Student Was Not Burned, According To Medical Expert

The following testimony took place between 10:34 a.m.—11:21 a.m. on 6/02/10.

The parents of Zachary Dennis were concerned enough to take pictures of their son’s arm but not concerned enough to take him to the doctor. In the experience of Dr Patrick Johnston, parents who react in that way are looking to sue someone.

It wasn’t until months after the situation occurred, in which Stephen and Jennifer Dennis say their son was burned in science class, that they made a big deal out of the matter. The Dennises followed up with a lawsuit but no doctor ever saw the alleged burn.

Johnston, a family practice physician, was brought as an expert witness for the defense of eighth grade science teacher John Freshwater during Wednesday’s hearing. (The hearing is regarding whether Freshwater will be retained as a teacher and is separate from the lawsuit filed by the Dennises against Freshwater.)

(The John Freshwater hearing is taking place at the Mount Vernon Board of Education offices.)

Second-degree burn

Dr. David Levy, an expert witness brought by the school board’s attorney, previously testified that the photos of Zachary Dennis showed a “superficial second-degree burn.”

Johnston did not find it credible that Dennis had a second-degree burn. A second-degree burn caused by electricity would cause excruciating pain, Johnston said.

A student, Corbin Douglas Heck, previously testified that Dennis laughed when the spark from the Tesla coil was run across Dennis’ arm during the classroom demonstration.

Unless Dennis is a Navy Seal trained in torture techniques, there is no way he would have been able to withstand the “burning” without pulling away, Johnston said.

The fact that no other students reported being burned—Freshwater had done the demonstration throughout the years on hundreds of students as had other teachers—rules out that the mark shown in the photos was a burn, Johnston said.

An electrical burn that happened quickly would not create the skatttered spots that are depicted in the photo in addition to the lines, Johnston said.

Johnston said that Dennis probably had a skin condition.

Medical history

Knowing the medical history of the child is crucial to making a diagnosis, Johnston said. He could not make a proper determination of the cause of the marks by just looking at the photos. Johnston said that there could be a hundred explanations.

Johnston explained that some people get a reaction from friction on their skin—the marks could have even been created by a rash from running a tongue suppressor across the arm.

Johnston said that he would suspect the parents of negligence if the child had a second degree burn but they did not take the child to see a doctor.

Radio interview with Freshwater

Johnston also testified as a fact witness in addition to testifying as an expert witness.

On April 25, 2009, Johnston had interviewed Freshwater on the radio program Right Remedy that at the time Johnston hosted. School board attorney David Millstone previously played a recording of that interview in the hearing and asked Freshwater several questions about it.

Johnston testified that the “LEGO demonstration,” which was discussed in the interview, was something that he learned about before talking with Freshwater. In the research Johnston had done, he thought that Freshwater had used the LEGO bricks in class as a rebuttal to evolution.

Johnston said he found out during the interview that it was a student and not Freshwater who did the demonstration with the LEGO bricks.

Dumping LEGO bricks out on a table, Johnston said, could be evidence for or against a “starship” forming by chance. He said that it might depend on how many billions of times the LEGO bricks were dumped out onto the table.

For more information, see the affidavit of Johnston ( 531.87 KB PDF).

Religious Display Depends On Context and Purpose

The following testimony took place between 9:11 a.m.—10:34 a.m. on 6/02/10.

The items in the classroom of John Freshwater were not part of a religious display, according to expert witness Michael Molnar.

Molnar’s conclusion was based on photos and information Freshwater’s attorney, R. Kelly Hamilton, provided to Molnar about Freshwater’s classroom. Molnar, an elementary principal for the last eight years, testified at Wednesday’s hearing.

(The John Freshwater hearing is taking place at the Mount Vernon Board of Education offices.)

Religious display

Molnar said that a thorough investigation is important in determining whether something is a religious display. If someone complained to him about items posted in a classroom, he would ask the teacher why the items were there and where the items came from.

The “George Bush/Colin Powell” poster that Freshwater had posted in the classroom could serve a patriotic purpose, Molnar said. The teacher would have no reason to think there was a problem with the poster unless notified that there was an issue with it, Molnar said.

A Bible, Koran or Torah is not a religious display in and of itself, Molnar said.

Molnar said that the book covers placed by Freshwater, for security reasons, over a window are not inherently religious because there are other quotes on the covers in addition to the Ten Commandments.

If a teacher’s room is used for the meeting place of a student organization, such as Fellowship of Christian Athletes, then it is permissible for the students to store their club items in the room, Molnar said. The areas that a student organization could post things would be determined by the school or the club’s advisor, Molnar said.

Molnar defined a religious display as one that is being used to try to proselytize.

