Wilder v. Board of Education

judge, advantage The trial because of the observation, personal only judicial is the fully

officer able to assess the attitudes and potential juror

state of giving mind of

responses questions. People to difficult

Sandoval, mind, supra. With this in responses jurors

based on the of the two inquiries,

the trial court’s we conclude that justified in determining trial court was jurors

that the would follow its directions and impartial Hence,

render a fair and verdict.

we find no clear abuse of the trial court’s refusing jurors

discretion in to dismiss the

for cause. judgment is affirmed. DAVIDSON, JJ.,

NEY and concur. WILDER, Petitioner-Appellant,

Alfred E.

BOARD OF EDUCATION OF JEFFER

SON COUNTY SCHOOL DISTRICT

R-1, Respondent-Appellee.

No. 96CA0709. Appeals,

Colorado Court of

Div. V.

Jan. 1997. Rehearing

As Modified on Denial of 27, 1997.

March

Certiorari Granted 1997. Oct.

P.C., Gerash, Denver, L. for Petition- Walter er-Appellant. Earnest, L.L.C.,

Caplan & Alexander Hal- Stuller, Boulder, Respon- for pern, W. Stuart denL-Appellee. L.L.P., Hart, Jones,

Holland & A. Bruce Denver, Amicus for American Civil Counsel Colorado, Inc. Liberties Union Foundation Opinion by Judge TAUBMAN. Petitioner, Wilder, Alfred E. seeks review respondent, of the order of Board of Edu- County cation of Jefferson District School (Board), employ- RJ-1 terminated his nonprobationary ment as a teacher with the He district. asserts the Board's order him, dismissing part, for the film students, to his contravention officer’s recommendation reten- tion, rights violated his constitutional to free- expression, arbitrary, capri- dom of and was cious, legally impermissible. We reverse the order of Board and remand with that Wilder be to his directions reinstated non-probationary status teacher. as employed by the Wilder had been years prior hearing in district for 25 1995, this From 1980 until he worked case. language teacher at arts Columbine High Between Wil- School. disciplinary der had received memoranda principal principal for from his and assistant tardiness, variety of reasons such as miss- non-teaching reporting late certain duties, failing complete paperwork on However, disciplinary pro- no formal time. during him ceedings brought were period. this portions

