The Knox County Court of Common Pleas lists John Freshwater’s case—in which he was appealing his firing from Mount Vernon City Schools—as being “closed.”
Freshwater’s appeal never went to trial.
The case disposition is described on the court's website as being that of “Transfer to another judge or court.”
AccountabilityInTheMedia.com asked Freshwater whether he was given an opportunity to challenge the attempt to close his case at the county level. His wife, Nancy, wrote back, “We knew nothing about it; we didn't even know the request was made.”
Attorneys for the Mount Vernon Board of Education had filed a “Notice of Removal” with the county court Wednesday morning. In the filing, the attorneys told the court the “case has been removed to the United States District Court for the Southern District of Ohio.”
(See here for a copy of the documents. TIFF 339 KB )
The attorneys did not include in their filing a copy of any decision made by a federal judge that shows the transfer of the case was approved.
Although the county court website has an entry that says the case is “finished” and “filed away,” there is no document—such as a decision by county judge Otho Eyster—which corresponds to that entry.
Knox County Clerk of Courts, Mary Jo Hawkins, told AccountabilityInTheMedia.com that “there is no document for the entry” which says the case is finished. She explained that the entry “is just our notation.”
Included in the documents the school board’s attorneys filed is a copy of the request, apparently filed in federal court, for transfer of the case.
In the request, the school board's attorneys argue: “This case is subject to removal under 28 U.S.C. § 1441(a) and (b), because the district court has original jurisdiction over this action based on federal question jurisdiction under 28 U.S.C. §1331.”
Freshwater had submitted his appeal to the county court pursuant to Ohio Revised Code 3319.16.: “Any teacher affected by an order of termination of contract may appeal to the court of common pleas of the county in which the school is located.”
The request for removal of the case was reported on by the Mount Vernon News on Wednesday in the article “Board asks to move case to federal court.” Reporter Pamela Schehl wrote, “Attorney Sarah Moore, of the law firm Britton, Smith, Peters & Kalail, said the board filed papers asking to move the Freshwater case to federal court.”
AccountabilityInTheMedia.com asked board members whether the request to move the case to federal court was made directly by the school board or with the prior knowledge and consent of the board. Board president, Dr. Margie Bennett, replied via e-mail: “Prior to the removal of the case to federal court, the Board met in executive session with legal counsel to discuss the case. The details of those discussions are a matter of attorney-client privilege, which no individual board member can waive or disclose.”
UPDATE 3-8-2011:
Federal judge Gregory Frost on Monday signed a memorandum saying that the case should be transferred to his docket.
(See here for a copy of the memorandum. 137 KB PDF)
Previous coverage related to Frost:
April 18, 2010 — “Christian Family Objects to Bible in Classroom”
July 31, 2010 — “Judge to Reconsider Previously Issued Sanctions”
Aug. 4, 2010 — “What’s in the Trash, Stays in the Trash, According to Judge”
Oct. 21, 2010 — “Freshwater Lawsuit Dismissed”
UPDATE 3-13-2011:
Judge Frost on Thursday issued an order questioning whether the federal court has jurisdiction over Freshwater’s case:
“This Court, however, questions whether it has subject matter jurisdiction over this action based upon § 3319.16 of the Ohio Revised Code and, if it does possess jurisdiction, whether it is proper to exercise it in view of the abstention doctrine. Thus, the Court is inclined to sua sponte remand this action. Defendants may have until March 28, 2011, to provide a brief explaining why this action should not be remanded.”
(See here for a copy of the order. 22 KB PDF.)
For additional documents related to this matter, see the website of the National Center for Science Education.
UPDATE 4-5-2011:
Judge Frost on Tuesday issued an order remanding the case back to the county court:
“First, this action was an on-going state judicial proceeding prior to removal to this Court. Plaintiff filed this action in the proper state court as required by § 3319.16 of the Ohio Revised Code. Next, those proceedings certainly implicate important state interests […].Finally, the state court is quite competent to hear Freshwater’s complaints of constitutional violations.”
(See here for a copy of the order. 29 KB PDF.)
Thursday, March 3, 2011
Saturday, February 26, 2011
Did MV schools fulfill 2009 settlement terms?
In August 2009 the Mount Vernon Board of Education agreed to a partial settlement with the Dennis family. Eighteen months later, portions of the settlement may have been left unfulfilled.
As part of the agreement the school board promised that there would be two presentations given to employees of the Mount Vernon City Schools on the subject of religion in the public schools. The board also said that after they made their decision regarding John Freshwater’s employment they would issue a statement included in the settlement.
The presentations
The first presentation was given in August of 2009 by two attorneys. The second presentation, according to the settlement, was to be given by Melissa Rogers or a speaker “with similar credentials.”
The first presentation was given in August of 2009 by two attorneys. The second presentation, according to the settlement, was to be given by Melissa Rogers or a speaker “with similar credentials.”
 |
| The 2009 settlement stipulated that there were to be two presentations. |
AccountabilityInTheMedia.com asked the schools’ superintendent, Steve Short, whether the second presentation had been given. Short wrote back, “I have forwarded your request to our attorney for a response.”
