Freshwater responds to school board’s arguments

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:

John Freshwater v. Mount Vernon City School District Board of Education, case information and documents, Supreme Court of Ohio

“Press release: Rutherford attorneys file final brief with the Ohio Supreme Court in case of teacher fired for urging students to think critically about evolution”

“Document dump: School board and cohorts file briefs in Freshwater case”

“Freshwater files brief with Ohio Supreme Court”

See the articles in the archive for additional coverage of the Freshwater controversy.

Press release: Rutherford attorneys file final brief with the Ohio Supreme Court in case of teacher fired for urging students to think critically about evolution

The following press release was provided today by The Rutherford Institute:

MOUNT VERNON, Ohio—Attorneys for the Rutherford Institute have filed a final reply brief in the case of science teacher John Freshwater, which arose after the Mount Vernon City School District’s Board of Education terminated his employment in January 2011. The Ohio Supreme Court has agreed to The Rutherford Institute’s request to hear the case, and the case will proceed to oral arguments in February 2013. Rutherford Institute attorneys argue that the School District violated Freshwater’s academic freedom rights—and those of his students-- by firing him for encouraging students to think critically about the school’s science curriculum, particularly as it relates to evolution theories. The Institute argues that where a teacher’s speech is in compliance with all Board policies and directly relates to the prescribed curriculum, the school should not be permitted to terminate the teacher’s employment as a means of censoring a particular academic viewpoint from the classroom.

The Rutherford Institute’s reply brief to the Ohio Supreme Court is available at www.rutherford.org.

“Academic freedom was once the bedrock of American education. That is no longer the state of affairs, as this case makes clear,” stated John W. Whitehead, president of The Rutherford Institute. “What we need today are more teachers and school administrators who understand that young people don’t need to be indoctrinated. Rather, they need to be taught how to think for themselves.”

In June 2008, the Mount Vernon City School District Board of Education voted to suspend John Freshwater, a Christian with a 20-year teaching career at Mount Vernon Middle School, citing concerns about his conduct and teaching materials, particularly as they related to the teaching of evolution. Earlier that year, school officials reportedly ordered Freshwater, who had served as the faculty appointed facilitator, monitor, and supervisor of the Fellowship of Christian Athletes student group for 16 of the 20 years that he taught at Mount Vernon, to remove “all religious items” from his classroom, including a Ten Commandments poster displayed on the door of his classroom, posters with Bible verses, and his personal Bible which he kept on his desk. Freshwater agreed to remove all items except for his Bible. Showing their support for Freshwater, students even organized a rally in his honor. They also wore t-shirts with crosses painted on them to school and carried Bibles to class. School officials were seemingly unswayed by the outpouring of support for Freshwater. In fact, despite the fact that the Board’s own policy states that because religious traditions vary in their treatment of science, teachers should give unbiased instruction so that students may evaluate it “in accordance with their own religious tenets,” school officials suspended and eventually fired Freshwater, allegedly for criticizing evolution and using unapproved materials to facilitate classroom discussion of origins of life theories. Freshwater appealed the termination in state court, asserting that the school’s actions violated his rights under the First and Fourteenth Amendments to the United States Constitution and constituted hostility toward religion. A Common Pleas judge upheld the School Board’s decision, as did the Fifth District Court of Appeals, without analyzing these constitutional claims. In appealing to the Ohio Supreme Court, Institute attorneys argued that the Board through its actions violated the First Amendment academic freedom rights of both Freshwater and his students. The Board attempted to have the Ohio Supreme Court strike the First Amendment claims from the lawsuit, but was unsuccessful.

Was the 2012 MV school board oath legal?

When the Mount Vernon Board of Education met for its organizational meeting in January 2012, it was missing something very important: A copy of the oath of office.

As even Chief Justice John Roberts could tell you, it’s probably better to have a copy of the oath in front of you than to try to wing it.

Nonetheless, Superintendent Steve Short decided to wing it. Or, as he put it, “We’re making this up as we go.”

The 2012 oath of office

Here’s what happened at the opening of the meeting:

Dr. Margie Bennett: Are you going to give us the oath of office?

Steve Short: I don’t have it.

MB: We may have to wait. … Because we won’t have a quorum.

SS: We need to. Go ahead, and I’ll give it if that’s OK.

MB: OK

SS: We’re making this up as we go.

MB: Is it legal, then?

SS: Well, as the treasurer is not here, and I don’t anticipate her getting here until close to 7:30, I can go ahead and ask the question; what do you guys think, would you rather wait—

MB: Are you going to do us together, or do you want one at a time? You probably wouldn’t say the same thing three times.

SS: Let’s all do it together. How’s that? Let’s go over here. And let’s put the left hand on the Bible; raise the right hand. ‘I swear to do the duties of a board member of the Mount Vernon City Schools.’

MB, Cheryle Feasel and Jody Goetzman: I do.

SS: I hereupon decree that you are a board member of the Mount Vernon City Schools. Thank you.

(See here for a video clip from the meeting.)

The oath as reported in the official record

Here’s what was recorded in the minutes of that meeting:

“Do you solemly (sic) swear that you will support the Constitution of the United States and the Constitution of the State of Ohio; and that you will faithfully and impartially discharge your duties as a member of the Board of Education of the Mount Vernon City School District, Knox County, Ohio, to the best of your ability, and accordance with the laws now in effect and hereinafter to be enacted, during your continuance in said office, and until your successor is elected and qualified?”

For you math folks, the oath reported in the minutes showed a 418.75% increase in word count over the actual oath administered.

The board subsequently approved the minutes of the meeting.

During research for this article, AccountabilityInTheMedia.com submitted a public records request for copies of the relevant minutes.

