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holding that any reasonable teacher in the defendant's position would have concluded that the District's controversial materials policy clearly applied to a sexually explicit, R-rated film
Summary of this case from People of Colorado v. GravesOpinion
No. 97SC292.
June 29, 1998.
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.
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.
I.
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 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.
In one scene, a woman is paid to have sex with the two main characters. The trio undresses and climbs into bed, with the woman in the middle. All three are shown from the waist up, as the woman masturbates both men simultaneously. The entire scene lasts several minutes, during which time the woman and the men are shown fully nude from the front on several occasions. In another scene, a young woman lifts her dress and pushes her boyfriend's face between her legs, and he performs oral sex. On another occasion, a man tromps barefoot in manure, muttering "milk and shit, milk and shit," as he watches a young girl milk a cow. After complaining to the girl that he can no longer get "hard," the man opens his pants, stands in front of the girl, and tells her to insert her hand. She obeys.
Besides nudity and sexual conduct, 1900 contains drug abuse and graphic violence. In one scene, two men and a woman in a hotel room decide to use cocaine. They cut the cocaine on a mirror, bicker over it, spill some on the floor, and eventually snort it. For several minutes, one man crawls on the floor and the other takes photographs as the woman dances about the room with her breasts exposed. In other scenes, a person intentionally cuts off his own ear, and a man kills a child by bashing its head against a wall.
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.
The policy is set forth in District policy INB and supporting regulation INB-R.
The policy is set forth in District policy INB and supporting regulation INB-R.
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 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). 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.
Section 22-63-301 sets forth the permissible grounds for dismissing a tenured teacher, including those listed by Superintendent Carle.
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.
II.
"[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, or other good and just cause. See § 22-63-301. In addition, a school board's decision to dismiss a teacher must not be arbitrary, capricious, or legally impermissible. See § 22-63-302(10)(c).
The dismissal of a teacher must respect the requirements of the First Amendment. See Olson, 687 P.2d at 438. However, "the First Amendment has never required school districts to abdicate control over public school curricula to the unfettered discretion of individual teachers." Kirkland v. Northside Indep. Sch. Dist., 890 F.2d 794, 795 (5th Cir. 1989). While the United States Supreme Court has not spoken directly on the issue of teacher curriculum control, it established a standard for regulating school-sponsored expression in Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988). In Hazelwood, public high school students wrote two articles for their school newspaper, one on teen pregnancy and the other on students whose parents had divorced. As part of the regular practice at the school, the supervising teacher submitted the articles to the principal for approval prior to publication. Concerned over the content and timing of the articles, the principal deleted them from the newspaper. In holding that the principal did not violate the students' First Amendment rights, the Supreme Court distinguished between "personal expression that happens to occur on the premises" and "school-sponsored . . . expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school." Id. at 271, 108 S.Ct. 562. Concluding that the students' articles constituted school-sponsored expression, the Court held that educators could constitutionally regulate that form of student speech, so long as such regulation was "reasonably related to legitimate pedagogical concerns." Id. at 273, 108 S.Ct. 562.
Although Hazelwood dealt with student speech, its standard has been applied in cases involving teacher speech and curriculum control. See Miles v. Denver Pub. Sch., 944 F.2d 773 (10th Cir. 1991); Kirkland, 890 F.2d 794; Boring v. Buncombe County Bd. of Educ., 136 F.3d 364 (4th Cir. 1998). Miles involved the First Amendment claim of a ninth-grade government teacher, who commented during class on a rumor that two students had been seen having sexual intercourse on the school tennis court. The parents of the students complained to the principal, who placed the teacher on administrative leave and issued a written reprimand, stating that the teacher broached "an inappropriate topic for comment in a classroom setting." The teacher filed a civil rights suit, claiming that these actions violated the First Amendment and chilled his free speech rights. The Tenth Circuit concluded that the Hazelwood standard applied because the teacher's comments constituted school-sponsored speech: "We are convinced that if students' expression in a school newspaper bears the imprimatur of the school [as in Hazelwood], then a teacher's expression in the `traditional classroom setting' also bears the imprimatur of the school." Miles, 944 F.2d at 776. Holding that the principal's actions were directly related to the school's legitimate pedagogical interests, the court found the teacher's classroom comments were not protected by the First Amendment. See id. at 778, 779.
