Vanderhurst v. Colorado Mountain College District

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STUART VANDERHURST,

Plaintiff-Appellee,

v.
No. 98-1408
COLORADO MOUNTAIN COLLEGE
DISTRICT, a Colorado junior college
district; COLORADO MOUNTAIN
COLLEGE BOARD OF TRUSTEES, a
Colorado junior college board of
trustees,

Defendants-Appellants.

ORDER
Filed May 9, 2000

Before BRISCOE, REAVLEY *, and MURPHY, Circuit Judges.

This matter is before the court on appellants’ petition for rehearing with

suggestion for rehearing en banc. The panel grants in part rehearing for the

narrow purpose of adding footnote 6. Accordingly, a revised published opinion is

attached to this order. The panel otherwise denies the petition.

Honorable Thomas M. Reavley, Senior Judge, United States Court of
*

Appeals for the Fifth Circuit, sitting by designation.
 The suggestion for rehearing en banc was transmitted to all of the judges of

the court who are in regular active service as required by Fed. R. App. P. 35. As

no member of the panel and no judge in regular active service on the court

requested that the court be polled, the suggestion is denied.

Entered for the Court
PATRICK FISHER, Clerk of Court

By:
Keith Nelson
Deputy Clerk

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 F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 9 2000
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

STUART VANDERHURST,

Plaintiff-Appellee,

v.
No. 98-1408
COLORADO MOUNTAIN COLLEGE
DISTRICT, a Colorado junior college
district; COLORADO MOUNTAIN
COLLEGE BOARD OF TRUSTEES, a
Colorado junior college board of
trustees,

Defendants-Appellants.

Appeal from the United States District Court
for the District of Colorado
(D.C. No. 97-B-563)

John G. Roberts, Jr., of Hogan & Hartson L.L.P, Washington, D.C. (Alexander E.
Dreier, Hogan & Hartson L.L.P.; Daniel R. Satriana, Jr., of Hall & Evans, L.L.C.,
Denver, Colorado, with him on the briefs) for Appellants.

Bradley C. Bartels, Colorado Education Association, Denver, Colorado, (Martha
R. Houser, Gregory J. Lawler, Sharyn E. Dreyer, and Cathy L. Cooper, Colorado
Education Association, with him on the brief) for Appellees.
Before BRISCOE, REAVLEY *, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

Stuart R. Vanderhurst, a former professor at Colorado Mountain College

Junior College District (the “College”), sued the College for terminating his

employment on the basis of allegedly inappropriate classroom conduct and

comments. Vanderhurst claimed, inter alia, that the College violated his First

Amendment right to free speech and breached his employment contract and he

sought relief respectively under 42 U.S.C. § 1983 and state common law. At the

close of Vanderhurst’s case-in-chief and again at the close of all the evidence, the

College unsuccessfully moved for judgment as a matter of law on both the First

Amendment and contract claims. The jury eventually returned a verdict in favor

of Vanderhurst on both claims. The College now appeals from the district court’s

denial of its Rule 50 motions on the two claims. This court exercises jurisdiction

pursuant to 28 U.S.C. § 1291.

The College’s appeal on the First Amendment claim presents the following

issues: (1) whether the speech for which Vanderhurst was terminated garnered

constitutional protection; (2) whether the district court erred by submitting to the

Honorable Thomas M. Reavley, Senior Judge, United States Court of
*

Appeals for the Fifth Circuit, sitting by designation.
jury the question whether the termination reasonably related to the College’s

legitimate pedagogical concerns; and (3) whether the district court should have

answered that question in favor of the College. Because the College failed to

adequately raise these issues before the district court, it has waived appellate

review of its arguments. This court thus affirms the judgment on the First

Amendment claim. On the contract claim, the College contends the terms of

Vanderhurst’s employment contract and its Policy Manual preclude his ability to

prosecute that claim in court. In light of our resolution of the First Amendment

claim and the structure of the district court judgment, this court need not address

the merits of that argument. We therefore affirm the judgment of the district

court.

II. BACKGROUND

In 1973, Vanderhurst began working as Veterinary Head of the College’s

Veterinary Technology Program (the “Program”), becoming Program Director in

1978. After a one year leave of absence, Vanderhurst returned to the program as

a professor, teaching clinical pathology, anaesthetic nursing, radiology, and

veterinary medical nursing, and further serving as a clinician to the program’s

animals.

