specially concurring.
I concur completely with the majority that the Board’s order was arbitrary, capricious, and legally impermissible. I write separately, however, in the area having to do with prior clear notice. I believe that, while no notice of the written policy was given Wilder, and that he cannot be terminated for violation of an unwritten policy, it is useful to reflect on the unconstitutional vagueness of the formal policy.
I agree with Wilder that the Board erred in concluding that school district policy INB is not unduly vague. I believe the hearing officer properly determined that “neither the unwritten policy nor policy INB gives fair *606warning to Mr. Wilder that a film such as 1900 is a controversial learning source.”
I.
I first reject the Board’s contention that Wilder lacked standing to make a vagueness challenge.
Relying on Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the Board argues that a person who engages in conduct that is clearly proscribed by a challenged regulation cannot complain of the vagueness of the regulation as applied to the conduct of others. Thus, the Board contends that, because Wilder’s colleagues clearly knew that showing films depicting sex, nudity, violence, and profanities fell within the scope of the school district’s policy, Wilder cannot complain of the application of the policy to him.
I conclude, however, that because a stricter vagueness test applies when the exercise of constitutional rights is implicated, Wilder does have standing to challenge the Board policy on vagueness grounds. See Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra.
II.
In Parrish v. Lamm, 758 P.2d 1356 (Colo.1988), the supreme court set forth the standards and competing interests that underlie a void-for-vagueness challenge. A regulation 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. On the other hand, a regulation is not void for vagueness if it fairly describes the conduct forbidden and if persons of common intelligence can readily understand its meaning and application. The vagueness test is a pragmatic test to ensure fairness. The regulation at issue must strike a balance between the potentially conflicting concerns of giving fair warning of prohibited conduct yet being sufficiently general to address a problem under varied circumstances and during changing times. Further, as noted a more strict vagueness test applies when the regulation at issue threatens to inhibit the exercise of constitutionally protected rights. Parrish v. Lamm, supra; Bradley v. Pittsburgh Board of Education, 913 F.2d 1064 (3rd Cir.1990).
Fundamentally speaking, governmental pronouncements that regulate First Amendment activities must be narrowly drawn to address certain, specific evils. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). “Because First Amendment freedoms need breathing space to survive, government may regulate in [such areas] only with narrow specificity.” NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418 (1963).
Thus, greater precision and specificity are necessarily required in regulatory areas that could tend to impinge on First Amendment freedoms because vagueness in such areas threatens exercise of such freedoms, raises dangers of arbitrary and discriminatory application of the regulations, and traps the innocent. See Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir.1996); Adamian v. Jacobsen, 523 F.2d 929 (9th Cir.1975).
However the parameters of necessary specificity need not be pointed out here because the terms of the unwritten policy and policy INB are demonstrably unconstitutionally vague.
III.
Wilder’s vagueness challenge focuses on two provisions of policy INB. Those provisions state as follows:
Controversial 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 of values to be applied to facts.
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Controversial learning resources include learning resources which are not included in the approved learning resources of the school district and which are subject to disagreement as to appropriateness because they refer or relate to controversial issues or present material in 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, (emphasis added)
Here, the hearing officer found that teachers had different definitions for controversial material. She further concluded that persons of ordinary intelligence must guess at the meaning of a controversial learning resource.
The Board rejected these conclusions of the hearing officer, finding that policy INB is not unduly vague and does not require teachers to guess at its application. The Board determined that because of the wide variety of potentially controversial issues and resources, and to avoid unduly restricting the choices available to teachers, the definitions in policy INB are necessarily general and depend to some extent on the exercise of sound professional judgment. The Board further noted that the policy specifically defined controversial learning resources.
Additionally, the Board concluded that, to avoid misunderstandings, a teacher need only discuss the use of a proposed educational resource with his or her principal. Finally, the Board determined that, although the hearing officer had found that teachers disagree regarding what constitutes a controversial learning resource, “an R-rated film containing nudity, sexual conduct, drug use and violence is controversial according to any definition mentioned in the hearing officer’s findings.”
I conclude that the definitions of “controversial issues” and “controversial learning resources” contained in policy INB are unconstitutionally vague because their standards are so ill-defined as to create the very real threat of the dangers mentioned above in this special concurrence, including those of arbitrary and capricious enforcement. Thus, the definition of “controversial issues” as including “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” is sufficiently imprecise that it embraces a wide spectrum of subjects which might be required to be taught in classes in the areas of social studies, science, history, and language arts.
The definition of “controversial learning resources” is similarly infirm because it refers to “controversial issues” or to the presentation of material “in manner or context which is itself controversial.” In my view, this language does not provide fair warning to teachers as to what teaching resources are subject to policy INB and regulation INB-R.
I note that while the policy and regulation are contained in a four page single-spaced document, they contain no warning to teachers that materials containing nudity, sexual conduct, violence, or profanity are or might be considered “controversial learning resources” subject to the school district policy and regulation.
According to the hearing officer, the “evidence is undisputed” that the subject film has artistic and literary value. She found it relevant to the curriculum objectives of the course and that it was useful in contributing to attainment of educational objectives. The film was determined to be useful in teaching students critical thinking and responsible actions toward others, and to be age-appropriate in the educational setting in which it was shown. Wilder did not consider the movie to be controversial.
The record reflects that policy INB and regulation INB-R are so vaguely worded, and so unspecific, as to have given Wilder no notice that the policy would be applied in such a way as to punish his use of what the record reflects is a useful teaching tool that meets legitimate pedagogical concerns. I conclude that the policies are simply too vague as applied to Wilder here. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); Cohen v. San Bernardino Valley College, supra.
*608Thus, I would also reverse on grounds that the subject policies of the Board are unconstitutionally vague.