Prompt investigation

Policies and procedures established by a school district for the investigation of complaints insure that all are treated fairly, Molnar said. Promptness is also important, Molnar said, especially when students are involved.

If an allegation is made against a teacher then the students involved should, when possible, be interviewed the same day, Molnar said.

Molnar’s response to an allegation of a student being burned—such as what the Dennis family says happened in Freshwater’s class—would be to talk with the child in question. He would find out what other witnesses were present, talk with the teacher, and determine whether the students were in any danger.

Molnar said that he would want statements obtained from witnesses and put into writing promptly in order to insure the integrity of the investigation.

Schools are required to report injuries to Children’s Services, Molnar said.

School administration

The administration should follow conversation about a directive with something in writing, Molnar said. He also said that it is the administration’s responsibility to follow guidelines, procedures and the master contract—to insure the integrity of any investigations and fairness to all staff members.



For more information, see the affidavit of Molnar ( 696.81 KB PDF).

Religion in the Public Schools

One of the stipulations in the partial settlement reached between the Dennis family and the Mount Vernon Board of Education was that the school system was to provide training to teachers on state and church issues.

Back in August of 2009, two attorneys—David Millstone and William Steele—gave a presentation to the teachers titled “Religion in the Public Schools.” (At some point there is to be a second presentation on the issue by Melissa Rogers, director of the Center for Religion and Public Affairs at Wake Forest University Divinity School.)

(The presentation given to Mount Vernon City Schools’ teaching staff last year.)

Although the August 2009 presentation was previously reported on by the Mount Vernon News, for those interested in more details about the presentation and the viewpoints of the school district’s attorneys, the following is a copy of the computer slides used for the presentation:

“Religion in the Public Schools” (1331.2 KB PDF).

(In response to a request from AccountabilityInTheMedia.com, Millstone provided clarification on a couple points—see copy of email (80.68 KB PDF). )

On the topic of religion in the public schools, a federal judge earlier this year handed down a strongly worded decision:

“Ironically, while teachers in the Poway Unified School District encourage students to celebrate diversity and value thinking for one’s self, Defendants apparently fear their students are incapable of dealing with diverse viewpoints that include God’s place in American history and culture.

“But to assert that because [Bradley] Johnson was a teacher, he had no First Amendment protections in his classroom for his own speech would ignore a half-century of other Supreme Court precedent.”

The decision is worth reading in its entirety:

Bradley Johnson vs. Poway Unified School District, et al. (105.13 KB PDF)

Freshwater Controversy in Episode of Law & Order

The season finale of the police and legal drama Law & Order deals with teachers who have had their careers harmed by “nuisance complaints” from students.

One of the teachers included in the episode “Rubber Room” shares something in common with suspended Mount Vernon Middle School teacher John Freshwater—he was accused of branding a cross onto a student with a Tesla coil.

During the course of the episode, the police interview several teachers who might be able to provide a lead on a suspect. All of the teachers tell stories about being wronged by the system. The first teacher the police talk with is science teacher Ron Kozlowski:

Teacher: “It’s absurd, I didn’t brand anybody. You know what a Tesla coil is?”

Investigator: “Yes. [pointing] That.”

Teacher: “Correct. I assume you know what it does?”

Investigator: “It generates an electrical current.”

(A teacher on  Law & Order, “Rubber Room,” describes using the Tesla coil on students.)

Teacher: “Good job. Last year, as I’ve done hundreds of times before, I did a little demonstration by passing the current over the arms of my students, left a little redness on the skin. Next thing I know there is a complaint filed that I ‘branded crosses.’ I was suspended pending an arbitration.”

Investigator: “One of your students wrote about you on his blog. He said you were a church freak.”

Teacher: “I’m a religious person, I don’t make any bones about that.”

Investigator: “We’re trying to identify the student who wrote this about you on his blog.”

Second investigator: “He probably gets A’s in English, drives a silver Honda.”

Teacher: “No. Doesn’t ring a bell.”

Investigator: “What about the student who filed the complaint, you have his name?”

Teacher: “There was more than one student. The Department of Education wouldn’t tell me their names. Sorry you had to drive all the way out here.”

Investigator: “Sorry you ended up out here.”

Teacher: “After four months of suspension I quit New York and took a job here. Half the salary, twice the commute, but at least I’m teaching.”

A person with the username "seabiscuit" on mvohio.net pointed out the connection between the Law & Order episode and the local controversy. "How about that!" seabiscuit wrote. "This situation has now been woven into a television show!"

Student Testimony—John Freshwater Addresses School Board

John Freshwater told the Mount Vernon Board of Education that he believed the board was not being updated on the testimony from his hearing.

During Monday’s board meeting, Freshwater summarized the recent testimony of ten students.

