Board of Educ. of Jefferson County School Dist. R-1 v. Wilder, R-1

Docket NºNo. 97SC292
Citation960 P.2d 695
Case DateJune 29, 1998
CourtSupreme Court of Colorado

Page 695

960 P.2d 695
128 Ed. Law Rep. 378, 14 IER Cases 111,
98 CJ C.A.R. 3475
Alfred E. WILDER, Respondent.
No. 97SC292.
Supreme Court of Colorado,
En Banc.
June 29, 1998.
Rehearing Denied July 27, 1998.

Page 697

Caplan & Earnest, LLC, Alexander Halpern, W. Stuart Stuller, Boulder, for Petitioner.

Colorado Education Association, Sharyn E. Dreyer, Gregory J. Lawler, Martha R. Houser, Cathy L. Cooper, Bradley C. Bartels, Denver, for Respondent.

Colorado Association of School Boards, Lauren B. Kingsbery, Julie Murphy Seavy, Denver, for Amicus Curiae Colorado Association of School Boards.

National School Boards Association, Gwendolyn H. Gregory, Deputy General Counsel, August W. Steinhilber, Alexandria, VA, for Amicus Curiae National School Boards Association.

Holland & Hart, A. Bruce Jones, Alan N. Stern, David Lazerwitz, Denver, American Civil Liberties Union of Colorado, Mark Silverstein, Denver, for Amicus Curiae American Civil Liberties Union Foundation of Colorado.

Chief Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in Wilder v. Board of Education, 944 P.2d 598 (Colo.App.1997), to determine whether the Board of Education of Jefferson County (the Board) rightfully dismissed high school teacher Alfred E. Wilder (Wilder) for violating its controversial materials policy. The court of appeals concluded that the dismissal was arbitrary, capricious, and legally impermissible. As a result, the court of appeals ordered that Wilder be reinstated. We reverse and remand with instructions.


In 1970, Jefferson County School District No. R-1 (the District) hired Wilder as a social studies teacher at Lakewood High School. Shortly thereafter, Wilder transferred to Bear Creek High School, where he served as an assistant principal. During his early years at Bear Creek, Wilder received favorable evaluations. However, in 1973 and 1974, Wilder frequently arrived late, had problems with attendance, and failed to communicate with the rest of the staff. Consequently, Wilder received an official memorandum from the principal regarding his lack of dependability.

In 1979, Wilder transferred to Alameda High School, where he also served as an assistant principal. On one occasion, Wilder failed to appear for required staffing duties, which he blamed on a miscommunication. However, a school administrator found Wilder's excuse to be fallacious and distorted. Citing concerns about Wilder's mental stability, the District authorized him to take a leave of absence without pay, which Wilder accepted.

Beginning in 1980, Wilder returned to teaching as a language arts instructor at Columbine High School. While at Columbine, Wilder received periodic evaluations, all of which noted that he established good rapport with his students and engaged in innovative teaching. However, the evaluations also documented Wilder's chronic problems in fulfilling his administrative and classroom responsibilities. For instance, Wilder was frequently reprimanded for leaving his classes unattended. At one point, Wilder was leaving his classroom unattended seven

Page 698

to nine times per week to get something to drink, to use the restroom, or to make a telephone call. Although Wilder often asked fellow teachers to watch his classes, they eventually declined to do so when his behavior encroached on their own obligations. The administration notified Wilder of this problem through written memoranda in November 1992, December 1992, January 1993, and August 1994. Besides leaving his classes unattended, Wilder also neglected scheduled meetings with parents, failed to implement the department curriculum, and worked uncooperatively with other teachers.

In spring 1995, Wilder was teaching logic and debate to seniors at Columbine. For a period of several days in March, Wilder showed his class portions of the film 1900, which depicts the rise of fascism in Italy from 1900 through World War II. The film portrays this period through the eyes of two Italian boys, one rich and one poor, while charting their transformation into adulthood. 1900 is rated "R" by the Motion Picture Association of America. It contains full frontal nudity, oral sex, masturbation, profanity, cocaine abuse, and graphic violence. 1

Wilder showed this material to his class without notifying Columbine principal Ronald Mitchell (Principal Mitchell), pursuant to the District's controversial materials policy. This policy requires teachers in the District to exercise special care when using "controversial learning resources":

Controversial learning resources include learning resources which are not included in the approved learning resources of the district and which are subject to disagreement as to appropriateness because they refer or relate to controversial issues or present material in a manner or context which is itself controversial. It is expected that teachers will work cooperatively with their principal and other administrators in the use of controversial learning resources.