Due to several tell-tale shadow lines around a group of signatures on the minutes of the organizational meeting, AccountabilityInTheMedia.com requested to examine the original at the school’s district office.

The examination of the original document showed that the signatures had been physically cut-and-pasted onto the document.

(The Mount Vernon City Schools occasionally uses cut-and-paste signatures, such as those shown in this photo.)

“The signatures are authentic, as you saw,” Short told AccountabilityInTheMedia.com in an email. “To place the document in the minutes book it had to be reduced.  The Board members signed the oath and those signatures were placed in the minutes book after the original was signed.  It was simply a process that allowed the oath to be printed in the minutes book.”

Research by AccountabilityInTheMedia.com did not find anything in Ohio law that specified that the oath was required to be signed or that signing the oath would substitute for a properly administered oath.

Ohio law and board bylaw

As noted earlier, Bennett raised the following question at the organizational meeting: “Is it legal, then?”

Both Ohio Revised Code 3313.10 ("Oath of office of member") and board Bylaw 0142.1 (“Oath”) require that the oath be taken before entering into the duties of the office:

O.R.C. 3313.10: 

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.

Board Bylaw 0142.1: 

Before entering upon the duties of a member of the Board, each elected or appointed member shall make the following oath, which may be administered by the Treasurer, or any member of the Board: 

I, __________________, do solemnly swear (or affirm) that I will support The Constitution of the United States and the Constitution of the State of Ohio; and that I will faithfully and impartially discharge my duties as a member of the Board of the Mount Vernon City School District, Knox County, Ohio, to the best of my ability, and in accordance with the laws in effect during my term of office until my successor is chosen and qualified.

Both O.R.C. 3313.10 and board Bylaw 0142.1 include explicit reference to supporting the Constitution of the United States and the Constitution of Ohio.

The oath administered by Short did not include any such explicit reference: “I swear to do the duties of a board member of the Mount Vernon City Schools.”

Although someone could attempt to argue that supporting the Constitution is implied through the words “the duties,” Ohio law makes a distinction between the wording and the content of the oath.

O.R.C. 3.21 (“Form of oath”) says, “Subject to any section of the Revised Code that prescribes the form of an oath, a person may be sworn in any form the person deems binding on the person’s conscience.”

However, O.R.C 3.23 (“Contents of oath of office”) says, in its relevant part, “The oath of office of every other officer, deputy, or clerk shall be to support the constitution of the United States and the constitution of this state, and faithfully to discharge the duties of the office.”

The oath administered by Short closely matches the wording of the second half of the required content of the oath: “[F]aithfully to discharge the duties of the office.”

The flexibility allowed in the form or wording of the oath would conceivably allow the second half of the oath’s content to be worded as, say, “I’ll never let you down.” That flexibility in the form of the oath, however, does not negate that both the Constitution of the United States and the Constitution of Ohio are included under the required content.

Of possible relevance to the impact of an incorrectly administered oath are O.R.C. 3.01 (“Continuation in office until successor elected or appointed and qualified”) and O.R.C 3.22 (“Oath of office”).

O.R.C. 3.01 says, “A person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or laws of this state.”

Two out of the three people given the oath in January of this year had been re-elected to the position. Assuming they had been given a valid oath previously, O.R.C. 3.01 would seem to allow them to continue in office.

O.R.C 3.22 says, in part, “The failure to take such oath shall not affect his liability or the liability of his sureties.”

AccountabilityInTheMedia.com has requested comment from the Ohio Department of Education regarding the legality of the oath administered by Short.

Additional information

Emails to and from AccountabilityInTheMedia.com regarding the oath of office

Julian & Grube, Inc 2011 audit of the MVCS

The signed minutes of the Jan. 10, 2012 MVBOE organizational meeting

The signed minutes of the Feb. 13, 2012 MVBOE regular meeting

UPDATE 10-22-2012:

John Charlton, a spokesperson for the Ohio Department of Education, declined to comment on whether the wording used by Short complied with Ohio law.

Charlton did comment on whether Short was qualified to administer the oath: “The superintendent is not qualified to administer the oath, unless the superintendent also is a notary public.”

According to research done by a person from the Knox County Clerk of Courts Office, no one by the name of “Stephen Short” is listed as a notary public in Ohio.

Short told AccountabilityInTheMedia.com in an email this afternoon that he is not a notary:

“My administration of the oath was purely ceremonial for the public meeting, I am not a notary.  I gave them a verbal representation of the oath.  Our Treasurer fulfilled the requirements of giving the oath that night when she presented the incoming board members the oath and had them sign it.  The minutes reflect the actual oath given by the Treasurer which she had the incoming board members execute.”

AccountabilityInTheMedia.com has requested comment from Judy Stahl-Reynolds, the school’s treasurer, regarding whether she administered the oath of office.

(See here for part two of emails to and from AccountabilityInTheMedia.com regarding the oath of office.)


UPDATE 10-24-2012:

Stahl-Reynolds said that she officially administered the oath of office by way of having Bennett, Feasel and Goetzman sign a copy of the oath:

The Oath of Office was officially administered to the newly elected/re-elected Board members by me on January 10, 2012.  As you know, Mr. Short administered a modified version of the Oath of Office verbally because I was not at the meeting in time.  After I arrived, all three members in question signed, witnessed by me, the Oath of Office stating the following:

“Do you solemnly swear that you will support the Constitution of the United States and the Constitution of the State of Ohio, and that you will faithfully and impartially discharge your duties as a member of the Board of Education of the Mount Vernon City School District, Knox County, Ohio, to the best of your ability, and in accordance with the laws now in effect and hereinafter to be enacted during your continuance in said office, and until your successor is elected and qualified.”

Based on the information supplied by the school, what remains of the document signed is the signatures pasted onto the minutes of the organizational meeting.