John Freshwater, through his attorney R. Kelly Hamilton,
filed his reply brief with the Ohio Supreme Court on Tuesday. The brief is the
final step before oral arguments are presented in February 2013 regarding
Freshwater’s claim that he was wrongfully terminated from his job teaching at
Mount Vernon City Schools.
(See here for a copy of the brief.)
The Mount Vernon Board of Education fired Freshwater in January 2011 from his position teaching eighth-grade science. He had been
employed by the school since 1987.
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.
Freshwater’s brief takes the position that this “is a case
of first impression, and no known precedent provides a useful framework for its
analysis.”
The key aspects distinguishing this case from others are
that Freshwater’s actual teaching methods were within the scope approved by the
board’s own policies and administrative guidelines, and the items in
Freshwater’s classroom were permitted elsewhere in the school.
“Freshwater has never, at any time,” the brief says, “refused
to comply with any clear directive of the Board or administrators as to how he
should teach his class, what topics could be discussed in the classroom, or
what items could be displayed, and he has not challenged the Board's authority
to give these orders. This fact, and the correspondingly limited, defensive
First Amendment protection Freshwater claims, distinguishes this case from the
host of ‘teacher speech’ cases cited by the Board.”
Although the board attempted to support its censorship of
Freshwater’s classroom based upon the argument that it had the authority to
control Freshwater’s speech, the brief says the censorship the school engaged
in was ad hoc and circumvented the board’s own polices:
“Freshwater does not now dispute nor has he ever denied the
Board's authority to control its curriculum and classroom decor through
duly-enacted policies, even-handedly applied. However, Freshwater asserts that
the weight of First Amendment jurisprudence forbids the school's ad hoc
departure from governing policies and guidelines where it is undertaken to
eliminate discussion of viewpoints it disfavors or to sterilize the school of
words, pictures, or ideas that have a tangential association to religion.”
The brief also says,“[T]he Board's position ignores entirely
what was, perhaps, the most specific directive provided to guide Freshwater's
teaching methodology: the Academic Content Standards for Eighth Grade Science.
As Freshwater has consistently maintained, his teaching methodology was
purposefully and properly designed to fulfill his Board-given mandate to enable
students to ‘Explain why it is important to examine data objectively and not
let bias affect observations.’ In fact,
school officials admitted that materials used by Freshwater were properly
tailored to this standard.”
The brief concludes with the following statement:
“In terminating Freshwater, the Board has gone far astray
from foundational First Amendment principles. Freshwater does not claim a
general First Amendment right to determine school curriculum, to discuss
whatever he likes in the classroom setting, or even to decorate his classroom
free from Board directives. Rather, Freshwater asks this Court to rule that a
public school teacher retains at least this modicum of academic freedom and
protection from religious hostility: that school officials may not terminate
him for using teaching methods and materials or for possessing items that
comply with school policies and practices but are censored due to their
particular viewpoint on an otherwise approved topic, or due to their consistency
with the presumed religious beliefs of the teacher in question.”
Freshwater is seeking monetary damages and reinstatement to
his position teaching eighth-grade science.
Note: Internal citations
were omitted from the quotes from the brief.
Additional
information:
See the articles in
the archive for additional coverage of the Freshwater controversy.
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