Board of Educ. of Jefferson Co. v. Wilder

Justice HOBBS,

dissenting.

I respectfully dissent. I agree with the court of appeals that Wilder’s dismissal by the Jefferson County School Board (Board) was arbitrary, capricious, and legally impermissible. In his professional judgment, Wilder determined that showing the film 1900 to his logic and debate class of seventeen- and eighteen-year-old young adults would be appropriate and not controversial. Given the vagueness of Board policies INB and INB-R (policies), it is not possible to determine whether his conduct was prohibited by them.

I would hold that the portion of the policies relating to “controversial learning resources” and “controversial issues,” insofar as they subject a teacher to discipline for an alleged violation, are unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment. The policies are stan-dardless and require teachers to guess what the Board might later consider to be “controversial.”

The majority characterizes 1900 as containing “a significant amount of nudity, sexual content, and graphic violence,” and concludes that it is self-evident that an “R” rated film offends the policies. Maj. op. at 704. I read the hearing officer’s findings, the record of this case, and the applicable law differently. A teacher with twenty-five years of service in Jefferson County, Wilder was unjustly fired and should be reinstated.

I.

The Facts of This Case

A.

1900

1900 is a 255 minute film, directed by Bernardo Bertolucci, depicting events in Italy between 1900 and 1945, perhaps the most violent and transforming half-century in human history. Persons living in wéstern mainland Europe during this period personally experienced two world wars, socialism, fascism, communism, and the liberation of *707their countries from dictatorship. Bertoluc-ci’s film shows families and family members, rich and poor, and how they endured or disintegrated during this time.

The film is generational, epic, artful. Born on the same day in 1900 on the same estate, two boys, one rich — the landowner’s grandson (played by Robert DeNiro) — and one poor — a peasant’s grandson (played by Gerard Depardieu) — grow up and grow old together. Though they are natural adversaries by economic and social class, they become lifelong friends.

The movie begins with the old padro-ni/grandfather (played by Burt Lancaster) celebrating his grandson’s- (DeNiro’s) birth by taking bottles of wine into the field to share with the peasant workers, one of whom is his lifelong friend and also the grandfather of the other boy (Depardieu). The film ends in 1945, upon the liberation of Italy, with the trial of a citizens’ court wherein Depardieu’s peasant character spares the life of DeNiro’s landed character.

In between occurs the rise, cruelty, and fall of fascism portrayed through the character of the estate’s foreman (played by Donald Sutherland). As the film progresses, he kills a cat and then proceeds to kill humans for personal and political purposes.

The peasant workers liberate the estate they have labored on their whole livés, as the country is simultaneously being liberated by the allies from the fascists. Sutherland’s black-shirted character confesses, as long suspected by the peasants, to murdering two persons, a boy who has taken the fascist’s black gloves to try them on, and a widow whose villa the fascist and his lover covet. Having manipulated these murders to gain power and property for himself, and having falsely accused others, the fascist is executed by a peoples’ court at the foot of his victims’ gravestones while an accordion plays and the people dance.

DeNiro’s character is tried by the peoples’ court and found guilty of being the padroni, the padroni’s son, and the padroni’s grandson. An act of grace spares him. Depar-dieu’s character declares that the padroni is forever dead but the person of this last pa-droni must live, so to constantly remind the people of their victory.

Having been spared, instead of thanking Depardieu, DeNiro declares to his face that the padroni is not dead. The two of them fall immediately to wrestling as they have done, in sport and in conflict, throughout their lives. In the last scene of the film, old with age, they wrestle on a country path with slices of their youth and old age flashing against the rural landscape they treasure.

The film contains brief scenes showing nude persons or suggesting that acts of sex are occurring or have occurred. However, these scenes universally occur in the context of a much longer narrative and are markers of passing moments in the protagonists’ lives. They are not shown in shocking or erotic detail. For example, the two pubescent boys are shown fully clothed doing push-ups on the ground, suggesting experimentation with masturbation. They are not shown masturbating. When they briefly expose themselves to each other in a separate scene they are commenting evidently on the fact that one is circumeised and one is not.

When they are young adults, the DeNiro and Depardieu characters get into bed with a woman DeNiro has paid. This scene is shot from the foot of the bed and does not show any sex act. The woman is forced to have an alcoholic drink and goes into an epileptic fit. Her fit drowns out any notion of eroticism, and the entire scene functions to show the corruption of a rich man’s power over a young peasant woman. The drug use Scene is brief, and again is evidently utilized to show the corruption of money in an urban setting apart from the values of a farming community. This scene does not glorify the use of drugs.