In March Wilder showed class, in logic the film 1900 debate years the students were at least which all film, by old. Italian director Bernardo The Bertolucci, society portrays Italian from 1900 II, focusing through the end of World War one boys, poor. the’life of two one rich and on film, by the rated “R” Motion Picture America, in- contains scenes Association conduct, use, Association, nudity, drug volving sexual Education Martha Colorado' Lawler, complained Houser, Sharyn parent After a about Gregory E. violence. R. J. class, showing of film in Bradley Bar- Dreyer, Cathy Cooper, L. C. film, tels, Denver, Gerash, Miranda, placed principal reviewed the Wil- Robinson & following day der on leave the respect administrative With to the Board’s formal written pending investigation. regulation, INB-R, further INB and following officer made the findings of August superin- the school district fact: Most teachers at Columbine were not tendent recommended to the Board of Edu- aware of give INB or the need to cation that grounds be dismissed on Wilder days written notice if a teacher wanted to use insubordination, neglect duty, and other Although controversial material. policy the good just Specifically, and cause. the is contained in policy the school district’s charges against First, Wilder were twofold. kept books which are library, each school’s superintendent alleged the that Wilder’s policy neither the nor the showing of film the 1900 was done in viola- any faculty contained in handbook. Addi- policy tion of a school district and tionally, principal Wilder’s pro- did not recall required provide that prin- teachers to their viding any specific notice on the use of cipal twenty days prior with written notice procedures INB faculty. Further, to his presenting before learning a “controversial principal day testified that on the he took the Second, charges alleged resource.” Wilder, film from he did not mention the Wilder should be dismissed because of his or the because he did not tardiness, report they applied. failure to believe for certain non- n duties, teaching and failure to enforce school Following fact, findings extensive against eating rules drinking in class. officer, hearing 14, 1996, on March made the following recommendation: objected charges Wilder to these and re- hearing The officer finds that Mr. Wilder’s quested evidentiary hearing pursuant an to conduct fading vocabulary use the 22-63-302(3) (1995 9). § Repl.Vol. C.R.S. workbooks, failing to arrive on time on a Following eight-day an administrative hear- basis, regular failing to remain in his class ing, hearing 33-page officer issued a basis, on a regular consistent and and fail- containing decision findings her of fact and ing to timely exchange neglect books was recommendation. duty, insubordination, other and and/or just However, cause. the last act for Among things, hearing other officer which Mr. being disciplined con- film found the during was shown cerns the use of film 1900. Although portion of each days. class for three to five hearing officer finds that Mr. Wilder Discussions place about the movie took could have and should have done a better class. job explaining the nature of the movie hearing The officer also found that “the it, prior his failure to obtain undisputed evidence is literary that 1900 has permission principal prior from the to the Additionally, artistic value.” showing of the improper movie was not resource, officer found as a because neither the unwritten nor film was objec- relevant to the curriculum provides guidance INB sufficient tives of Wilder’s course and that it was useful determining whether the movie was con- in contributing to the attainment of the edu- troversial. professional In Mr. Wilder’s objectives. cational She also found that the judgment, the movie was not controversial presented themes in the movie were useful in appropriate [was] educational trying to teach critically students to think goals of the course and the students’ level responsibly others, and act toward and that ability. Furthermore, Mr. Wilder’s the students in ability Wilder’s class had the comply failure to twenty-day with the ad- maturity purpose understand the- requirement vance notice of INBR was not the movie. The officer could not improper under these circumstances. determine whether the film “did or did not Since the last act for which Mr. Wilder is community standards,” however, meet but being disciplined is the noted that other R-rated movies had been policies and the that Mr. sup- Wilder was objec- shown to Columbine students without pose[d] to vague, follow are tion. officer Mr. recommends Wilder’s retention. findings 1, 1996, many of misconduct Education the Board of April

On Wilder, order its determi- a resolution and the Board concluded that unanimously adopted directing dis- depend upon any be one incident. of dismissal nation did employment a teacher from his missed duty, neglect school district I. Standard of Review insubordination, just good governed by provisions review is Our cause. Employment, Compensation, of the Teacher The Board’s resolution found 1990, §§ Dismissal Act 22-63-101 findings provided of fact 9) 22-63-408, (1995 Repl.Vol. through C.R.S. basis to enable to dismiss Wilder sufficient (the Act). provides Act a teacher concerning non- both for his deficiencies subject superinten- has been the of a who showing teaching responsibilities and for his may re- recommendation of dismissal dent’s Specifically, the Board of the film 1900. hearing hearing quest impartial before an concluded that: by hearing charged officer. The officer is class- absences the [Mr. Wilder’s] .from evidence, reviewing hearing with the statute tardiness, room, his and failure to fulfill exhibits, making findings of fact. and written re- supervisory obligations in the face of (1995 22-63-302(8), Repl.Vol. Section C.R.S. regard- peated memoranda discussions 9). hearing to The officer is to recommend duty neglect of these duties constitute that the teacher either be retained the Board to follow His failure insubordination. The must then review or dismissed. Board curriculum, cooperate failure with the to rec- hearing findings officer’s of fact and the teachers, imposition on other order. If ommendation and enter its own ne- his constitute teachers to cover classes rejects hearing the rec- Board officer’s the glect duty good just cause teacher, it must ommendation to retain the dismissal. conclusion, giving there- its reasons state however, Board, disagreed record, with the for, by supported must be that,

