Dissenting Justice Paul E. Pfeifer wrote, “In a case bounding with arrogance and cowardice, the lead opinion fits right in.”
It is the sworn duty of the justices to support the Constitution of the United States and the Constitution of Ohio. That duty is not fulfilled when the majority justices hide behind superficial excuses to avoid rendering support for rights they don’t like:
“Courts sometimes don't want to rule on controversial legal questions, especially when doing so might force them to rule in favor of viewpoints they find distasteful, like the rights of teachers to teach scientific critique of evolution. As a result, you see narrow, hair-splitting, fact-intensive rulings like this one which do everything they can to settle the case on other issues, and avoid any explicit finding that it might be legal to critique Darwin.”
—Casey Luskin, “In the Freshwater Case, the Ohio Supreme Court Dodges Ruling on Academic Freedom to Critique Darwinian Evolution” (Evolution News and Views)
Those other issues the court used to settle the case were Freshwater having in his classroom a George W. Bush poster and two religious books from the school’s library.
Not exactly fireable offenses. Unless, of course, you count breaking ad hoc rules that exist only in the imagination of the people making the firing decision.
For the justices to grasp at these items as the basis of their decision shows how desperate they were. They had already recognized that Freshwater’s personal Bible was off limits as a basis for the firing. Now they needed something. Anything. The best they could find was a poster of a president and a couple library books.
And with that the majority opinion claimed to have solved the case: The items in Freshwater’s classroom provided sufficient grounds for firing him. Therefore the court did not need to touch the issue of whether it is legal to critique evolution.
What a relief for them. Had they needed to address the evolution issue they would have run into a sticky problem: Freshwater’s teaching methodology had been authorized by the school’s written policies and guidelines.
(See 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 four majority justices, and I use that term loosely when applied to them, could have used this case as an opportunity to assure Ohioans that they can count on their courts to have the courage to uphold the law.
Instead, we’re left wondering if a dystopian novel somewhere is missing four characters: Chief Justice Maureen O'Connor, Justice Judith Ann Lanzinger, Justice Judith L. French and Justice William M. O'Neill.
Related documents
Minority opinion: Reinstate Freshwater (Justice Terrence O’Donnell, with Justices Paul E. Pfeifer and Sharon L. Kennedy concurring)
Justice Pfeifer: ‘In a case bounding with arrogance and cowardice, the lead opinion fits right in.’ (Justice Paul E. Pfeifer)
Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., Slip Opinion No. 2013-Ohio-5000 (PDF)
Previous coverage
“Document dump: School board and cohorts file briefs in Freshwater case”
“Freshwater responds to school board’s arguments”
“Student was not burned, according to medical expert”
“School board votes 4-1 to fire Freshwater”
See the articles in the archive for additional coverage of the Freshwater controversy.