The scene of the fascist played by Donald Sutherland killing the cat with his head shows blood on his head but not the agony of the cat. This scene is later paralleled by the fascist killing the boy who is eavesdropping on the fascist and his lover. The fascist swings the boy by his feet in the air so that his head hits the wall, killing him. The boy’s death is not shown in gory or agonizing detail. Nonetheless, this scene convincingly portrays the cruelty of fascism.

*708Contrary to the Board’s and the majority’s portrayal, 1900 is not a patently offensive movie. It deals with the fascist counterpart to Nazism in the same era as Schindler’s List. Wilder’s students were unable to see the whole of the film and debate its viewpoints because the principal confiscated it upon the complaint of a parent.

B.

1995

Wilder, who first began his teaching career in Jefferson County in 1970, was an innovative teacher known for helping students develop their critical thinking skills and utilizing a wide variety of instructional aids. A faculty evaluation during his third year at Columbine High School describes him as follows:

I am convinced that he is a uniquely talented and diverse educator. He is a warm, sensitive teacher who is extremely supportive of his students. He has a special skill in prompting students to participate in classroom discussions without fear of judgment and ridicule from their peers. His classroom techniques are many and diverse. He is a skilled educator who is constantly challenging his students to develop them critical thinking skills. He uses a wide variety of techniques to foster student participation in class. He is constantly making the subject matter relevant to today’s society. He uses the chalkboard, audio-visual materials, class hand-outs and student presentation frequently. His ever changing classroom technique keeps students involved and interested to the point where there weren’t any visible discipline problems.

Evaluations throughout his career up to his termination contained similar comments. However, at-times he was late to his classroom or excused himself from the classroom to use the phone while students were doing assignments. He explained that these instances were due to having to pay attention to problems at home stemming from illnesses of both his daughters and from his wife’s resulting emotional fragility. Wilder’s evaluations at times caution him to improve his classroom attendance, and he was admonished for allowing students to have food in the classroom; but he was not required to pursue a remediation plan, nor was he administered any other form of discipline during his long tenure with the school district. Students praised his teaching and his concern for them. They also testified that other teachers had been late to class or had excused themselves while class was in session, and they did not notice or think that Wilder was inordinately absent.

The school district fired Wilder after he showed 1900 to his senior year logic and debate class in March of 1995. 1900 has an “R” rating. Newspaper advertisements for films rated “R” shown in the communities of the school district bear the following advisory in capital letters: RESTRICTED, UNDER 17 REQUIRES ACCOMPANYING PARENT OR ADULT GUARDIAN. Wilder’s students were all either seventeen or eighteen years of age. 1900 is available for rent in the “drama” section of Denver metropolitan area video stores.

Wilder and many other teachers had been using films as instructional aids in their classes at Columbine. Because the school district had only a handful of films listed as an official part of the curriculum, and the list had not been updated since the mid-to-late 1980s, the teachers individually selected those films which they believed would forward the content of their courses in accordance with the school district’s curriculum. Some of those films were “R” rated. Some teachers used parental permission slips in connection with using such films in the classroom, others did not. Only one teacher had cleared an “R” rated movie by prior written notice to the principal, Schindler’s List. In that case, parental permission was particularly needed because the students had to travel to a local theater to see the movie.

Neither the school district’s written policy, nor Columbine’s informal policy, contained a specific requirement that “R” rated films be reviewed with the principal prior to their use. Rather, these policies addressed the use of “controversial learning resources.”

The school district’s written policy INB stated that:

*709Controversial issues include matters characterized by significant differences of opinion usually generated from differing underlying values, beliefs and interests, which produce significant social tension and which are not necessarily resolvable by reference to accepted facts. Matters usually become controversial not so much due to disagreement about facts, but as to the interpretation or values to be applied to facts.

Policies INB and INB-R (INB’s procedural counterpart) turned upon the responsibility of the classroom teacher to. decide in the first instance whether the material he or she intends to use is a controversial learning resource. In the teacher’s doing so, policy INB stated that:

Due consideration must be given to the maturity and ability of the students, standards of the community and sound professional judgment.