If and when the attorney, Sarah Moore, responds this article will be updated with her response.
The settlement gave a deadline for the second presentation: September 2010.
(See here for a copy of e-mails to and from AccountabilityInTheMedia.com regarding the second presentation. PDF 65KB )
The statement
The school board promised to “make a public statement” using wording included in the settlement. The statement was to be issued after the board made its decision regarding Freshwater’s employment.
 |
| The school board in 2009 agreed to make a public statement after the hearing concluded. |
AccountabilityInTheMedia.com asked the school board’s president, Dr. Margie Bennett, about the statement. Bennett wrote back, “I understand Mr. Short sent the Press Release to the local media and the Columbus Dispatch.”
Following Bennett’s response, a copy of the press release was requested from the school via a public records request. When the response is received this article will be updated with the response.
(See here for a copy of e-mails to and from AccountabilityInTheMedia.com regarding the statement. PDF 69KB )UPDATE 3-1-2011:
Moore has not responded to the request for comment.
The school has not replied to the public records request.
UPDATE 3-3-2011:
Rogers replied to a request for comment from AccountabilityInTheMedia.com, saying: “I suggest you contact David Millstone. I'd be happy to talk to you, but Mr. Millstone knows much more about this matter.”
(Millstone is one of the two attorneys that gave the first presentation to school employees on the subject of religion in the public schools. Millstone, however, did not handle the settlement with the Dennis family.)
AccountabilityInTheMedia.com had sent the following questions to Rogers: “Were you contacted by anyone to speak at the school? Did you give a presentation at the school on the subject of religion in the public schools?”
(See here for a copy of e-mails to and from Rogers. PDF 69KB )
UPDATE 3-4-2011:
The second presentation
Short told AccountabilityInTheMedia.com that the second presentation has not yet been given.
“We are in the planning stages for the second speaker,” Short said. “We anticipate that we will have the second speaker in May.”
The speaker will be someone other than Rogers. “Unfortunately,” Rogers explained, “we could not work out the scheduling.”
(See here for a copy of e-mails to and from AccountabilityInTheMedia.com regarding the second presentation—updated on 3-4-2011. PDF 12 KB )
The statement
Short supplied a copy of a press release that contains the statement that was required pursuant to the August 2009 settlement. The press release is undated but would have been issued sometime after the school board made the decision in January 2011 to fire Freshwater.
(See here for a copy of the press release. PDF 48 KB)
(See here for a copy of e-mails to and from AccountabilityInTheMedia.com regarding the statement—updated on 3-4-2011. PDF 10 KB )
Tuesday, January 11, 2011
School board votes 4-1 to fire Freshwater
The president of the Mount Vernon Board of Education had to prompt board members several times before one of the members offered to move to adopt the resolution to terminate John Freshwater’s teaching contract.
Paula Barone moved, seconded by Jody Goetzman, to fire Freshwater.
Steve Thompson was the only board member to vote against the resolution.
(Click here to view a copy of the resolution adopted by the school board during Monday’s meeting. 632.765 KB PDF.)
The referee overseeing Freshwater’s state administrative hearing, R. Lee Shepherd, issued a report on Friday recommending the termination of the teacher’s contract.
In the beginning of the report, however, Shepherd dismisses the allegation that Freshwater burned a cross onto the arm of one of his students:
“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.”
Shepherd also noted that the matter involving the Tesla coil had already been dealt with by school administration. (See the article, “Tesla Coil Matter Was Officially Resolved January 2008.” )
Although Shepherd said that Freshwater violated the Establishment Clause and that he recommended firing Freshwater, he noted that Freshwater excelled as a teacher:
“Initially, it must be noted that a wealth of evidence was presented to substantiate that John Freshwater was a successful eighth grade science teacher. Many, possibly most of his students seemed to enjoy his class and remember it fondly. On the average, Freshwater students performed at or above the state requirements and expectations for eighth grade science students. The state test score results for his students often exceeded the state test score results of other eighth grade science teachers. On more than one occasion, John Freshwater was recognized by his peers for his outstanding teaching skills.”
(Click here to view a copy of Shepherd’s report and recommendation. 41.084 KB PDF.)
The school board did not permit public participation during the meeting. Board president, Dr. Margie Bennett, said this was “because we have a lot of business to cover.” See correction at end of article.
Video: "Paula Barone withdraws recusal regarding John Freshwater hearing."
(Click here to view a copy of the Paula Barone and Steve Thompson recusal letters. 1.19 MB PDF)
Video: "School board votes 4-1 to fire John Freshwater."
Video: "School board members talk about the firing of John Freshwater."
For Freshwater’s side of the story, see the article, “Freshwater’s Closing Arguments: Allegations Unsubstantiated.” Also see the articles in the archive for additional coverage of the Freshwater controversy.