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 In the late 1980’s, an internal conflict arose among faculty within the

Program. An adversarial relationship also developed between Vanderhurst and

the College administration. In 1991, the College suspended Vanderhurst during a

portion of the fall semester because he sexually harassed students and a female

faculty member in the Program.

In the fall semester of 1995, a number of students in Vanderhurst’s Clinical

Pathology and Anaesthetic Nursing classes complained that he utilized an

inappropriate teaching style and made offensive comments during class time.

Specifically, the students lodged the following allegations against Vanderhurst: he

discussed the presence of tampons in a sewer plant while lecturing about animal

parasites; he referred to human anal and oral sex and male orgasms during a

lecture about the transmission of parasites; he used the terms “big dog,” “big

chair,” and “floaters and sinkers” to describe feces; he made comments insulting

to blondes; he called a female student “rose bud”; he degraded a student by

discussing an incident in which she was bitten by a pig; he intimated that students

were “dumb”; he inappropriately referred to comments made in student

evaluations; he made negative comments about another instructor in the Program

and withheld class lecture material from her; he discussed matters unrelated to

course content during class time; he intimidated and humiliated students; and he

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allowed sophomore students to address his freshman Clinical Pathology class

about their course evaluations.

The College allegedly believed that this purported conduct violated policies

set forth in the College’s Policy Manual, including policies governing ethics,

commitment to the student, commitment to the public, and sexual harassment. As

a consequence, the College notified Vanderhurst on December 14, 1995 that it

was considering terminating his employment for neglect of duty, failure to meet

or comply with reasonable written or published standards or directives, and other

good and just cause. Vanderhurst was then suspended without pay while the

College proceeded to carry out the recommended dismissal.

The Policy Manual provides that a faculty member may challenge the

College’s decision to terminate employment through four distinct levels of

grievance review. Level I allows the grievant to meet with his immediate

supervisor in an attempt to resolve the matter informally. If the grievance is not

resolved at Level I, the faculty member may initiate a Level II review, at which a

Peer Review Committee (“PRC”) examines the entire record and may receive

other relevant materials and take testimony from parties and witnesses. The PRC

then issues a report which includes findings of fact, conclusions, and

recommendations. If still unsatisfied, the faculty member may pursue a Level III

review by the College President or designee, who reviews the record from the

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prior proceedings, meets with the grievant, and may undertake additional

inquiries. The President or designee then issues a written decision. Although

normal grievances end with the Level III decision, a faculty member challenging a

dismissal decision is entitled to a Level IV review by the Board of Trustees (the

“Board”). Both the faculty member and the President or designee may testify, call

and cross-examine witnesses, and present evidence at the Level IV hearing.

Based on that hearing, the record from the prior hearings, and all other relevant

records, the Board then issues its written decision.

On February 14, 1996, at a Level I Supervisor Review hearing, Vanderhurst

grieved the College’s decision to dismiss him, but the decision was upheld.

Vanderhurst then pursued a Level II Peer Review grievance hearing. After

conducting extensive evidentiary hearings, the PRC issued its decision on May

27, 1996. In its findings of fact, the PRC stated that the only meritorious

allegation of misconduct was the one claiming Vanderhurst had allowed

sophomore students to address his class about course evaluations. The PRC thus

recommended that Vanderhurst not be terminated because the College had failed

to show a violation of policies or other good and just cause for dismissal. In July,

however, Vanderhurst was informed that the College disagreed with the PRC’s

recommendation and would proceed with the termination.

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 Vanderhurst continued to challenge the College’s dismissal decision at a

Level III grievance hearing. The President’s designee reviewed the evidentiary

record from the PRC Hearing and issued independent factual findings based on

that review, some of which were inconsistent with those made by the PRC. The

designee concluded that Vanderhurst had violated College policies, retaliated

against another faculty member whose previous complaints had led to the 1991

disciplinary action, and disregarded earlier warnings about his offensive conduct

and language. Consequently, the President upheld the decision to terminate

Vanderhurst’s employment. After a final Level IV grievance review, the Board

unanimously approved a resolution affirming the termination.

Vanderhurst then brought suit in state court against the College, the Board,

and several College administrators in their individual capacities. The College

removed the case to federal district court. Vanderhurst’s complaint alleged, inter

alia, that the College had breached his employment contract by terminating his

employment without proper grounds and had deprived him of his rights to free

speech and academic freedom by dismissing him for exercise of those rights, thus

violating the First and Fourteenth Amendments and 42 U.S.C. § 1983.

