MV school board: Firing of Freshwater not of public interest

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.

Some of the details of the case even found their way into the series finale of Law & Order. (See the article “Freshwater Controversy in Episode of Law & Order.”)

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.

Especially considering that the school continues to allow other teachers to have a Bible on their desk, it is inconceivable that the presence of Freshwater’s Bible was a violation of the Establishment Clause.

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.”

The school did not document any order to remove the Colin Powell/George W. Bush poster. The last two books mentioned were from the school’s library.

Apparently, a person should just know that checking out books from the school’s library is cause for being expelled.

Related coverage:

“Press release: Rutherford Institute appeals to Ohio SupremeCourt on behalf of science teacher fired for urging students to think critically about evolution”

“District court rules against Freshwater’s appeal”

“Freshwater appeals to 5th District Court”

“County judge rules against Freshwater’s appeal”

“What does MV school board’s statement mean?”

“School board votes 4-1 to fire Freshwater”

“Freshwater’s Closing Arguments: Allegations Unsubstantiated”

Updates: The section “The First Amendment and academic freedom” has been updated in a few places to clarify a few points.