UPDATE 2-15-2011:
Related Document
As already reported by the media, Freshwater filed an appeal February 8 with the Knox County Common Pleas Court. (Click here to view a copy of the 33 page document. 3MB PDF. )
Correction
During the February 14 school board meeting, Bennett said she wanted to clear up a misunderstanding over why there was no public participation at the last meeting.
“Public participation,” Bennett said, “is always a part of our meetings and we would never do away with it because we are too busy. The reason we didn’t have any was because no one had signed up.”
(Editor’s note: Based on having gone back and looked at the video, it appears that Bennett’s statement at the opening of the prior meeting —“We won’t spend a lot of time on comments this evening because we want to go right into…we have a lot of business to cover”—was intended by her to keep the board members’ comments brief.)
Paula Barone moved, seconded by Jody Goetzman, to fire Freshwater.
Steve Thompson was the only board member to vote against the resolution.
(Click here to view a copy of the resolution adopted by the school board during Monday’s meeting. 632.765 KB PDF.)
The referee overseeing Freshwater’s state administrative hearing, R. Lee Shepherd, issued a report on Friday recommending the termination of the teacher’s contract.
In the beginning of the report, however, Shepherd dismisses the allegation that Freshwater burned a cross onto the arm of one of his students:
“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.”
Shepherd also noted that the matter involving the Tesla coil had already been dealt with by school administration. (See the article, “Tesla Coil Matter Was Officially Resolved January 2008.” )
Although Shepherd said that Freshwater violated the Establishment Clause and that he recommended firing Freshwater, he noted that Freshwater excelled as a teacher:
“Initially, it must be noted that a wealth of evidence was presented to substantiate that John Freshwater was a successful eighth grade science teacher. Many, possibly most of his students seemed to enjoy his class and remember it fondly. On the average, Freshwater students performed at or above the state requirements and expectations for eighth grade science students. The state test score results for his students often exceeded the state test score results of other eighth grade science teachers. On more than one occasion, John Freshwater was recognized by his peers for his outstanding teaching skills.”
(Click here to view a copy of Shepherd’s report and recommendation. 41.084 KB PDF.)
Video: "Paula Barone withdraws recusal regarding John Freshwater hearing."
(Click here to view a copy of the Paula Barone and Steve Thompson recusal letters. 1.19 MB PDF)
Video: "School board votes 4-1 to fire John Freshwater."
Video: "School board members talk about the firing of John Freshwater."
For Freshwater’s side of the story, see the article, “Freshwater’s Closing Arguments: Allegations Unsubstantiated.” Also see the articles in the archive for additional coverage of the Freshwater controversy.
UPDATE 2-15-2011:
Related Document
As already reported by the media, Freshwater filed an appeal February 8 with the Knox County Common Pleas Court. (Click here to view a copy of the 33 page document. 3MB PDF. )
Correction
During the February 14 school board meeting, Bennett said she wanted to clear up a misunderstanding over why there was no public participation at the last meeting.
“Public participation,” Bennett said, “is always a part of our meetings and we would never do away with it because we are too busy. The reason we didn’t have any was because no one had signed up.”
(Editor’s note: Based on having gone back and looked at the video, it appears that Bennett’s statement at the opening of the prior meeting —“We won’t spend a lot of time on comments this evening because we want to go right into…we have a lot of business to cover”—was intended by her to keep the board members’ comments brief.)
Thursday, October 21, 2010
Freshwater Lawsuit Dismissed
The federal case John Freshwater, et al., v. Mount Vernon City School District Board of Education, et al. was dismissed Thursday:
“Now come all parties, by and through counsel, to stipulate Plaintiffs John and Nancy Freshwater dismiss all claims contained in the First Amended Complaint with prejudice pursuant to Civ.R. 41(a)(1)(A)(ii).”
A copy of the stipulated dismissal is posted on the website of the National Center for Science Education.
UPDATE 10-22-10:
Don Matolyak, Freshwater’s pastor, provided AccountabilityInTheMedia.com with a copy of Freshwater’s statement regarding the dismissal of the lawsuit against the school board:
According to Mount Vernon News reporter Pamela Schehl, school board attorney Sarah Moore said: “There was no settlement offer to accept or reject. There was no money on the table for [Freshwater] to leave there. We were baffled when we received the e-mail from him and we can't even begin to speculate why he is saying what he is saying.”
“Now come all parties, by and through counsel, to stipulate Plaintiffs John and Nancy Freshwater dismiss all claims contained in the First Amended Complaint with prejudice pursuant to Civ.R. 41(a)(1)(A)(ii).”
A copy of the stipulated dismissal is posted on the website of the National Center for Science Education.
UPDATE 10-22-10:
Don Matolyak, Freshwater’s pastor, provided AccountabilityInTheMedia.com with a copy of Freshwater’s statement regarding the dismissal of the lawsuit against the school board:
“I want to pass along this statement. My wife and I directly sent to the opposing attorneys the following statement by email on Wednesday, October 20, 2010. The truth is there was money offered to me several times to leave the district and stop the state hearing before Referee Shepherd could make his finding. If I took the money and left the district the opportunity for truth would never have come out and the eleven students from my 2007-2008 class would not have been able to testify about the truth. Most importantly if I took the money and left the district the Referee would have been prevented from making a decision. The Referee has heard 38 days of testimony and is the best opportunity for revealing the truth. I will await Referee R. Lee Shepherd’s decision.