Hazelwood also recognized that where legitimate pedagogical concerns are at stake, "school officials may impose reasonable restrictions on the speech of students, teachers, and other members of the school community." Hazelwood, 484 U.S. at 267, 108 S.Ct. 562 (emphasis added).
In Kirkland, the Fifth Circuit addressed the issue of whether the First Amendment empowered a high school history teacher to change the school's official reading list without administrative approval. Before the start of the school year, the teacher received the approved reading list for history classes, together with guidelines for amending the list. According to the guidelines, teachers could use materials not on the approved list, provided they obtained permission from school administrators. Nevertheless, the teacher implemented a list of his own choosing, without affording administrators the opportunity to review and approve his list. School officials decided that the teacher, who had probationary status, would not receive a new contract, citing his unilateral decision to use nonapproved reading materials. The teacher brought suit, arguing that the school had retaliated against him for engaging in constitutionally protected speech. Applying Hazelwood, the court noted that "[p]ublic schools have a legitimate pedagogical interest in shaping their own secondary school curricula." Kirkland, 890 F.2d at 795. Consequently, the court ruled that the teacher's use of his reading list without prior approval was not constitutionally protected: "[T]he first amendment does not vest public school teachers with authority to disregard established administrative mechanisms for approval of reading lists." Id.
Finally, the Fourth Circuit held in Boring that a high school teacher had no First Amendment right to control the curriculum of her advanced acting class by selecting and producing a particular play. In preparation for a statewide competition, the teacher chose a play, which according to the teacher, portrayed a dysfunctional single-parent family that included a lesbian daughter and another daughter who became pregnant out of wedlock. The superintendent transferred the teacher, noting that she had failed to follow the district's controversial materials policy. The court rejected the teacher's claim that the transfer amounted to unconstitutional retaliation, stating that her selection of the controversial play "does not constitute protected speech and has no First Amendment protection." Boring, 136 F.3d at 369.
Like the teachers in Miles, Kirkland, and Boring, Wilder claims that he was punished for exercising his free speech rights. We disagree. As Hazelwood and its progeny demonstrate, the First Amendment allows extensive regulation of school-sponsored expression. Such expression includes that which "may fairly be characterized as part of the school curriculum." Hazelwood, 484 U.S. at 271, 108 S.Ct. 562. As used in this context, "curriculum" refers to those activities bearing the "imprimatur of the school" that are "supervised by faculty members and designed to impart particular knowledge or skills to student participants." Id. According to Wilder, 1900 was shown to provide his students with a historical context for understanding literature from the period depicted in the. film. More importantly, 1900 was shown in the classroom, during class time, and under Wilder's direct supervision. As such, Wilder's use of 1900 constituted "curriculum" for purposes of the First Amendment. See id. at 271, 108 S.Ct. 562; see also Ward v. Hickey, 996 F.2d 448, 453 (1st Cir. 1993) ("[A] teacher's classroom speech is part of the curriculum."). Thus, pursuant to Hazelwood, the District was entitled to regulate the showing of 1900, as long as the regulations were "reasonably related to a legitimate pedagogical concern." See Hazelwood, 484 U.S. at 273, 108 S.Ct. 562.
Here, the District sought to regulate the use of films such as 1900 through its controversial materials policy. Pursuant to the policy, teachers are required to notify administrators when they intend to use materials that (1) have not been previously approved by the District, and (2) qualify as "controversial learning resources." Specifically, teachers must give written notice to their principals at least twenty days before presenting such materials to their students.
These requirements address legitimate pedagogical concerns. As noted in Kirkland, "[p]ublic schools have a legitimate pedagogical interest in shaping their own secondary school curricula." Kirkland, 890 F.2d at 795. Similarly, Hazelwood acknowledged that school officials must be able to control school-sponsored speech on "potentially sensitive topics," to account for the emotional maturity of the intended audience. See Hazelwood, 484 U.S. at 272, 108 S.Ct. 562. Hazelwood also specified that school officials must retain the authority to control school-sponsored speech "that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or conduct otherwise inconsistent with the shared values of a civilized social order." Id. (internal citation and quotation marks omitted).