hearing officer’s conclusion because reasoning must be and its conclusion and vagueness school district 22-63- in its written order. Section included regarding teaching (1995 con- 9). about 302(9), Repl.Vol. C.R.S. use issues and of controversial troversial the school A teacher dissatisfied with resources, excused learning Wilder should be may this court appeal decision to Board’s According complying from them. to with (1995 22-63-302(10), § pursuant C.R.S. to Board, not teachers require does 9). Repl.Vol. Further, “guess” application. to its to statute, supreme construing this hearing officer that teach- although found recently the General concluded “that court agree regarding do constitutes ers what not to Appeals Assembly intended Court resource, the Board controversial to of a school board the decision review containing nudi- found “an R-rated film hearing a teacher eases where dismiss conduct, ty, drug use and violence sexual of the retention officer has recommended according any definition to controversial arbitrary, capricious, or' by the same teacher findings.” officer’s mentioned applicable to legally impermissible standard the Board concluded that a school Board’s determination cases wherein findings showed that should officer’s the hear teacher coincides with dismiss a enough” have to seek administrative “known Adams ing officer’s recommendation.” film, approval failure to do of the that his Heimer, 919 District 50 v. County No. School neglect duty. so constituted (Colo.1996). 786, 792 P.2d Finally, disagreed the Board court determined The Heimer further apparent conclusion hearing officer’s review, party neither appellate when non-teaching on related deficiencies findings, questions the officer’s justify his his dismissal because alone did not findings plus the is limited those film 1900 straw that record showing of the was “the In that Rather, recommendation. hearing officer’s back.” consider- broke the camel’s event, (1988); Appeals “the focus of the Court of Hickey, L.Ed.2d 592 Ward v. (1st Cir.1993) (Hazelwood must to a determination of shift whether the F.2d 448 analysis arbitrary, capricious, Board’s decision was speech); extends teacher’s classroom legally impermissible light Schools, Miles v. Denver Public 944 F.2d findings County fact.” Adams (10th Cir.1991) (same). Heimer, School supra, District No. 50 v. at Here, because we conclude that Wilder’s 794. rights First by Amendment were violated having received notice of the Board’s II. Dismissal and Violation of regulation, we need address Rights Constitutional whether his right First Amendment to use a Wilder contends that the Board vio particular teaching outweighs method rights lated his constitutional to freedom of legitimate Board’s pedagogical interests expression process due of law dis regulating Boring course content. See missing him for his of the film 1900. Education, County Buncombe argues He that his of the film was (4th Cir.1996) (Hazelwood F.3d 1474 requires protected by the First and Fourteenth application test); balancing Lacks v. Fer Const, 2, §§ Amendments and Colo. art. guson District, Reorganized R-2, School and 25. agree We do not that his use of the (E.D.Mo.1996) F.Supp. 676 {Hazelwood re film was entitled to blanket constitutional quires balancing competing interests of protection, that, agree but do under the cir teacher, alia, school and considering, inter here, cumstances protected conduct was age sophistication students, and of relation by the First Amendment because Wilder did ship teaching between method and valid edu prior not have regu notice of the and objective, cational and context and manner of concerning lation controversial re presentation). sources. Constitutionally A. Speech Protected and B. Lack of Clear Prior Notice Legitimate Board’s Pedagogical Wilder asserts even if may the Board

Interests properly regulate showing of movies such parties essentially agree, we, The as do 1900, as it cannot in do so the absence of that a speech teacher’s classroom is constitu prior clear notice prohibit- that such action is tionally protected Key to some extent. See (1) argument ed. His is threefold: that al- Regents, 589, ishian v. Board 385 U.S. of though the school poli- district has a written 603, 675, 683, 87 S.Ct. 17 L.Ed.2d cy regulation, and no notice of them had ever (1967) (teacher’s speech freedom of “spe is a (2) given been to him colleagues; or his Amendment, cial concern of the First charges because the against formal him with does not tolerate laws that pall cast a of respect film only alleged violation orthodoxy classroom”); over the State Board regulation, the Board’s formal Community Colleges Occupational & Ed for may Wilder not be terminated for violation Olson, (Colo.1984) ucation v. 687 P.2d 429 (3) policy; an unwritten that the formal (academic protected freedom First unconstitutionally are Amendment and includes teacher’s interest vague. agree argu- We with the first two choosing particular pedagogical method and, therefore, ments do not need to address course, presenting long idea-content of the third. as method serves demonstrable educational purpose). essence, argues since the

