The Mount Vernon Board of Education lost a last-ditch effort
to keep significant portions of John Freshwater’s appeal from being heard by
the Ohio Supreme Court.
The decision by the court means that all of the issues presented
in the merit brief will be considered, the text of the First Amendment will
remain in the merit brief and the newly introduced evidence, discrediting a
board witness, will be considered.
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.
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.
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.
“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.
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.
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.
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.
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.
The Ohio Supreme Court announced today that oral argument for John Freshwater v. Mount Vernon City School District Board of Education
has been scheduled for February 27, 2013.
According to court rules, both sides will each have 15
minutes for “argument on the merits.”
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.
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.
“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.”
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.
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.”
“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.”
AccountabilityInTheMedia.com was begun in 2009 to respond to inaccuracies in the media’s coverage of the John Freshwater and Mount Vernon Board of Education controversy. Since posting a response to The Columbus Dispatch editorial of January 7, 2009, “Teaching moment,” which was about Freshwater, I followed up with details from the state administrative hearing. Although I do have opinions about various aspects of the controversy— I support Freshwater’s right to have a Bible on his desk; I also support his right to due process—this website is not affiliated with Freshwater or any other party involved in litigation with the school.
