Freshwater appeals to 5th District Court

In a brief filed recently with the 5th District Court of Appeals in Ohio, John Freshwater asked the district court to order the Mount Vernon Board of Education to reinstate him to his position teaching at the school.

The school board, in January, fired Freshwater for what the board described as religious reasons.

(The Mount Vernon Board of Education met recently below a poster that could be interpreted as being of a religious nature: The Hogwarts School of Witchcraft and Wizardry coat of arms.)

The appeal to the district court comes after Knox County Court of Common Pleas Judge Otho Eyster ruled against Freshwater earlier this year. In that prior decision, the county judge did not cite any evidence or applicable law to support upholding the firing.

In the appeal to the district court, submitted Dec. 6 by Freshwater’s council R. Kelly Hamilton and The Rutherford Institute, Freshwater takes the position that “the true basis for his termination was a combination of religious animus, an unfounded fear of lawsuits, and a desire to appease members of the community who were prejudiced by the sensationalized Tesla coil incident that was ultimately found to be insignificant.”

Regarding the allegation that a student was burned by the Tesla coil, state administrative hearing Referee R. Lee Shepherd told the school board in his report:

“Due to the sensational and provocative nature of this specified ground, it and the facts and circumstances surrounding it became the focus of the curious, including those in the video, audio, and print media. Once sworn testimony was presented, it became obvious that speculation and imagination had pushed reality aside. Further, and more crucial to a review of the [2008] Amended Resolution, the use of the Tesla Coil by John Freshwater did not seem to be a proper subject for the Amended Resolution. […] The issue and incident was dealt with by the administration. That case was closed.”

The board, subsequently, did not include any mention of the burn allegation in the 2011 resolution firing Freshwater.

Three issues for review

Freshwater’s appeal states that there are three main issues that the court needs to review:

“I. Does a public school teacher’s facilitation of classroom discussion concerning popular alternative theories to the Big Bang theory, and the encouragement of students to distinguish scientific theories and hypotheses from fact as directed and permitted by school policy and Ohio’s Academic Content Standards, create ‘good and just cause’ for termination of the teacher’s employment contract, or does the termination of the teacher on this basis constitute an impermissible violation of the rights of the teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment's Establishment Clause?

“II. Does the presence of religious texts from the school’s library in a teacher’s classroom, or the display of a patriotic poster depicting the nation’s highest executive leaders praying, as permitted by O.R.C. §3313.601, constitute ‘good and just cause’ for termination of the teacher’s employment contract, or does the termination of a teacher on this basis constitute an impermissible violation of the rights of a teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment's Establishment Clause?

“III. Was the Mount Vernon City School District Board of Education’s termination of Freshwater’s employment contract improperly based upon an unconstitutional animus toward a perception of Freshwater’s religious faith, thus belying the lower court’s finding that there was ‘good and just cause’ for said termination and, in fact, violating Freshwater’s First Amendment right to free speech and Fourteenth Amendment right to equal protection?”

The brief is worth reading in its entirety. (See here for a copy. PDF. )

“Religious articles” in the classroom

One of the reasons the school board gave for firing Freshwater was the following concerning “religious articles” in the classroom:

“Mr. Freshwater was directed to remove or discontinue the display of all religious articles in his classroom, including all posters of a religious nature, and whereas, Mr. Freshwater has failed to comply with that directive and, further, has brought additional religious articles into his classroom, in a direct act of insubordination;”

The appeal interprets the board’s statement “failed to comply with that directive” as the board referring to a poster in Freshwater’s classroom of Colin Powell and President George W. Bush.

(This poster has been banned from Mount Vernon City Schools. The photograph was taken January 28, 2003. © Brooks Kraft/CORBIS. The poster was printed by Freeport Press, Inc.)

However, the punctuation used by the board in that sentence places the reference to “posters” within a non-restrictive clause, and, thus, like inserting an extraneous comment about Babe Ruth here, is not essential to the meaning of the sentence. Interpreting the sentence based on the punctuation used would result in “that directive” referring back to “directed to remove or discontinue the display of all religious articles.” The result would, then, be that the board’s statement never specifically states what was not removed from the classroom.

Throughout the course of the hearing it was undisputed that Freshwater was told to remove his personal Bible from off of his desk. It was also undisputed that Freshwater did not remove his Bible. However, Shepherd never made a finding of fact that Freshwater failed to remove his personal Bible.

That there ever was a directive to remove the Colin Powell poster was disputed. The school never presented any documentation that specifically identified that poster as needing to be removed. Shepherd never gave a finding of fact as to who was right in the dispute over the existence of an oral order to remove the poster.

Shepherd did make a finding of fact regarding the issue of Freshwater bringing in “additional religious articles into his classroom.” Shepherd said: “He checked out religious texts from the school library and added them to the array on his classroom desk. […] The act appears to have been one of defiance, disregard, and resistance.”

The items Freshwater checked out? A Bible and a book titled “Jesus of Nazareth.”

(The poster hanging above the school board when it voted to fire Freshwater stated, “Read and The Force is with you.” Perhaps the poster should have said, “Read and the school board will expel you.” The poster of Yoda has since been replaced with the Hogwarts coat of arms.)

See the articles in the archive for additional coverage of the Freshwater controversy.

UPDATE 1-13-2012:

Attorneys for the school board filed their response brief on Wednesday. See here for a PDF copy of the document.

The brief concludes with the following summary statement: “Freshwater inappropriately taught science with deference to religious beliefs and principles. He maintained a religious display in his classroom and was non-compliant with the Board’s lawful directive to remove his religious display.”

Regarding new evidence that was presented which countered testimony given by James Stockdale, the board’s attorneys argued, “The records could be incomplete or, most likely, the witness could have been mistaken as to the date he heard the comments.”

Stockdale had testified during the state administrative hearing that in the fall of 2006 he heard Freshwater make remarks to his class about the subject of homosexuality.