These two claims proceeded to trial in September of 1998. At the close of

Vanderhurst’s case-in-chief, the College moved for judgment as a matter of law

on both the First Amendment and breach of contract claims, pursuant to Rule 50

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of the Federal Rules of Civil Procedure. The district court denied the motion on

both claims. The College renewed its Rule 50 motion on both claims at the close

of all the evidence, but the district court again denied that motion.

The jury subsequently returned a verdict in favor of Vanderhurst on both

claims. Although the jury specifically found that Vanderhurst had sustained

damages of $557,100 on each claim, the parties had stipulated that Vanderhurst

could only recover once. The district court thus awarded Vanderhurst $557,100

in total damages. The district court also ordered that Vanderhurst receive

attorney’s fees for his First Amendment claim upon filing an appropriate motion.

The College now appeals from the district court’s denial of its Rule 50 motions on

both the First Amendment and contract claims.

III. DISCUSSION

A. Standard of Review

This court reviews de novo the denial of a motion for judgment as a matter

of law. See Kinser v. Gehl Co., 184 F.3d 1259, 1267 (10th Cir. 1999). A court

should grant a defendant judgment as a matter of law “[i]f there is no legally

sufficient evidentiary basis . . . with respect to [the plaintiff’s] claim . . . under

the controlling law.” Baty v. Willamette Indus., Inc., 172 F.3d 1232, 1241 (10th

Cir. 1999) (quotation omitted). In evaluating a Rule 50 motion, this court

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examines all the evidence admitted at trial, construing that evidence and the

inferences therefrom in the light most favorable to the non-moving party. See

Kinser, 184 F.3d at 1267.

B. The First Amendment Claim

The College challenges the denial of its Rule 50 motions regarding

Vanderhurst’s First Amendment claim on three grounds: (1) the district court

should have ruled as a matter of law that the speech for which Vanderhurst was

terminated fell entirely outside the First Amendment’s protection; (2) the district

court committed reversible error by submitting to the jury a question of

law–whether Vanderhurst’s termination reasonably related to the College’s

legitimate pedagogical concerns; and (3) the district court should have answered

that question in favor of the College.

1. Whether Speech Was Protected Under First Amendment

The College contends that the district court should have granted its Rule 50

motions on the First Amendment claim because the speech for which it terminated

Vanderhurst is entirely unprotected under the First Amendment. The College first

argues that much of Vanderhurst’s speech constituted profanity, which a college

professor has no First Amendment right to utter in the classroom. Additionally,

the College asserts that the speech at issue concerned course content at odds with

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the College’s established curriculum, and a teacher enjoys no First Amendment

right to determine the educational content of a course.

In Keyishian v. Board of Regents, the United States Supreme Court held

that a New York statute which required the termination of teachers for

“treasonable” or “seditious” acts or utterances committed or made inside or

outside the classroom ran afoul of teachers’ First Amendment rights. 385 U.S.

589, 597, 604 (1967). The Court thus recognized that teachers do enjoy some

First Amendment protection in their classroom speech, stating, “[Academic]

freedom is therefore a special concern of the First Amendment, which does not

tolerate laws that cast a pall of orthodoxy over the classroom.” Id. at 603. Two

years later, in Tinker v. Des Moines Independent Community School District, the

Court delivered its now-famous pronouncement regarding speech in our nation’s

public schools: “It can hardly be argued that either students or teachers shed their

constitutional rights to freedom of speech or expression at the schoolhouse gate.”

393 U.S. 503, 506 (1969).

Indeed, it is widely recognized that teachers’ classroom speech is entitled

to some First Amendment protection. See, e.g., Blum v. Schlegel, 18 F.3d 1005,

1012 (2d Cir. 1994); Ward v. Hickey, 996 F.2d 448, 452 (1st Cir. 1993); Fowler v.

Board of Educ., 819 F.2d 657, 661 (6th Cir. 1987); Kingsville Indep. Sch. Dist. v.

Cooper, 611 F.2d 1109, 1113 (5th Cir. 1980). In Miles v. Denver Public Schools,

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however, this court implicitly acknowledged that not every word spoken by a

teacher in a public school classroom falls within the protections of the First

Amendment. See 944 F.2d 773, 775 (10th Cir. 1991). The Miles court noted that

whether a teacher’s speech is constitutionally protected is the first inquiry in the

test “for determining whether an adverse employment decision violates a public

[school teacher’s] first amendment rights.” 1 Id.

