Thursday, March 3, 2011

Case ‘closed’ without trial, without verdict

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.” 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 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.” 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.)

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 2009 settlement stipulated that there were to be two presentations. 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 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. 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 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, 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.) 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 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 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 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. )


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.)