The ten students were from the same class as Zachary Dennis, Freshwater said.

Freshwater supplied the board with copies of the affidavits from the witnesses.

Board members did not respond to Freshwater’s comments but did allow him additional time beyond the standard three minutes for public participation.




UPDATE—related documents:

Student affidavits (3.45 MB PDF).

The PDF contains the affidavits of most of the student witnesses that testified at the Freshwater hearing April 29-30, 2010.

UPDATE—related media coverage:

The following are two articles from the Mount Vernon News about the student testimony at the Freshwater hearing April 29-30, 2010:

“Freshwater: Source remains mystery”

“Students testify in Freshwater hearing”

Motion to Close John Freshwater Hearing—Jury May Be Influenced By Media Coverage

John Freshwater’s attorney is requesting that the administrative hearing be closed to the public and the media. In the motioned submitted Tuesday, attorney R. Kelly Hamilton expresses concern that the eventual jurors for the upcoming federal trial may be influenced by media coverage of the hearing:

“Upon each hearing date multiple media sources have attended the hearing and made report in various news outlets. The change in circumstances is presented in that potential jury members could be exposed to media reports that may unduly influence, create or lead to bias, detected or undetected through voir dire. The cognitive influences of primacy and recency potentially created by media reports could jeopardize John Freshwater’s position in the federal trial as eventual jurors may be influenced or biased as a result of the media reports emanating from the remaining hearing testimony to be taken in this matter. An example of such influence against John Freshwater is included as Exhibit A wherein John Freshwater received an unsolicited letter of opinion from a person not familiar to John Freshwater. Media attention in this matter has been constant and at this juncture the teacher, John Freshwater, may be further unduly harmed by uninformed recipients of journalism that is designed to sell news rather than accurately present a fair and balanced report.” (Emphasis added.)

In addition to concern about media influence on jurors, Hamilton stated that other reasons for closing the hearing are: “Articulated witness apprehension.” “The prospect of revealing the anonymous source identity.”

(Click here to read the motion.)

The hearing is set to resume on April 29, according to the Mount Vernon News. The hearing will be taking place at the Mount Vernon City Schools Central Office at 300 Newark Road.

UPDATE 4-28-10 at 4:20 p.m.:


The hearing scheduled to resume on Thursday will be open to the public. Referee R. Lee Shepherd issued his decision Wednesday on the request to close the hearing.

“There being no statutory rights to close (make private) a contract termination hearing once a public hearing has been requested, the teacher’s motion is denied,” Shepherd stated.

(Click here to view a copy of the decision.)

Christian Family Objects to Bible in Classroom

Self-described as Christian, the Dennis family is suing their son’s former teacher for—among other things—having a Bible in the classroom.

Bible on the desk

Up until five months ago, the Dennises attempted to distance themselves from the controversy surrounding the school’s order for John Freshwater to remove his Bible. The Dennis’ lawsuit in 2008 did not make mention of Freshwater’s personal Bible, instead it stated that the teacher “kept several Bibles in his classroom which were not for his personal use.”

April 6, 2010, federal judge Gregory Frost granted the Dennis’ November 16, 2009, request to include Freshwater’s personal Bible in the suit.

The Dennis’ attorney Douglas Mansfield maintains that the family is not opposed to religion. “As I think you know, the Dennises are a religious family,” Mansfield told AccountabilityInTheMedia.com, “but they believe—as our Constitution provides—that it's not appropriate for a teacher in a public school classroom to impose his or her own religious beliefs onto the students.”

Freshwater’s attorneys challenged Mansfield’s initial attempt to insert Freshwater’s personal Bible into the suit. In explaining why the Bible should be permitted in the suit, Mansfield stated, in a document filed with the court on January 14, 2010:

“Freshwater remains liable for the other Bible on display in his classroom throughout the 2007-2008 school year. […] the Dennises are not foreclosed from raising claims against Freshwater merely because they did not present them in a complaint to the school district. […] Therefore, the Dennises have not waived arguments pertaining to the Bible on Freshwater’s desk, and it remains viable evidence in proving Freshwater’s violations of the Establishment Clause.”

Freshwater testified in an ongoing administrative hearing that he prayed with his family and made what he believes is a constitutional decision to leave the Bible on the desk. Freshwater testified that he did not teach religious beliefs in his classroom.

The Dennises requested summary judgment, but Frost left the matter to a jury to decide.

Box of FCA Bibles

The Dennises also objected to a box of Bibles stored in the back of the classroom. Frost described, in a court document, the circumstances surrounding these Bibles:

“[There was] a box of Bibles in the back corner of the classroom that was stored there for the student group the Fellowship of Christian Athletes […] Freshwater was the faculty advisor of the FCA for approximately 17 years. The box of Bibles were utilized during the FCA meetings.”