However, may provide school school district did not prop officials clear notice of erly prohibited conduct, school-sponsored any exercise control over classroom disciplin- expression ary long so as their action taken him concerning actions are rea sonably legitimate pedagogical related to film 1900 cannot be reason- concerns. ably legitimate Hazelwood School v. pedagogical District related to con- Kuhlmeier, agree. S.Ct. 98 cerns. We library. However, Policy the school board- Lack of Formal school 1. of Notice hearing its on must base decision officer’s (1996 22-63-302, Repl.Vol. C.R.S. Section fact, may finding pick not choose 9) arbitrary, requires that dismissal not be a among them so as to reach conclusion legally impermissible. or Dis capricious, find- inconsistent with officer’s protected missing engaging a teacher for ings fact. exercising his or her speech otherwise rights contrary to law constitutional would be While Board free to make its is hence, and, legally impermissible. Kerin fact, findings ultimate it must its own base Education, (Colo.App. P.2d reading fact fair findings upon ultimate 1993). findings of officer’s historical County fact. See Adams District No. School agree appropriate test is We Heimer, supra. 50 v. Such was not done Hickey, supra, that formulated Ward v. here. at 996 F.2d 452: regulate may A school a teach- committee parties agree also that First (1) speech if: er’s classroom questions Amendment constitutional fact reasonably legitimate peda- related is compel appellate de novo review. Reddick (2) gogical pro- ... concern Craig, (Colo.App.1985). 719 P.2d 340 Such the teacher with notice of what con- vided supports findings review prohibited. duct that the written at is faculty sue here were not contained hand then, a is Under this standard teacher books, that teachers most at Columbine were room entitled to notice of what class conduct policy, aware of Columbine’s prohibited, school district cannot principal policy applied did believe the against speech pro it did not retaliate Further, film. al Hickey, supra. Ward v. See also hibit. though the officer found that the Reorganized Ferguson v. School Dis Lacks (school policy poli were contained in R-2, supra policy trict board library, cy in the books the record prohibited profanity, had student but which only supposed that such were indicates books applied profanity of not been to students’ use reading there. a fair the to be of works, may in creative not be used a basis findings of fact leads teacher, did for termination of when evidence provided that was not conclusion Wilder anyone that or else not establish teacher policy the formal provisions notice of policy applied). be so knew would regulation. decision, specifi- In its the Board did that, finding absent a that cally given had We conclude address whether Wilder been knowledge policy had that or policy regulation. actual adequate notice of the Wilder However, policy in that the was contained some docu- it that Wilder “should concluded by required ment was Board enough known Wilder have seek administrative read, policy to was arbi- film.” for the board’s decision approval the The board’s bases trary stand. See capricious cannot concluding were that the officer so supra. In the Hickey, absence copies policies Ward had found that Board were knowledge policy regula- the library, in Wilder’s available the school Wilder movie, film, the requiring advance review of previously that teachers tion had viewed the the Board’s termination decision violated presence in the need had discussed Wilder’s First Amendment interest choos- approval for to obtain administrative contro- material, particular pedagogical method for a faculty meeting and that a versial the school to course. had been held at discuss “R”

showing of another rated movie. Policy 2. Unwritten view, only of these factors In our one may that he goes question of Wilder’s notice of Wilder next contends poli violating for an unwritten policy Board’s the avail- be terminated using a materi- ability cy in the that teachers controversial of such by principal al must supporting have reviewed the violation of INB and its prior to use. regulation INB-R. recognized officer Thus, to the extent that the Board’s deci- charge against allege formal Wilder did not upon sion is based the conclusion that Wilder any policy, violation unwritten but policy, violated the Board’s unwritten it is that, nevertheless found March an legally impermissible may not stand. if unwritten existed “that a material is 22-63-302(8). §See controversial, it should be cleared with the principal.” further found that She Wilder III. Other Misconduct as policy. aware such Basis Dismissal Although spe- the Board’s decision did not