“(this is the statement I made to the school board’s attorneys)
“Nancy and I prayerfully considered the settlement terms and have decided to REJECT the terms presented.
“From the beginning, my wife and I have only sought the truth. Revelations in the last few days exposed to us the strategy of those who have harmed me, a strategy designed to obscure the truth rather than seek justice and reconciliation. It has become obvious this federal platform and process will never result in the truth coming forward. Truth is not to be compromised or negotiated or hidden behind money.
“We feel confident that the hearing completed in August 2010, after 38 days of testimony before Referee R. Lee Shepherd is the best opportunity for revealing the truth we sought from the beginning. Therefore, we have decided to withdraw our federal lawsuit against all parties without any personal compensation or monetary gain as proposed, and we have instructed our attorney to file the proper paperwork. We seek no other option than to continue to patiently await the finding of Referee R. Lee Shepherd as he is the ONLY person to hear all of the testimony and most importantly see all of the students from my 2007-2008 class speak about the truth of what went on during my class.
“We have already spent our life savings and have pledged our farm to get to the truth. It is better to leave the money on the table than to take the Bible off of my desk.
“John and Nancy Freshwater”
According to Mount Vernon News reporter Pamela Schehl, school board attorney Sarah Moore said: “There was no settlement offer to accept or reject. There was no money on the table for [Freshwater] to leave there. We were baffled when we received the e-mail from him and we can't even begin to speculate why he is saying what he is saying.”
Tuesday, October 12, 2010
AccountibilityInTheMedia.com Reporter Responds to Subpoena
On Monday evening I submitted a written statement to the Mount Vernon Board of Education regarding the recent subpoena I received from the school board’s attorney Sarah Moore.
In the subpoena, Moore stated that it was for the federal case John Freshwater, et al., v. Mount Vernon City School District Board of Education, et al.
(Click here to view a copy my statement to the school board and a copy of the subpoena. 891 KB PDF.)
Below is a portion of my statement:
“I understand that attorney Moore has a job to do in defending the school district in the federal case. However, there is a difference between being thorough and casting such a wide net, while fishing for information, that one goes overboard. Attorney Moore’s actions appear to be the latter.
“What criteria did attorney Moore use in deciding to whom to send subpoenas? Has she also sent subpoenas to the Mount Vernon News, KnoxPages.com, 13WMVO or the countless television stations and other newspapers who have reported on the story involving Mr. Freshwater? Will she send subpoenas to every person who has ever blogged about the story, written a letter to the editor or spoken at a school board meeting?”
I wasn’t the only one that Moore sent a subpoena to recently. Among those that received a subpoena is Levi Stickle, who maintains the website cfacts.org.
Three people spoke to the school board during the public participation portion of Monday’s school board meeting. Two of the individuals spoke about the recent subpoenas.
(“Levi Stickle to school attorney: Why did you send me a subpoena?”)
(“Community member responds to proposed MVCS levy”)
(“William Pursel: Frivolous subpoenas”)
Moore has been sent a request for comment. If and when she replies this article will be updated with her response.
Also during Monday’s meeting, school board treasurer, Barbara J. Donohue, provided an update to the school board regarding the district’s five-year forecast. She provided information regarding the financial challenges facing the district due to budget cuts at the state level.
UPDATE 10-16-10:
Moore still has not responded to the request for comment.
Mount Vernon News reporter Pamela Schehl did not include any mention of the subpoenas in her coverage of the school board meeting. See her article “McKinley honored by MV school board.”
The managing editor for the News, Samantha Scoles, provided an explanation in an email to AccountabilityInTheMedia.com :
“The reason we have not reported on the public participation portion of the most recent school board meeting is because we were not in attendance. Our education reporter was attending a different school board meeting.
“When we do not attend meetings, we can call on board members, the treasurer or the superintendent for details of the meeting, which we did in this case. I believe we were provided with the statements made in regards to the Behind the Scenes Award.
“Therefore, without being present to hear the public comments, we cannot possibly report on those.”
In an email on Oct 12, Scoles had been provided with links to videos of the public comments and a copy of the written statement given to the school board.
UPDATE 10-20-10:
Dave Daubenmire, through his attorney, has submitted a motion to quash a subpoena sent to him by Moore. Below is a portion of the motion:
“After reviewing the subpoena, it is clear that the only purpose of the subpoena was to harass, embarrass, and incur expenses for a non-party witness, simply because he is a friend of one of the parties. The subpoena should be quashed in its entirety, and attorneys fees awarded to Mr. Daubenmire from the Defendant for the expense of obtaining counsel to respond to this harassing subpoena.”
A copy of the motion is posted on the website of the National Center for Science Education.