The College maintains that because Vanderhurst’s speech was profane and

because it amounted to an attempt to communicate course content at odds with the

College’s chosen curriculum, his speech was not constitutionally protected. It

thus asserts that this court can rule in its favor without even engaging in the First

Amendment analysis established in Hazelwood School District v. Kuhlmeier,

which probes whether the adverse employment action reasonably related to the

school’s legitimate pedagogical interests. See 484 U.S. 260, 273 (1988). This

suggested approach, however, ignores the analytical dictate of Miles. In Miles,

this court stated, “In determining whether Miles has satisfied the initial burden of

1
Under Miles, the second question in the test for determining if a school’s
adverse employment action against a teacher violated the teacher’s First
Amendment rights is whether “the protected speech motivated the adverse
employment action.” Miles v. Denver Public Sch., 944 F.2d 773, 775 (10th Cir.
1991). The employee bears the burden of demonstrating both of these elements.
See id. If the employee satisfies that burden on both elements, the employer must
then establish by a preponderance of the evidence that it would have taken the
adverse employment action even if the employee had not made the controversial
statements. See id.

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showing his classroom expression is constitutionally protected, we look to the

Supreme Court’s decision in . . . Kuhlmeier . . . .” Miles, 944 F.2d at 775. The

Miles court then proceeded to determine whether, under the test established in

Kuhlmeier, the actions taken against Miles reasonably related to a legitimate

pedagogical interest. See id. at 775-79. Concluding that the school’s actions

against Miles were reasonably related to legitimate pedagogical interests, this

court finally stated, “Miles has [thus] not shown that his classroom comments . . .

were constitutionally protected.” Id. at 779.

The College is therefore incorrect to bifurcate as separate arguments (1)

that Vanderhurst’s speech was not constitutionally protected, and (2) that his

termination was reasonably related to the College’s legitimate pedagogical

concerns. Under the analytical rubric of Miles, the College’s two separate

contentions address the same issue; in other words, whether Vanderhurst’s

termination reasonably related to the College’s legitimate pedagogical interests is

the test for determining whether his speech fell within the ambit of First

Amendment protection. Cf. Conward v. Cambridge Sch. Comm., 171 F.3d 12, 23

(1st Cir. 1999) (utilizing the Kuhlmeier test to determine whether a high school

teacher’s distribution of lewd materials to a student were protected by the First

Amendment). But see Edwards v. California Univ. of Pa., 156 F.3d 488, 491 (3d

Cir. 1998) (“We do not find it necessary to determine whether the district court’s

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instruction adequately defined ‘reasonably related to a legitimate educational

interest’ standard because, as a threshold matter, we conclude that a public

university professor does not have a First Amendment right to decide what will be

taught in the classroom.” (emphasis added)).

2. Whether Termination Reasonably Related to Legitimate
Pedagogical Concerns

In Kuhlmeier, the Supreme Court established an analytical framework for

determining when a public high school’s restrictions on school-sponsored student

speech violates those students’ First Amendment rights: “educators do not offend

the First Amendment by exercising . . . control over . . . student speech in school-

sponsored expressive activities so long as their actions are reasonably related to

legitimate pedagogical concerns.” 484 U.S. at 273. This court in Miles extended

that holding to a school’s control over the classroom speech of a public high

school teacher. See 944 F.2d at 777. This court has not decided, however,

whether that same analytical approach should be applied to a college or

university’s ability to restrict the classroom speech of a professor. On appeal,

both Vanderhurst and the College embrace the Kuhlmeier approach as the proper

means to analyze Vanderhurst’s First Amendment claim. This court will thus

assume for purposes of this appeal that the analytical framework established in

Kuhlmeier is indeed appropriate to this case; we need not decide definitively,

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however, whether that framework does in fact govern a public college or

university’s control over the classroom speech of a professor or other instructor. 2

In the instant case, the district court ruled as a matter of law that the

interests embodied in the College’s sexual harassment policy and code of ethics

and stated as the reasons for terminating Vanderhurst did constitute legitimate

pedagogical concerns. Additionally, the district court determined that neither the

sexual harassment policy nor the code of ethics are unconstitutionally vague.

