component of traditional education diminishes with the age and maturity of the students involved, it remains a significant function of an undergraduate higher education.  For this reason, NEA -- again as a general matter, with the recognition that exceptions may be warranted in particular cases -- opposes undergraduate degree programs in which all or most of the courses are provided by distance education.

3. The question of how much distance education is "too much" can best be answered in context after considering the financial and programmatic feasibility of providing the courses through traditional education, the developmental level of the students involved, whether and to what extent the use of distance education would place the economic security of education employees at risk, whether there has been collective bargaining or other bilateral decision-making between the employer and the affiliate, etc.  Accordingly, with regard to the appropriate balance between the use of traditional education and distance education at the elementary/secondary school level and in undergraduate higher education, NEA defers to the judgment of the affiliates involved.

4. Because of the nature of the student body and the purpose of the educational program, the face-to-face interaction component of traditional education is less likely to be a factor at the post-graduate level or in professional development for education employees.  In these contexts, distance education may in some circumstances be the preferable -- and, indeed, the only viable -- way to provide educational services.

5. Once the decision to use distance education has been made -- by a school district, a college or university, or a provider of professional development -- the distance education should, as the NEA Standing Committee on Professional Standards and Practice put it, "enrich and enhance current Programs, not dilute their overall value." [3]   Toward this end, distance education should only be used for a type of instruction that is suited to online delivery.  Several factors should be considered in this regard.  One factor is the subject matter of the course.  Another factor is the developmental level of the students, inasmuch as young children may not have the literacy skills or maturity necessary to  participate in online education, and face-to-face interaction with teachers and peers may be essential to effective learning.  Because these and other relevant factors can best be assessed in context, NEA defers to the judgment of the affiliates involved.

6. Although distance education can overcome physical and geographical barriers, its reliance on high level information technology has the potential to create new barriers based on economic and social status.  If distance education is used at the elementary/secondary school level, these factors must be neutralized.  All eligible students must be able to participate in distance education on an equitable basis without regard to the economic or social status of their family.

7. Unless otherwise indicated, distance education should be subject to the same criteria that NEA has adopted for quality education generally.  Because distance education presents unique concerns, certain additional criteria should be used in evaluating its quality.  These additional criteria include the following:

1. Consistent with Resolution G-3 (Licensure), which provides that "[a] teaching license must be recognized as the primary requirement for employment in every public and private school (pre-K through 12)," teachers who provide distance education at the elementary/secondary school level should be licensed in the subject matter taught.  The license need not be from the state in which the educational services are received by students because this would have the practical effect of eliminating the multi-state use of distance education, nor is there any educationally sound reason why the teacher should be licensed in the state in which the educational services originate.  Because NEA does not value a teaching license from any one state over that from any other state, it should be acceptable if a teacher who provides distance education to elementary/secondary school students is licensed in any state in the subject matter being taught.
             Although licensure in the subject matter being taught is a necessary condition for any teacher, it is not a sufficient condition for a teacher involved in distance education.  Teachers who provide distance education should in addition be skilled in learning theories, technologies, and teaching pedagogies appropriate for the online environment.  Moreover, because of the rapidly changing technology, these skills should be continuously updated through professional development.
2. Students who take distance education courses should receive the preparation and support necessary to enable them to function effectively in an online environment.  Such preparation and support should include at least the following:
• Appropriate equipment, technical support, libraries, and laboratories;
• Appropriate student services, including at the elementary/secondary school level an onsite education employee to monitor student performance and act as a liaison to the distance education instructor;
• Accurate course descriptions and clear expectations prior to enrollment;
• Individualized interaction with their instructor; and
• Opportunities for appropriate student-to-student interaction.
3. Distance education courses should be managed to assure effective student and school participation, provide for regular interaction between students and their instructors and online classmates, and offer opportunities for appropriate offline activities.  Support systems should provide resources to instructors, students, and parents that are comparable to those that would accompany face-to-face courses, as well as any additional support necessitated by the special circumstances of the online environment.
4. Because of the absence of face-to-face interaction between student and instructor, validating the authenticity of student work can be particularly challenging in distance education.  Such validation can be done by the use of multiple assessment mechanisms on a regular and continuing basis throughout the course, including appropriate technological safeguards.
5. The technological infrastructure supporting distance education should provide the necessary tools for instruction and interaction.  The technology should work reliably, simply, and economically.  Technical assistance should be available whenever needed by students or instructors.     

The foregoing criteria are set forth in summary fashion, and do not address the many subsidiary points that would be relevant in applying them.  Nor are these the only criteria that need to be considered in order to determine whether distance education meets acceptable standards of educational quality.  The criteria are designed rather to establish a basic framework and provide NEA governance, staff, and affiliates with the guidance necessary to make day-to-day determinations.