The school district’s policies were not included in teacher handbooks at Columbine. The school’s principal testified that he had not talked in any faculty meeting about the policies and had not sent any written statements of policy or memoranda to the tea'eh-ers regarding them:

Q. You also didn’t talk about policy INB in any faculty meetings prior to March of 1995, correct?
A. I don’t think we talked — we have talked specifically about the policy, no.
Q. You haven’t sent any notices .to the teachers in the five years that you’ve been at Columbine telling them what you expect if they are going to use a controversial material, correct?
A. No.
Q. ... My question is this: Is there any written policy in the school district that requires a teacher to get permission slips if they’re going to show a movie?
A. No.
Q. ... You didn’t- send' out any written notices to the teachers saying that if you’re going to use an R-rated movie, you send out permission slips first?
A. No.

Despite the fact that policies INB and INB-R were not contained in faculty materials, they were filed in Columbine’s library. Columbine’s principal testified that there existed an unwritten policy at the school which the teachers understood. They were to clear controversial learning resources with him. These policies rested, in the first instance, on teachers determining in their professional judgment whether the learning resource was controversial, so as to require clearance from him:

Q. A teacher does not have to get permission to use a controversial — well, a teacher does not have to get permission from you . to use a resource if they don’t believe it’s controversial?
A. I think that’s true in the sense that teachers use resources that they select all the time.

Columbine’s principal knew that Wilder had regularly used films in his classes and had not objected to Wilder's use of them; in addition, no administrator during Wilder’s twenty-plus year record of service with the school district had objected to Wilder’s choice of resources 1:

Q. ... My question is: Prior to Mr. Wilder showing the movie “1900” in March of ’95, you never objected to any of the movies he showed in his class?
A. I don’t believe I did, no_
Q. In the 20-year-plus history of Mr. Wilder’s career in Jefferson County, no administrator has objected at least in writing to his use of materials in the classroom, to your knowledge?
A. To the best of my-knowledge, there is nothing in Mr. Wilder's file that communicates an objection by. an administrator.

Wilder’s normal practice was to circulate a general parental permission slip to his students at the beginning of the school year; these included - an advisory that “R” rated films might be shown in the class. Many of *710the students in his logic and debate classes had taken other classes from him wherein films had been shown without pre-clearance and without objection by the administration.

Before showing 1900 to his students, Wilder previewed the opening fifteen to twenty minutes of it with the class, and asked them whether they wanted to proceed with viewing the movie. The class decided in favor of this. Wilder had chosen the film because, in the preceding weeks, he and the students had shifted from “early Greek ideas, Aristotle, Plato” to the 20th century: “I decided to focus on a half-dozen key ideas. And those key ideas were socialism, fascism, democracy, feudalism, and something about individual freedom.... ” He did not consider these themes or the film to be controversial:

Q. Do you consider the film “1900” controversial?
A. No, I do not.
Q. Did you at the time consider it controversial?
A. No, I did not.

Nevertheless, before showing the fifteen to twenty minute preview, Wilder explained and cautioned the students that the film contained graphic realism at times. On the second day, one of the students asked whether they should be seeing this film. Wilder said that anyone who was disturbed could put his or her head down during the particular scene or be excused to do an alternate assignment in the library. After three to five days of showing and discussing the film in class, one of the students spoke about several of the scenes with a parent. The parent called the principal. The principal confiscated the film. He watched it by fast-forwarding to certain scenes. Upon viewing scenes he thought might be considered “controversial,” he forbade the class from continuing to view and discuss it, suspended Wilder, replaced him with a substitute teacher, and prepared — for disciplinary purposes — a twenty minute edited version of “controversial” scenes from the 255 minute film. Wilder’s termination followed a grievance which he filed for being placed on administrative leave.

Columbine’s principal asked the students of the logic and debate class to complete a written questionnaire concerning the film; the overwhelming majority considered it to be appropriate. Only two objected. Several students testified regarding their belief that the film was appropriate, for example:

Q. Did you have an opinion about whether the movie was appropriate to what you were discussing?
A. Yes, I believe it was very appropriate to what we were discussing.
Q. Why do you believe that?
A. Well, since we were discussing socialism and fascism, the movie was pertinent to what we were discussing. It was illustrating all the aspects of that, and what went on during that time....
Q. Did you see — was there anything in the movie that offended you?
A. No.
Q. Why? That might not be a very good question, but why do you feel that there was nothing offensive in the movie?
A. I can see the same kind of things on TV, prime time television. I’m — I was 17. I’m 18 now. I can go to the movie theater and see the same — the same thing.