Richard Hoppe, who writes for pandasthumb.org, wrote about the recent subpoenas issued by Moore. Below is a portion of Hoppe’s post:
“Essentially the defense is asking for everything Sam [Stickle] has ever written on the web, whether public or in private, about Freshwater, Hamilton, and the Freshwater hearing. That’s a remarkable demand. It has the effect of bringing everything a private citizen has written about this affair into a federal court proceeding for no discernible reason beyond the defense’s hope that something, anything, will turn up. It is a chilling affront to the First Amendment rights of the Stickle brothers and to anyone else (what, who me?) who might have commented somewhere on the web about this specific affair or who might write a blog post or even comment on a discussion board about any legal proceeding.”
In the subpoena, Moore stated that it was for the federal case John Freshwater, et al., v. Mount Vernon City School District Board of Education, et al.
(Click here to view a copy my statement to the school board and a copy of the subpoena. 891 KB PDF.)
Below is a portion of my statement:
“I understand that attorney Moore has a job to do in defending the school district in the federal case. However, there is a difference between being thorough and casting such a wide net, while fishing for information, that one goes overboard. Attorney Moore’s actions appear to be the latter.
“What criteria did attorney Moore use in deciding to whom to send subpoenas? Has she also sent subpoenas to the Mount Vernon News, KnoxPages.com, 13WMVO or the countless television stations and other newspapers who have reported on the story involving Mr. Freshwater? Will she send subpoenas to every person who has ever blogged about the story, written a letter to the editor or spoken at a school board meeting?”
I wasn’t the only one that Moore sent a subpoena to recently. Among those that received a subpoena is Levi Stickle, who maintains the website cfacts.org.
Three people spoke to the school board during the public participation portion of Monday’s school board meeting. Two of the individuals spoke about the recent subpoenas.
(“Levi Stickle to school attorney: Why did you send me a subpoena?”)
(“Community member responds to proposed MVCS levy”)
(“William Pursel: Frivolous subpoenas”)
Moore has been sent a request for comment. If and when she replies this article will be updated with her response.
Also during Monday’s meeting, school board treasurer, Barbara J. Donohue, provided an update to the school board regarding the district’s five-year forecast. She provided information regarding the financial challenges facing the district due to budget cuts at the state level.
UPDATE 10-16-10:
Moore still has not responded to the request for comment.
Mount Vernon News reporter Pamela Schehl did not include any mention of the subpoenas in her coverage of the school board meeting. See her article “McKinley honored by MV school board.”
The managing editor for the News, Samantha Scoles, provided an explanation in an email to AccountabilityInTheMedia.com :
“The reason we have not reported on the public participation portion of the most recent school board meeting is because we were not in attendance. Our education reporter was attending a different school board meeting.
“When we do not attend meetings, we can call on board members, the treasurer or the superintendent for details of the meeting, which we did in this case. I believe we were provided with the statements made in regards to the Behind the Scenes Award.
“Therefore, without being present to hear the public comments, we cannot possibly report on those.”
In an email on Oct 12, Scoles had been provided with links to videos of the public comments and a copy of the written statement given to the school board.
UPDATE 10-20-10:
Dave Daubenmire, through his attorney, has submitted a motion to quash a subpoena sent to him by Moore. Below is a portion of the motion:
“After reviewing the subpoena, it is clear that the only purpose of the subpoena was to harass, embarrass, and incur expenses for a non-party witness, simply because he is a friend of one of the parties. The subpoena should be quashed in its entirety, and attorneys fees awarded to Mr. Daubenmire from the Defendant for the expense of obtaining counsel to respond to this harassing subpoena.”
A copy of the motion is posted on the website of the National Center for Science Education.
Richard Hoppe, who writes for pandasthumb.org, wrote about the recent subpoenas issued by Moore. Below is a portion of Hoppe’s post:
“Essentially the defense is asking for everything Sam [Stickle] has ever written on the web, whether public or in private, about Freshwater, Hamilton, and the Freshwater hearing. That’s a remarkable demand. It has the effect of bringing everything a private citizen has written about this affair into a federal court proceeding for no discernible reason beyond the defense’s hope that something, anything, will turn up. It is a chilling affront to the First Amendment rights of the Stickle brothers and to anyone else (what, who me?) who might have commented somewhere on the web about this specific affair or who might write a blog post or even comment on a discussion board about any legal proceeding.”
Friday, September 17, 2010
Freshwater’s Closing Arguments: Allegations Unsubstantiated
John Freshwater’s “closing statement brief” was released Thursday.
The 180 page document, including diagrams, provides extensive arguments for why the allegations made against Freshwater are unsubstantiated. The brief draws upon the many witnesses who testified during the hearing that began in October of 2008.
(“Freshwater's Closing Statement Brief.” 4MB PDF.)
(The “Middle School FCA Speakers Survey” diagram, like others used in the brief, emphasizes significant details of the testimony.)
The following is from the introduction of the brief:
“Everything in this case is about purpose, context and intent with an ultimate goal of answering the question set forth in the opening statement –
“Shamefully and sadly, had the administration of the employer invested any zeal in investigative fact gathering to determine the basic:
- legitimate answers could have been achieved both by the end of the last day of school in 2008, and before the employer’s resolutions of June 20, 2008, and July 7, 2008.”