The school records, however, showed that Stockdale's duties did not take him into Freshwater’s classroom anytime Sept. 1, 2005 through June 30, 2008. (See the June 1, 2011 AccountabilityInTheMedia article “EXCLUSIVE: Witness impeached by school records.” )

MV school board bids farewell to Sharon Fair

The last regular meeting of the Mount Vernon Board of Education for 2011, held on Monday, included a presentation of a “Distinguished Service Award” to outgoing board member Sharon Fair. The board also said goodbye to Treasurer Barbara Donahue.

The legislative liaison report, by board member Paula Barone, included mention of House Bill 136 (see 55:12-58:00 in video). The board had previously approved a resolution stating opposition to HB 136, which the board said if enacted “would significantly expand the availability of vouchers for students to attend private or parochial schools” (see JPG copy of resolution). Barone said that the Ohio School Board Association “has reiterated its stance against this legislation.”

The website School Choice Ohio states about HB 136, “This proposal would give many parents the opportunity to choose an educational environment that best meets their needs rather than conforming to a one-size-fits-all model.”


(Mount Vernon Board of Education, Dec. 12, 2011 meeting)

Right Wing Watch does ‘a quick Google search’

The liberal website RightWingWatch.org posted an article Wednesday by Kyle Mantyla critical of the quality of American historian David Barton’s research. To support the criticism, Mantyla offered up information from what he acknowledged was “a quick Google search.”

The search concerned information about fired Mount Vernon Middle School teacher John Freshwater, who was a guest on Barton’s radio program WallBuildersLive.com.

After Mantyle offered up what he presented as counter-evidence to information presented on Barton’s program, Mantyle concluded by saying, “Barton's success is largely rooted in the fact that his intended audience generally doesn't question anything he says or bother to check to see if his claims are accurate or true, and this is just the latest example of how he uses that power to routinely mislead them in order to create false narratives that support his own political and religious agenda.”

What, then, was presented on Barton’s program that was so terrible? As Mantyle put it, “Freshwater was portrayed simply as a man who has been relentlessly persecuted because of his Christian faith.”

Based on “a quick Google search” Mantyle said that “Freshwater was actually fired for allegedly burning a cross onto the arms of two of his students and using his classroom to teach creationism, attack gays, and promote his religion.”

However, if someone listens to the full program instead of just the short clip that Mantyle includes, one will discover that Freshwater does acknowledge that multiple accusations were lobbed at him after he refused to remove his personal Bible from off his classroom desk.

Although it may be true that “a quick Google search reveals dozens of articles reporting” the claim of the alleged burning as a reason for Freshwater’s firing, such a claim is not supported by the primary source documents: The school board did not include that unsubstantiated allegation in their list of reasons for firing the teacher.

In the program, Freshwater does address the “Creationism” allegation: “I teach what I call a ‘robust’ evolution. I showed the evidence for evolution, and I showed evidence that was opposed to evolution. […] I stayed neutral on it and let the kids make a decision on it.” (Editor’s note: The Mount Vernon Board of Education did not state that Freshwater directly taught Creationism, but, instead, that he taught “evidence both for and against evolution” and that the “‘evidence’ against evolution was based, in large part, upon Christian religious principals of Creationism and Intelligent Design.”)

Although the school board’s reasons for the firing did include, as Mantyle mentions, the allegation that Freshwater made remarks about homosexuality to his class, that allegation itself is not supported by the relevant school records: The lone witness who testified to having heard the remarks was, according to school records, not in Freshwater’s classroom.

It is true that the school board claimed Freshwater included his religious beliefs in his teaching. That characterization by the board, however, was their summary statement of the issues involving evolution and the alleged remarks about homosexuality.

Next time, Right Wing Watch, do more than “a quick Google search.”

MV school board candidates answer questions

During a debate Thursday evening, candidates for the Mount Vernon Board of Education addressed topics ranging from church and state issues to problems with school funding.

The debate began with a questioned posed to Jeff Cline about expressing Christian values in the classroom. Cline responded that although he does not advocate preaching in the classroom he does believe that there are times when a Christian should choose to honor God’s law over man’s law.

Cline gave the example of a time, as a high school baseball coach, that he prayed and discussed his Christian beliefs with a student who had approached him asking for help with some problems. “As a Christian,” Cline told the audience, “if you have certain moral values and certain convictions, stand for them.”

Later in the evening when the matter of the school’s handling of the firing of teacher John Freshwater was brought up, Cline said that issue is one of the reasons he is running for the school board. He explained that his position on that issue is that “Freshwater was wronged.” He went on to say, “If we have another situation like that, we will make sure that it is not [handled] wrong.”

The debate was sponsored by the Knox County 912 Project and held at the Knox County Career Center, Adult Education Building.

Candidates present were Dr. Margie Bennett (Incumbent), Jeff Cline, Marie Curry and Stephen Kelly. Not present were Cheryl Feasel and Jody Goetzman (Incumbent).

Comments from Richard McLarnan were not included in video coverage of the debate due to him being a candidate for the governing board of the Knox County Educational Service Center instead of a candidate for the Mount Vernon Board of Education.

For information regarding “church and state” issues, see the article by David Barton “The Separation of Church and State.”

(“School board candidate takes on notion of 'separation of church and state'”)

(“MVBOE candidates answer questions”)

UPDATE 11-2-2011 (FACT CHECK):

School district’s expenses for recent legal matters

During the debate, Bennett responded to the issue of the expenses for recent legal matters, saying (32:33 in video):

“I would just remind everyone that the Mount Vernon City School Board was sued, we didn’t seek the lawsuit, we simply defended the school district, and it’s been upheld in each court in which it has been presented. It amounts to $300,000 per year for three years, which was one percent of our budget, for legal expenses, which is probably not exorbitant if you think of a business; we are the fifth largest employer in Mount Vernon. Am I happy that we had to spend money that way? Absolutely not. But the school board had no choice; it was obligated to defend itself. And we have attempted to put additional personnel policies in place so that more evaluation and accountability will take place at a sooner level so that hopefully teachers will know the boundaries and respect them.”