cifically policy, address unwritten it con- reject argu We the school district’s cluded that Wilder “should have known ment even if Wilder’s constitutional enough” approval to seek administrative violated, rights were his dismissal was never film, part, because teachers had dis- permissible theless lawful and because of presence cussed in his the need to obtain Wilder’s other misconduct unrelated to the approval administrative for controversial ma- showing of the film 1900. terial. The also found The school district’s contention is based professional judgment, exercise of his upon the standard established in Mount ap- should have known that administrative Healthy City School District Board Edu proval should be obtained before the use Doyle, cation 97 S.Ct. an film containing nudity, R-rated sexual (1977). There, L.Ed.2d 471 Supreme conduct, use, drug and violence. Without employment Court held that where an termi expressly stating, so these conclusions are nation decision is said to be based on both upon based the unwritten found to constitutionally protected speech expres or exist officer. non-constitutionally and other sion based (1995 22-63-802(8), Repl. Section C.R.S. conduct, employee must first establish 9) provides Vol. that: “The chief administra- protected expression that the was a substan tive officer shall proving have the burden of motivating tial employer’s factor in the that his recommendation for the dismissal of so, employee decision. If the can do given the teacher was for the reasons in the employer may showing by then defeat this notice of dismissal and that the dismissal was proving that it would have reached the same made in provisions accordance with the of in protected decision even the absence of the

this article.” City Wynnewood, conduct. See Moore v. of statutes, construing In give courts must (10th Cir.1995); Kemp 57 F.3d 924 v. State giving legisla- effect to the intent rise to the (Colo. Agriculture, Board 803 P.2d 498 of carry responsibility tion. To out that courts 1990). itself, statutory language first look to the We have concluded that the Board’s termi- giving phrases commonly words and their part nation decision was based in on Wilder’s accepted meaning. and understood Resolu- constitutionally protected speech expres- or Heiserman, Corp. tion Trust v. P.2d 898 sion. (Colo.1995). upon plain language of this Based The determination of whether an statute, we hold that a school district’s deci employee’s protected expression was a sub sion to terminate a teacher must be based motivating stantial or factor in the termi only upon super the reasons contained in the employer nation decision and whether the intendent’s formal recommendation of dis would have made the decision in the absence missal. protected expression is a determina

Here, superintendent’s by the school recom- tion of fact to be made in fact finder dismissal, City City, mendation for insofar as it related the case. Melton v. Oklahoma (10th Cir.1989). showing alleged only film of the 879 F.2d 706 Heimer, County Here, District No. v. hearing officer found that show- School supra; Sagendorf-Teal County v. broke see also film was “the straw that (if (2d Cir.1996) action, Rensselaer, back,” 100 F.3d 270 “but for this no the camel’s warranting insti- nonconstitutional circumstances proceedings would have been dismissal discharge public employee were known to by finding are this of fact. We bound tuted.” prior discharge pro- public employer to Healthy, interpreting Mount several employee may not speech, tected be termi- employer courts held that an federal have employer’s nated unless adverse action would prove reached the cannot that it would have day have been taken on same action occurred showing merely by that it same decision Therefore, protected speech). in absence of decision, that have reached that or could supports that we conclude the record reaching legitimate a basis for that deci had showing of ALJ’s determination that Wilder’s protected expression. apart sion from the motivating film a his 1900 was factor in Education, Bradley Pittsburgh Board dismissal and the school district has (3d Cir.1990); 913 F.2d 1064 Soranno’s Gas brought it in fact shown that would have (9th co, Morgan, Cir. Inc. v. 874 F.2d 1310 against charges Wilder in the ab- dismissal 1989). Bradley Pittsburgh in As declared of the movie. sence his Education, supra, F.2d at Board 1075: Hence, may than a Wilder’s dismissal not be sus- Healthy requires Mount more employer] proper- by tained reference to his other misconduct. showing that could [the requires ly employee. It terminate an issues, disposition our Because of these employer have ter- would address issues we need not raised employee the absence minated Wilder. (emphasis original) activity, protected is and the order reversed interpretation this com- conclude that We the Board di- cause is remanded to with Healthy ports language in with Mount position rections reinstate to his place its an rule causation intended full-time, non-probationary no teacher with if he position in no than employee worse any seniority, pay, loss to him of or other constitutionally pro- engaged she had employment might benefits he other- tected conduct. result of the Board’s wise have sustained as a reject Accordingly, district’s we decision. on McKennon v. Nashville Banner reliance Co., Publishing 115 S.Ct. RULAND, J., concurs. dicta, (1995), where, L.Ed.2d 852 in a Supreme JONES, J., Court indicated mixed specially concurs. case, if alone would

