The John Freshwater case received an influx of new paperwork
on Thursday as the Mount Vernon Board of Education and its cohorts submitted
their briefs to the Ohio Supreme Court just in time to meet the extended
deadline.
Joining the school board were the American Humanist
Association, Americans United for Separation of Church and State, the
Anti-Defamation League, the Secular Student Alliance, the National Center for
Science Education and Stephen and Jenifer Dennis.
The group submitted a total of five briefs.
Case background
In January 2011 the board fired Freshwater from his position
teaching eighth-grade science at the Mount Vernon City Schools. He had been
employed by the school since 1987.
(Freshwater taught science for 21 years at Mount Vernon
Middle School.)
The board’s resolution firing Freshwater provided two
categories of reasons for the firing: The first involved Freshwater’s teaching
methodology which the board characterized as religious. The second was about
“religious articles” in his classroom.
Following his firing, Freshwater appealed unsuccessfully to Knox County Court of Common Pleas and then to the 5th District Court of Appeals in Ohio. Both courts rubber-stamped the board’s decision.
In July of this year the Ohio Supreme Court agreed to hear Freshwater’s case.
On Aug. 24 Freshwater submitted his merit brief to the
court.
The board subsequently requested an extension of time
to file its response, which the court granted. It also submitted a motion to
strike portions of Freshwater’s brief. (Read about that here and here.)
According to court rules, Freshwater will have 20 days to
respond to the recently submitted briefs.
The First Amendment
and academic freedom
The First Amendment
The board has motioned for the Ohio Supreme Court to strike
the text of the First Amendment from Freshwater’s merit brief.
The following is the First Amendment to the United States Constitution:
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.”
Incidentally, the swearing in of three board members in January of this year utilized a paraphrased version of the oath which did not
explicitly mention the Constitution of the United States or the constitution of
Ohio.
Ohio Revised Code 3313.10 states:
“Before entering upon the duties of his office each person
elected or appointed a member of a board of education shall take an oath to
support the Constitution of the United States and the constitution of this
state and that he will perform faithfully the duties of his office. Such oath
may be administered by the treasurer or any member of the board.”
The omission of the Constitution from the oath may have been
an innocent goof-up. The real test of elected officials' loyalty to the Constitution
is not so much what they say they will do but what they actually do.
Freshwater has argued that the basis used by the board to
terminate his employment violated his and his students First Amendment rights
to academic freedom.
Freshwater’s teaching methodology
In the resolution firing Freshwater, the board took issue
with how Freshwater handled the topic of evolution and with his encouraging his
students to think about the material in the science textbooks instead of
blindly accepting everything as written.
The board did not dispute that evolution was a topic
Freshwater was allowed to teach. The joint brief by board cohorts Americans
United for Separation of Church and State and the Ant-Defamation League went so
far as to say “instruction on evolutionary science” was “officially mandated.”
The board said the problem regarding Freshwater’s handling
of evolution 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.”
(Freshwater offered his
students the following voluntary extra credit assignment: “Watch and examine
the film Expelled, and explain why it is important to examine this film
objectively and not let bias affect your observations.”)
The board, in its termination resolution, did not go so far as to claim that Freshwater
emphasized the evidence against evolution to the point of outright teaching
either creationism or intelligent design.
However, in the board’s recent brief, it makes the claim
that Freshwater’s merit brief acknowledges outright teaching of creationism and
intelligent design.
Contrary to the board’s new claim, a fair analysis of
Freshwater’s merit brief would show that whenever a reference was made
specifically to how he handled creationism or intelligent design his approach
was characterized as being along the lines of considering or discussing the matter.
Indeed, the evidence cited by the board is the following
statement: “if discussions of evolution may not be banned from a science
classroom, then neither may discussions of creationism be banned.”
Later in the brief, the board provided the following information
about how Freshwater handled the topic: “In another example, one student
testified that we ‘knew what he was talking about [intelligent design], but he
would never outright say it.’ […] "He would just kind of say something
where it would be obvious to someone [that he was talking about intelligent
design].”