The following is a list of the recent legal matters and the cost incurred by the district (expenses covered by the district’s insurance are not included):

• The federal case Doe v. Mount Vernon Board of Education et al. (in which the Dennis family sued the school board and others): $0.00.

• The federal case Freshwater v. Mount Vernon Board of Education et al. (in which Freshwater sued the school board and others): $0.00.

• The state administrative hearing pursuant to Ohio Revised Code 3319.16 (in which evidence for and against firing Freshwater was presented to a referee): $922,425.91.

• The Knox County Court of Common Pleas case John Freshwater v. Mount Vernon City School District Board of Education (in which Freshwater appealed his firing): $0.00.

The district was not directly responsible for the legal costs in the cases in which it was sued. Although it is true that once the board decided to start the process of firing Freshwater it was obligated to have a hearing if Freshwater requested one, the board did make choices that affected the cost incurred by the district for the hearing.

When Freshwater requested the hearing he also requested that the hearing be held before members of the board. Instead, the board decided to have the hearing before a referee. (Both options are allowed under Ohio law.) That decision cost $35,749.50.

When the board faced the decision of legal representation for the hearing it had two options under Ohio law: Use the services of the law director for the city of Mount Vernon or hire an attorney. The board chose to hire an attorney and ended up paying the attorney’s law firm $833,288.16.

Related documents:

The schools’ expenses for legal matters. 75KB PDF.

Ohio law regarding the hearing and legal representation for the school board. 142KB PDF.


UPDATE (2011 SCHOOL BOARD RESULTS):

The following are the official results for the Mount Vernon Board of Education race (three positions were up for election):

Jolene Goetzman 4,375 (20.36%)

Margie Bennett 4,049 (18.84%)

Cheryl A. Feasel 3,757 (17.48%)

Marie K. Curry 3,733 (17.37%)

Jeffrey S. Cline 3,004 (13.98%)

Stephen Kelly 2,572 (11.97%)

Meet the candidates October 27

There will be an opportunity to meet the candidates for the Mount Vernon Board of Education on October 27 at the Knox County Career Center, Adult Education Building:

Mount Vernon School District and Knox County Education Services Meet the Candidates Night

Knox County Career Center, Adult Education Building

308 Martinsburg Rd, Mount Vernon

October 27 at 7 P.M. (doors open at 6:30)

This event is free to the public.

Source: WNZR Community Calendar

Press release: Rutherford Institute Will Appeal Ruling Against Teacher Fired for Urging Public School Students to Think Critically About Evolution

The following press release was provided today by The Rutherford Institute:

MOUNT VERNON, Ohio— The Rutherford Institute has announced its intention to appeal to the 5th District Court of Appeals in Ohio on behalf of John Freshwater, a Christian teacher who was allegedly fired for keeping religious articles in his classroom and for using teaching methods that encourage public school students to think critically about the school's science curriculum, particularly as it relates to evolution theories. Freshwater, a 24-year veteran in the classroom, was suspended by the Mount Vernon City School District Board of Education in 2008 and officially terminated in January 2011. The School Board justified its actions by accusing Freshwater of improperly injecting religion into the classroom by giving students "reason to doubt the accuracy and/or veracity of scientists, science textbooks and/or science in general." The Board also claimed that Freshwater failed to remove "all religious articles" from his classroom, including a Bible.

"The judge's ruling is unfortunate because academic freedom is the bedrock of American education," stated John W. Whitehead, president of The Rutherford Institute. "What we need today are more teachers and school administrators who understand that young people don't need to be indoctrinated. Rather, they need to be taught how to think for themselves."

In June 2008, the Mount Vernon City School District Board of Education voted to suspend John Freshwater, a Christian with a 21-year teaching career at Mount Vernon Middle School, citing concerns about his conduct and teaching materials, particularly as they related to the teaching of evolution. Earlier that year, school officials reportedly ordered Freshwater, who had served as the faculty appointed facilitator, monitor, and supervisor of the Fellowship of Christian Athletes student group for 16 of the 20 years that he taught at Mount Vernon, to remove "all religious items" from his classroom, including a Ten Commandments poster displayed on the door of his classroom, posters with Bible verses, and his personal Bible which he kept on his desk. Freshwater agreed to remove all items except for his Bible.

Showing their support for Freshwater, students even organized a rally in his honor. They also wore t-shirts with crosses painted on them to school and carried Bibles to class. School officials were seemingly unswayed by the outpouring of support for Freshwater. In fact, despite the fact that the Board's own policy states that because religious traditions vary in their treatment of science, teachers should give unbiased instruction so that students may evaluate it "in accordance with their own religious tenets," school officials suspended and eventually fired Freshwater, allegedly for criticizing evolution and failing to teach the required science curriculum.

Freshwater appealed the termination in state court, asserting that the school's actions violated his rights under the First and Fourteenth Amendments to the United States Constitution and constituted religious discrimination under Title VII of the Civil Rights Act of 1964. Knox County Common Pleas Judge Otho Eyster upheld the School Board's decision in a ruling issued on Oct. 5, 2011. Rutherford Institute attorneys have announced their intention to appeal the county court's ruling.

For more information on this story, see the Oct. 5, 2011 article "County judge rules against Freshwater’s appeal."

County judge rules against Freshwater’s appeal

Knox County Court of Common Pleas Judge Otho Eyster ruled today against John Freshwater’s appeal of his firing by the Mount Vernon Board of Education.

Eyster did not cite any evidence or applicable law in support of his decision. Instead, Eyster simply wrote in his decision that he “considered the applicable law” and that he found “clear and convincing evidence to support” the teacher’s firing for “good and just cause.”

