Weissman v. Board of Ed. of Jefferson County School Dist. No. R-1

• Decision Date: 29 March 1976
• Docket Number: R--1,No. 26779,26779
• Citation: 190 Colo. 414,547 P.2d 1267
• Parties: Perry A. WEISSMAN, Plaintiff-Appellant, v. BOARD OF EDUCATION OF JEFFERSON COUNTY SCHOOL DISTRICT NO., et al., Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1267

547 P.2d 1267

190 Colo. 414

Perry A. WEISSMAN, Plaintiff-Appellant, v. BOARD OF EDUCATION OF JEFFERSON COUNTY SCHOOL DISTRICT NO R--1, et al., Defendants-Appellees.

No. 26779.

Supreme Court of Colorado, En Banc.

March 29, 1976.

John D. Weber, Denver, for plaintiff-appellant

Dawson, Nagel, Sherman & Howard, Craig A. Christensen, William F. Schoeberlein, Denver, for defendants-appellees.

LEE, Justice.

Appellant was a tenured teacher at Arvada Senior High School. On February 6, 1973, the local board of education entered its order dismissing him from employment pursuant to provisions of the Teacher Employment, Dismissal, and Tenure Act of 1967. Appellant thereupon sought review of his dismissal in the district court under sections 22--63--117(11) and 24--4--106, C.R.S.1973. That court upheld the order of dismissal of the board of education and entered judgment in favor of appellee school district. Appellant then prosecuted this appeal. We affirm in part and reverse in part.

A rather detailed factual statement will be helpful to a full understanding of the matters involved in this controversy. The record shows that appellant began his high school teaching career as an english teacher at Arvada High School at the beginning of the 1969--70 school year, and was granted tenure at the close of the 1971--72 school year. The record reveals that during this period he earned the reputation as an excellent teacher and was noted for his particularly good rapport with students. His nontraditional and innovative methods of teaching, which endeared him to his students, caused friction with his fellow teachers and also with the school administration. These intrafaculty differences eventually resulted in appellant's assignment for the 1972--73 school year as an English and humanities teacher to the then newly-established 'School Within a School' (SWS) program at Arvada High School.

SWS was a special program for students who could not succeed in the traditional school setting. A closer student-teacher relationship was contemplated and the program was to be student-centered and student-directed. One of the reasons appellant was chosen for SWS was that his non-traditional views on education might serve the program well.

SWS scheduled three filed trips to go to Santa Fe and Taos, New Mexico, in order to familiarize the students with the Indian and Spanish cultures and their influences on the Southwest. The second of these trips lasted from October 6 to October 9, 1972, and it was on this trip that the events occurred which resulted in appellant's ultimate dismissal.

Five adults and twenty young people (twelve girls and eight boys) made the trip, going in several cars. During the automobile ride between Denver and Santa Fe, appellant rode in the rear seat of a Volkswagen van being driven by one of the other adult chaperones, Mrs. Beck. During the journey, he engaged in activity with several of the female students in the van, which he characterized as 'goodnatured horseplay' and which consisted of touching and tickling the girls on various parts of their bodies and occasionally between the legs in proximity to the genital areas. There was reciprocal conduct on the part of the girls. During the course of this conduct, the dialogue between appellant and these students was occasionally vulgar, suggestive in nature, and contained many sexual innuendos. There was further evidence that similar behavior, though of a perhaps more subdued nature, occurred on the second day, en route from Santa Fe to Taos.

Several other incidents took place during the trip. In violation of the 'lights out' rules, appellant and a female student spent some time alone in the van, discussing her personal problems. On another occasion, he and one of the girls were seen together in a motel room, lying on a bed There was testimony that throughout much of the trip appellant displayed an openly negative attitude toward planned group activities, some of which he characterized as a 'drag,' and in which he was disinterested. There were repeated confrontations between appellant and Mrs. Franz, the coordinator of the field trip.

watching television. Appellant vehemently denied that any improper sexual suggestions were intended by his activities with the various students.

Though all of the students who had ridden in the van on the first day eventually apologized to Mrs. Beck, saying they viewed their behavior as 'pretty gross,' appellant asserted pride in the way he had acted and avowed that 'given a similar set of circumstances and similar situations, I would probably act in a similar way.' He testified that the 'horseplay' was a 'positive educational experience.'