Board policy and administrative guidelines
The board has previously taken the position that “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 [May
11, 2012] 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.”
This time the board decided to cite its policies.
But, unfortunately for the board, those polices
turned out to only support Freshwater’s arguments.
Before delving into the policies, the board
countered Freshwater’s citation of judicial precedent supportive of academic
freedom by saying: “A judicially-created ancillary First Amendment right to
‘academic freedom’ is simply inapplicable to Freshwater. The concept of
academic freedom is derived from the realm of higher learning in universities.”
The board went on to say that since the 1967 case Keyishian
v. Bd. of Regents “the United States Supreme Court has never suggested that
academic freedom of professors extends to teachers in public school classrooms
where the audience is made up of children and attendance is mandatory.”
The board staked its authority over Freshwater on the
position that “Only a board is entrusted with the establishment and control of
the curriculum in its schools.”
So, how has the board exercised that authority through its
written polices? The board did so primarily through adopting Policy and Guideline 2240 - Controversial Issues; Policy and Guideline 2270 - Religion in the Curriculum; and Policy 3218 - Academic Freedom of Teachers.
Of particular relevance is policy 3218 which not only is
titled Academic Freedom of Teachers,
but also says, “The freedom to speak and share ideas is an inherent precept of
a democratic society governed by the will of the majority. Teachers and
students need to be free to discuss and debate ideas."
The board tried to use a Jedi mind trick when it
responded to its own policy by saying, “Nowhere does the policy suggest that
Freshwater had a right to teach whatever he pleased, particularly in a science
classroom where he was mandated to present scientific data, not religious
doctrine.”
(The board borrowed part of its legal strategy from Star Wars: “These aren’t the droids you’re looking for.”)
The board was confident enough that the technique was working that it bravely went on to quote the rest of the same policy: "When ideas that may be controversial are introduced, teachers, while having a right to their opinion on the subject, shall state it as such and they should be objective in presenting various sides of the issues."
In response, the board said, “Freshwater, however, filled
his classroom with religious discussion and a religious display.”
What does the policy about “Religion in the Curriculum” say
about religion? The board summarized it as being:
“Under Policy and Guideline 2270, the Board directed its
teachers, including Freshwater, to be neutral in their approach and avoid using
religious material to advance religion in anyway. Teachers were only to discuss
religion [in] the classroom during an age-appropriate, objective lesson on, for
example, religious practices around the world in social studies class or
sixteenth century art in art class. Despite that directive, Freshwater chose to
advance his Christian views in the classroom, where the curriculum specifically
directed him to teach students about science, not theology.”
That must mean that the school-approved science textbooks
never mention ideas that are religious or that stray from current
establishment-accepted thinking.
But, wait, as Freshwater pointed out in his first appeal,
the board-supplied “curricular materials—textbooks—for 8th-grade science”
contained “numerous and common subjective, biased, religion-based, and
non-scientific opinions.” He went on to say:
“Among the quotations are statements that scientists can be
wrong, admissions of scientists changing their minds over time, narrations of
ancient legends, speculation on ritual uses of geologic sites, science fiction
stories, reasons to doubt the accuracy of scientists, instruction to students
to debate scientific topics as well as moral or ethical topics relating to
science.”
The board is going to need the dark side of the Force.
Regarding the third policy, 2240 - Controversial Issues, the
board says, “Under that policy, only the Board, acting through its principals,
could authorize teaching controversial topics that were not contained in the
applicable Academic Content Standard, or course of study.”
However, the board, as mentioned before, did not challenge
that evolution was part of the topics the school allowed Freshwater to teach.
According to the policy and guideline, once a controversial
topic is allowed by the school, the teacher is then allowed to provide other
viewpoints. Thus, the board’s argument rests on whether evolution is a
controversial issue. If it were to be established that evolution is, in fact, a
controversial issue, then the board’s defense would fall apart.
Of course, the board could always try to use the Force to
levitate itself above the facts.