(See here for a copy of the decision. 320KB PDF)

Due to Eyster’s failure to provide specifics in his decision, the judge has left unchallenged the school’s action of ordering Freshwater to remove his personal Bible from off his classroom desk.

In the school board’s resolution firing Freshwater, the board had stated that the teacher’s refusal to remove the Bible* and, additionally, bringing into the classroom two religious books from the school’s library constituted “good and just cause” for firing him.

The board, based on the report by hearing referee R. Lee Shepherd, had provided a total of ten reasons for the firing.

Freshwater challenged those reasons in his appeal and requested that he be able to present additional information to the court, saying, “additional information has become available since the close of the hearing conducted by the referee, the information of which was not previously made available despite efforts to obtain.”

Eyster’s ruling came without the admission of additional evidence from Freshwater. Eyster explained that he was not allowing additional days of hearings because of the “number of witnesses and exhibits presented” already during the state administrative hearing.

As reported by AccountabilityInTheMedia.com in June, at least one of the ten reasons the board gave for firing Freshwater was based solely on the testimony of a witness who, according to school records obtained through a public records request, was not present in the classroom during the time period he claimed to be.

According to The Columbus Dispatch, Freshwater has 30 days to appeal Eyster’s decision.

*Note: The board’s resolution on this point is vaguely worded and is open to interpretation. Freshwater’s appeal to 5th District Court of Appeals in Ohio interprets it as being a reference to the Colin Powell/George W. Bush poster. See the article “Freshwater appeals to 5th District Court.”

Related documents:

Closing arguments from the state administrative hearing

Freshwater’s appeal (3.25 MB PDF)

Previous articles mentioning Eyster:

“Case ‘closed’ without trial, without verdict”

“John Freshwater Files Writ of Mandamus with Supreme Court of Ohio”


See the articles in the archive for additional coverage of the Freshwater controversy.

UPDATE 10/6/2011:

The Rutherford Institute has announced that it plans to appeal to the 5th District Court of Appeals in Ohio on behalf of Freshwater.

UPDATE 10/7/2011:

Christian Post reporter Alex Murashko has written an article about Eyster’s decision and Freshwater’s plans to appeal: “Fired Christian Teacher: ‘I Teach All Aspects of Evolution.’”

Press release: Acceding to Rutherford Institute’s Demands, Ohio Department of Education Removes Letter of Admonishment from Freshwater's Record

The following press release was provided Monday by The Rutherford Institute:

MOUNT VERNON, Ohio — The Ohio Department of Education (ODE) has agreed to remove a "letter of admonishment" from the professional record of Christian teacher John Freshwater. In its letter, the ODE stated that it is investigating The Rutherford Institute's charges that the admonishment against Freshwater was issued in defiance of Freshwater's due process rights and in violation of the Department's own rules. Institute attorneys insist that the ODE's issuance of the admonishment violated Freshwater's due process rights because the teacher was not given proper notice or an opportunity to defend himself against the charges. The Institute also argues that the ODE exceeded the scope of its authority by issuing the letter in violation of the prescribed statutory procedures. The Rutherford Institute came to Freshwater's aid in the wake of a bitter and protracted legal dispute regarding Freshwater's display of allegedly Christian posters in the classroom and his encouraging students to think critically about scientific "theories" such as evolution.

"I'm pleased that the Ohio Department of Education has decided to step back and review this situation," stated John Whitehead, president of The Rutherford Institute. "The right to basic due process—especially the right to defend oneself against charges—is too important to be short-circuited by any government agency."

John Freshwater was suspended by the Mount Vernon City School District Board of Education in 2008 and officially terminated in January 2011. The School Board's resolution claims that Freshwater improperly injected religion into the classroom by giving students "reason to doubt the accuracy and or veracity of scientists, science textbooks and/or science in general." The Board also claims that he failed to remove "all religious articles" from his classroom, including a Bible. Throughout his 21-year teaching career at Mount Vernon Middle School, John Freshwater never received a negative performance evaluation. In fact, showing their support for Freshwater, students even organized a rally in his honor. They also wore t-shirts with crosses painted on them to school and carried Bibles to class.

However, school officials were seemingly unswayed by the outpouring of support for Freshwater. The Ohio Department of Education issued its admonishment against Freshwater on March 22, 2011, based on charges that a student was injured after Freshwater, a 24-year veteran in the classroom, permitted students to touch a live Tesla coil. However, as Institute attorneys pointed out, the administrator who investigated the initial incident ultimately concluded that the allegations had been overblown and that there was "a plausible explanation for how and why the Tesla Coil had been used by John Freshwater."

With the help of The Rutherford Institute, Freshwater is appealing his termination in state court, asserting that the school's actions violated his rights under the First and Fourteenth Amendments to the United States Constitution and constituted religious discrimination under Title VII of the Civil Rights Act of 1964.

For more information on this story, see the April 26, 2011 article “Ohio Department of Education tries to revive Tesla coil issue.”

MV schools provides second presentation of ‘Religion in the Public Schools’

Late last month teachers at Mount Vernon City Schools were given the second installment in a set of presentations on church and state issues which were required under the 2009 settlement with the Dennis family.

The first presentation was given in August of 2009 by two attorneys. The second presentation was to take place by September 2010. Following inquires and a public records request from AccountabilityInTheMedia.com earlier this year, superintendent Steve Short said in March that the school was “in the planning stages for the second speaker.”

The presentation

The presentation May 25 was given by two law professors from West Virginia University College of Law: John Taylor and Anne Marie Lofaso.


(“‘Religion in the Public Schools’ - law professors speak to public school teachers”)

The topics covered were much the same as the first presentation: “Religious Liberty in America,” “Prayer in School,” “Religion in the Curriculum,” “Evolution vs. Creationism,” “Teaching About Religious Holidays,” “Religious Displays,” “Student Religious Clubs,” “Distribution of Religious Materials” and “Teacher Religious Expression.”

