22-63-301. Grounds for dismissal.
Statute text
A teacher may be dismissed for physical or mental disability, incompetency, neglect of duty, immorality, unsatisfactory performance, insubordination, the conviction of a felony or the acceptance of a guilty plea, a plea of nolo contendere, or a deferred sentence for a felony, or other good and just cause. No teacher shall be dismissed for temporary illness, leave of absence previously approved by the board, or military leave of absence pursuant to article 3 of title 28, C.R.S.
History
Source: L. 90: Entire article R&RE, p. 1123, 1, effective July 1; entire section amended, p. 1032, 22, effective July 1.
Annotations
Editor's note: This section is similar to former 22-63-116 as it existed prior to 1990.
Annotations
ANNOTATION
Annotations
Analysis
I. General Consideration.
II. Purpose of Section.
III. Reasons for Dismissal.
A. Generally.
B. Incompetency.
C. Neglect of Duty.
D. Immorality.
E. Insubordination.
F. Other Good and Just Cause.
I. GENERAL CONSIDERATION.
Annotator's note. Since 22-63-301 is similar to 22-63-116 as it existed prior to the 1990 repeal and reenactment of this article in 1990, cases construing that provision, as well as cases decided under provisions similar thereto, have been included in the annotations to this section.
This section may be sustained as constitutional. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
This section conforms to constitutional requirements. It is directed to conduct toward members of the school community, and is concerned with immoral acts only insofar as they relate to the teacher's unfitness to teach. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
This section is sufficiently precise to meet minimal due process standards. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
This section is constitutionally adequate, and the terms "incompetence" and "neglect of duty" are sufficiently precise that men of common intelligence would not have to guess at their meaning. Benke v. Neenan, 658 P.2d 860 (Colo. 1983).
Applied in Blair v. Lovett, 196 Colo. 118, 582 P.2d 668 (1978).
II. PURPOSE OF SECTION.
State's interest in protecting school community. The board's power to dismiss and discipline teachers exists and finds its justification in the state's legitimate interest in protecting the school community from harm, and its exercise can only be justified upon a showing that such harm has occurred or is likely to occur. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
The board's power to dismiss and discipline teachers is not merely punitive in nature and is not intended to permit the exercise of personal moral judgments by board members. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
Private shortcomings not intended. The general assembly did not intend to potentially subject every teacher to discipline, even dismissal, for private peccadillos or personal shortcomings that might come to the attention of the board of education, but yet had little or no relation to the teacher's relationship with his students, his fellow teachers, or with the school community. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
III. REASONS FOR DISMISSAL.
A. Generally.
One of the grounds of this section must be charged before dismissal of tenured teacher. Where this section limits the grounds of cancellation of a teacher's contract to (1) incompetency, (2) neglect of duty, (3) immorality, (4) insubordination, (5) justifiable decrease in the number of teacher positions, and (6) other just and good cause, and no such charge is made against a teacher, a school district is without authority to cancel his contract. Sch. Dist. No. 2 v. Brenton, 137 Colo. 247, 323 P.2d 899 (1958) (decided prior to earliest source of this section, 123-18-16, as amended).
School boards to define dismissal grounds. Because elected school boards have the responsibility of implementing and carrying out the educational programs of their respective communities, they must have the case-by-case authority to define the limits of such broad general grounds for dismissal as "incompetency" and "immorality" in the educational context. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).
And, for the same reasons, school boards must have the case-by-case authority to define the limits of the ground of dismissal of "neglect of duty" in the educational context. Blaine v. Moffat County Sch. Dist. Re. No. 1, 709 P.2d 96 (Colo. App. 1985).
Prior warnings and failure to conform thereto may properly be considered by the board as evidence of incompetency, insubordination, or other statutory grounds for dismissal found in this section. DeKoevend v. Bd. of Educ., 653 P.2d 743 (Colo. App. 1982), rev'd on other grounds, 688 P.2d 219 (Colo. 1984).
Adverse impact required. The board of education may properly dismiss those teachers whose misbehavior has had the requisite degree of adverse impact. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
Isolated technical and trivial violations of school board policies and directives could not support dismissal of a tenured teacher. Robertson v. Bd. of Educ., 39 Colo. App. 462, 570 P.2d 19 (1977).
B. Incompetency.
Competence indicates the ability to perform ably and above a minimum level of sufficiency. Therefore, incompetence indicates the inability to perform. Benke v. Neenan, 658 P.2d 860 (Colo. 1983).
C. Neglect of Duty.
Duty indicates those actions required by one's particular occupation. Benke v. Neenan, 658 P.2d 860 (Colo. 1983).
Dismissal for neglect of duty was not arbitrary or capricious where teacher's duties included disciplining students in a manner consistent with district policy and providing a safe and secure learning environment, and teacher struck a student on the head with a pointer. Bd. of Educ. of West Yuma v. Flaming, 938 P.2d 151 (Colo. 1997).