Similar interests are promoted by the District's controversial materials policy. The policy applies when teachers wish to use "learning resources which are not included in the approved learning resources of the district." Because such resources have not been officially approved, school administrators have not determined whether they are suitable for a particular audience of students. By allowing administrators greater control over the curriculum, the policy prevents students from being exposed to graphic sex, violence, vulgarity, or similar material. Controlling the entry of such subject matter into the classroom is plainly a legitimate pedagogical concern. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986) (recognizing legitimate school interest in regulating exposure to sexually explicit or vulgar speech); Board of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 871, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982) (recognizing legitimate school interest in controlling the "educational suitability" of curricular materials).
Furthermore, the controversial materials policy addresses this legitimate concern in a reasonable manner. The policy does not ban the use of controversial learning resources, nor does it mandate the automatic dismissal of teachers who use such resources. Instead, it requires that teachers who wish to use a controversial learning resource must provide the principal with at least twenty days written notice before the resource is presented to students. This requirement is directly related to the legitimate concerns underlying the policy: it allows learning resources dealing with "potentially sensitive topics" to be reviewed by the principal before they enter the classroom. See Hazelwood, 484 U.S. at 272, 108 S.Ct. 562. After reviewing the resources, the principal, based on guidelines in the policy, approves or disapproves their use in the classroom. Teachers who are dissatisfied with the principal's decision may appeal to the superintendent. If they are dissatisfied with the superintendent's decision, they may appeal again to the Board. This is a reasonable procedure for monitoring curricular content in the public schools.
As the hearing officer noted, "Wilder was not prohibited from using controversial materials, but was required to follow certain guidelines." However, we do not decide whether a full prohibition would be reasonable. We simply note that this is not the case before us.
The controversial materials policy permits the District to control nonapproved resources that teachers wish to introduce as part of the curriculum. Such control clearly belongs to school officials, who are accountable to the public:
Parents have a vital interest in what their children are taught. Their representatives have in general prescribed a curriculum. There is a compelling state interest in the choice and adherence to a suitable curriculum for the benefit of our young citizens and society. It cannot be left to individual teachers to teach what they please.
Palmer v. Board of Educ., 603 F.2d 1271, 1274 (7th Cir. 1979); accord Boring, 136 F.3d at 370 ("[T]he school, not the teacher, has the right to fix the curriculum."). Provided that official curriculum controls are "reasonably related to legitimate pedagogical concerns" — as is the case with the District's controversial materials policy — they do not violate the free speech rights guaranteed by the First Amendment. See Hazelwood, 484 U.S. at 273, 108 S.Ct. 562. As a result, Wilder has no First Amendment right to use nonapproved controversial learning resources in his classroom without following the District's policy.
However, official regulation of public school curricula may be more limited when such regulations implicate the Establishment Clause of the First Amendment. See, e.g., Epperson v. Arkansas, 393 U.S. 97, 107, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968).
We reach this conclusion despite observing in Olson that the principle of academic freedom found in the First Amendment creates an "interest in choosing a particular pedagogical method for presenting the idea-content of a course." Olson, 687 P.2d at 437. However, Olson involved academic freedom at the college level. By contrast, "in primary and secondary schools the principle of academic freedom must be balanced by the countervailing interest of the state in inculcating basic community values in students who may not be mature enough to deal with the educational process as understood and practiced at higher educational levels." Id. at 438 n. 7. Accordingly, we conclude that the principle of academic freedom does not permit secondary school teachers such as Wilder to override official school regulations that are otherwise reasonably related to legitimate pedagogical concerns.
III.
Wilder also claims that the District's policy is unconstitutionally overbroad. We disagree.