The only topic not covered this time that was covered during the previous presentation was school board polices concerning religion.

See here for a copy of the computer slides that were used during the presentation. 1.5 MB PDF

See here for a copy of the school board’s polices. 8 MB PDF

Additional information and alternative viewpoints

The Rutherford Institute

The Rutherford Institute, a civil liberties organization which is representing John Freshwater, provides resources for teachers and students about their rights and freedoms:

Pamphlet: Teachers Rights in Public Education (121 KB PDF)

Pamphlet: Students Rights in Public Education (59 KB PDF)

See here for a list of additional free resources from TRI.

David Barton, American historian

David Barton is the Founder and President of WallBuilders, an organization that describes itself as “a national pro-family organization that presents America's forgotten history and heroes, with an emphasis on our moral, religious and constitutional heritage.”


(“David Barton on America’s Christian heritage, constitutional issues”)

Barton was the keynote speaker at Citizens for Community Values’ spring partnership banquet in Cincinnati on April 25. Although his presentation was not focused on public school issues, he did speak about church and state issues including the concept of “separation of church and state.”

See WallBuilders’ YouTube channel for additional videos about America’s spiritual heritage and the current battle over public acknowledgment of God.

Thomas Paine on “The Study of God”

The following presentation by Thomas Paine is from the WallBuilders.com article “Thomas Paine Criticizes the Current Public School Science Curriculum”:

Delivered in Paris on January 16, 1797, in a Discourse to the Society of Theophilanthropists:

“It has been the error of the schools to teach astronomy, and all the other sciences and subjects of natural philosophy, as accomplishments only; whereas they should be taught theologically, or with reference to the Being who is the author of them: for all the principles of science are of Divine origin. Man cannot make, or invent, or contrive principles. He can only discover them; and he ought to look through the discovery to the Author.

“When we examine an extraordinary piece of machinery, an astonishing pile of architecture, a well executed statue or a highly finished painting where life and action are imitated, and habit only prevents our mistaking a surface of light and shade for cubical solidity, our ideas are naturally led to think of the extensive genius and talents of the artist. When we study the elements of geometry, we think of Euclid. When we speak of gravitation, we think of Newton. How then is it, that when we study the works of God in the creation, we stop short, and do not think of God? It is from the error of the schools in having taught those subjects as accomplishments only, and thereby separated the study of them form the Being who is the author of them. . . .

“The evil that has resulted from the error of the schools in teaching natural philosophy as an accomplishment only has been that of generating in the pupils a species of atheism. Instead of looking through the works of the creation to the Creator himself, they stop short, and employ the knowledge they acquire to create doubts of His existence. They labor with studied ingenuity to ascribe everything they behold to innate properties of matter; and jump over all the rest, by saying that matter is eternal.”

EXCLUSIVE: Witness impeached by school records

James Stockdale was the lone witness for at least one of the ten reasons the Mount Vernon Board of Education gave for firing John Freshwater. According to school records, Stockdale’s substitute teaching duties never took him into Freshwater’s classroom during the time period Stockdale claimed to have heard Freshwater make remarks about homosexuality.

Stockdale testified in 2009, during the state administrative hearing, that he substitute taught for intervention specialist Kerri Mahan in the fall of 2006. This assignment, Stockdale said, led him to spend one period in Freshwater’s classroom accompanying special education students.

Stockdale said that during that period Freshwater taught his eighth-grade science class both that homosexuality is a sin and that scientists are wrong for saying homosexuality is partially genetic:

“[Freshwater said] that oftentimes scientists and information in textbooks are incorrect and he wanted to give an example of that. And the example he gave was that several years ago an article in Time magazine stated that scientists had found a genetic link to homosexuality and that scientists in the article were wrong because the Bible states that homosexuality is a sin, so anyone who chooses to be a homosexual is a sinner; and that, therefore, science can be wrong, scientists can be wrong. And then he applied that to thinking that the material in the textbook in that particular unit could be incorrect.”

Stockdale, however, did not report the alleged incident until after Freshwater was told to remove the Bible from off his desk in the spring of 2008.

Hearing referee R. Lee Shepherd, in his report, characterized the incident Stockdale described as being “Perhaps the most egregious example of John Freshwater’s ‘failure to adhere to established curriculum.’”

During the hearing, Freshwater testified that he never made the statement that Stockdale credited to him. Freshwater said that Stockdale may have overheard a conversation he had with other teachers regarding the Time magazine article about the gay gene.

Neither Shepherd in his report nor the school board in its resolution provided an explanation for why they chose to believe the testimony of Stockdale over that of Freshwater.

The records obtained by AccountabilityInTheMedia.com show that Stockdale never substitute taught for Mahan Sept. 1, 2005 through June 30, 2008.

In the written statement that Stockdale provided to the school during the H.R. On Call Investigation, Stockdale said:

“When this matter became public and removing the Bible from Mr. Freshwater’s classroom appeared to be the sole issue, I knew differently. Over the next few days, the question of whether or not John was proselytizing in his classroom was raised. I know for a fact that he was preaching.”

Freshwater has appealed the decision of the school board. In the appeal filed in February with the Knox County Court of Common Pleas, Freshwater addressed Stockdale’s allegation:

“Freshwater does not argue for his right to have said this; Freshwater denies saying this. Stockdale has no corroboration from students, or from parents, or from administration, no contemporary documentation, did not speak to anyone at the time, admits he does not have exact recollection of the things that happened that particular day, and at the time of the investigation he could not even remember what year this supposedly occurred. Yet, Stockdale is very specific in ‘recalling’ exactly what Freshwater said to his students. Without corroboration, it is IRRATIONAL to conclude that his testimony is true.”

RELATED DOCUMENTS:

Stockdale’s MVCS attendance report. 186 KB. PDF.

Stockdale’s letter. 126 KB. PDF.