Film critic and teacher Howie Movshovitz of the Denver Post and KCFR Public Radio testified that the twenty minute version of the film prepared by the principal did not fairly present the film. Movshovitz stated that scenes alleged to be offensive, taken in context, were not titillating but were utilized to illustrate the themes of class differences and morality, people going too far: “[Ijt’s not about sex. It’s about corruption, I think, personal corruption.”

Dr. Kearns, a professor of English at the University of Northern Colorado, testified as an expert witness that the movie was appropriate for seventeen- and eighteen-year-old persons to watch in a course on debate, since the very nature of a debate class is to look at various viewpoints. In his opinion, the film was not controversial when shown in the context of this course and age group, was appropriate for its intended purpose, met the school district’s general curriculum guide*711lines, and was not offensive to community standards. He testified, in part, as follows:

Q: Do you have an opinion as to whether or not the showing of “1900” and also — by the way, can you give us the grounds and tell us why it should be shown and it was not objectionable and not controversial to show it to a 17- and 18-year-old group? You said it is not. Tell us why you feel that way.
A: Well, to begin with, the District policy that I read does not define controversy in itself. Certainly the film that I saw, it included very brief scenes of nudity; certainly it had political content; it had a violent content. But totally outside of the context within which it was taught, if I had looked at that film strictly in and of itself, I would not have regarded that as in any way objectionable or controversial. I wouldn’t have hesitated to use it in my own class and in a classroom of a 17- and 18-year-olds.
In the context of the District policy that I read, there was no definition of what constitutes controversial material. There was a reference to maturity level of students. And I would certainly regard 17- ,and 18-year-olds as mature enough to see that particular film.
And finally, there was a reference, as I recall, to community standards or respect for community standards, which I feel that I have. And certainly in all of those eases there were no clear definitions. I felt that that film would not violate a community standard of value and, therefore, on that basis I reached my opinion not simply in the abstract of judging the film but also in the context of the particular course in the District.
, Further, in looking closely at the film, I noticed the particular ways in which Berto-lucci directed some of the scenes that apparently have come [under some] question. And his film techniques clearly minimize the prurient dimension, if that’s what’s in question, using care in the distance of the camera from the subject matter, using lighting and shadowing, and especially using dialogue that works through some of those scenes and maintains attention, the audience’s attention on the political controversy or the kinds of arguments that the film .involves.
So from those multiple perspectives, and I think that the last one is particularly important, I reached the conclusion that that film would be appropriate to a 17- or 18-year-old audience, certainly in this community, elsewhere throughout the state.

A Fort Collins high school English teacher who had the same age group of students agreed.

C.

The Hearing Officer’s Findings

The hearing officer determined that dismissal was not warranted, that although Wilder was tardy and absent from class and the principal had warned him to correct this conduct, he had shown improvement in his punctuality and class attendance, and that the policy regarding controversial learning resources was unduly vague.

The hearing officer found that the dismissal proceedings would not have been instituted were it not for Wilder showing 1900:

The School District seeks dismissal of Mr. Wilder after he showed 1900. The Hearing Officer finds that showing the 1900 was “the straw that broke the camel’s back” and but for this action, no dismissal proceedings would have been instituted. Therefore, the Hearing Officer must determine whether Mr. Wilder’s actions in showing the film was insubordination, neglect of duty or other and just cause.

The hearing officer found in favor of the opinions of the experts who testified as to the educational value and appropriateness of the film:

The evidence is undisputed that 1900 has literary and artistic valued The experts and Mr. Bertolucci2 testified in great detail about the literary, political and artistic aspects, and what the movie is trying to portray. Mr. Wangswick, who teaches high .school English in Fort Collins, testi*712fied he would not have a problem showing 1900 to seniors in high school. Dr. Kearns, a professor of English '... also opined that he believed the movie was appropriate for 17 to 18 year olds to watch in a course on debate since the very nature of a debate class is to look at different viewpoints. In his opinion, the film is not controversial, is appropriate for its intended purpose and met the School District’s general curriculum guidelines.

The hearing officer found that-the movie 1900 was appropriate and relevant to the school’s curriculum for Wilder’s logic and debate class:

The Hearing Officer finds that 1900 as a learning resource was relevant to the curriculum objectives of Mr. Wilder’s course and that it was useful in contributing to the attainment of the educational objectives. The Hearing Officer also finds that the themes presented in 1900 were useful in trying to teach students to think critically and act responsibly toward others and students had the ability and maturity to understand the purpose of the movie.