Mansfield argued, January 14, that just because Zachary Dennis was a member of FCA that did not mean his parents are prohibited from objecting to the box of Bibles:

“Further, Zach’s participation in FCA does not defeat the Establishment Clause cause of action because Freshwater inappropriately displayed and maintained those Bibles in his classroom outside the times that Zach participated in FCA. Such exposure contradicts Zach’s parents’ constitutional right to provide their child religious teaching.”

Frost wasn’t convinced enough to issue a summary judgment on the matter, “[T]he Court is not sure that a box of Bible’s in the corner of a room with many other boxes of stored items constitutes a ‘display.’”

The matter will be left to a jury to decide.

Ten Commandments

The third Establishment Clause item that the Dennises requested summary judgment on was the Ten Commandments posters that were in Freshwater’s classroom.

Freshwater removed the posters when requested, in writing, to do so by school administration.

Freshwater’s attorneys argued that the poster on the bulletin board was placed there by members of FCA and that the members had school permission to post club related materials. The other posters were book covers used to cover-up an interior window. According to his attorneys, the book covers were provided by school administration for that purpose. The covers also contained inspirational quotes from famous individuals.

Frost left the matter to a jury to decide.

Standing—the right to file a lawsuit

In order to sue, the individuals must have “standing,” that is, they must be personally affected by the matter over which they are suing. West's Encyclopedia of American Law defines “standing” as the following:

“Standing, sometimes referred to as standing to sue, is the name of the federal law doctrine that focuses on whether a prospective plaintiff can show that some personal legal interest has been invaded by the defendant. It is not enough that a person is merely interested as a member of the general public in the resolution of the dispute. The person must have a personal stake in the outcome of the controversy.”

The Dennises state in their lawsuit that they are Christians. The Bibles and Ten Commandments, if seen as religious articles, are from their own religion. In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items.

In granting the Dennises standing, Frost stated, “Plaintiffs correctly explain that they possess standing based upon the uncontroverted fact that ZD was exposed to Freshwater’s Bible, the box of Bibles, and the Ten Commandments postings, something he could not avoid, and Plaintiffs claim offense at such exposure.”

The word “offense” or “offended” was not used by the Dennis family in describing their reaction to the above mentioned items. In response to an inquiry from AccountabilityInTheMedia.com, Mansfield explained, “As I read the Court's opinion, the use of the term ‘offense’ simply relates to the Dennises’ claim that the religious materials in Mr. Freshwater's classroom violated their constitutional rights.”

(Click here to read Mansfield’s full response to questions from AccountabilityInTheMedia.com.)

Frost did not address the issue of whether it is possible for Christians to have their constitutional rights violated by the presence of objects from their own religion.

In Washegesic Pub. Sch. (6th Cir. 1994), a case involving the display of a portrait of Jesus Christ in a public school, the court ruled that the portrait had to be removed, stating:

“Christ is central only to Christianity, and his portrait has a proselytizing, affirming effect that some non-believers find deeply offensive. […] It is the rights of these few that the Establishment Clause protects in this case.” (Emphasis added).

Tesla coil and defamation

Other requests for summary judgment went beyond the Establishment Clause issues.

Frost left it to a jury to decide if Zachary was capable of consenting to the Tesla coil experiment. Frost decided that Freshwater gave full disclosure to Zachary regarding Freshwater’s knowledge of any effects of the demonstration and, thus, any consent was not negated by mistake or misrepresentation:

“Freshwater correctly argues, he testified that he had no knowledge that the experiment would cause ZD, or any other student, burning and pain. Further, the evidence before the Court indicates that the Tesla coil experiment was conducted on hundreds of students with no injury. Plaintiffs have failed to bring forth any evidence that would tend to show that Freshwater knew that the Tesla coil experiment could cause the burning and pain to which Plaintiffs refer.”

Freshwater denies that anyone was burned in the classroom demonstration. (See the article, "Tesla Coil Matter Was Officially Resolved January 2008." )

Frost ruled in the Dennis’ favor on Freshwater’s counter claims of defamation:

“Plaintiffs argue that they are entitled to summary judgment on each of these allegedly defamatory statements because (1) many of the statements were not made by Plaintiffs, (2) some of the statements are entitled to an absolute privilege, (3) some of the statements are entitled to a qualified privilege, and (4) Freshwater has introduced no evidence that the remaining statements were made with actual malice, which is required because he is a limited purpose public figure. This Court agrees.”

Related documents

The National Center for Science Education maintains an up-to-date archive of court documents for the case Doe v. Mount Vernon Board of Education et al.