BIBLE ON THE DESK: Freshwater Hearing Comes Full Circle with Last Witness

The following testimony took place 9:17 a.m.—2:48 p.m. on 6/22/10.

The last day of testimony brought the John Freshwater hearing, which has spanned 21 months, back to where it started: Steve Short testifying about the order for Freshwater to remove his personal Bible from off his desk.

Bible on the desk

When Short—who is the superintendent of the Mount Vernon City Schools—testified at the opening of the hearing, in October of 2008, he said that one of the reasons that he had recommend firing Freshwater was because of Freshwater’s refusal to remove the Bible.

During that previous testimony, Short explained that there were many items within Freshwater’s classroom that could be considered religious. Because of this, Short said that it created a religious display. “It was difficult to determine what was and wasn’t on display,” Short said. “So everything should have been put away.”

Also during the 2008 testimony, Freshwater’s attorney, R. Kelly Hamilton, asked Short how he handled the similar situation in which teacher Lori Miller had both a Bible on her desk and potentially religious items in the classroom.

“We told [Miller] to remove all the other items that she had,” Short replied.

The Bible remained on Miller’s desk.

When Short testified during Tuesday’s hearing, he changed the focus of his argument.

Short said that the difference between Miller and Freshwater is that the Dennis family complained that Freshwater referenced his Bible during class.

Short acknowledged that the Dennis family was the only family that made such a complaint to him.

In fact, the other students in the class with Zachary Dennis have stated that Freshwater did not talk about religion in his class. (For more information, see the article, “Student Testimony—John Freshwater Addresses School Board.” )

Short also acknowledged that while he did ask Miller if her Bible was part of the “display” in her classroom, he did not ask Freshwater a similar clarifying question.

During Short’s meeting with Miller, Short advised Miller that if she disagreed with the directive to remove the items from her classroom, she could use the union process to grieve the order. Short said that he did not tell Freshwater, who is not a member of the union, of his right to use the union’s grievance process.

Short’s religious display

Hamilton asked Short if he previously had a religious item hanging on the wall in his own office.

Short replied that he hadn't

Hamilton then asked Short if he had in his office a poster created by his son with “World’s Greatest Dad” written across it and at the bottom Romans 12:6.

Short replied that he used to have that poster in his office and that it was a “religious display” but that it was never “hanging” on the wall.

It was following a meeting with Hamilton in July of 2008 that Short removed the poster. Short said that he noticed Hamilton walking around the office and looking at the items in the room. He said that fifteen minutes after the meeting he removed the poster.

Short acknowledged that at the meeting Hamilton did not make any complaint about the poster being a religious display.

Chain of evidence issues

Short addressed issues raised by Freshwater regarding how the items from his classroom were stored and why some of the items in storage were already labeled as board exhibits.

The materials from Freshwater’s classroom were moved into storage in August of 2008, Short said. He said the first storage site used was the director of business office—after about 20 to 30 days, the items were again moved, this time to a room on an upper floor of the central offices that used to be a women’s bathroom.

Short said the only time that anyone had access to the stored items, other than himself, was when the items were stored in the director of business office. The janitor had a key but was instructed to not enter the room, Short said.

The boxes were not numbered until there was a “plethora of attorneys” sorting through the materials and requesting copies, Short said. He explained that the numbers were added so that the items could get back in the right boxes.

Two of the boxes ended up falling apart and so were replaced with new boxes, Short said. These were the two boxes that had handwritten dates that preceded the packing label dates.

Regarding school board exhibit number 22, Short said a printout of the email was found among Freshwater’s items. Short explained that after school board attorney David Millstone three-hole punched the document they realized a copy should be included with the stored items.

Regarding school board exhibit number 91, Short said the situation was the same as for number 22 except that he was able to stop Millstone before he three-hole punched the document.

Regarding OAT grade sheets that were found in storage, Short said that a custodian probably included some of Freshwater’s mail in with the stuff that was moved to storage.

Inventory of Freshwater’s personal items

Short said that in August of 2008 Freshwater called him and requested the return of his belongings. Following the call, Short said he talked with council and that the instructions he was given was to make a list of all the items that he was giving back to Freshwater.