The policy also provides teachers with specific guidelines to be followed in using such resources:

1. [C]ontroversial learning resources are permitted in accordance with this regulation as long as the issue or resource is relevant to the curriculum objectives of the course.


8. The principal must be informed in writing of all planned teaching of controversial issues or use of controversial learning resources as soon as reasonably possible and, in any case, not less than 20 working days in advance of their presentation to students. Such notification must include an identification of the controversial issue or resource, a description of the proposal and a statement of the educational purpose of the proposal. 2

After the first class in which 1900 was shown, one of Wilder's students asked why they were watching the film. Wilder responded that if any students felt embarrassed or uncomfortable they could look away or put their heads down. He also offered them the option of going to the library for an alternate assignment. Although no students went to the library, several of

Page 699

them stated that watching 1900 made them uncomfortable. When one student complained at home, her mother phoned Principal Mitchell, concerned that the school had been showing her daughter a film with nudity and strong sexual content. Principal Mitchell confronted Wilder, who admitted that the film contained graphic subject matter. After screening portions of 1900, Principal Mitchell and other school administrators agreed that the film was a controversial learning resource and that Wilder should have obtained administrative approval prior to showing the film.

On March 16, 1995, Principal Mitchell placed Wilder on administrative leave, pending further action by the District. In August 1995, superintendent of schools Dr. Wayne Carle (Superintendent Carle) determined that by failing to provide the principal with twenty days' notice prior to showing 1900, Wilder violated the District's controversial materials policy. Based on this violation and other prior misconduct, Superintendent Carle recommended that Wilder be dismissed for "insubordination, neglect of duty, and other good and just cause," pursuant to section 22-63-301, 7 C.R.S. (1997). 3 Wilder appealed this recommendation before a hearing officer, as provided by section 22-63-302, 7 C.R.S. (1997), claiming that the dismissal violated his constitutional rights of free speech and due process.

After making extensive findings, the hearing officer concluded that Wilder's actions constituted "neglect of duty, insubordination, and/or other and just cause." Nevertheless, the hearing officer recommended that Wilder be retained because the District's policy lacked "sufficient guidance in determining whether the movie was controversial." In April of 1996, the Board rejected the hearing officer's recommendation and adopted an order dismissing Wilder. The Board found that dismissal was warranted by Wilder's history of not fulfilling his official responsibilities and by his failure to follow the controversial materials policy prior to showing 1900.

The court of appeals reversed, holding that the dismissal "violated Wilder's First Amendment interest in choosing a particular pedagogical method." Wilder, 944 P.2d at 603. Citing section 22-63-302(8), the court of appeals also determined that Wilder's dismissal was improper because it was not based on the reasons listed in Superintendent Carle's formal recommendation of dismissal. Concluding that the Board's dismissal order was arbitrary, capricious, and legally impermissible, the court of appeals remanded the cause to the Board with directions to reinstate Wilder.


"[P]ublic education in our Nation is committed to the control of state and local authorities." Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). As a result, local authorities have broad discretion in selecting teachers, regulating their pedagogical methods, and choosing a suitable curriculum. See Edwards v. Aguillard, 482 U.S. 578, 583, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987); Webster v. New Lenox Sch. Dist. No. 122, 917 F.2d 1004, 1007 (7th Cir.1990); State Bd. for Community Colleges and Occupational Educ. v. Olson, 687 P.2d 429, 438 (Colo.1984). In Colorado, our Constitution vests local school boards with "control of instruction in the public schools." See Colo. Const. art. IX, § 15. School boards are authorized to establish an appropriate curriculum. See § 22-32-109(1)(t), 7 C.R.S. (1997). In accordance with statutory requirements, school boards also control the hiring and firing of teachers. See §§ 22-63-201 to -301, 7 C.R.S. (1997). Dismissal of a tenured teacher must be based on specific grounds, which include neglect of duty, unsatisfactory performance, insubordination,...

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