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

• Decision Date: 23 January 1997
• Docket Number: No. 96CA0709,R-1,R,96CA0709
• Citation: 944 P.2d 598
• Parties: 121 Ed. Law Rep. 340, 21 Colorado Journal 140 Alfred E. WILDER, Petitioner-Appellant, v. BOARD OF EDUCATION OF JEFFERSON COUNTY SCHOOL DISTRICTespondent-Appellee. . V
• Court: Colorado Court of Appeals

Page 598

944 P.2d 598

121 Ed. Law Rep. 340, 21 Colorado Journal 140

Alfred E. WILDER, Petitioner-Appellant, v. BOARD OF EDUCATION OF JEFFERSON COUNTY SCHOOL DISTRICT R-1,

Respondent-Appellee.

No. 96CA0709.

Colorado Court of Appeals,

Div. V.

Jan. 23, 1997.

As Modified on Denial of Rehearing

March 27, 1997.

Certiorari Granted Oct. 20, 1997.

Colorado Education Association, Martha R. Houser, Gregory J. Lawler, Sharyn E. Dreyer, Cathy L. Cooper, Bradley C. Bartels, Denver, Gerash, Robinson & Miranda, P.C., Walter L. Gerash, Denver, for Petitioner-Appellant.

Caplan & Earnest, L.L.C., Alexander Halpern, W. Stuart Stuller, Boulder, for Respondent-Appellee.

Holland & Hart, L.L.P., A. Bruce Jones, Denver, Amicus Counsel for American Civil Liberties Union Foundation of Colorado, Inc.

Opinion by Judge TAUBMAN.

Petitioner, Alfred E. Wilder, seeks review of the order of respondent, Board of Education of Jefferson County School District RJ-1 (Board), that terminated his employment as a nonprobationary teacher with the district. He asserts that the Board's order dismissing him, in part, for showing the film 1900 to his students, in contravention of the hearing officer's recommendation of retention, violated his constitutional rights to freedom of expression, and was arbitrary, capricious, and legally impermissible. We reverse the order of the Board and remand with directions that Wilder be reinstated to his status as a non-probationary teacher.

Wilder had been employed by the school district for 25 years prior to the hearing in this case. From 1980 until 1995, he worked as a language arts teacher at Columbine High School. Between 1973 and 1994, Wilder had received disciplinary memoranda from his principal and assistant principal for a variety of reasons such as tardiness, missing or reporting late for certain non-teaching duties, and failing to complete paperwork on time. However, no formal disciplinary proceedings were brought against him during this period.

In March 1995, Wilder showed portions of the film 1900 to his logic and debate class, in which all the students were at least 17 years old. The film, by Italian director Bernardo Bertolucci, portrays Italian society from 1900 through the end of World War II, focusing on the life of two boys, one rich and one poor. The film, rated "R" by the Motion Picture Association of America, contains scenes involving nudity, sexual conduct, drug use, and violence. After a parent complained about the showing of the film in class, Wilder's principal reviewed the film, and placed Wilder on administrative leave the following day pending further investigation.

In August 1995, the school district superintendent recommended to the Board of Education that Wilder be dismissed on grounds of insubordination, neglect of duty, and other good and just cause. Specifically, the charges against Wilder were twofold. First, the superintendent alleged that Wilder's showing of the film 1900 was done in violation of a school district policy and regulation that required teachers to provide their principal with twenty days prior written notice before presenting a "controversial learning resource." Second, the charges alleged that Wilder should be dismissed because of his tardiness, failure to report for certain non-teaching duties, and failure to enforce school rules against eating and drinking in class.

Wilder objected to these charges and requested an evidentiary hearing pursuant to § 22-63-302(3) C.R.S. (1995 Repl.Vol. 9). Following an eight-day administrative hearing, the hearing officer issued a 33-page decision containing her findings of fact and recommendation.

Among other things, the hearing officer found the film 1900 was shown during a portion of each class for three to five days. Discussions about the movie took place in class.

The hearing officer also found that "the evidence is undisputed that 1900 has literary and artistic value." Additionally, the hearing officer found that, as a learning resource, the film was relevant to the curriculum objectives of Wilder's course and that it was useful in contributing to the attainment of the educational objectives. She also found that the themes presented in the movie were useful in trying to teach students to think critically and act responsibly toward others, and that the students in Wilder's class had the ability and maturity to understand the purpose of the movie. The hearing officer could not determine whether the film "did or did not meet community standards," however, but noted that other R-rated movies had been shown to Columbine students without objection.