A law is overbroad if it burdens conduct protected by the First Amendment. See Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Aguilar v. People, 886 P.2d 725, 727 (Colo. 1994). To be unconstitutional, a law's overbreadth must be substantial, meaning that the burden on protected speech is substantial as compared with the burden on unprotected speech. See Broadrick, 413 U.S. at 615, 93 S.Ct. 2908; People v. Batchelor, 800 P.2d 599, 601 (Colo. 1990). Overbroad laws may be challenged even by parties whose speech is not protected by the First Amendment. See Members of the City Council v. Taxpayers for Vincent, 466 U.S. 789, 798-99, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984); People ex rel. Simpson v. Highland Irrigation Co., 893 P.2d 122, 128, n. 10 (Colo. 1995). Such facial challenges are permitted to protect the rights of third parties whose First Amendment rights may be "chilled" by the law's overbreadth. See Laurence H. Tribe, American Constitutional Law 1035 (2d ed. 1988). By definition, those parties will never possess the injury-in-fact required for standing because they abstain from protected speech to avoid condemnation under the overbroad law. See id.
Wilder asserts that even if the controversial materials policy does not violate his right of free speech, it is overbroad because it burdens the protected speech of other teachers. However, in regard to any teacher, the policy covers only "learning resources" that the teacher wishes to introduce in the classroom. Because such resources bear the "imprimatur of the school," they constitute "school-sponsored speech" and may be regulated according to the standards set forth in Hazelwood. As discussed previously, the District's policy complies with Hazelwood and therefore does not offend the First Amendment. Because the policy neither "chills" the First Amendment rights of teachers in the District nor otherwise burdens their constitutionally protected speech, it is not unconstitutionally overbroad.
IV.
Wilder further argues that the District's controversial materials policy is impermissibly vague. We disagree.
While the doctrines of vagueness and overbreadth are often interrelated, they are conceptually distinct. Whereas an overbroad law substantially burdens protected speech, an impermissibly vague law fails to provide fair notice of what conduct is prohibited and allows arbitrary and discriminatory enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Loonan v. Woodley, 882 P.2d 1380, 1389 (Colo. 1994). In short, "an overbroad law need lack neither clarity or precision, and a vague law need not reach activity protected by the first amendment." Tribe, supra at 1033 (citations omitted).
"It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined." Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); accord People v. Moyer, 670 P.2d 785, 789, (Colo. 1983). A provision is not unconstitutionally vague simply because it could have been drafted with greater precision. See United States v. Powell, 423 U.S. 87, 94, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). No vagueness problem exists if a party strains to inject doubt as to the meaning of words where no doubt would be felt by the normal reader. See id. at 93, 96 S.Ct. 316; see also Watso v. Colorado Dep't of Soc. Servs., 841 P.2d 299, 309 (Colo. 1992) (noting that "[g]enerality is not the equivalent of vagueness" and that scientific and mathematical certainty are not required).
A law is unconstitutional only if it "is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Such laws are overly vague because persons of common intelligence are required to guess at the law's meaning. See Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926); Delta Sales Yard v. Patten, 892 P.2d 297, 299 (Colo. 1995). Overly vague laws offend the Constitution because they fail to provide fair notice of what conduct is prohibited and they invite arbitrary and discriminatory enforcement. See Grayned, 408 U.S. at 108-09, 92 S.Ct. 2294; Loonan v. Woodley, 882 P.2d 1380, 1389 (Colo. 1994).
Ultimately, the degree of vagueness tolerated by the Constitution depends on the nature of the enactment being challenged. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); Parrish v. Lamm, 758 P.2d 1356, 1366 (Colo. 1988). When an enactment involves economic regulation or civil penalties, a less stringent vagueness test is required. See Flipside, 455 U.S. at 498-99, 102 S.Ct. 1186. By contrast, a stricter test applies if the law threatens to inhibit the exercise of constitutionally protected rights. See id. Thus, a stricter test is required when the law interferes with free speech rights protected by the First Amendment. See id. at 499., 102 S.Ct. 1186
Conversely, when an enactment does not burden protected speech, the Constitution tolerates a greater degree of vagueness: "Assuming the enactment implicates no constitutionally protected conduct, [a court] should uphold the challenge only if the enactment is impermissibly vague in all of its applications." Id. at 495-96, 102 S.Ct. 1186. Consequently, "[a] plaintiff who engages in some conduct that is clearly proscribed by the statute cannot complain of the vagueness of the law as applied to the conduct of others." Id. Therefore, in evaluating such a statute, a court should focus on the complainant's conduct before analyzing other hypothetical applications of the law. See id. at 495, 102 S.Ct. 1186; see also United States v. Mazurie, 419 U.S. 544, 550, 96 S.Ct. 710, 42 L.Ed.2d 706 (1975) ("[V]agueness challenges to statutes which do not involve the First Amendment freedoms must be examined in the light of the facts of the case at hand."). In other words, "[o]ne to whose conduct a statute clearly applies may not successfully challenge it for vagueness." Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974).