Finally, in granting the College’s Rule 50 motion on Vanderhurst’s equal

protection claim, the district court ruled as a matter of law that the College did

not act in a discriminatory or vindictive manner in firing Vanderhurst. Given

these three rulings, the College contends that the district court was required to

rule as a matter of law that the termination was reasonably related to legitimate

pedagogical interests. Specifically, the College first asserts that whether the

termination reasonably related to legitimate pedagogical interests is a question of

law which the district court erroneously submitted to the jury. The College then

2
Not all courts have adopted the Kuhlmeier framework as the proper
means to assess a college or university’s restriction of in-class speech by an
instructor. See, e.g., Bishop v. Aronov, 926 F.2d 1066, 1074-76 (11th Cir. 1991)
(utilizing a unique balancing test); Scallett v. Rosenblum, 911 F. Supp. 999, 1011
(W.D.Va. 1990) (applying the Pickering balancing test to a university’s control
over an instructor’s speech, rather than the Kuhlmeier test, because the interests
discussed in Kuhlmeier justifying allowance of greater speech restriction in
secondary schools are not at stake to the same degree in higher education).

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maintains that had the district court made this determination, instead of allowing

the jury to do so, the court should have ruled in its favor. Vanderhurst counters

that the College waived its right to press these two related arguments on appeal

because it failed to articulate them in its Rule 50 motions.

This court generally will not entertain arguments on appeal which the

appellant failed to raise before the district court. See Crow v. Shalala, 40 F.3d

323, 324 (10th Cir. 1994). More specifically, “[a Rule 50] motion for judgment

as a matter of law made at the close of all the evidence preserves for review only

those grounds specified at the time, and no others.” Correa v. Hospital San

Francisco, 69 F.3d 1184, 1196 (1st Cir. 1995). Finally, Rule 51 of the Federal

Rules of Civil Procedure states, “No party may assign as error the giving or the

failure to give an instruction unless that party objects thereto before the jury

retires to consider its verdict, stating distinctly the matter objected to and the

grounds of the objection.” Fed. R. Civ. P. 51.

At the close of Vanderhurst’s case, the College orally moved for judgment

as a matter of law on the First Amendment claim, stating simply, “we believe that

there has been insufficient evidence to show that Dr. Vanderhurst was terminated

for the exercise of any First Amendment protected rights . . . .” The College thus

rested its initial Rule 50 motion upon the broad contention that Vanderhurst’s

speech was not protected under the First Amendment. After extensively

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discussing whether Vanderhurst’s speech was constitutionally protected, the

district court denied the motion, concluding that sufficient factual disputes

existed about the controversial speech which the jury needed to resolve before the

court could issue a legal ruling. At that time, however, the district court

addressed the First Amendment claim within the analytical framework of

Pickering v. Board of Educ., 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S.

138 (1983) and not under the Kuhlmeier and Miles approach. 3 The College was

also then operating under the belief that Connick/Pickering, rather than Kuhlmeier

and Miles, provided the appropriate analytical framework for the First

Amendment claim. 4 Indeed, the College’s pretrial motions, which argued within a

3
The Connick/Pickering analysis requires the court to determine if the
speech was protected first by ascertaining whether the speech touched upon a
matter of public concern, and second, by balancing the public employer’s interests
in controlling its work environment and fulfilling public responsibilities against
the employee’s interest in the speech. See Pickering v. Board of Educ., 391 U.S.
563, 574 (1968); Connick v. Myers, 461 U.S. 138, 146, 150-54 (1983).
4
For example, in its summary judgment motion, the College argued
exclusively within the context of Connick/Pickering. Although that motion did
discuss Miles, but not Kuhlmeier, it did so only for the proposition that the
College had substantial interests as recognized by Miles, which should weigh in
its favor under a Connick/Pickering balancing. There is nothing in the record to
indicate that between filing that summary judgment motion and making its initial
Rule 50 motion, the College ever attempted to shift the court’s analytical focus
away from Connick/Pickering and onto Kuhlmeier.
Interestingly, Vanderhurst’s motion in opposition to the College’s summary
judgment motion did argue within the framework of Kuhlmeier and Miles. It does
not appear, however, that the College or the district court ever picked up on this
suggested approach prior to the time the College filed its “trial brief,” the day
after it made its initial Rule 50 motion.