motive the lawful reason Judge specially concurring. JONES justify employee firing, have sufficed prevail in a suit the em- could not completely majority I concur contrary, Supreme Court ployer. To the arbitrary, capricious, order the Board’s case, in a mixed motive emphasized separate- I legally impermissible. write proving that same termination decision however, having ly, in the to do with area justified have been is not the same as would that, no I while prior clear notice. believe termination decision proving that the same Wilder, given policy was notice of the written would have been made. for viola- and that he terminated cannot be is policy, it useful tion of an unwritten Thus, for affords no basis con- McKennon vagueness the unconstitutional reflect on Supreme intended to cluding that the Court policy. formal Healthy from rule of causa- depart the Mt. tion. erred agree I that the Board with Wilder INB concluding policy that school district note for at least four months

We also movie, unduly vague. I believe no disci- is prior to the that “neither the properly determined officer plinary action taken Wilder fair policy gives nor INB policy prior Adams unwritten alleged misconduct. See Further, warning to Mr. Wilder that a film such as vagueness as noted a more strict applies regulation 1900 is a controversial source.” test when the at issue

threatens to inhibit the exercise of constitu- Lamm, tionally protected rights. Parrish v. I. supra; Bradley Pittsburgh v. Edu- reject I the Board’s first contention that cation, (3rd Cir.1990). 913 F.2d 1064 standing vagueness Wilder lacked to make a Fundamentally speaking, governmental challenge. pronouncements regulate First Amend- Village Relying on Estates v. narrowly ment activities must be drawn to Hoffman Estates, Inc., Flipside, 455 U.S. certain, specific address Hoffman evils. Broadrick v. 489, 1186, (1982), 102 S.Ct. 71 L.Ed.2d 362 Oklahoma, 601, 2908, 413 U.S. 93 S.Ct. argues person engages the Board that a who (1973). L.Ed.2d 830 “Because First Amend- clearly proscribed by is conduct breathing space ment freedoms need to sur- challenged regulation complain cannot of the vive, government may regulate in ar- [such vagueness applied of the only specificity.” eas] narrow NAACP conduct of others. the Board contends Button, 415, 433, 328, 371 U.S. 83 S.Ct. colleagues clearly because Wilder’s 338, (1963). 9 L.Ed.2d sex, depicting knew that films nudi- Thus, greater precision specificity are violence, ty, profanities fell within the necessarily required regulatory areas that scope policy, of the school district’s Wilder impinge could tend to on First Amendment complain application cannot of the of the vagueness freedoms because in such areas policy to him. freedoms, threatens exercise of such raises conclude, however, I that because a strict- dangers arbitrary discriminatory ap vagueness applies er test when the exercise plication regulations, traps of the rights implicated, of constitutional Grayned City Rockford, innocent. See standing challenge does have the Board S.Ct. 33 L.Ed.2d vagueness grounds. Village on See (1972); Valley Cohen v. San Bernardino Col Flipside, Estates v. Es- (9th Cir.1996); lege, Hoffman Hoffman F.3d 968 Adamian v. tates, Inc., supra. (9th Jacobsen, Cir.1975). 523 F.2d 929 parameters However necessary II. specificity pointed need not be out here be- cause the terms of the unwritten Lamm, (Colo. In Parrish v. 758 P.2d 1356 demonstrably INB are unconstitution- 1988), supreme court set forth the stan ally vague. competing dards and interests that underlie void-for-vagueness challenge. A process vague offends due of law if it is so III. provide warning that it does not fair vagueness challenge focuses on prohibited conduct or if its standards are so provisions provi- two INB. Those danger arbitrary ill-defined as to create a sions state as follows: capricious enforcement. theOn hand, vagueness is not void for if Controversial issues include matters char- fairly describes the conduct forbidden significant opin- acterized differences of persons if intelligence readily of common usually generated can ion differing from un- meaning application. values, interests, understand its derlying beliefs and vagueness pragmatic test is a produce significant test ensure social tension regulation fairness. The necessarily at issue must strike and which are not resolvable potentially a balance conflicting by accepted between the reference to facts. Matters giving warning prohibited usually concerns of fair become controversial not so much yet being sufficiently facts, conduct general disagreement to ad due to about but as to problem dress a under varied interpretation applied circumstances the of values to be during changing and times. to facts. capricious