AND
“The sum of the decision calculus in this matter will demonstrate John Freshwater prevails in this matter because:
“1. Any and all matters related to John Freshwater’s use of a Tesla Coil were adjudicated by Principal William White’s letter to John Freshwater dated January 22, 2008.
“2. The Academic Content Standards were not applicable in the Mount Vernon City School District until the beginning of the 2004-2005 school year.
“A. John Freshwater taught his 8th grade students exactly as he was required as evidenced by the only known assessment tool authorized in the State of Ohio; the Ohio Achievement Tests. John Freshwater’s students received proper instruction resulting in him being the only 8th grade teacher whose students achieved a proficient rating of seventy-seven (77%) percent on the Ohio Achievement Tests despite his classes containing the most special education students.
“B. Ten (10) eyewitness students, two (2) teachers and one (1) principal testified John Freshwater never instructed on the topics of creationism nor intelligent design.
“3. John Freshwater complied with all of the known parameters as he facilitated, monitored and supervised the Fellowship of Christian Athletes (FCA).
“A. Witness testimony from credible sources clearly demonstrates John Freshwater did not conduct nor lead any prayers during FCA meetings.
“B. Witness testimony from credible sources clearly demonstrates John Freshwater never asked non-familial students to lead prayer in FCA meetings.
“C. Witness testimony from credible sources clearly demonstrates John Freshwater did not exceed his role as facilitator, monitor and supervisor of the FCA.
“4. John Freshwater exercised a constitutional right to have a personal Bible in his classroom on his desk.
“A. John Freshwater removed all items he was lawfully asked to remove.
“B. John Freshwater did not receive any instruction from Principal William White or anybody else to remove the patriotic poster, which was distributed through the Mount Vernon Middle School office, depicting former President George Bush and Colin Powell.
“C. John Freshwater never intended or tried to ‘make a point’ by bringing additional religious articles into his classroom.
“At the conclusion of this brief, John Freshwater will respectfully request the Referee to evaluate and find each of the employer’s allegations against John Freshwater as detailed in the Amended Resolution of Intent to Consider the Termination of the Teaching Contract(s) of John Freshwater to be unsubstantiated.
“John Freshwater prays this Referee, after consideration of the evidence presented, and assessment of the testimony heard, will find the Board of Education (BOE) has failed to prove the charges set forth in the resolution to consider his termination originally dated June 20, 2008, but amended on July 7, 2008.”
For additional coverage of the Freshwater hearing, see the articles in the archive.
UPDATE 9/20/10—related documents:
August 13, 2010 David Millstone’s brief on behalf of the Mount Vernon Board of Education. 239 KB PDF.
August 20, 2010 R. Kelly Hamilton’s rebuttal on behalf of Freshwater. 5.64 MB PDF.
August 20, 2010 Millstone’s rebuttal on behalf of school board. 180 KB PDF.
The above three documents were obtained from the National Center for Science Education.
UPDATE 9/22/10:
The links to the above three documents have been temporarily taken down. (The documents may not have been officially released.)
Freshwater’s “closing statement brief” was released Thursday by attorney Hamilton.
UPDATE 3/17/11:
The links to the above three documents have been reactivated. (The documents are part of the public record pursuant to Ohio Revised Code 3319.16.)
The 180 page document, including diagrams, provides extensive arguments for why the allegations made against Freshwater are unsubstantiated. The brief draws upon the many witnesses who testified during the hearing that began in October of 2008.
(“Freshwater's Closing Statement Brief.” 4MB PDF.)
The following is from the introduction of the brief:
“Everything in this case is about purpose, context and intent with an ultimate goal of answering the question set forth in the opening statement –
‘What makes sense?’ versus ‘What does not make sense?’
“Shamefully and sadly, had the administration of the employer invested any zeal in investigative fact gathering to determine the basic:
‘Who?, What?, Where?, When?, Why? and How?’
- legitimate answers could have been achieved both by the end of the last day of school in 2008, and before the employer’s resolutions of June 20, 2008, and July 7, 2008.”
AND
“The sum of the decision calculus in this matter will demonstrate John Freshwater prevails in this matter because:
“1. Any and all matters related to John Freshwater’s use of a Tesla Coil were adjudicated by Principal William White’s letter to John Freshwater dated January 22, 2008.
“2. The Academic Content Standards were not applicable in the Mount Vernon City School District until the beginning of the 2004-2005 school year.
“A. John Freshwater taught his 8th grade students exactly as he was required as evidenced by the only known assessment tool authorized in the State of Ohio; the Ohio Achievement Tests. John Freshwater’s students received proper instruction resulting in him being the only 8th grade teacher whose students achieved a proficient rating of seventy-seven (77%) percent on the Ohio Achievement Tests despite his classes containing the most special education students.
“B. Ten (10) eyewitness students, two (2) teachers and one (1) principal testified John Freshwater never instructed on the topics of creationism nor intelligent design.