As explained previously, the District's controversial materials policy does not burden constitutionally protected speech. It simply permits school officials to exercise control over the curriculum by reasonably regulating the use of nonapproved controversial materials in the classroom. As such, the policy is "reasonably related to legitimate pedagogical concerns" and is therefore wholly consistent with the First Amendment rights of Wilder and other teachers in the District. Therefore, in order for Wilder to sustain a vagueness challenge, the controversial materials policy must be impermissibly vague as applied to him. See Flipside, 455 U.S. at 495-96, 102 S.Ct. 1186. If the policy clearly applies to Wilder's conduct, his challenge must fail. See Parker, 417 U.S. at 756, 94 S.Ct. 2547.
As defined by the District, "controversial learning resources" are those "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." This provision clearly applies to Wilder's showing of 1900. The film was not a learning resource approved by the District but was shown in class at Wilder's discretion. Therefore, Wilder was required to obtain approval before showing the film if it was "subject to disagreement as to appropriateness" due to controversial subject matter. Wilder had seen the film and therefore knew it contained extensive nudity, oral sex, masturbation, profanity, cocaine abuse, and graphic violence.
As a result, Wilder did not have to guess that 1900 was a "controversial learning resource." Under any rational interpretation, that category includes a film that exposes students, in a classroom setting, to a significant amount of nudity, sexual content, and graphic violence. It is difficult to imagine subject matter that, if proposed to be shown in the classroom, would create a greater "disagreement as to appropriateness." Such disagreement is virtually assured when the film has been flagged with an "R" rating, as is the case with 1900. Although the policy ultimately required Wilder to exercise some judgment in determining whether 1900 constituted a "controversial learning resource," it nonetheless set forth a comprehensible standard for him to follow. Hence, this is not a case in which "no standard of conduct is specified at all." See Coates, 402 U.S. at 614, 91 S.Ct. 1686. In these circumstances, Wilder cannot avoid the requirements of the controversial materials policy simply by claiming that in his view, 1900 was not controversial. Regardless of Wilder's subjective belief regarding the need to consult with Principal Mitchell, he was bound follow the policy's notice requirements if they would be sufficiently clear to the normal teacher in Wilder's circumstances. See Powell, 423 U.S. at 93, 96 S.Ct. 316 ("[S]training to inject doubt as to the meaning of words where no doubt would be felt by the normal reader is not required by the `void for vagueness' doctrine."). Principal Mitchell and both assistant principals at Columbine found 1900 to be controversial. Before the hearing officer, one teacher testified that an R-rated movie is a "red flag" that the movie is sexually explicit, violent, or filled with foul language. One of Wilder's witnesses also testified that any movie not approved by the District containing nudity and sexual conduct should be cleared with school administrators. Thus, any reasonable teacher in Wilder's position would have concluded that the District's controversial materials policy clearly applied to 1900. Because Wilder had fair notice that he should have obtained administrative approval prior to showing the film, he cannot complain that the policy was unconstitutionally vague. See Flipside, 455 U.S. at 495-96, 102 S.Ct. 1186 (noting that under the less strict vagueness test, a law must be "impermissibly vague in all of its applications").
Wilder's own conduct shows a recognition that there was an issue as to the appropriateness of 1900. Prior to showing the film, Wilder warned his students that it contained some "graphic realism" they might find "disturbing." He also told his students they could put their heads down or go to the library during the film if they felt "uncomfortable or embarrassed" Moreover, although Wilder did not obtain parental permission before showing 1900, he sent home general permission slips at the beginning of the semester for his students to watch R-rated movies. Thus, Wilder recognized that parents might object to the appropriateness of R-rated films such as 1900.
