Attorneys for the Mount Vernon Board of Education on Friday
asked the Ohio Supreme Court to refuse to hear the John Freshwater case because
it was “a run-of-the-mill termination case.”
The board’s attorneys assert in the memorandum that the case
does “not involve matters of public or great general interest, and this case
does not present a substantial constitutional question. Therefore, the Board
respectfully requests this Court decline jurisdiction of the appeal.”
Apparently, those attorneys have been living under a rock
for the past four years.
(
See here for a copy of the board’s arguments.)
A matter of public
interest
The controversy concerning Freshwater and the Mount Vernon
City Schools began back in the spring of 2008 when the school ordered Freshwater
to remove his personal Bible from off his desk. (See the Mount Vernon News
article
“Wednesday afternoon rally in support of teacher.”)
That order and the ensuing allegations have spawned numerous
broadcast and
print stories. Community members have engaged in lengthy
discussions both online and offline concerning the rights and responsibilities
of public school teachers and the meaning of the First Amendment.
Various rallies have brought community members together over
their shared concern with how the school administration and the school board
have handled the matter. (See the video
“John Freshwater Rally.”)
Community members have also shown up at school board
meetings to express their views. The meeting held on Aug. 4, 2008 drew so many
people that the board had to change the venue to accommodate the crowd. (See the
video of the meeting and the Mount Vernon News article
“Large crowd addresses MV school board.”)
Any serious examination of the facts by a reasonable person
would lead to the conclusion that this case does involve matters of law that are
of public interest. The public has clearly demonstrated its recognition of the
importance of this case.
Unfortunately, the position taken by the board’s attorneys
is one that is dismissive toward the views of the public to the extent to even deny
that the public cares. It is, then, no wonder that the board’s attorneys would also take the
position that Freshwater had no First Amendment rights as a teacher.
The First
Amendment and academic freedom
The board’s Jan. 10, 2011 resolution firing Freshwater included
a significant focus on how Freshwater handled the topic of evolution. The board
said the problem had to do with the evidence offered as being against
evolution: “Freshwater’s ‘evidence’ against [evolution] was based, in large
part, upon the Christian religious principals (sic) of Creationism and Intelligent
Design.”
The board also took issue with Freshwater encouraging his students
to think about the material in the science textbooks instead of blindly accepting everything as written.
The board’s attorneys state, “Public employees have no
free-speech rights when they speak pursuant to their official duties. […] A
teacher’s speech is the speech of the board of education. […] A board of
education has the right to control its own speech, and cannot violate the First
Amendment by doing so. […][Freshwater] erroneously argues he had academic
freedom. […] Freshwater’s actions violated all the Board’s pertinent Bylaws and
Policies and the Establishment Clause.”
Neither the resolution firing Freshwater nor the board’s memorandum
to the Ohio Supreme Court cite any of the bylaws or polices that Freshwater
supposedly violated. Considering that
they are not cited, the existence of any violated bylaws or policies is highly
suspect.
Even without considering the information Freshwater offers
in support of the First Amendment and academic freedom, the board’s assertions
are puzzling.
(See here for a PDF copy of Freshwater’s arguments.)
Freshwater’s teaching practices could not possibly be
contrary to any right the board may have to “control its own speech” if the
speech has already been approved by the board.
In this case, the speech appears to be within the scope approved by the board.
The school’s “Controversial Issues” policy states, “The Board of Education
believes that the consideration of controversial issues has a legitimate place
in the instructional program of the schools.”
The policy says that no prior permission is needed from the
principal if the controversial issue has been specified in the course of study. That the Ohio Achievement Test for eighth-grade science includes
questions about evolution, in the life science portion of the test, indicates
that some inclusion or discussion of the topic would be appropriate for an
eighth-grade science class. The board’s
resolution did not challenge the appropriateness of the topic of evolution in
the eighth grade.
Further, the school’s administrative guidelines for
“Controversial Issues in the Classroom” provide details about how to handle
controversial issues:
C. When discussing a controversial issue, the teacher may
express his/her own personal position as long as s/he makes it clear that it is
only his/her opinion. The teacher must not, however, bring about a single
conclusion to which all students must subscribe.
D. The teacher
should encourage student views on issues as long as the expression of those
views is not derogatory, malicious, or abusive toward other student views or
toward a particular group.
E. Teachers should
help students use a critical thinking process such as the following to examine
different sides of an issue:
For each stated
position:
1. What is the
person (group) saying?
2. What evidence
is there that what is being said is true?
3. What is said
that would lead you to think the position is valid?
4. What are the
strengths and weaknesses of this position?
5. What do you
think would happen if this point of view was accepted and was put into
practice?
For reaching
conclusions:
1. On balance,
what do you think is the most reasoned statement? the most valid position?
2. What is there
in the statements that supports your conclusion? What other things, beside what
is being said, leads you to your conclusion?
See here for a full copy of the policy and
administrative guidelines.
Although the board’s attorneys did not cite any violated bylaws
or policies, both the 2011 resolution and the recent memorandum mention the
rejection of
Freshwater’s 2003 “Objective Origins Science Policy” proposal as
if that rejection of the proposal constitutes a substitute for a bylaw or
policy.
The resolution stated, “Despite the Board’s rejection of
this proposal, Mr. Freshwater undertook the instruction of his eighth grade
science students, as if the suggested policy had been implemented.”
It is puzzling that the board would mention the 2003
proposal as if it was evidence against Freshwater.
It would be ludicrous to suppose that anytime a legislative
body, such as a school board, rejected a proposal that the act of rejecting it
automatically created an antithetical policy.
To the contrary, in this case, two of the reasons that the
school’s Science Curriculum Committee recommended that the board reject the
proposal was because, “The board of education policy addresses controversial
issues—Freshwater proposal is already addressed;” and the “Proposed [policy]
mentioned critical thinking skills—redundant, we’re already doing this.”
Surely Freshwater should have at least been afforded the
First Amendment and academic freedom to teach within the school’s own policies
and administrative guidelines.
The Bible on the
desk
One of the reasons the school board gave for firing
Freshwater was that he did not remove all of the “religious articles” from his
classroom.
Freshwater, however, did remove all the items he was
directed, in writing, to remove with the exception of his personal Bible.
The board’s recent memorandum says Freshwater “removed some
of the religious materials but failed, and consistently refused, to remove a
religious poster, his Bible, a Living Bible, and the book Jesus of Nazareth.”
Apparently, a
person should just know that checking out books from the school’s library is
cause for being expelled.
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