With respect to the Board's formal written policy and regulation, INB and INB-R, the hearing officer made the following findings of fact: Most teachers at Columbine were not aware of policy INB or the need to give 20 days written notice if a teacher wanted to use a controversial material. Although the policy is contained in the school district's policy books which are kept in each school's library, neither the policy nor the regulation was contained in any faculty handbook. Additionally, Wilder's principal did not recall providing any specific notice on the use of policy INB procedures to his faculty. Further, the principal testified that on the day he took the film from Wilder, he did not mention the policy or the regulation because he did not believe they applied.

Following extensive findings of fact, the hearing officer, on March 14, 1996, made the following recommendation:

The hearing officer finds that Mr. Wilder's conduct and failing to use the vocabulary workbooks, failing to arrive on time on a regular basis, failing to remain in his class on a consistent and regular basis, and failing to timely exchange books was neglect of duty, insubordination, and/or other and just cause. However, the last act for which Mr. Wilder's being disciplined concerns the use of the film 1900. Although the hearing officer finds that Mr. Wilder could have and should have done a better job in explaining the nature of the movie prior to showing it, his failure to obtain permission from the principal prior to the showing of the movie was not improper because neither the unwritten policy nor policy INB provides sufficient guidance in determining whether the movie was controversial. In Mr. Wilder's professional judgment, the movie was not controversial and [was] appropriate to the educational goals of the course and the students' level and ability. Furthermore, Mr. Wilder's failure to comply with the twenty-day advance notice requirement of INBR was not improper under these circumstances. Since the last act for which Mr. Wilder is being disciplined is the showing of 1900, and the policies that Mr. Wilder was suppose[d] to follow are vague, the hearing officer recommends Mr. Wilder's retention.

On April 1, 1996, the Board of Education unanimously adopted a resolution and order of dismissal directing that Wilder be dismissed from his employment as a teacher with the school district for neglect of duty, insubordination, and other good and just cause.

The Board's resolution found that the hearing officer's findings of fact provided sufficient basis to enable it to dismiss Wilder both for his deficiencies concerning non-teaching responsibilities and for his showing of the film 1900. Specifically, the Board concluded that:

[Mr. Wilder's] absences from the classroom, tardiness, and failure to fulfill his supervisory obligations in the face of repeated memoranda and discussions regarding these duties constitute neglect of duty and insubordination. His failure to follow the curriculum, failure to cooperate with other teachers, and imposition on other teachers to cover his classes constitute neglect of duty and good and just cause for dismissal.

The Board, however, disagreed with the hearing officer's conclusion that, because of the vagueness of the school district policy and regulation regarding teaching about controversial issues and use of controversial learning resources, Wilder should be excused from complying with them. According to the Board, the policy does not require teachers to "guess" as to its application. Further, although the hearing officer found that teachers do not agree regarding what constitutes a controversial learning resource, the Board found that, "an R-rated film containing nudity, sexual conduct, drug use and violence is controversial according to any definition mentioned in the hearing officer's findings." Thus, the Board concluded that the hearing officer's findings showed that Wilder should have "known enough" to seek administrative approval of the film, and that his failure to do so constituted neglect of duty.

Finally, the Board disagreed with the hearing officer's apparent conclusion that Wilder's non-teaching related deficiencies alone did not justify his dismissal because his showing of the film 1900 was "the straw that broke the camel's back." Rather, considering the many findings of misconduct against Wilder, the Board concluded that its determination did not depend upon any one incident.

I. Standard of Review

Our review is governed by the provisions of the Teacher Employment, Compensation, and Dismissal Act of 1990, §§ 22-63-101 through 22-63-403, C.R.S. (1995 Repl.Vol. 9) (the Act). The Act provides that a teacher who has been the subject of a superintendent's recommendation of dismissal may request a hearing before an impartial hearing officer. The hearing officer is charged by the statute with hearing evidence, reviewing exhibits, and making written findings of fact. Section 22-63-302(8), C.R.S. (1995 Repl.Vol. 9). The hearing officer is to recommend to the Board that the teacher either be retained or dismissed. The Board must then review the hearing officer's findings of fact and recommendation and enter its own order. If the Board rejects the hearing officer's recommendation to retain the teacher, it must state a conclusion, giving its reasons therefor,...