B. Educational Employment

1. Because decisions as to whether (i.e., for what purposes) and how (i.e., for what types of instruction) to use distance education have an impact on the working conditions of education employees, they should be subjects of collective bargaining or other process of bilateral decision-making between the affiliate and the employer.
2. The affiliate also should be involved in determining who should provide the distance education. If the distance education is to be provided in-house (i.e., by the employer’s own employees), it should, to the extent possible, be assigned on a voluntary basis pursuant to a selection process that is jointly developed by the affiliate and the employer. If an outside entity is used to provide the distance education, the primary consideration in deciding whether to use a public sector or a private sector provider should be which of the providers is best able to provide services that meet the criteria for educational quality. This choice presumably will vary from case-to-case depending on the nature and purpose of the distance education involved. All other things being equal, however, there are certain characteristics of public sector providers -- such as the absence of a profit motive and public access to financial and other records -- that would justify a preference in their favor.
3. Distance education should be used only to improve the learning opportunities for students, improve the quality of instruction, and/or improve the effectiveness of education employees. Although distance education may inevitably have an impact on the location and nature of educational employment, it should not be used -- in whole or in part, directly or indirectly
   -- for the purpose of eliminating traditional education employee positions or reducing the hours or compensation of such employees. Nor should distance education be used solely for the purpose of reducing costs, if such use has an adverse effect on the economic security of education employees. Whether distance education is used for proper purposes is a fact-specific inquiry that can only be determined on a case-by-case basis, after considering financial and programmatic needs, related actions of the employer, and other local factors. Accordingly, NEA defers in this regard to the judgment of the affiliate.
   NEA also defers to the affiliate how best to deal with the impact of distance education on education employees, including the need for and nature of any transfers, reassignments, layoffs, and severance benefits, and NEA should provide training and other appropriate assistance to affiliates in this regard. NEA believes that any education employee who is displaced because of distance education should be eligible for retraining at the employer’s expense, and the opportunity for such retraining should be made available as soon as the possibility of such displacement becomes reasonably clear.
4. It is commonplace for instructors involved in distance education to spend a substantial amount of time interacting with each student individually. With regard to this matter, the controlling NEA policy for both traditional and distance education employees is set forth in NEA Resolution B-6 (Class Size). This Resolution provides that “excellence in the classroom can best be attained by small class size … [and that] class size maximums must be based on the type of students, subject area content, physical facilities, and other criteria.”
   The compensation that is paid to education employees who are involved in both traditional education and distance education should reflect the principles set forth in NEA Resolutions F-9 (Salaries and Other Compensation) and F-10 (Minimum Criteria for Additional Compensation Beyond the Single Salary Schedule). Because the development of online courses is often complex and time-consuming and may require distance education instructors to invest extra time, particular attention should be given to Resolution F-8 (Basic Contract Standards), which embodies the basic principle of “extra-pay for extra-work.”

Intellectual Property

Questions involving copyright ownership of materials created by education employees, and the use of copyrighted materials of others by education employees in providing educational services to their students, arise more frequently and are more complex in distance education than in traditional education. Accordingly, this Policy Statement deals with these questions for both distance and traditional education and supersedes all other NEA policies regarding intellectual property.

A. Copyright Ownership

NEA believes that education employees should own the copyright to materials that they create in the course of their employment. Toward this end, the Copyright Act of 1976 should be amended to expressly recognize an appropriate “teacher’s exception” to the “works made for hire” doctrine,[4] pursuant to which works created by education employees in the course of their employment are owned by the employee. This exception should apply at both the elementary/secondary school and higher education levels, and should reflect the unique practices and traditions of academia.

In the interim -- unless and until legislative action is taken -- all issues relating to copyright ownership of materials created by education employees should be resolved through collective bargaining or other process of bilateral decision-making between the employer and the affiliate. In the absence of special circumstances -- under which it might be appropriate for the rights of ownership to be divided between the education employee and the employer, or to make some similar arrangement -- such negotiated agreements should provide that copyright ownership vests in the education employee who creates the materials and that he or she has all of the legal rights that come with such ownership.

B. Access to Copyrighted Materials

The ownership rights of education employees who create copyrightable materials should not prevent education employees from making appropriate use of such materials in providing educational services to their students. With regard to the right of education employees in traditional education to perform, display, reproduce, and distribute copyrighted materials for educational purposes, NEA believes that the instructional exemption for traditional education in Section 110(1) and the “fair use” exemption in Section 107 of the Copyright Act of 1976 provide an appropriate balance between ownership and access.[5]

Because Section 110(2) of the Copyright Act of 1976 -- the instructional exemption for distance education -- was intended to cover only the forms of distance education existing when the statute was enacted in 1976 and has limited application to educational services provided via the Internet and other digital technologies, education employees do not have adequate access to copyrighted materials under existing law in the distance education context. The Technology, Education, and Copyright Harmonization (“TEACH”) Act rewrites Section 110(2) of the Copyright Act of 1976 for the digital age. NEA believes that the TEACH Act provides an appropriate balance between the interests of education employees who are owners of copyrighted distance education materials and the interests of education employees who seek access to such materials for educational purposes, and it supports the positions taken in the TEACH Act.[6]

[1] These positions are set forth in summary terms.  The underlying analysis, and a more complete statement of the rationale for the positions taken, are contained in the accompanying May 2002 Report of the NEA Special Committee on Distance Education.

[2] Although this grouping is somewhat artificial, and there is to some extent an overlap between the two groups, this grouping contributes to the clarity of the presentation.

[3] 2000-01 Report of the NEA Special Committee on Professional Standards and Practice for the 2000-01 membership year, at p. 24.

[4] The works made for hire doctrine is discussed in the May 2002 Report of the NEA Special Committee on Distance Education, at page 58-60.

[5] Section 110(1) and the fair use exemption in Section 107 are discussed in the May 2002 Report of the NEA Special Committee on Distance Education, at pages 64-68.

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