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Connick/Pickering analysis, likely induced the district court to adopt just such an

approach. Due to the College’s position when it made that initial Rule 50 motion

regarding the proper analytical framework, it did not argue then that the district

court should decide as a matter of law that Vanderhurst’s termination reasonably

related to the College’s legitimate pedagogical interests.

The following day, the College filed a “trial brief,” which finally urged the

district court to analyze Vanderhurst’s First Amendment claim under the

analytical rubric of Kuhlmeier and Miles rather than under the framework set out

in Pickering and its progeny. After advocating such an analytical approach, the

College’s brief stated, “Defendants have demonstrated in evidence adduced

during Plaintiff’s case-in-chief that his classroom comments implicated the three

pedagogical interests outlined in Miles.” The College did not argue in that brief

that it would be improper for the jury to resolve the issue of whether the

termination reasonably related to the College’s legitimate pedagogical concerns,

nor did it even request that the district court answer this question as a matter of

law. Indeed, nowhere in the trial brief did the College either refer to Rule 50 or

request any form of relief. Rather, it seems that the College’s intent in filing the

brief was merely to refocus the trial court on what the College now considered the

proper mode of analysis for Vanderhurst’s First Amendment claim, i.e., the

analytical structure set out in Kuhlmeier and Miles.

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 After the close of all the evidence, the district court held a jury instruction

conference. During the conference, the district court stated that the proper

analysis required answering two questions: “whether there are shown to be

legitimate pedagogical interests, and secondly, whether the actions taken by the

school are reasonably related to legitimate pedagogical interests.” The court then

declared that the first inquiry presented a question of law, which it answered in

the affirmative. The court stated that it would submit the second question to the

jury. The district court then continued this discussion, stating, “And if I

determined that [the] defendants’ pedagogical interests in this case stated as a

basis for the termination are legitimate, that’s no longer a factor for the jury to

consider here. What they’re considering is the reasonableness of the action in

termination.” The College simply responded, “Okay.” 5 After further discussion

5
This colloquy reveals the litigants’ misunderstanding of the question
whether the termination reasonably related to legitimate pedagogical interests.
That question does not ask whether the specific adverse employment action taken,
here, termination, was a reasonable one in light of the teacher’s alleged
transgression. That decision is left to the institution itself, and a federal court
should play no role in judging the reasonableness of the sanctions which a school
levies against its employees. See Miles, 944 F.2d at 779 (“[W]e will not interfere
with the authority of the school officials to select among alternate forms of
discipline.”). Rather, an adverse employment action reasonably relates to a
school’s legitimate pedagogical interests if the employee’s conduct prompting the
sanction, as perceived in good faith by the school, in some way violated or
vitiated those legitimate pedagogical concerns. In this case, therefore, the
question is whether the speech that the College in good faith believed
Vanderhurst uttered violated the College’s sexual harassment policy or code of
ethics, which embodied legitimate pedagogical concerns. Regardless of this

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about other aspects of the relevant jury instruction, the district court read the

finalized version, to which the College responded, “That’s fine, your Honor.”

Significantly, at no time before, during, or after this conference did the College

object to the submission to the jury of the question whether the termination

reasonably related to legitimate pedagogical concerns or even state that it viewed

this as a legal inquiry. Quite to the contrary, the College’s own statements during

this colloquy reveal that the College, like the district court, viewed the question

as one for the jury.

Finally, after the jury instruction conference ended, the College renewed its

Rule 50 motion, merely stating, “On the [First Amendment] claim we would

incorporate the reasoning in Miles, in Bishop v. Aronov, and also in . . . Edwards

v. California University of Pennsylvania . . . .” The College articulated no

specific arguments to support its renewed Rule 50 motion. The district court then

denied the motion, to which the College responded, “I would just like to reserve

that issue as to the submission of the academic freedom First Amendment claim . .

. .” Again, the College failed to state any specific reasons for objecting to the

submission of the First Amendment claim to the jury.

apparent misunderstanding, the College’s response to the court’s discussion does
demonstrate that the College viewed the question as one properly within the
province of the jury.

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 This record reveals that the College never argued before the district court,

as it does now on appeal, that the question whether the termination reasonably

related to legitimate pedagogical interests is not a question for the jury, but

instead a question of law for the court. The College had ample opportunity to

make the court aware of its opposition to submitting this question to the jury.

