598 F.2d 535 (10th Cir. 1979), 77-1297, Cary v. Board of Ed. of Adams-Arapahoe School Dist. 28 J, Aurora, Colo.

Docket Nº:77-1297, 77-1298.
Citation:598 F.2d 535
Party Name:Bob CARY, David Nykerk, Glenn Reed, Laurel Stonbraker and Lee Bridgeman, Plaintiffs-Appellants and Cross-Appellees, v. BOARD OF EDUCATION OF the ADAMS-ARAPAHOE SCHOOL DISTRICT 28-J, AURORA,COLORADO, Doyle K. Seawright, Douglas A. Johnson, DeWitte C. Gordon, and GlennaG. James, as members of the Board of Education of the Adams-Arapahoe SchoolDistric
Case Date:July 10, 1979
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 535

598 F.2d 535 (10th Cir. 1979)

Bob CARY, David Nykerk, Glenn Reed, Laurel Stonbraker and

Lee Bridgeman, Plaintiffs-Appellants and Cross-Appellees,



28-J, AURORA,COLORADO, Doyle K. Seawright, Douglas

A. Johnson, DeWitte C. Gordon, and

GlennaG. James, as members of

the Board of


of the








Nos. 77-1297, 77-1298.

United States Court of Appeals, Tenth Circuit

July 10, 1979

Argued Sept. 26, 1978.

Page 536

Charles W. Newcom, Denver, Colo. (Susan D. Proctor, Denver, Colo., with him on the brief), of the American Civil Liberties Union Foundation of Colo., Inc., Denver, Colo., for plaintiffs-appellants and cross-appellees.

Eugene F. McGuire, Denver, Colo. (Richard G. Caldwell and James L. White, Denver, Colo., with him on the brief), of Holland & Hart, Denver, Colo., for defendants-appellees and cross-appellants.

David M. Rabban, Washington, D. C. (Matthew W. Finkin, Dallas, Tex., of counsel), filed an amicus curiae brief for American Ass'n of University Professors.

Dennis E. Valentine, Colo. Ed. Ass'n, Englewood, Colo., Larry F. Hobbs, Denver, Colo., Michael H. Gottesman, Robert M. Weinberg and David M. Silberman, Washington, D. C., and David Rubin, N. E. A., Washington, D. C., filed an amicus curiae brief for N. E. A., Colo. Ed. Ass'n and Aurora Ed. Ass'n.

Jay W. Swearingen, Denver, Colo., filed an amicus curiae brief for the Colo. Ass'n of School Boards.

Before DOYLE and LOGAN, Circuit Judges, and STANLEY, Senior District Judge. [*]

LOGAN, Circuit Judge.

This is an appeal from summary judgment denying relief in a declaratory judgment action which sought enforcement of claimed rights under the First and Fourteenth Amendments to the United States Constitution. The action was brought by five high school teachers who asserted their rights were violated when the Board of Education for the Adams-Arapahoe School District in Colorado (the board) banned ten books from use in the teachers' language arts classes.

The trial court found the teachers had a First Amendment right to choose these books for use in their high school English courses, but determined their constitutional rights were waived under the terms of a

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collective bargaining agreement entered into between the Aurora Education Association (AEA), to which they belonged, and the school district. The teachers have appealed from the adverse ruling on the waiver question; the board has cross-appealed on the constitutional law decision. The case has attracted amicus curiae briefs from the American Association of University Professors, the National Education Association, Colorado Education Association and Aurora Education Association, and the Colorado Association of School Boards.

The relevant facts were stipulated; both sides sought summary judgment. All plaintiffs are tenured teachers who teach high school language arts classes in the defendant school district. The classes involved are elective courses for eleventh and twelfth grade students Contemporary Literature, Contemporary Poetry, and American Masters which under the board regulations were designed for elective optional reading materials chosen from classroom libraries or personal sources.

The board first adopted a policy on selection of text material in January, 1975. A High School Language Arts Text Evaluation Committee was established to review current and new materials for language arts courses. Membership was composed of representative teachers, administrators, parents and students. The committee reviewed many books which had been used or were recommended for use in these courses. It was instructed to utilize specified criteria: appropriateness to the grade level, value of the material in relation to the course objectives, and fiscal considerations. The guidelines adopted by the board required a written response, including reasons, when suggested materials were rejected.

Only one book was rejected by the majority report of the committee, with apparently 1,285 books approved. A minority report filed by three members listed nine more books they would reject. The recommended texts were on public display for twelve days. Then at a regularly scheduled public meeting of the school board, and following an open discussion, the board voted to approve a list of 1,275 books for use in language arts classes in the high schools. Ten recommended books, all of which had previously been used in those classes, were excluded from the approved list; 1 six of the ten were among those not recommended in the minority report. The majority and minority reports made reference to the specified criteria in discussing titles they rejected, but the board itself set forth no written statement of the reasons for its vote to ban the ten books. Its edict to the teachers issued after the meeting simply referenced the list of books not being approved and made the following declarations:

Books which are not approved for instructional use will not be purchased, nor used for class assignment, nor will an individual be given credit for reading any of these books.

The books should be given to the Department Chairman who is asked to hold the books pending further directions from the Division of Instructional Services.

Also, each teacher should review the lists of approved materials for each class he/she will be teaching second semester.

If the teacher anticipates using any materials not listed, those materials must receive prior approval by the Division of Instructional Services. The Department Chairman and the building Principal

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should submit that recommendation immediately to Jim Hamilton.

An unwritten board policy had permitted substitution of materials for assignments offensive to a student or his or her parents. That policy was formally adopted by the board in written form after the meeting above described.

By stipulation the parties agreed the books were not obscene, no systematic effort had been made to exclude any particular system of thought or philosophy, and a "constitutionally proper decision-maker" could decide these books were proper for high school language arts classes. It was agreed that the plaintiff teachers were subject to dismissal from their positions for insubordination for any of the following acts:

(a) adding any of the subject textbooks to the reading list of their courses;

(b) assigning the reading of any of the subject textbooks;

(c) giving any student any credit in courses for reading any of the subject textbooks;

(d) reading aloud or causing to be read aloud any of the subject textbooks in the classroom during class time; or

(e) discussing with students in the classroom during class time any of these materials at such length so as to amount to a constructive assignment of the materials.


We first consider whether the trial court correctly determined the asserted rights were waived by the collective bargaining agreement.

During contract negotiations the teachers' union (AEA) attempted unsuccessfully to obtain provisions in the agreement under an "academic freedom" heading which would require "questioned material," evidently including readings such as those at issue here, to be referred to a Teachers Advisory Council. Other proposals would have exempted from such referral materials, textbooks and practices already being utilized and "new supplementary materials on textbooks by individual teachers where such use is optional and left to the discretion of the individual teacher."

The relevant provisions of the agreement finally adopted are as follows:

Art. 5 § 2 . . . "Board Rights" (reserved to the school board) as used herein includes the right to: . . . (i) Determine the processes, techniques, methods and means of teaching any and all subjects.

Art. 7 § 2: The Board agrees that it will not directly or indirectly discourage, deprive or coerce any employee in the enjoyment of any rights conferred by any laws of the State of Colorado or the Constitution of the State of Colorado and the United States.

Art. 46 § 6: Academic freedom The parties seek to educate young people in the democratic tradition, to foster a recognition of individual freedom and social responsibility, to inspire meaningful awareness of and respect for the Constitution and the Bill of Rights.

Freedom of individual conscience, association, and expression will be encouraged and fairness in procedures will be observed both to safeguard the legitimate interests of the schools and to exhibit by appropriate examples the basic objectives of a democratic...

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