“3. John Freshwater complied with all of the known parameters as he facilitated, monitored and supervised the Fellowship of Christian Athletes (FCA).
“A. Witness testimony from credible sources clearly demonstrates John Freshwater did not conduct nor lead any prayers during FCA meetings.
“B. Witness testimony from credible sources clearly demonstrates John Freshwater never asked non-familial students to lead prayer in FCA meetings.
“C. Witness testimony from credible sources clearly demonstrates John Freshwater did not exceed his role as facilitator, monitor and supervisor of the FCA.
“4. John Freshwater exercised a constitutional right to have a personal Bible in his classroom on his desk.
“A. John Freshwater removed all items he was lawfully asked to remove.
“B. John Freshwater did not receive any instruction from Principal William White or anybody else to remove the patriotic poster, which was distributed through the Mount Vernon Middle School office, depicting former President George Bush and Colin Powell.
“C. John Freshwater never intended or tried to ‘make a point’ by bringing additional religious articles into his classroom.
“At the conclusion of this brief, John Freshwater will respectfully request the Referee to evaluate and find each of the employer’s allegations against John Freshwater as detailed in the Amended Resolution of Intent to Consider the Termination of the Teaching Contract(s) of John Freshwater to be unsubstantiated.
“John Freshwater prays this Referee, after consideration of the evidence presented, and assessment of the testimony heard, will find the Board of Education (BOE) has failed to prove the charges set forth in the resolution to consider his termination originally dated June 20, 2008, but amended on July 7, 2008.”
For additional coverage of the Freshwater hearing, see the articles in the archive.
UPDATE 9/20/10—related documents:
August 13, 2010 David Millstone’s brief on behalf of the Mount Vernon Board of Education. 239 KB PDF.
August 20, 2010 R. Kelly Hamilton’s rebuttal on behalf of Freshwater. 5.64 MB PDF.
August 20, 2010 Millstone’s rebuttal on behalf of school board. 180 KB PDF.
The above three documents were obtained from the National Center for Science Education.
UPDATE 9/22/10:
The links to the above three documents have been temporarily taken down. (The documents may not have been officially released.)
Freshwater’s “closing statement brief” was released Thursday by attorney Hamilton.
UPDATE 3/17/11:
The links to the above three documents have been reactivated. (The documents are part of the public record pursuant to Ohio Revised Code 3319.16.)
Wednesday, August 4, 2010
What’s in the Trash, Stays in the Trash, According to Judge
Federal judge Gregory Frost on Monday rejected the attempt by John Freshwater and attorney R. Kelly Hamilton to have previously issued sanctions lifted.
Frost sidestepped the various issues raised in the dispute and went to what he believed could resolve the matter—the credibility of the parties involved in Doe v. Mount Vernon Board of Education et al.
With $28,737.50 at stake, Frost decided against Freshwater and Hamilton because Freshwater testified to having pulled items back out of the trash.
“The Court finds Freshwater’s explanation is untenable and that it taints the credibility of his entire testimony,” Frost wrote.
Freshwater had merely explained in the federal hearing, like he had in the administrative hearing, that he pitched some items into a garbage can in his barn and then retrieved the items when his attorney requested them.
Frost also focused on a similar, though separate, situation. This time, Frost wrote that it couldn’t be true that Freshwater both put the item, a Tesla coil, in a trashcan and also gave the item to his attorney.
In research done by AccountabilityInTheMedia.com, it was found to be physically possible to place something in a trashcan and then remove the item.
Perhaps for a person such as Howie Mandel, with germaphobia, it would be psychologically impossible to remove an item from a trashcan.
(Mandel talks about his fear of germs.)
Mount Vernon City Schools’ superintendent Steve Short and Mount Vernon Board of Education attorney David Millstone both testified on behalf of the plaintiffs. Neither one mentioned anything about having every removed something from a trashcan.
“The Court has no uncertainty whatsoever as to the truthfulness of the testimony of these two witnesses,” Frost wrote.
Frost did not include any details about the testimony of Short or Millstone.
Other than the trashcan issue, the only other issue Frost offered as the basis of his decision involved the dispute over whether Hamilton delivered two affidavits on April 30, 2010 to the plaintiffs’ attorney Douglas Mansfield.
It was a matter of Hamilton’s word against Mansfield’s and his two associates. Even at that, Frost wrote that he didn’t even have to include Hamilton’s side of the story in his deliberation on the matter.
Frost wrote that Hamilton didn’t properly word his affidavit about the affidavits. What Hamilton wrote in his brief about the affidavits Frost did find to be properly worded. However, Frost wrote that statements made in a brief cannot be considered “evidence.”
While Hamilton was in the federal hearing, he said a couple of times that if Frost had particular wording he was looking for on any matter to direct him in what would satisfy the court. Hamilton told the judge that he was not trying to be evasive in how he responded to the various issues.
(The Trial by Franz Kafka, starting at 1:07 in video, provides a sense of the legal proceedings regarding Freshwater.)