Nevertheless, in its motion for summary judgment, in its initial Rule 50 motion, in

the trial brief, during the jury instruction conference, and in its renewed motion, it

failed to do so. Not only did the College fail to object to the submission of this

question to the jury, during the instruction conference the College explicitly

agreed with the district court that the question belonged to the jury. Pursuant to

Rule 51, the College’s failure to object to the giving of this instruction renders

fatal its argument that the submission of this question to the jury warrants reversal

of the judgment. See Fed. R. Civ. P. 51. Because the College never objected to

the submission of this question to the jury or stated that the question required a

legal determination by the court, this court concludes that the College waived its

appellate argument that the submission of this question to the jury warrants

reversal of the judgment. 6

6
The College contends that, despite its failure to object to the instruction,
Poindexter v. Atchison, Topeka and Santa Fe Railway Co. , 168 F.3d 1228, 1232
(10th Cir. 1999) requires this court to reverse the judgment because the giving of
a legal question to the jury constitutes plain error. We disagree. Unlike the
instruction in Poindexter , the question of whether Vanderhurst’s termination

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 Having reviewed the entire record surrounding the College’s Rule 50

motions and having concluded that the College never argued against submitting to

the jury the question whether Vanderhurst’s termination reasonably related to the

College’s legitimate pedagogical interests, this court is uncertain as to the

specific grounds upon which the College did base those motions, particularly the

renewed motion. The initial Rule 50 motion was predicated upon the argument

that under a Pickering analysis, the speech for which Vanderhurst was terminated

was not constitutionally protected. In making its renewed Rule 50 motion, the

College merely offered an entirely vague reference to Miles without articulating

any specific argument to support its motion. The College’s nebulous presentation

could not have alerted the district court that the reasonable relationship issue was

being tendered for its review. This court therefore concludes that the College

also waived for appellate review the argument that the district court should have

reasonably related to legitimate pedagogical interests, though perhaps itself a
legal one, does implicate factual findings. Before a court can answer the
question, a jury must first make findings regarding the relevant speech. See
supra note 5. Poindexter , therefore, is not controlling here. Furthermore, in the
instant case the jury made no such findings, in part because the College failed to
argue that the question was a legal one and request that the jury make the
relevant predicate findings. Both because we lack those findings and the College
did not include the entire trial transcript in the record on appeal, this court cannot
conclude that the giving of the instruction “seriously affected the fairness,
integrity or public reputation of judicial proceedings.” Aspen Highlands Skiing
Corp. v. Aspen Skiing Co. , 738 F.2d 1509, 1516 (10th Cir. 1984) (quotation
omitted). As a consequence, there is no plain error.

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granted its renewed Rule 50 motion because Vanderhurst’s termination reasonably

related to the College’s legitimate pedagogical concerns.

Because the College waived for appellate review its arguments challenging

the judgment on Vanderhurst’s First Amendment claim, we must affirm that

judgment.

C. The Contract Claim

This court will not “undertake to decide issues that do not affect the

outcome of a dispute.” Griffin v. Davies, 929 F.2d 550, 554 (10th Cir. 1991).

Although Vanderhurst prevailed on both his First Amendment and contract claims

and the jury found he had sustained $557,100 in damages on each claim, the

parties stipulated that he could only recover once. Reflecting that stipulation, the

district court’s judgment awarded Vanderhurst damages of only $557,100. That

award remains intact because we affirm the judgment on the First Amendment

claim. This court thus need not address the appeal on the contract claim, and we

decline to do so. 7

7
This court generally avoids reaching constitutional issues when it can
resolve an appeal on other grounds. See United States v. Gonzales, 150 F.3d
1246, 1254 (10th Cir. 1998). In the instant case, however, the district court
ordered that Vanderhurst receive attorney’s fees for his First Amendment claim
upon filing an appropriate motion. At oral argument, both parties agreed that
Colorado law would not similarly allow Vanderhurst to recover attorney’s fees for
his contract claim. To avoid affecting the district court’s order pertaining to

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IV. CONCLUSION

Because the College failed to articulate before the district court those

arguments which it now presents on the First Amendment claim, this court

AFFIRMS the judgment on that claim. In light of the structure of the district

court’s final judgment, we decline to address the merits of the College’s argument

on the contract claim. Thus, the judgment entered by the United States District

Court for the District of Colorado is hereby AFFIRMED.

REAVLEY, J., concurs in the result only.

attorney’s fees, this court therefore needed to resolve the College’s challenge to
the First Amendment claim rather than to the contract claim.

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