Closing arguments.

Shepherd’s report and recommendation. 41 KB. PDF.

MVBOE termination resolution. 633 KB. PDF

Freshwater’s appeal. 3.25 MB. PDF

See the articles in the archive for additional coverage of the Freshwater controversy.

Ohio Department of Education tries to revive Tesla coil issue

The Ohio Department of Education sent a “Letter of Admonishment” to John Freshwater that claims Freshwater “engaged in conduct unbecoming to the teaching profession.” The only issue raised in the letter is the previously adjudicated issue involving the Tesla coil.

Without citing any evidence or sources, the ODE asserted that Freshwater’s use of the Tesla coil “resulted in an injury to a student.”

The referee who oversaw Freshwater’s state administrative hearing, R. Lee Shepherd, stated about the allegation of a student being injured:

“Due to the sensational and provocative nature of this specified ground, it and the facts and circumstances surrounding it became the focus of the curious, including those in the video, audio, and print media. Once sworn testimony was presented, it [became] obvious that speculation and imagination had pushed reality aside.”

As previously reported by KnoxPages editor Adam Taylor, Freshwater’s attorney R. Kelly Hamilton has sent a response to the ODE demanding that the letter be rescinded.

“Freshwater herein demands,” the response states, “the Ohio Department of Education’s letter of Admonishment be immediately rescinded as the allegations relied upon in the letter are false, erroneous, defamatory and unwarranted and subject to legal action.”

Hamilton cited ODE own rules which bar the department from issuing the admonishment due to the matter having been already resolved.

Hamilton further requested, if the letter is not rescinded, that an investigation be opened immediately into the conduct of Mount Vernon City Schools superintendent Steve Short and middle school principal Bill White.

Short and White did not report the alleged injury to Children Services. Hamilton said Short and White failed to comply with Ohio’s mandatory reporting requirement.

Hamilton also requested that the ODE investigate the other teachers who also allowed students to touch the spark from the Tesla coil:

“The essence of the Ohio Department of Education’s Letter of Admonishment is that educators should be disciplined for an alleged, now known to be false accusation of harm, despite having followed on-the-job-training procedures and making use of a Tesla coil in the exact same manner as colleagues with a pattern of conduct that had proven reliable and safe for over 20 years.”

Related documents:

Letter of Admonishment, dated March 22, 2011. 1 MB PDF.

Response to Letter of Admonishment, dated April 20, 2011. 766 KB PDF.

UPDATE: 5-23-2011:

The Mount Vernon News reported Friday that Stephen and Jenifer Dennis, through their attorney, submitted a request to the ODE asking that the letter of reprimand remain in Freshwater’s file and that Freshwater's teaching license be revoked.

Press release: Rutherford Institute defends Christian teacher fired for urging public school students to think critically about evolution

The following press release was provided today by The Rutherford Institute:

MOUNT VERNON, Ohio— The Rutherford Institute is defending a Christian teacher who was allegedly fired for keeping religious articles in his classroom and for using teaching methods that encourage public school students to think critically about the school's science curriculum, particularly as it relates to evolution theories. John Freshwater, a 24-year veteran in the classroom, was suspended by the Mount Vernon City School District Board of Education in 2008 and officially terminated in January 2011. The School Board's resolution claims that Freshwater improperly injected religion into the classroom by giving students "reason to doubt the accuracy and or veracity of scientists, science textbooks and/or science in general." The Board also claims that he failed to remove "all religious articles" from his classroom, including a Bible.

"The right of public school teachers to academic freedom is the bedrock of American education," stated John W. Whitehead, president of The Rutherford Institute. "What we need today are more teachers and school administrators who understand that young people don't need to be indoctrinated. Rather, they need to be taught how to think for themselves."

Throughout his 21-year teaching career at Mount Vernon Middle School, John Freshwater never received a negative performance evaluation. As one reporter noted, "In his evaluations through the 21 years he's worked for the district, Freshwater has drawn consistent praise for his strong rapport with students, broad knowledge of his subject matter and engaging teaching style." In fact, during the 2007-2008 school year, Freshwater's students earned the highest state standardized test scores in science of any eighth grade class in the district. Moreover, according to a federal judge's findings, Freshwater was the only science teacher at Mount Vernon Middle School who achieved a "passing" score on the Ohio Achievement Test.

However, in June 2008, the Board of Education voted to fire Freshwater, a Christian, citing concerns about his conduct and teaching materials, particularly as they related to the teaching of evolution. Earlier that year, school officials reportedly ordered Freshwater, who had served as the faculty appointed facilitator, monitor, and supervisor of the Fellowship of Christian Athletes student group for 16 of the 20 years that he taught at Mount Vernon, to remove "all religious items" from his classroom, including a Ten Commandments poster displayed on the door of his classroom, posters with Bible verses, and his personal Bible which he kept on his desk. Freshwater agreed to remove all items except for his Bible. Showing their support for Freshwater, students even organized a rally in his honor. They also wore t-shirts with crosses painted on them to school and carried Bibles to class.

School officials were seemingly unswayed by the outpouring of support for Freshwater. In fact, despite the fact that the Board's own policy states that because religious traditions vary in their treatment of science, teachers should give unbiased instruction so that students may evaluate it "in accordance with their own religious tenets," school officials suspended and eventually fired Freshwater, allegedly for criticizing evolution and failing to teach the required science curriculum.

With the help of The Rutherford Institute, Freshwater is appealing his termination in state court, asserting that the school's actions violated his rights under the First and Fourteenth Amendments to the United States Constitution and constituted religious discrimination under Title VII of the Civil Rights Act of 1964.

What does MV school board’s statement mean?

Editorial

The Mount Vernon Board of Education issued a press release criticizing what it referred to as “elements” within the community. The statement then goes on to praise student Zachary Dennis for “coming forward.”

