Press release: Did public school teacher’s firing for presenting religious doctrine in science class violate his free speech rights?

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Suit Alleges School Board Policy Barring Teaching of Creationism Is Unconstitutional

John Freshwater v. Mount Vernon City School District Board of Education, Case no. 2012-0613
Fifth District Court of Appeals (Knox County)

ISSUE:  Did the firing of a public school teacher for violating a school district policy that prohibits teachers from distributing extracurricular materials of a religious nature to students in the classroom or endorsing the beliefs or principles of any religion in the course of instructing students violate the teacher’s right to freedom of speech and freedom of religion under the First Amendment of the U.S. Constitution?

BACKGROUND: In April 2008, the Mt. Vernon City School District Board of Education received a complaint from the parents of an eighth grade student indicating that their son’s science teacher, John Freshwater, had used an electrical demonstration device called a Tesla Coil located in his classroom to make a mark resembling a cross on the student’s arm.

Following an investigation and administrative hearing triggered by the parents’ complaint, the school board made findings that Freshwater had for a number of years prominently displayed a bible on his desk and placed a box of bibles on a table at the back of his classroom, had decorated his classroom with posters, photos and slogans endorsing fundamentalist Christian beliefs, and had received warnings from his principal on several prior occasions for distributing extracurricular materials and making in-class statements that disputed the theory of evolution as set forth in the eighth grade science textbook and curriculum guidelines set by the school board, and for urging students in his class to embrace the biblical teaching of “creationism” as an alternative explanation of the origin of the universe and human life.

The school district retained the services of an independent referee to determine if Freshwater’s actions violated school district bylaws and policies, and if so whether those violations constituted “good and just grounds” to terminate his teaching contract under Ohio law.

The referee’s hearing was conducted over all or parts of 38 days between October 2008 and June 2010, during which time the referee heard testimony by 80 witnesses and admitted 350 exhibits into evidence. In January 2011, the referee issued a report recommending that Freshwater’s contract be terminated based on findings that he had violated school district bylaws and policies that prohibit teachers from engaging in classroom activities that “advance or inhibit any particular religion,” and that require teachers to adhere to the academic content standards set by the school board for their classes.  The referee also found that Freshwater had been insubordinate by refusing to fully comply with his principal’s directive that he remove religious displays from his classroom, and that his insubordination was itself independent grounds for termination.

The board adopted the referee’s report and terminated Freshwater’s teaching contract on January 10, 2011. Freshwater appealed the board’s action in turn to the Knox County Court of Common Pleas and the Fifth District Court of Appeals, both of which affirmed the referee’s findings that his violations of board policies and insubordination constituted sufficient cause for his firing.  Freshwater sought and was granted Supreme Court review of two constitutional challenges to his termination.

Attorneys for Freshwater assert that the board’s action terminating his employment violated his free speech rights under the First Amendment because his firing was based not on the type or context of his communications with his students, but exclusively on the content or viewpoint he expressed.  They point to U.S. Supreme Court cases that they say have held that schools may not censor the ideas that students are permitted to consider in exploring their academic studies, and argue that Freshwater’s introduction of extracurricular reading and multimedia materials contrasting the theory of evolution set forth in the district-approved science textbook with the countervailing  tenets of creationism or “intelligent design” was consistent with the school board’s policy that teachers should help students develop their critical thinking skills by looking at intellectual questions from multiple points of view.

They argue that the belief that the universe and all life emanated from a divine creator is not an exclusive tenet of any one church or sect, or even of the Christian faith, but is rather a fundamental belief of many of the world’s major religions. Thus, they assert, Freshwater’s teaching his students to consider the possible role of an intelligent creator in the formation of the cosmos and human development was not a violation of the school district’s ban on religious advocacy in the classroom, because creation theory does not “advance or inhibit any particular religion,” but merely encourages consideration of a generalized religious view of reality.

Attorneys for the school district respond that when Freshwater spoke to a captive audience of public school students in his role as a employee of the Mt. Vernon City School District, what he said was not private speech subject to wide First Amendment protections but was rather “governmental speech” by a representative of the school board that was subject to the strict prohibition in the Establishment Clause against government actions that advocate or endorse the tenets or principles of any religion.

They assert that it is the duty of the school board and not Freshwater to determine the proper scope of the science curriculum for the district’s eighth grade students, and note that Freshwater’s teaching contract required him to follow the academic content standards set by the board, regardless of his personal opinions or religious beliefs. They also argue that the multitude of religious displays and posters in Freshwater’s classroom, and many of the anti-evolution pamphlets, videos and classroom exercises he repeatedly presented to his students, were not generalized messages suggesting the possible role of an undefined spiritual force in the creation of the world, but made specific reference to passages and themes in Christian scripture that state as an article of religious faith that the universe and all life in it were created by the God of the Christian Bible.  Thus, they say, the referee and lower courts correctly found that after being warned by his employer on multiple occasion, Freshwater continued to violate the Establishment Clause by injecting his personal religious beliefs into the instruction he presented to students in a public school, and the district had not only the right but the duty to terminate him on that basis.

NOTE: Amicus curiae (friend of the court) briefs supporting the position of the school district have been submitted to the court by, among others, the Anti-Defamation League, National Center of Science Education, American Humanist Association and Americans United for Separation of Church and State.

Contacts
Representing John Freshwater: R. Kelly Hamilton, 614.875.4174

Representing Mt. Vernon City School District Board of Education: David K. Smith, 216.503.5055

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Parties interested in receiving additional information are encouraged to review the case file available in the Supreme Court Clerk's Office (614.387.9530), or to contact counsel of record.


Additional information

Press release from The Rutherford Institute: Rutherford Institute defends academic freedom of teacher fired for urging students to think critically about evolution