The hearing officer found that Wilder himself had determined the "film to be useful and appropriate for his logic and debate class:

He believed the movie was a great masterpiece for neo-realism_ Since Mr. Wilder liked to teach literature in historical context, he thought 1900 was a good introduction to the twentieth century and the role of the individual in society.

The hearing officer further found that teachers at Columbine had different perceptions about what type of material was “controversial”:

The teachers had different definitions for controversial material. Some testified that the material had to be provocative, contain extreme language, extreme violence or be sexual in nature. One teacher testified that if the film is rated “R” it might be considered controversial but one had to use her professional judgment. Ms. Samson testified she does not use controversial materials even though the movie The Browning Version which is rated “R” was shown to her class and some of the plays the students attended contained sexual scenes.

The hearing officer determined that neither the school board’s written policy, nor the school’s unwritten policy gave fair warning that a film such as 1900 is a “controversial learning resource”:

Since a teacher must only seek review of controversial material with the principal, it can only be a violation of the policy if the material is in fact controversial. The Hearing Officer agrees with the teacher that neither the unwritten policy nor Policy INB gives fair warning to Mr. Wilder that a film such as 1900 is a controversial learning resource. The Hearing Officer finds that persons of ordinary intelligence must guess at the meaning of a “controversial learning resource.” Accordingly, the Hearing Officer finds that because the policies are vague, Mr. Wilder cannot be disciplined for making a professional judgment that 1900 was an appropriate teaching material for his Logic and Debate class.

The Board accepted the hearing officer’s findings of fact but nevertheless terminated Wilder, citing “erratic arrival at school; failure to appear for an administrative staffing; failure to report or reporting late to assigned duty;, failure to complete paperwork on time; late arrival for his supervision duty, and missed parent/teacher conferences.” The Board also cited “neglect of duty” in failing to advise the principal of his decision to show 1900 as a reason for termination. The Board determined that the controversial learning resources policy was not unduly vague and that “any ‘R’ rated film containing scenes of nudity, sexual conduct, drug use, and violence falls well within the scope of the policy”

The court of appeals ruled that Wilder did not' have prior notice of the policy and regulation concerning controversial learning resources. We granted certiorari on three issues, including whether the policy was vague. I agree with the hearing officer and the court of appeals that Wilder did not receive due process of law.

*713ii.

The Law of This Case

I would hold that the hearing officer was correct in concluding that Wilder should not have been fired. Given the vagueness of the policies, see discussion infra Part II.B., his actions were not inconsistent with their requirements. He showed the film after exercising his sound professional judgment that the film was not controversial in light of the curriculum content of his course and the maturity of the students. The policies failed to give adequate notice that Wilder’s use of 1900 in the logic and debate class to students of seventeen and eighteen years of age was grounds for immediate termination.

A.

Compliance With the Policies

School board policy IÑB-R provides:

The teaching of controversial issues and the selection and use of controversial learning resources requires the recognition of responsibilities by the teacher to students, by the principal to the school and by the school to the community.

The “Guidelines for teachers” to implement this policy are set out as follows:

Guidelines for teachers

The teacher will adhere to the following guidelines:

1. Teaching about controversial issues and use of controversial 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.
2. Issues and learning resources selected for discussion and study must be appropriate for instructional use and contribute to the attainment of the educational objectives of the course.
3. Teachers will follow the approved district curriculum subject matter. All course content and activities must be consistent with stated course objectives.
4. The issues and learning resources should be within the level of the student’s ability and maturity and consistent with community standards. .
5.In teaching about controversial issues or using controversial learning resources, developing the students’ skills of critical thinking and problem-solving and understanding of the democratic process will be the principle [sic] goals.
6. Teaching strategies should be fairly employed so that all sides of the issues are explored.
7. Suitable materials, including facts and concepts relating to-all aspects of the issue should be available. ■
-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.

Contrary to the findings of the hearing officer, the Board found that Wilder did not show the film 1900 “in accordance with the standards and procedures established by school district policy and regulation.” Because Wilder’s actions were not inconsistent with the Board’s policies, I disagree with the Board’s finding.