Where a teacher violated the district's controversial materials policy by failing to provide the principal with the required notice prior to using a controversial learning resource displaying sexual content, violence, and nudity, his dismissal was proper and did not violate his rights of free speech and due process guaranteed by the constitution. Bd. of Educ. of Jefferson County v. Wilder, 960 P.2d 695 (Colo. 1998).
School board did not err by dismissing teacher for neglect of duty where teacher refused to teach the adopted math curriculum. Hearing officer determined that the teacher's students did not receive complete and proper instruction in mathematics and that teacher failed to fulfill her classroom duties and obligations. Sch. Dist. No. 1 v. Cornish, 58 P.3d 1091 (Colo. App. 2002).
D. Immorality.
This section's reference to "immorality" is not unduly vague and constitutes a valid ground for dismissal. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
"Immorality" standard. The statutory term "immorality" denotes only conduct which indicates a teacher's "unfitness to teach" -- i.e., only conduct which harmed or is likely to harm the school community. However, in view of the variousness of human behavior, it would be folly to suggest that "immorality rendering one unfit to teach" is a standard so clear as to leave no leeway in determining whether the facts of a particular case meet that standard. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).
A school board's application of the standard to a specific instance of teacher conduct will therefore be sustained by a reviewing court if it is warranted in the record and has a reasonable basis in law. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).
"Immorality" implicitly required to be related to work. Though this section does not explicitly require that the "immorality" be in relation to, or affect, the teacher's work, such a requirement can be readily implied from the language of the statute. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
"Immorality" must be related to teacher's fitness for service. The statutory ground of immorality, taken in conjunction with the other grounds of physical and mental disability, incompetency, neglect of duty, conviction of a felony, and insubordination, clearly implies a standard that is directly related to the teacher's fitness for service. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
Appellant's actions cannot constitute immorality within the meaning of the statute unless these actions indicate his unfitness to teach. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
Considerations in determination of unfitness. In determining whether the teacher's conduct indicates an unfitness to teach, the board of education may properly consider such matters as the age and maturity of the teacher's students, the likelihood that his conduct may have adversely affected students and other teachers, the degree of such adversity, the proximity or remoteness in time of the conduct, the extenuating or aggravating circumstances surrounding the conduct, the likelihood that the conduct may be repeated, the motives underlying it, and the extent to which discipline may have a chilling effect upon either the rights of the teacher involved or other teachers. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
Most persons of ordinary intelligence would have noticed, even from the broad wording of this section, that certain acts are prohibited, including inter alia the intimate touching of minor female students by a male high school teacher. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976).
Whenever a male teacher engages in sexually provocative or exploitive conduct with his minor female students a strong presumption of unfitness arises against the teacher. Weissman v. Bd. of Educ., 190 Colo. 414, 547 P.2d 1267 (1976); Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).
E. Insubordination.
Insubordination should be given its commonly-understood definition of a willful failure or refusal to obey reasonable orders of a superior who is entitled to give such orders. Ware v. Morgan County Sch. Dist. RE-3, 719 P.2d 351 (Colo. App. 1985); Lockhart v. Arapahoe County Sch. Dist. No. 6, 735 P.2d 913 (Colo. App. 1986).
Where there is evidence that petitioner willfully refused to participate at any time in hall supervision duties when ordered to do so by this principal and where in the interest in maintaining discipline and order in public schools such order was reasonable, the board correctly found that petitioner was insubordinate. Lockhart v. Arapahoe County Sch. Dist. No. 6, 735 P.2d 913 (Colo. App. 1986).
Dismissal for insubordination not arbitrary, capricious, or legally impermissible where teacher effectively failed to submit lesson plans pursuant to principal's reasonable request. Sch. Dist. No. 1 v. Cornish, 58 P.3d 1091 (Colo. App. 2002).
F. Other Good and Just Cause.
Insubordination does not require a showing that a teacher specifically intended to violate the directions of superiors. Proof of insubordination merely requires intentional conduct. Bd. of Educ. of West Yuma v. Flaming, 938 P.2d 151 (Colo. 1997).
Dismissal for "other good and just cause" was not arbitrary or capricious where teacher exhibited a low frustration tolerance with certain primary age students. Because this resulted in an adverse effect on the teacher's students, it bore a reasonable relationship to the teacher's overall fitness to discharge her duties. Bd. of Educ. of West Yuma v. Flaming, 938 P.2d 151 (Colo. 1997).
School board did not err when it dismissed teacher for "other good and just cause" where hearing officer found that teacher knowingly allowed her license to lapse and failed to notify the school administration of that lapse. Sch. Dist. No. 1 v. Cornish, 58 P.3d 1091 (Colo. App. 2002).