Freshwater appeals to 5th District Court

In a brief filed recently with the 5th District Court of Appeals in Ohio, John Freshwater asked the district court to order the Mount Vernon Board of Education to reinstate him to his position teaching at the school.

The school board, in January, fired Freshwater for what the board described as religious reasons.

(The Mount Vernon Board of Education met recently below a poster that could be interpreted as being of a religious nature: The Hogwarts School of Witchcraft and Wizardry coat of arms.)

The appeal to the district court comes after Knox County Court of Common Pleas Judge Otho Eyster ruled against Freshwater earlier this year. In that prior decision, the county judge did not cite any evidence or applicable law to support upholding the firing.

In the appeal to the district court, submitted Dec. 6 by Freshwater’s council R. Kelly Hamilton and The Rutherford Institute, Freshwater takes the position that “the true basis for his termination was a combination of religious animus, an unfounded fear of lawsuits, and a desire to appease members of the community who were prejudiced by the sensationalized Tesla coil incident that was ultimately found to be insignificant.”

Regarding the allegation that a student was burned by the Tesla coil, state administrative hearing Referee R. Lee Shepherd told the school board in his report:

“Due to the sensational and provocative nature of this specified ground, it and the facts and circumstances surrounding it became the focus of the curious, including those in the video, audio, and print media. Once sworn testimony was presented, it became obvious that speculation and imagination had pushed reality aside. Further, and more crucial to a review of the [2008] Amended Resolution, the use of the Tesla Coil by John Freshwater did not seem to be a proper subject for the Amended Resolution. […] The issue and incident was dealt with by the administration. That case was closed.”

The board, subsequently, did not include any mention of the burn allegation in the 2011 resolution firing Freshwater.

Three issues for review

Freshwater’s appeal states that there are three main issues that the court needs to review:

“I. Does a public school teacher’s facilitation of classroom discussion concerning popular alternative theories to the Big Bang theory, and the encouragement of students to distinguish scientific theories and hypotheses from fact as directed and permitted by school policy and Ohio’s Academic Content Standards, create ‘good and just cause’ for termination of the teacher’s employment contract, or does the termination of the teacher on this basis constitute an impermissible violation of the rights of the teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment's Establishment Clause?

“II. Does the presence of religious texts from the school’s library in a teacher’s classroom, or the display of a patriotic poster depicting the nation’s highest executive leaders praying, as permitted by O.R.C. §3313.601, constitute ‘good and just cause’ for termination of the teacher’s employment contract, or does the termination of a teacher on this basis constitute an impermissible violation of the rights of a teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment's Establishment Clause?

“III. Was the Mount Vernon City School District Board of Education’s termination of Freshwater’s employment contract improperly based upon an unconstitutional animus toward a perception of Freshwater’s religious faith, thus belying the lower court’s finding that there was ‘good and just cause’ for said termination and, in fact, violating Freshwater’s First Amendment right to free speech and Fourteenth Amendment right to equal protection?”

The brief is worth reading in its entirety. (See here for a copy. PDF. )

“Religious articles” in the classroom

One of the reasons the school board gave for firing Freshwater was the following concerning “religious articles” in the classroom:

“Mr. Freshwater was directed to remove or discontinue the display of all religious articles in his classroom, including all posters of a religious nature, and whereas, Mr. Freshwater has failed to comply with that directive and, further, has brought additional religious articles into his classroom, in a direct act of insubordination;”

The appeal interprets the board’s statement “failed to comply with that directive” as the board referring to a poster in Freshwater’s classroom of Colin Powell and President George W. Bush.

(This poster has been banned from Mount Vernon City Schools. The photograph was taken January 28, 2003. © Brooks Kraft/CORBIS. The poster was printed by Freeport Press, Inc.)

However, the punctuation used by the board in that sentence places the reference to “posters” within a non-restrictive clause, and, thus, like inserting an extraneous comment about Babe Ruth here, is not essential to the meaning of the sentence. Interpreting the sentence based on the punctuation used would result in “that directive” referring back to “directed to remove or discontinue the display of all religious articles.” The result would, then, be that the board’s statement never specifically states what was not removed from the classroom.

Throughout the course of the hearing it was undisputed that Freshwater was told to remove his personal Bible from off of his desk. It was also undisputed that Freshwater did not remove his Bible. However, Shepherd never made a finding of fact that Freshwater failed to remove his personal Bible.

That there ever was a directive to remove the Colin Powell poster was disputed. The school never presented any documentation that specifically identified that poster as needing to be removed. Shepherd never gave a finding of fact as to who was right in the dispute over the existence of an oral order to remove the poster.

Shepherd did make a finding of fact regarding the issue of Freshwater bringing in “additional religious articles into his classroom.” Shepherd said: “He checked out religious texts from the school library and added them to the array on his classroom desk. […] The act appears to have been one of defiance, disregard, and resistance.”

The items Freshwater checked out? A Bible and a book titled “Jesus of Nazareth.”

(The poster hanging above the school board when it voted to fire Freshwater stated, “Read and The Force is with you.” Perhaps the poster should have said, “Read and the school board will expel you.” The poster of Yoda has since been replaced with the Hogwarts coat of arms.)

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

UPDATE 1-13-2012:

Attorneys for the school board filed their response brief on Wednesday. See here for a PDF copy of the document.

The brief concludes with the following summary statement: “Freshwater inappropriately taught science with deference to religious beliefs and principles. He maintained a religious display in his classroom and was non-compliant with the Board’s lawful directive to remove his religious display.”

Regarding new evidence that was presented which countered testimony given by James Stockdale, the board’s attorneys argued, “The records could be incomplete or, most likely, the witness could have been mistaken as to the date he heard the comments.”

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.

The school records, however, showed that Stockdale's duties did not take him into Freshwater’s classroom anytime Sept. 1, 2005 through June 30, 2008. (See the June 1, 2011 AccountabilityInTheMedia article “EXCLUSIVE: Witness impeached by school records.” )