In ordering the dismissal of a teacher, pursuant to sections 22-63-101 to -403, 7 C.R.S. (1997), a school board is bound by the hearing officer’s findings of evidentiary fact if those findings are adequately supported by the record. See Board of Educ. of West Yuma v. Flaming, 938 P.2d 151, 157 (Colo.1997). In reviewing the termination of a teacher, a reviewing court is likewise bound by the hearing officer’s findings of fact so long as they are supported by the record. See Adams County Sch. Dist. No. 50 v. Heimer, 919 P.2d 786, 791 (Colo.1996). One of the hearing officer’s key functions in fact-finding is to review the evidence and testimony and make determinations as to the credibility of witnesses. See Blaine v. Moffat County Sch. Dist. RE No. 1, 748 P.2d 1280, 1286-87 (Colo.1988).

*714The Board in this case, although it rejected the hearing officer’s recommendation for retention, accepted the hearing officer’s findings of fact in-its Resolution and Order of Dismissal. I agree with the Board that the hearing officer’s findings are supported by the record.

However, in my view, given that the standards imposed by the regulations are so opaque as to be unknowable with reasonable certainty, the Board erred in determining that Wilder had failed to follow Board regulations INB and INB-R. The hearing officer found that (1) the film 1900 was suitable for the curriculum and appropriate for the maturity level of his class, and (2) Wilder, in his professional judgment, believed the film was appropriate in light of the standards of the community and not “controversial.”

Policy INB - provides that the classroom teacher decides whether the learning resource requires clearance with the principal:

Due consideration must be given to the maturity and ability of the students, standards of the community, and sound professional judgment.

It is unclear precisely for what purpose criteria 1 to 8 in policy INB-R are to be applied, and by whom. Thus, the relative importance of the teacher’s decision regarding the level of “controversy” surrounding a learning resource is unclear, rendering the policies’- requirements even more indeterminate. The steps embodied in criteria 1 to -8 may be intended to guide the teacher in determining whether written notice to the principal is to be given, as well as serving as a guide to teaching about “controversial and sensitive issues.”

The hearing officer’s findings are supported by evidence in the record demonstrating that the film met criteria 1 to 7 of Board policy INB-R. The hearing officer agreed with Dr. Kearns that 1900 has “literary and artistic value” and was “appropriate for 17 and 18 year olds to watch in a course on debate since the very nature of a debate class is to look at'different viewpoints.” -The showing of the film accorded with the- district’s policy as follows: it: (1) met the curriculum objectives (criterion 1), (2) was appropriate for instructional use (criterion 2), (3) was consistent with course objectives (criterion 3), (4) was within the level of the student’s ability and maturity (criterion 4), (5) supported development of critical thinking and problem-solving and understanding of the democratic process (criterion 5), (6) was fairly employed (criterion 6), and (7) included facts and concepts relating to all aspects of the issue being taught (criterion 7).

Because Wilder, in his professional judgment, did not deem the resource to be a “controversial learning resource” as utilized in the curriculum for his class, the proper application of criterion 8, clearance of the resource through the principal, is uncertain. The policies do not explain whether clearance of the resource is necessary when the teacher has determined that the resource is not “controversial.” The- problem with this indefinite policy is underscored in a scenario, like this one, where the teacher’s decision appears proper. Wilder’s exercise of professional judgment in this regard was shared by educators and film experts whose testimony the hearing officer accepted and believed.

Wilder was teaching high school logic and debate. Logic and debate require controversy; in the absence thereof, debate is impossible. The curriculum anticipated that the teacher of this particular course would necessarily engage in presenting “controversial” subject matter. One- definition of “debate” in Webster’s Dictionary is “controversy.” Webster’s Third New International Dictionary 582 (1961) (meaning 2a). Taken at its plain meaning, policy INB’s reference to “controversial learning resources” and “controversial issues” becomes almost nonsensical when applied to Wilder’s class. Wilder’s job assignment was to spark debate and lead his students along the path of critical thinking. He was not required to clear each and every “controversy” he intended to use.

The school had approved Schindler’s List in connection with an off-campus viewing of that film; Wilder had reason to believe, in comparing the two, that showing 1900 would not be “controversial.” With regard to community standards, all students in the class were at least seventeen, old enough to watch *715the movie by renting it from a video store or watching it in a theater without parental permission. Most, if not all, of the logic and debate students were about to graduate and enter into the adult world, a particularly appropriate time to view such a film that focuses on the rites of passage of two boys during a turbulent period in history when the democratic countries were struggling against the fascist and Nazi regimes for their survival. Grandparents of Wilder’s students were involved in this worldwide struggle.