The “elements” are described in the statement as people “who decided to attack the student and family who reported concerns about John Freshwater.”

The statement does not make clear what is meant by “attack.” Barring this as an allegation of assault, “attack” presumably refers to some form of verbal disagreement.

Even then, the lack of clarifying language leaves open the interpretation of what is meant by “attack” and, by extension, who belongs to the group the school board calls the “elements.”

Considering that the statement presents just two sides, the “elements” and the Dennises, readers of the statement could come away thinking that the criticism of the “elements” is a reference to all of the people who have disagreed with the Dennises.

Many of Zachary Dennis’s fellow classmates disagreed with Dennis’s testimony. Are those students to be considered part of the “elements” or are they to be praised for “coming forward”?

If the school board did not intend to offend the majority of the community then it should have included clarifying language.

An example of using clarifying language would be the statement that is at the top of the comments portion of every page on AccountabilityInTheMedia.com: “Comments from all ideological viewpoints are welcome. However, please avoid abusive language and ad hominem attacks.”

(See here for a copy of the press release. PDF 48 KB)



(The community used signs in 2008 to express opinions about the school controversy.)

Use the play button at very bottom of picture to view slideshow.

Case ‘closed’ without trial, without verdict

The Knox County Court of Common Pleas lists John Freshwater’s case—in which he was appealing his firing from Mount Vernon City Schools—as being “closed.”

Freshwater’s appeal never went to trial.

The case disposition is described on the court's website as being that of “Transfer to another judge or court.”

AccountabilityInTheMedia.com asked Freshwater whether he was given an opportunity to challenge the attempt to close his case at the county level. His wife, Nancy, wrote back, “We knew nothing about it; we didn't even know the request was made.”

Attorneys for the Mount Vernon Board of Education had filed a “Notice of Removal” with the county court Wednesday morning. In the filing, the attorneys told the court the “case has been removed to the United States District Court for the Southern District of Ohio.”

(See here for a copy of the documents. TIFF 339 KB )

The attorneys did not include in their filing a copy of any decision made by a federal judge that shows the transfer of the case was approved.

Although the county court website has an entry that says the case is “finished” and “filed away,” there is no document—such as a decision by county judge Otho Eyster—which corresponds to that entry.

Knox County Clerk of Courts, Mary Jo Hawkins, told AccountabilityInTheMedia.com that “there is no document for the entry” which says the case is finished. She explained that the entry “is just our notation.”

Included in the documents the school board’s attorneys filed is a copy of the request, apparently filed in federal court, for transfer of the case.

In the request, the school board's attorneys argue: “This case is subject to removal under 28 U.S.C. § 1441(a) and (b), because the district court has original jurisdiction over this action based on federal question jurisdiction under 28 U.S.C. §1331.”

Freshwater had submitted his appeal to the county court pursuant to Ohio Revised Code 3319.16.: “Any teacher affected by an order of termination of contract may appeal to the court of common pleas of the county in which the school is located.”

The request for removal of the case was reported on by the Mount Vernon News on Wednesday in the article “Board asks to move case to federal court.” Reporter Pamela Schehl wrote, “Attorney Sarah Moore, of the law firm Britton, Smith, Peters & Kalail, said the board filed papers asking to move the Freshwater case to federal court.”

AccountabilityInTheMedia.com asked board members whether the request to move the case to federal court was made directly by the school board or with the prior knowledge and consent of the board. Board president, Dr. Margie Bennett, replied via e-mail: “Prior to the removal of the case to federal court, the Board met in executive session with legal counsel to discuss the case. The details of those discussions are a matter of attorney-client privilege, which no individual board member can waive or disclose.”

UPDATE 3-8-2011:

Federal judge Gregory Frost on Monday signed a memorandum saying that the case should be transferred to his docket.

(See here for a copy of the memorandum. 137 KB PDF)

Previous coverage related to Frost:

April 18, 2010 — “Christian Family Objects to Bible in Classroom”

July 31, 2010 — “Judge to Reconsider Previously Issued Sanctions”

Aug. 4, 2010 — “What’s in the Trash, Stays in the Trash, According to Judge”

Oct. 21, 2010 — “Freshwater Lawsuit Dismissed”

UPDATE 3-13-2011:

Judge Frost on Thursday issued an order questioning whether the federal court has jurisdiction over Freshwater’s case:

“This Court, however, questions whether it has subject matter jurisdiction over this action based upon § 3319.16 of the Ohio Revised Code and, if it does possess jurisdiction, whether it is proper to exercise it in view of the abstention doctrine. Thus, the Court is inclined to sua sponte remand this action. Defendants may have until March 28, 2011, to provide a brief explaining why this action should not be remanded.”

(See here for a copy of the order. 22 KB PDF.)

For additional documents related to this matter, see the website of the National Center for Science Education.

UPDATE 4-5-2011:

Judge Frost on Tuesday issued an order remanding the case back to the county court:

“First, this action was an on-going state judicial proceeding prior to removal to this Court. Plaintiff filed this action in the proper state court as required by § 3319.16 of the Ohio Revised Code. Next, those proceedings certainly implicate important state interests […].Finally, the state court is quite competent to hear Freshwater’s complaints of constitutional violations.”

(See here for a copy of the order. 29 KB PDF.)

Did MV schools fulfill 2009 settlement terms?

In August 2009 the Mount Vernon Board of Education agreed to a partial settlement with the Dennis family. Eighteen months later, portions of the settlement may have been left unfulfilled.

As part of the agreement the school board promised that there would be two presentations given to employees of the Mount Vernon City Schools on the subject of religion in the public schools. The board also said that after they made their decision regarding John Freshwater’s employment they would issue a statement included in the settlement.

The presentations
The first presentation was given in August of 2009 by two attorneys. The second presentation, according to the settlement, was to be given by Melissa Rogers or a speaker “with similar credentials.”
 

The 2009 settlement stipulated that there were to be two presentations.