By itself, the R-rating provided Wilder with notice that 1900 constituted a "controversial learning resource." When another teacher proposed that students see Schindler's List, also an R-rated film, Columbine's administration called a faculty-wide staff meeting due to the film's controversial nature. That meeting was attended by Wilder. Therefore, Wilder was on notice that showing an R-rated film, even a highly acclaimed one, would cause a "disagreement as to appropriateness.
Moreover, the fact that most of Wilder's students were old enough to view an R-rated film in a public theater does not mean that 1900 was appropriate for use in the classroom. As the hearing officer noted, there is a difference between viewing controversial material "outside the school and showing an R-rated film in class at school."
Although the record indicates that Wilder showed an R-rated film on another occasion, it is unclear whether he did so with prior approval from administrators. The hearing officer explained that there was "insufficient evidence to determine whether Mr. Wilder's actions in showing the [other] movie were improper."
Wilder testified that he did not find 1900 controversial. However, the hearing officer never found whether the film was in fact a "controversial learning resource." Instead, she simply stated that "[t]he Hearing Officer cannot determine whether 1900 did or did not meet community standards."
V.
Finally, Wilder contends that his due process rights were violated because the District failed to provide him with notice of the existence of its controversial materials policy. Again, we disagree.
Due process principles are satisfied as long as the notice is reasonably calculated to reach the intended party. See Mullane v. Central Hanover Bank and Trust Co., 339 U.S. 306, 318, 70 S.Ct. 652, 94 L.Ed. 865 (1950); People v. Lessar, 629 P.2d 577, 581 n. 3 (Colo. 1981). It is well established that when statutory requirements are at issue, parties receive adequate notice through publication. See North Laramie Land Co. v. Hoffman, 268 U.S. 276, 283, 45 S.Ct. 491, 69 L.Ed. 953 (1925); People v. McKnight, 200 Colo. 486, 497, 617 P.2d 1178, 1186 (1980) ("The requirements of due process are satisfied by the notice which is given through publication of the statutes."). Similarly, insofar as published policies and regulations are concerned, teachers are presumed to know the standards that govern their conduct. See Blaine v. Moffat County Sch. Dist. RE No. 1, 748 P.2d 1280, 1293-94 (Colo. 1988).
Wilder is not entitled to actual notice of the District's policy; he is entitled to reasonable notice, which may be accomplished through publication. According to testimony before the hearing officer, the controversial materials policy has been published by the District and filed in the library of each school. Nothing in the record indicates that Wilder was deprived of the opportunity to review the policy in the library at Columbine High School. Furthermore, the hearing officer found that Wilder knew controversial materials should be cleared with the principal prior to use in the classroom. In these circumstances, Wilder clearly had reasonable notice of the District's policy, sufficient to satisfy the principles of due process.
Because Wilder received adequate notice of the District's official policy, we do not address the court of appeals' analysis of whether section 22-63-302(8) requires that a teacher's dismissal be based only on the reasons set forth in the superintendent's recommendation of dismissal. See Wilder, 944 P.2d at 603-04.
VI.
As noted in the Board's Resolution and Order of Dismissal, "Wilder's decision to show his class a film containing scenes of nudity, sexual content, drug use, and violence, without notifying administrators, parents, or students of his intentions circumvented the procedure established by this board to ensure the use of appropriate learning resources." Concluding that such behavior constituted neglect of duty, the Board ordered that Wilder be dismissed pursuant to section 22-63-301. Contrary to Wilder's arguments, the Board did not violate his rights of free speech and due process guaranteed by the Constitution; it simply insisted that Wilder follow an established procedure permitting publicly accountable school officials, and not individual teachers, to exercise final authority over the curriculum being presented in the classrooms of Columbine High School. Because these actions were not arbitrary, capricious, or otherwise legally impermissible, we reverse the court of appeals and remand with instructions to reinstate the Board's Resolution and Order of Dismissal.
HOBBS, J., dissents, and MARTINEZ and BENDER, JJ., join in the dissent.