The school’s administrative guideline for “Controversial
Issues in the Classroom” provides the following insightful details about how Freshwater
was supposed 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?
In the board’s defense, it quotes from the Academic Content
Standard, which it says requires that students “realize that the current body
of scientific knowledge must be based on evidence, be predictive, logical,
subject to modification and limited to the natural world.”
The very wording of the quote provided by the board does not
preclude students from knowing about things that are not considered part of “the
current body of scientific knowledge,” as, indeed, the schools own textbooks
include information about past beliefs of scientists that are no longer
accepted, even ideas that are religious.
That Freshwater’s students understood science, and
understood it well, is evidenced by his students’ high passage rate on the Ohio
Achievement Test.
The board also took the opportunity while on the topic of
the controversial issues policy to criticize Freshwater’s 2003 “Objective Origins Science Policy” proposal.
After mentioning that the proposal was rejected, the board comments,
“Simply put, Freshwater's proposal did not meet any of the criteria required
for introducing a controversial topic to students, particularly young,
impressionable students.”
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.
Not mentioned by the board was that two of the reasons the
school’s Science Curriculum Committee recommended 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 James Stockdale problem
Another item included in the board’s resolution, in the
teaching methodology category, was an allegation made by substitute teacher
James Stockdale.
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.
Freshwater, on the other hand, testified that he never
made the statement that Stockdale credited to him.
In a subsequent public records request made by
AccountabilityInTheMedia.com, it was discovered that the school's records showed
Stockdale's duties did not take him into Freshwater’s classroom anytime
Sept. 1, 2005 through June 30, 2008.
The board later told the 5th District Court of Appeals, “The
records could be incomplete or, most likely, the witness could have been
mistaken as to the date he heard the comments.”
The board insisted that Stockdale did hear the comments.
As the board puts it this time, in explaining it to the Ohio
Supreme Court:
“This testimony by Jim Stockdale is disputed by [Freshwater],
but it is irrelevant which particular day Stockdale witnessed the comments
being made. The fact they were heard at all is what gave the Board cause for
concern, and ultimately, corroborating evidence to support the good and just
cause for [Freshwater]'s firing.”
In other words, the board knows Stockdale heard the remarks
because Stockdale heard the remarks.
Aside from the board’s above-mentioned circular argument, the
board is arguing that the records should not be considered by the court due to
the fact the records were not submitted into evidence during the hearing.
‘Religious articles’
in the classroom
Insubordination
The final reason the board gave for firing Freshwater was
that he did not remove all of the “religious articles” from his classroom.
The board says in its brief, “Not only did Freshwater refuse
to remove several items, including his Bible and the ‘fervent prayer’ poster,
but he went down to the school library, checked out the Oxford Bible and a copy
of Jesus of Nazareth, and placed them in the plain view of his students.”
The Bible on the desk
Freshwater, however, did remove all the items he was
directed, in writing, to remove with the exception of his personal Bible.
In contrast to the school’s directive regarding Freshwater’s
Bible, the school has been allowing other teachers to each have a Bible out on
their desks.
In response to this disparity, the board mentions the
testimony of Steve Short, superintendent of the Mount Vernon City Schools.
Short said the difference was that parents Stephen and Jenifer Dennis complained that Freshwater referenced his Bible during class.
Other testimony in the hearing, however, did not support the
Dennis’ complaint. (For more information, see “Student Testimony—JohnFreshwater Addresses School Board.”
The poster
The “fervent prayer” poster, more commonly known as the
Colin Powell/George W. Bush poster, had been on the wall in Freshwater’s
classroom for years. Various faculty members at the school also displayed the
poster at one time or another.
The school did not document any order to remove the poster.
The library books
The school library does not have any signs warning that
checking out books could result in expulsion.
To the contrary, when the board met in the library to vote to
fire Freshwater, hanging above the board was a poster of Yoda which stated,
“Read and The Force is with you.”
Additional information
See the articles in
the archive for additional coverage of the Freshwater controversy.
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