The hearing officer believed Wilder when he stated that the film was appropriate, not “controversial,” given the context of-his job assignment and the class he was teaching. This is not a case in which the teacher knew a film was inappropriate but showed it anyway in an attempt to defy school authority. Rather, the teacher here made a reasonable attempt to follow the curriculum, and exercised reasoned judgment in accordance with the policies, in utilizing the film. He previewed and discussed the film with the students before proceeding. After it was shown, all but two of the students agreed that the film was appropriate. Short of sending all resources to the principal that are not on a specified list — a policy not in effect in Jefferson County — a teacher must exercise reasoned judgment under the existing policies in determining whether a resource is a “controversial learning resource” for his or her class.

The policies did not prohibit the showing of “R” rated films, so long as they were utilized in pursuit of the curriculum, nor did the policies specify that use of “R” rated films required clearance by the principal. The majority, like the Board, in finding that criterion 8 of INB-R had been violated (“controversial learning resource” requires twenty days advance notice in writing to the principal), ignores the hearing officer’s pertinent findings of fact that the film met the curriculum objectives and was suitable for the age and maturity of the class.

Nevertheless, the Board terminated Wilder, relying tautologically on the existence of a “controversy” to demonstrate that the film was a “controversial learning resource.” As discussed above, it appears that Wilder may have actually complied with the requirements of the policies. .However, the obscurity of the policies’ standards makes a definitive answer to this question impossible. Therefore I turn to the question of whether this obscurity renders the policies so vague as- to prevent their use in justification of firing Wilder.

B.

Vagueness of the Policies

•A regulation whose terms are unduly vague violates the Due Process Clause of the Fourteenth Amendment. See Parrish v. Lamm, 758 P.2d 1356, 1367 (Colo.1988). We have previously described the void-for-vagueness test as follows:

A statute offends due process of law ... if it is so vague that it does not provide fair warning of the conduct prohibited or if its standards are so ill-defined as to create a danger of arbitrary and capricious enforcement. ... A statute is not void for vagueness if it fairly describes the conduct forbidden, and persons of common intelligence can- readily understand its meaning and application.... The vagueness test “is not an exercise in semantics to emasculate legislation; rather, it is a pragmatic test to ensure fairness.”

Id. at 1367-68 (citations omitted). The hallmark of a vague law is its impermissible delegation of authority under circumstances inviting arbitrary enforcement:

A vague law impermissibly delegates basic policy matters to policemen, judges, and juries -for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications.

Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

To be void for vagueness, generally the law or regulation must be impermissibly vague in all of its applications. See Lamm, 758 P.2d at 1367. In some circumstances, however, courts have concluded that a person need demonstrate only vagueness as applied. See Smith v. Goguen, 415 U.S. 566, 578, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974) (“The language at issue is void for vagueness as ap*716plied_”); Adams v. Gunnell, 729 F.2d 362, 369 (6th Cir.1984) (“Instead, we must consider whether the catch-all rule is imper-missibly vague as' applied to the-conduct of these plaintiffs — that is, whether they had fair warning that their conduct was proscribed.”) In Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974), the Supreme Court required that a person demonstrate that the regulation was vague as applied to him or her. As explained below, the Board’s policies are vague as applied to Wilder’s conduct; thus, they cannot be utilized to fire him.

I would hold that the operative terms “controversial learning resources” and “controversial issues” are so vague that an ordinary person must guess as to their meaning, making the danger of arbitrary and capricious enforcement exceedingly high. Policy INB defines a “controversial learning resource” as “subject to disagreement” and defines a “controversial issue” as “characterized by significant differences of opinion usually generated from differing underlying values, beliefs and interests.” The policy gives no indication of whose yardstick measures “controversial.”

The public schools teach children from a diversity of families and backgrounds, many of whom undoubtedly have “differing underlying values, beliefs and interests.” The Board’s view of its policy forces the teacher to guess at what might fall within this policy. Potentially every novel .taught in English class, potentially every picture, film, or book taught in a world history class, and potentially every matter raised in a course on logic and debate could be “controversial” in the sense of being “subject to disagreement” or “characterized by significant differences - of opinion.” That is what makes them worth teaching.