AccountabilityInTheMedia.com asked the schools’ superintendent, Steve Short, whether the second presentation had been given. Short wrote back, “I have forwarded your request to our attorney for a response.”

If and when the attorney, Sarah Moore, responds this article will be updated with her response.

The settlement gave a deadline for the second presentation: September 2010.

(See here for a copy of e-mails to and from AccountabilityInTheMedia.com regarding the second presentation. PDF 65KB )

The statement

The school board promised to “make a public statement” using wording included in the settlement. The statement was to be issued after the board made its decision regarding Freshwater’s employment.

The school board in 2009 agreed to make a public statement after the hearing concluded.

AccountabilityInTheMedia.com asked the school board’s president, Dr. Margie Bennett, about the statement. Bennett wrote back, “I understand Mr. Short sent the Press Release to the local media and the Columbus Dispatch.”

Following Bennett’s response, a copy of the press release was requested from the school via a public records request. When the response is received this article will be updated with the response.

(See here for a copy of e-mails to and from AccountabilityInTheMedia.com regarding the statement. PDF 69KB )

UPDATE 3-1-2011:

Moore has not responded to the request for comment.

The school has not replied to the public records request.

UPDATE 3-3-2011:

Rogers replied to a request for comment from AccountabilityInTheMedia.com, saying: “I suggest you contact David Millstone. I'd be happy to talk to you, but Mr. Millstone knows much more about this matter.”

(Millstone is one of the two attorneys that gave the first presentation to school employees on the subject of religion in the public schools. Millstone, however, did not handle the settlement with the Dennis family.)

AccountabilityInTheMedia.com had sent the following questions to Rogers: “Were you contacted by anyone to speak at the school? Did you give a presentation at the school on the subject of religion in the public schools?”

(See here for a copy of e-mails to and from Rogers. PDF 69KB )

UPDATE 3-4-2011:

The second presentation

Short told AccountabilityInTheMedia.com that the second presentation has not yet been given.

“We are in the planning stages for the second speaker,” Short said. “We anticipate that we will have the second speaker in May.”

The speaker will be someone other than Rogers. “Unfortunately,” Rogers explained, “we could not work out the scheduling.”

(See here for a copy of e-mails to and from AccountabilityInTheMedia.com regarding the second presentation—updated on 3-4-2011. PDF 12 KB )

The statement

Short supplied a copy of a press release that contains the statement that was required pursuant to the August 2009 settlement. The press release is undated but would have been issued sometime after the school board made the decision in January 2011 to fire Freshwater.

(See here for a copy of the press release. PDF 48 KB)

(See here for a copy of e-mails to and from AccountabilityInTheMedia.com regarding the statement—updated on 3-4-2011. PDF 10 KB )

School board votes 4-1 to fire Freshwater

The president of the Mount Vernon Board of Education had to prompt board members several times before one of the members offered to move to adopt the resolution to terminate John Freshwater’s teaching contract.

Paula Barone moved, seconded by Jody Goetzman, to fire Freshwater.

Steve Thompson was the only board member to vote against the resolution.

(Click here to view a copy of the resolution adopted by the school board during Monday’s meeting. 632.765 KB PDF.)

The referee overseeing Freshwater’s state administrative hearing, R. Lee Shepherd, issued a report on Friday recommending the termination of the teacher’s contract.

In the beginning of the report, however, Shepherd dismisses the allegation that Freshwater burned a cross onto the arm of one of his students:

“Due to the sensational and provocative nature of this specified ground, it and the facts and circumstances surrounding it became the focus of the curious, including those in the video, audio, and print media. Once sworn testimony was presented, it [became] obvious that speculation and imagination had pushed reality aside.”

Shepherd also noted that the matter involving the Tesla coil had already been dealt with by school administration. (See the article, “Tesla Coil Matter Was Officially Resolved January 2008.” )

Although Shepherd said that Freshwater violated the Establishment Clause and that he recommended firing Freshwater, he noted that Freshwater excelled as a teacher:

“Initially, it must be noted that a wealth of evidence was presented to substantiate that John Freshwater was a successful eighth grade science teacher. Many, possibly most of his students seemed to enjoy his class and remember it fondly. On the average, Freshwater students performed at or above the state requirements and expectations for eighth grade science students. The state test score results for his students often exceeded the state test score results of other eighth grade science teachers. On more than one occasion, John Freshwater was recognized by his peers for his outstanding teaching skills.”

(Click here to view a copy of Shepherd’s report and recommendation. 41.084 KB PDF.)

The school board did not permit public participation during the meeting. Board president, Dr. Margie Bennett, said this was “because we have a lot of business to cover.” See correction at end of article.



Video: "Paula Barone withdraws recusal regarding John Freshwater hearing."

(Click here to view a copy of the Paula Barone and Steve Thompson recusal letters. 1.19 MB PDF)


Video: "School board votes 4-1 to fire John Freshwater."



Video: "School board members talk about the firing of John Freshwater."


For Freshwater’s side of the story, see the article, “Freshwater’s Closing Arguments: Allegations Unsubstantiated.” Also see the articles in the archive for additional coverage of the Freshwater controversy.

UPDATE 2-15-2011:

Related Document

As already reported by the media, Freshwater filed an appeal February 8 with the Knox County Common Pleas Court. (Click here to view a copy of the 33 page document. 3MB PDF. )

Correction

During the February 14 school board meeting, Bennett said she wanted to clear up a misunderstanding over why there was no public participation at the last meeting.

“Public participation,” Bennett said, “is always a part of our meetings and we would never do away with it because we are too busy. The reason we didn’t have any was because no one had signed up.”

(Editor’s note: Based on having gone back and looked at the video, it appears that Bennett’s statement at the opening of the prior meeting —“We won’t spend a lot of time on comments this evening because we want to go right into…we have a lot of business to cover”—was intended by her to keep the board members’ comments brief.)