Tuesday, April 27, 2010

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.)

Sunday, April 18, 2010

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.

Tuesday, February 9, 2010

Photographs of Missing Evidence — John Freshwater Addresses School Board

John Freshwater used his three minutes of public participation time to update the Mount Vernon Board of Education on recent developments related to his employment hearing.

“I thought the hearing was about to end sometime last month but the proceeding changed again because somebody sent an anonymous letter containing some photographs of some items from my classroom,” Freshwater said. “Last week another anonymous delivery was made that contained approximately 300 photographs of items that were in my room.”

“On January 14, 2009 my attorney subpoenaed from the board, Mr. Short and the board’s attorney, all the materials from my classroom,” Freshwater said. “The board’s attorney indicated to my attorney that the board did not have anything from my classroom.”

Also speaking during public participation was Vicky Fitzgerald. She asked questions regarding the school district’s finances and board member Steve Thompson’s involvement with The Community Council For Free Expression.

The financial challenge facing the district was the forefront issue leading up to the last election. The 2008-2009 budget projected that the district was going to have approximately three million more in expenditures than income. For more information, see previous coverage of the three forums held with the candidates:

“Meet the Candidates Night — Local 470 and MVEA”
“Meet the Candidates Night — Knox County Ohio 912 Project”
“Mount Vernon Schools Going Forward – School Board Candidate Forum”

Superintendent Steve Short and the board members did not respond to any comments made by community members.

The board approved putting a renewal levy on the ballot.

UPDATE 2-9-10 at 3:30 P.M.:

An article published today by the Mount Vernon News provides some additional information regarding the missing evidence. The article cites board attorney David Millstone as saying that Freshwater and his attorney have been provided access to all the materials from Freshwater’s classroom that the board has in its possession.

“Anonymous source leads to ‘black bag’ find,” by Samantha Scoles.

UPDATE—related documents:

Anonymous tipster—first letter (dated 1-11-2010, received 1-14-2010).

The PDF file includes several photographs included with the letter. The letter is as follows:


There is so much more you need to know. For now keep these pictures and copies of things you might remember and this note sent to Steve Short. This is not how this situation was supposed to go and there’s alot of regret.

January 11, 2010

Steve Short:

I once trusted you and thought you would be a real good leader. You allowed yourself to become part of some dirty, dirty, dirty, people. I know some of what’s been done. Understand it will be revealed what I know if you do not stop this framing of John Freshwater as a bad man. I cannot stand the lies and deceit that have been done and now is the time to stand up for what’s right. There is proof where these pictures and copies were taken. These pictures are reduced for now but if necessary these pictures and all the others can show the world the full view which will display the location of these books and papers and the other things taken from Freshwater’s classroom. You and this dirty group of people tried to take down one man and ended up hurting the careers of more than just Freshwater. It is wrong what had been done and beware that I don’t tell all to. Remember the do unto others as you would want done unto you may just be done if you let this keep up. You cannot be trusted alone with these pictures so I am sending this letter and thes pictures to others to.

Motion to close hearing to the public (dated 1-19-2010).

The following is from the request, by Kelly Hamilton, to close the hearing:

Presently, it is my desire to close the hearing to the public and by this letter request to do the same. Currently there is someone or more than one person who has information that they anonymously want to inject. As discussed during our conference on January 15, 2010, the anonymous person is looking for a reaction and has likely received a measure of information from the news media or other sources from within the hearing. Strategically it has been decided the anonymous source will more likely appear if they do not know the results of their submission. The greatest likelihood for identifying the anonymous source is to isolate the boundaries or variables by limiting their access to further information.

Anonymous tipster—second letter (found 2-2-2010).

The PDF file contains a copy of the letter. The letter is as follows:


Hope the other stuff helped. There are at least two of us that know about how your stuff was kept at the MS and Central Office. Only recently was your stuff moved. An attorney said this black bag should be returned so here it is with about 300 pictures from two boxes. A blown-whistle law would give protection but need more time. Able to help again more soon and gurantee help before trial. Please understand. Keep your faith. They don’t want the truth.

Police report about the “black bag” find (dated 2-4-2010).

Pastor Don Matolyak said that the written information he provided to the police for this report was his “journaling and was not originally designed to be a police report.”

John Freshwater’s letter to MVBOE (given to board 2-8-2010).

Freshwater’s letter is a written version of the comments he made to the board during its meeting. Included in the letter is the last portion of his comments that he was unable to give due to the three minute time limit.

The Mount Vernon News article—linked to in previous update—includes a response from the board’s attorney regarding the “black bag” find.