arbitrary and enforcement. issues” in- the “controversial as definition include learning resources Controversial by significant cluding “matters characterized learning are not included resources which opinion generated usually from differences learning resources of the approved in the values, and differing underlying inter- beliefs subject and are to district which ests, produce significant social tension appropriateness be- disagreement as to necessarily are and which not resolvable or to they refer relate controversial cause sufficiently accepted reference to facts” is in manner or present or material issues spectrum wide imprecise that embraces a It controversial. is context which is itself might required subjects which be to be coopera- will expected that teachers work taught in classes in the areas of social stud- tively principal and admin- with their ies, science, history, language arts. use learn- istrators in the of controversial learning The definition of “controversial resources, added) (emphasis similarly re- is infirm because it resources” Here, that teach- the officer found pre- or to the fers to “controversial issues” had different definitions controversial ers “in manner or context sentation of material per- further concluded that material. She view, my which is itself controversial.” ordinary intelligence guess must at sons of provide warning fair language this not does learning a re- meaning controversial teaching to resources are to teachers as what source. subject policy to INB and INB-R. rejected these conclusions of The Board policy I that while the note officer, policy INB finding that is page single-spaced in four are contained unduly vague require teach- does document, they warning to contain no teach- guess application. at its The Board ers to nudity, containing sexual ers that materials variety of the wide determined that because conduct, violence, might profanity are or or and re- potentially controversial issues learning re- “controversial be considered sources, restricting unduly and to avoid subject policy district sources” to the school teachers, to the definitions choices available regulation. necessarily policy general INB are officer, According the “evi- depend to extent on exercise of some subject film undisputed” that dence is professional judgment. The Board sound literary found it has value. She artistic specifically that the de- further noted objectives relevant to the curriculum learning resources. fined controversial contributing that it useful in course and Additionally, the Board concluded to objectives. to attainment educational only misunderstandings, a teacher need avoid teaching film to be was determined useful a proposed the use of educational discuss responsible thinking students critical ac- principal. Finally, resource with his her others, age-appropri- to tions toward be that, although the Board determined setting in which it was ate the educational hearing officer had found teachers dis- did not consider movie shown. Wilder agree regarding what constitutes a contro- be controversial. resource, “an film learning R-rated

versial INB and The record reflects conduct, drug containing nudity, sexual use worded, vaguely so INB-R are according any violence is controversial no unspecific, given to have and so as in the definition mentioned applied in would be notice that findings.” way punish as to use what such teaching useful tool record reflects of “contro- I conclude that definitions I concerns. legitimate pedagogical meets issues” and “controversial versial simply policies are too INB are un- conclude contained resources” Keyis See vague applied here. vague stan- to Wilder constitutionally because their Regents, very hian v. Board are ill-defined as create dards so (1967); Cohen 17 L.Ed.2d dangers mentioned above S.Ct. real threat of supra. concurrence, Valley College, including special those of San Bernardino in this grounds I would also reverse on subject policies of the Board are uncon- stitutionally vague. FASING, Plaintiff-Appellee

Suzanne A. Cross-Appellant,

Gregory Fasing, Plaintiff-Appellee, J. LaFOND,

Richard C. Defendant-

Appellant and Cross-

Appellee.

No. 95CA0927. Appeals,

Colorado Court of

Div. IV.

Jan. 1997.

Rehearing Denied March 1997.

Certiorari Denied Oct. 1997.

Case Details

Case Name: Wilder v. Board of Education

Court Name: Colorado Court of Appeals

Date Published: Oct 20, 1997

Citation: 944 P.2d 598

Docket Number: 96CA0709

Court Abbreviation: Colo. Ct. App.