A teacher who is charged with selecting resources for a class has no way of knowing what matters fall within the policies. He or she must (1) give the principal a twenty day written notice of any matter that ,is not specifically listed as part of the curriculum, or (2) proceed without, notice to the principal and take the risk that someone in the school community might think the matter “controversial,”. or (3) simply decide to refrain from teaching anything with which some person might have a problem.

The regulation is essentially standardless as it presently exists. The policies do not clearly explain the forbidden conduct because whether the conduct is forbidden turns on whether some member of the community, or the principal, and, ultimately the school board after the “controversy” begins, might find it “subject to disagreement.”3 The evidence shows that the teachers at- Columbine themselves did not know how to interpret the policies. Indeed, the hearing officer found that teachers differed in their interpretations of the meaning of “controversial” as the regulation uses that term. One teacher thought material had to be “provocative, contain extreme language, extreme violence, or be sexual in nature,” another thought an “R” rated movie “might” be “controversial,” and another testified she did not use “controversial” materials even though she showed, an “R” rated movie and took students to- plays with scenes portraying sexual themes. To compound the problem, according to the hearing officer, most teachers did not .even know the policies existed; “Most teachers at Columbine were not aware of Policy INB or the need to give 20 days written notice if the teacher wanted to use a controversial material.”

The vagueness of this policy invites arbitrary and capricious enforcement. As the Supreme Court observed in the flag contempt case, “What is contemptuous to one man may be a work of art to another.” See Goguen, 415 U.S. at 573, 94 S.Ct. 1242. In this case, Wilder made a reasoned judgment supported by facts, backed by experts, that 1900 was appropriate for the students in his course. The hearing officer so found:

[Njeither the unwritten policy nor Policy INB provides sufficient guidance in determining whether the movie was controversial. In Mr. Wilder’s professional judg*717ment the movie was not controversial and appropriate to the educational goals of the course and the student’s level and ability. Furthermore, Mr. Wilder’s failure to comply with the twenty day advance notice requirement of INB-R was not improper under these circumstances.

Art inspires thought by rooting in the heart the image of justice versus injustice. Bertolucci’s film inspires and instructs. To the extent that community standards are a benchmark of the policies’ implementation, this film was not offensive to community standards. The “R” rating is utilized throughout America as a theater, video store, and newspaper-published guideline for whether a particular age group may view a film without an accompanying parent. The Board did not proscribe “R” rated movies or require their clearance per se, letting stand the movie rating guide as a community standards indicator. The principal and the Board based their termination of Wilder on a twenty minute film which the principal had assembled, not Bernardo Bertolucci’s film.

Were one to underscore the socially instructive highlights of Bertolucci’s film, the twenty minute excerpt instead could have included scenes showing the women of the village standing up against fascist soldiers, the act of, grace in sparing a friend’s life despite political advantage to be gained in killing him, and the joy that rich and poor people alike take in living despite evils which exist in society.

This nation was founded on disagreement and born of a diversity of ideas, peoples, and religions. Our public schools, at their best, generate interest and excitement in learning, instill democratic values, and prepare today’s youth to become thinkers and problem-solvers. “The classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, rather than through any kind of authoritative selection.’ ” State Bd. for Community Colleges v. Olson, 687 P.2d 429, 437 (Colo.1984) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967)) (citations omitted).

When we strip teachers of their professional judgment, we forfeit the educational vitality we prize. When we quell controversy for the sake of congeniality, we deprive democracy of its mentors. The students of Wilder’s class learned a valuable lesson at the expense of their teacher’s job: one person’s expression of ideas in the interest of critical thought and learning may be another person’s “controversy.”

I would uphold the judgment of the court of appeals for Wilder’s reinstatement. Given the vagueness of the Board’s policies, it is not possible to determine whether his conduct was prohibited by them. The Board’s obscure policies did not provide fair warning that the film 1900 was “controversial” and required clearance from the principal before being shown to students. The policies are vague as applied to Wilder’s actions and cannot be a basis for his termination.

I am authorized to say that Justice MARTINEZ and Justice BENDER join in this dissent.

. The record notes that Wilder had previously shown "R" rated films without objection from school officials, but those films were not identified by name. Other teachers had shown “R" rated films, such as The Browning Version, and excerpts of Monty Python and Platoon.

. Bernardo Bertolucci testified at the hearing by telephone from Italy.

. The principal of Columbine conceded in his testimony that 'Tdo not require 20 days’ written notice unless there's going to be a disagreement about whether or not a material can be used.” (Emphasis added.)