Frost went ahead and wrote in his decision:
“And, it appears to the Court that the language utilized in Attorney Hamilton’s affidavit is carefully crafted to appear to state that he attached the affidavits to Exhibit 161 but does not actually state such. Moreover, although the affidavit does not state that Attorney Hamilton attached the affidavits to Exhibit 161, to the extent that the affidavit was meant to state such, the Court finds the testimony unbelievable.”
Credibility of judge Frost
During the federal hearing conducted on July 29, Frost did acknowledged twice, after being pressed, that he had been mistaken on something.
One issue had to do with who Freshwater’s attorney was in Doe v. Mount Vernon Board of Education et al. The other was regarding the wording of the 2008 requests by the plaintiffs for the production of documents.
AccountabilityInTheMedia.com previously reported on Frost’s odd decision in April to grant the plaintiffs, the Dennis family, standing in regard to their claims of Establishment Clause violation. (See the article, “Christian Family Objects to Bible in Classroom.” )
The Dennises state in their lawsuit that they are Christians. The Bibles and Ten Commandments that were in Freshwater’s classroom, if seen as religious articles, were from the Dennis’ own religion. In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items.
Frost, nonetheless, granted the Dennis’ standing.
Related document:
August 2, 2010 opinion and order by Frost on motion for reconsideration of sanctions. (Doc# 120) 28.32 KB PDF.
Frost sidestepped the various issues raised in the dispute and went to what he believed could resolve the matter—the credibility of the parties involved in Doe v. Mount Vernon Board of Education et al.
With $28,737.50 at stake, Frost decided against Freshwater and Hamilton because Freshwater testified to having pulled items back out of the trash.
“The Court finds Freshwater’s explanation is untenable and that it taints the credibility of his entire testimony,” Frost wrote.
Freshwater had merely explained in the federal hearing, like he had in the administrative hearing, that he pitched some items into a garbage can in his barn and then retrieved the items when his attorney requested them.
Frost also focused on a similar, though separate, situation. This time, Frost wrote that it couldn’t be true that Freshwater both put the item, a Tesla coil, in a trashcan and also gave the item to his attorney.
In research done by AccountabilityInTheMedia.com, it was found to be physically possible to place something in a trashcan and then remove the item.
Perhaps for a person such as Howie Mandel, with germaphobia, it would be psychologically impossible to remove an item from a trashcan.
(Mandel talks about his fear of germs.)
Mount Vernon City Schools’ superintendent Steve Short and Mount Vernon Board of Education attorney David Millstone both testified on behalf of the plaintiffs. Neither one mentioned anything about having every removed something from a trashcan.
“The Court has no uncertainty whatsoever as to the truthfulness of the testimony of these two witnesses,” Frost wrote.
Frost did not include any details about the testimony of Short or Millstone.
Other than the trashcan issue, the only other issue Frost offered as the basis of his decision involved the dispute over whether Hamilton delivered two affidavits on April 30, 2010 to the plaintiffs’ attorney Douglas Mansfield.
It was a matter of Hamilton’s word against Mansfield’s and his two associates. Even at that, Frost wrote that he didn’t even have to include Hamilton’s side of the story in his deliberation on the matter.
Frost wrote that Hamilton didn’t properly word his affidavit about the affidavits. What Hamilton wrote in his brief about the affidavits Frost did find to be properly worded. However, Frost wrote that statements made in a brief cannot be considered “evidence.”
While Hamilton was in the federal hearing, he said a couple of times that if Frost had particular wording he was looking for on any matter to direct him in what would satisfy the court. Hamilton told the judge that he was not trying to be evasive in how he responded to the various issues.
(The Trial by Franz Kafka, starting at 1:07 in video, provides a sense of the legal proceedings regarding Freshwater.)
Frost went ahead and wrote in his decision:
“And, it appears to the Court that the language utilized in Attorney Hamilton’s affidavit is carefully crafted to appear to state that he attached the affidavits to Exhibit 161 but does not actually state such. Moreover, although the affidavit does not state that Attorney Hamilton attached the affidavits to Exhibit 161, to the extent that the affidavit was meant to state such, the Court finds the testimony unbelievable.”
Credibility of judge Frost
During the federal hearing conducted on July 29, Frost did acknowledged twice, after being pressed, that he had been mistaken on something.
One issue had to do with who Freshwater’s attorney was in Doe v. Mount Vernon Board of Education et al. The other was regarding the wording of the 2008 requests by the plaintiffs for the production of documents.
AccountabilityInTheMedia.com previously reported on Frost’s odd decision in April to grant the plaintiffs, the Dennis family, standing in regard to their claims of Establishment Clause violation. (See the article, “Christian Family Objects to Bible in Classroom.” )
The Dennises state in their lawsuit that they are Christians. The Bibles and Ten Commandments that were in Freshwater’s classroom, if seen as religious articles, were from the Dennis’ own religion. In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items.
Frost, nonetheless, granted the Dennis’ standing.
Related document:
August 2, 2010 opinion and order by Frost on motion for reconsideration of sanctions. (Doc# 120) 28.32 KB PDF.
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