The one-sheet handwritten inventory Short said he made was entered as school board exhibit number 115. The list included items such as “clock radio,” “parachute,” “volcanoes book,” “t-shirts” and four Bibles.

Short then compared the inventory to photos supplied, apparently, by Freshwater of the personal items that Freshwater says were returned. Short said that some items included in the inventory are not in the photos and that there are some items in the photos that are not in the inventory.

Hamilton asked Short why this handwritten inventory was not provided in response to his public records requests.

Short replied that he does not believe that it is a public records document. He said his understanding is that it is protected under the work product doctrine.

Upon further questioning from Hamilton, Short agreed that he is no longer trying to protect the document from discloser.

Although Short considered the document to be protected under the work product doctrine, the Dennis family already had a copy of it by May 14, 2010 when they used it as an exhibit for one of their motions in their federal lawsuit against Freshwater. (Click here to view copy of the inventory. 81.51 KB PDF).

Short said that he has no knowledge of when the inventory sheet was given to the Dennis’ attorney Douglas Mansfield.

Additional statements by Short:

• Items not placed in a teachers personnel file can still be used later in evaluating the teacher. (Editor’s note: The master contract in effect at the time Freshwater was suspended stated the following: “The official personnel files of all teachers shall contain, if available, the following items: […] Appropriate letters of commendation or reprimand issued to the teacher by supervisors.”)

• Believes that Freshwater told him that he both handed out Bibles to students and talked about the meaning of Easter in class. (Editor’s note: When Short testified in 2008 he stated the following: “[Freshwater] said that maybe he’d given them [the Bibles] to some of the FCA kids if they forgot theirs when they came.” “[W]hat he talked about was Easter in relationship to the stars and astronomy where the different religious states were and fit in with the stars. […] Freshwater couldn’t remember if he brought it up or the students brought it up, but he said I may have spent one or two minutes talking about Easter and […] what it means to Christians.” Emphasis added.)

• Miller was at the meeting in which Freshwater addressed the issue of the Bibles and Easter. Does not know what would be in Miller’s notes of the meeting.

• Did search through the school buildings looking for the items identified in the first anonymous letter. Was not trying to hide materials.

• Does not have knowledge of the Dennis’ attorney taking items belonging to Freshwater. Considers it hard for it to be possible that the Dennises obtained information from Freshwater’s classroom that has not appeared at the hearing.

• A display becomes a religious display if someone perceives it as such.

• There is no definition of “religious display” in the school’s written policy.

• On August 7, 2009 individual school board members made the following comments related to evaluating his performance: Gives few updates regarding the Freshwater case. Does not always have good record keeping. Needs to have better control over the attorney. The school is in deficit spending mode.

• The school board gave him a rating of “1.7.” This rating falls between the categories of “needs improvement” and “satisfactory.”

• Believes that he did a good job related to his investigation of Freshwater.

The conclusion of testimony

Of the over 90 witnesses that testified during the course of the hearing, Short was both the first and the last witness.

The referee, R. Lee Shepherd, said that there has been a vast amount of information presented during the hearing. He said that the attorneys wisely agreed to do their closing arguments in writing.

Both sides have until July 26 to submit their briefs and until August 2 to submit a reply to their opponent’s brief.

Both sides agreed to have all exhibits entered as evidence and allow Shepherd, as the trier of fact, to decide what weight to give each exhibit.

Shepherd said that within ten days of reaching a decision, on what his recommendation will be, he will provide a written report to the Mount Vernon Board of Education.

The school board will make the final decision.

Shepherd concluded the day by thanking those that have been involved, most importantly, he said, Joan C. O'Donnell, the court reporter.

Shepherd thanked the attorneys for their professional conduct during the hearing. He said that he has not seen anything like it before from “both sides of the hall.”

His final comment was to the gallery. He thanked the people for wanting to stay the course and for having patience during all of the stops and starts of the hearing.

For additional coverage of the Freshwater hearing, see the articles in the archive.