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.

Ohio Supreme Court schedules oral argument for Freshwater case

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.”

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

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.

Following his firing, Freshwater appealed unsuccessfully to Knox County Court of Common Pleas and then to the 5th District Court of Appeals in Ohio. Both courts rubber-stamped the board’s decision.

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.

The following is the First Amendment to the United States Constitution:

“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.”

Regarding this claim by the board, a prior AccountabilityInTheMedia.com article said:

“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.”

So, how has the board exercised that authority through its written polices? The board did so primarily through adopting 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 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.

Other testimony in the hearing, however, did not support the Dennis’ complaint. (For more information, see “Student Testimony—JohnFreshwater Addresses School Board.”

The poster

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.

(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.)

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.”

Additional information

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

“Freshwater’s Closing Arguments: Allegations Unsubstantiated”

Excerpt from Freshwater’s appeal in Knox County Court of Common Pleas, examples from school science textbooks. PDF.

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