Sunday, September 6, 2009

Media Didn’t Tell Whole Story about “Settlement”

The spin by much of the mainstream media was that the Mount Vernon school board had really accomplished something. In reality, the “settlement” reached with the “Doe” family states that the school is still liable for the teacher at the center of their lawsuit.

The settlement also creates a couple of unusual obligations for the board even if this November election changes the makeup of the board. At the end of the administration hearing for teacher John Freshwater, the board is to make a public statement using wording contained in the settlement. The board also is to have an individual, who is named in the settlement, speak to Mount Vernon City School administrators and staff about church and state issues. (Click here to view copy of the settlement.)

The speaker is Melissa Rogers who is to give a presentation to school administration and staff on “1st Amendment, Religion, and Public Education.” Rogers is director of the Center for Religion and Public Affairs at Wake Forest University Divinity School. She was appointed by President Obama to the President’s Advisory Council for the White House Office of Faith-Based and Neighborhood Partnerships.

The settlement states that if Rogers is not available to speak then a “nationally recognized speaker” with “similar credentials” is to give the presentation.

The second unusual obligation the board has entered into is the public statement they have to make regardless of the outcome of the administration hearing:

“Throughout this process, the Mount Vernon City School District Board of Education has been concerned about elements in this community who decided to attack the student and family who reported concerns about John Freshwater. It is critical for our students to be able to come forward with concerns or issues so they can be addressed. The Board applauds [name redacted on document] for the courage he had in coming forward.”

After the referee makes his recommendation at the completion of the hearing, the board is responsible for deciding if Freshwater keeps his job. Board members have not been attending the hearing.

Although the name of the student was redacted on the copy of the settlement provided by the school, his name was released last October. He is Zachary Dennis; his parents are Stephen and Jennifer.

Only $5,500 for the student, plus one dollar for each parent, is being given directly to the Doe family. The rest—$115,500—is going to their legal costs. The attorney representing Freshwater in the administrative hearing, R. Kelly Hamilton, described the low amount the family is receiving as telling. “The merits of the allegations are reflected in the nuisance value of the settlement,” Hamilton stated. “John Freshwater counterclaimed against the Doe family because the allegations were false and defamatory"

The settlement has to be approved by the Knox County Probate Court. Due to one of the claims made in their lawsuit being that of an injury, the settlement may fall under the court’s “Rule 68.4” regarding an injury settlement with a minor. If the court finds that the settlement does involve an injury claim and the dollar amount of the settlement is $10,000 or less, the injury will have to be examined by a physician. “The application shall be accompanied by a current statement of the examining physician in respect to the injuries sustained, the extent of recovery thereto, and the physician’s prognosis,” court rules state.

During the time that the burn injury was alleged to exist on the arm of the student, no physician examined the area. Presumably, any examination now will result in the prognosis that he has no injury.

Only the Doe family has claimed to have seen the burn—no classmates, neighbors, or teachers have stepped forward during the hearing and claimed to have seen it. The student’s mother said she spoke with Superintendent Steve Short the day after the alleged incident happened but at the time did not want a big deal to be made out of the incident.

The middle school principal, Bill White, testified last October that he was asked by Short to investigate Freshwater’s side of the story. White, however, was not permitted to look at the student’s arm. “At the point when Mr. Short gave me the pictures, he said the parents didn’t want anybody to know who they were,” White testified. “And other than going through a thousand arms at school, I wouldn’t have.”

The alleged burn was the most sensational part of the statements made by the Doe family. They also claimed the Establishment Clause of the First Amendment was violated within the school district.

Attempts to get a response from legal representation for the school, in regards to why Freshwater was not included in the settlement, have been unsuccessful. Attorney Sarah Moore did not respond to a request for comment. Attorney David Millstone stated that he was not involved in the settlement.

Hamilton, attorney for Freshwater in the administrative hearing, did state that Freshwater was not asked to be a part of the recent settlement. “The last time John Freshwater was offered a settlement was in March 2009,” Hamilton stated. “John Freshwater wants the TRUTH to be revealed. John Freshwater is not looking for a settlement that simply gets him out of the legal action - he wants TRUTH which will vindicate him.”

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