Upon the group's return to Arvada, both Mrs. Franz and Mrs. Beck complained to the principal of the school about appellant's behavior, and on October 17 the board of education accepted the charges for review in the manner prescribed by statute. Pursuant to what is now section 22--63--117, C.R.S.1973, a hearing panel was convened to consider the charges against appellant of neglect of duty, insubordination, immorality, and 'other good and just cause.' Extensive hearings were held, at which appellant was competently, even eloquently, represented by counsel. In due time, the panel made findings of fact as to each of the charges. The panel members unanimously agreed that the charge of insubordination had not been proven. Two of the three members, however, felt that the physical touchings, combined with the vulgarities, justified a finding of immorality. These two members also concluded that appellant had neglected his duty to act morally and that the totality of his conduct constituted 'other good and just cause' for dismissal. Accordingly, the majority recommended that appellant be dismissed. The third member dissented, arguing that the statutory grounds for dismissal are unconstitutionally vague, and that in any event appellant's conduct was not neglectful of duty or immoral. He did concede, however, that the 'testimony revealed (appellant) to be without a sense of dignity or decorum and without appreciation of the dynamics and possibilities of interaction between people.'

On February 6, 1973, before adopting the findings and conclusions of the panel, the board of education heard additional argument, and listened to statements from students and former students of Arvada High School, from the father of a female student, and from a Planned Parenthood official, all of whom supported appellant and pleaded for his retention. The board adopted the findings of fact and recommendations of the panel. It concluded that the facts were sufficient to sustain appellant's dismissal on the grounds of immorality, neglect of duty, and other good and just cause. The board further found that the facts on each dismissal ground were sufficient in and of themselves to sustain his dismissal. It declined to grant probation, as recommended by the dissenting member of the panel.

I.

Appellees contend that we need not pass upon the constitutional issues advanced by appellant--that the statutory ground of immorality is impermissibly vague. The board of education, it is argued, dismissed appellant on the basis of other independent grounds--neglect of duty, and other good and just cause--which, standing alone, are ample to sustain the appellant's dismissal.

This court has on numerous occasions noted that the constitutionality of a statute will not be passed upon unless essential for a determination of the case presented. Tyler v. Sch. Dist. No. 1, 177 Colo. 188, 493 P.2d 22; Times-Call v. Wingfield, 159 Colo. 172, 410 P.2d 511. An examination of appellant's notice of appeal, however, as well as the briefs submitted

by his counsel, convinces us that he is challenging all grounds for his dismissal, and we therefore will consider the constitutional argument.

II.

Appellant's principal argument for reversal is that section 22--63--116, C.R.S.1973, unconstitutionally sanctions the dismissal of a teacher for 'immorality.' That term is, he argues, excessively vague, means different things to different people, and inevitably subjects teachers to the irrational and arbitrary whims of potentially hostile school board members. The statute reads:

'22--63--116. Dismissal--reasons. The grounds for dismissal of a tenure teacher shall be physical or mental disability, incompetency, neglect of duty, immorality, conviction of a felony, insubordination, or other good and just cause. No tenure teacher shall be dismissed for temporary illness, leave of absence previously approved by the board, or military leave of absence pursuant to article 3 of title 28, C.R.S.1973.'

Appellant further contends the statute is unconstitutional because it requires no nexus between the conduct objected to and the teacher's classroom effectiveness. In other words, even assuming that he did act immorally, the panel's findings of fact, as adopted by the board, fail to show that his conduct impaired his ability to perform his duties as a teacher; indeed, there was no finding that he did not continue to enjoy the admiration and respect of his students and their parents.

It is important to note that in this case there is no issue relating to a denial of appellant's First Amendment freedoms. As stated in United States v. Powell, 423 U.S. 87, 96 S.Ct. 316, 46 L.Ed.2d 228:

'* * * '(I)t is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.' United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). * * *'

Having carefully considered these arguments, we hold that appellant has failed to overcome the presumption of constitutionality with which statutes are invested. Gates v. So. Suburban Metro., 183 Colo. 222, 516 P.2d 436; Flank Co. v. Tennessee Co., 141 Colo. 554, 349 P.2d 1005. We believe that, properly construed, ...