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

The John Freshwater case received an influx of new paperwork on Thursday as the Mount Vernon Board of Education and its cohorts submitted their briefs to the Ohio Supreme Court just in time to meet the extended deadline.

Joining the school board were the American Humanist Association, Americans United for Separation of Church and State, the Anti-Defamation League, the Secular Student Alliance, the National Center for Science Education and Stephen and Jenifer Dennis.

The group submitted a total of five briefs.

Case background

In January 2011 the board fired Freshwater from his position teaching eighth-grade science at the Mount Vernon City Schools. He had been employed by the school since 1987.

(Freshwater taught science for 21 years at Mount Vernon Middle School.)

The board’s resolution firing Freshwater provided two categories of reasons for the firing: The first involved Freshwater’s teaching methodology which the board characterized as religious. The second was about “religious articles” in his classroom.

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

In July of this year the Ohio Supreme Court agreed to hear Freshwater’s case.

On Aug. 24 Freshwater submitted his merit brief to the court.

The board subsequently requested an extension of time to file its response, which the court granted. It also submitted a motion to strike portions of Freshwater’s brief. (Read about that here and here.)

According to court rules, Freshwater will have 20 days to respond to the recently submitted briefs.

The First Amendment and academic freedom

The First Amendment

The board has motioned for the Ohio Supreme Court to strike the text of the First Amendment from Freshwater’s merit brief.

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

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

Incidentally, the swearing in of three board members in January of this year utilized a paraphrased version of the oath which did not explicitly mention the Constitution of the United States or the constitution of Ohio.

Ohio Revised Code 3313.10 states:

“Before entering upon the duties of his office each person elected or appointed a member of a board of education shall take an oath to support the Constitution of the United States and the constitution of this state and that he will perform faithfully the duties of his office. Such oath may be administered by the treasurer or any member of the board.”

The omission of the Constitution from the oath may have been an innocent goof-up. The real test of elected officials' loyalty to the Constitution is not so much what they say they will do but what they actually do.

Freshwater has argued that the basis used by the board to terminate his employment violated his and his students First Amendment rights to academic freedom.

Freshwater’s teaching methodology

In the resolution firing Freshwater, the board took issue with how Freshwater handled the topic of evolution and with his encouraging his students to think about the material in the science textbooks instead of blindly accepting everything as written.

The board did not dispute that evolution was a topic Freshwater was allowed to teach. The joint brief by board cohorts Americans United for Separation of Church and State and the Ant-Defamation League went so far as to say “instruction on evolutionary science” was “officially mandated.”

The board said the problem regarding Freshwater’s handling of evolution had to do with the evidence offered as being against evolution: “Freshwater’s ‘evidence’ against [evolution] was based, in large part, upon the Christian religious principals (sic) of Creationism and Intelligent Design.”

(Freshwater offered his students the following voluntary extra credit assignment: “Watch and examine the film Expelled, and explain why it is important to examine this film objectively and not let bias affect your observations.”)

The board, in its termination resolution, did not go so far as to claim that Freshwater emphasized the evidence against evolution to the point of outright teaching either creationism or intelligent design.

However, in the board’s recent brief, it makes the claim that Freshwater’s merit brief acknowledges outright teaching of creationism and intelligent design.

Contrary to the board’s new claim, a fair analysis of Freshwater’s merit brief would show that whenever a reference was made specifically to how he handled creationism or intelligent design his approach was characterized as being along the lines of considering or discussing the matter.

Indeed, the evidence cited by the board is the following statement: “if discussions of evolution may not be banned from a science classroom, then neither may discussions of creationism be banned.”

Later in the brief, the board provided the following information about how Freshwater handled the topic: “In another example, one student testified that we ‘knew what he was talking about [intelligent design], but he would never outright say it.’ […] "He would just kind of say something where it would be obvious to someone [that he was talking about intelligent design].”

Board policy and administrative guidelines

The board has previously taken the position that “Freshwater’s actions violated all the Board’s pertinent Bylaws and Policies and the Establishment Clause.”

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

“Neither the resolution firing Freshwater nor the board’s [May 11, 2012] memorandum to the Ohio Supreme Court cite any of the bylaws or polices that Freshwater supposedly violated. Considering that they are not cited, the existence of any violated bylaws or policies is highly suspect.”

This time the board decided to cite its policies.

But, unfortunately for the board, those polices turned out to only support Freshwater’s arguments.

Before delving into the policies, the board countered Freshwater’s citation of judicial precedent supportive of academic freedom by saying: “A judicially-created ancillary First Amendment right to ‘academic freedom’ is simply inapplicable to Freshwater. The concept of academic freedom is derived from the realm of higher learning in universities.”

The board went on to say that since the 1967 case Keyishian v. Bd. of Regents “the United States Supreme Court has never suggested that academic freedom of professors extends to teachers in public school classrooms where the audience is made up of children and attendance is mandatory.”

The board staked its authority over Freshwater on the position that “Only a board is entrusted with the establishment and control of the curriculum in its schools.”

So, how has the board exercised that authority through its written polices? The board did so primarily through adopting Policy and Guideline 2240 - Controversial Issues; Policy and Guideline 2270 - Religion in the Curriculum; and Policy 3218 - Academic Freedom of Teachers.

Of particular relevance is policy 3218 which not only is titled Academic Freedom of Teachers, but also says, “The freedom to speak and share ideas is an inherent precept of a democratic society governed by the will of the majority. Teachers and students need to be free to discuss and debate ideas."

The board tried to use a Jedi mind trick when it responded to its own policy by saying, “Nowhere does the policy suggest that Freshwater had a right to teach whatever he pleased, particularly in a science classroom where he was mandated to present scientific data, not religious doctrine.”

(The board borrowed part of its legal strategy from Star Wars: “These aren’t the droids you’re looking for.”)

The board was confident enough that the technique was working that it bravely went on to quote the rest of the same policy: "When ideas that may be controversial are introduced, teachers, while having a right to their opinion on the subject, shall state it as such and they should be objective in presenting various sides of the issues."

In response, the board said, “Freshwater, however, filled his classroom with religious discussion and a religious display.”

What does the policy about “Religion in the Curriculum” say about religion? The board summarized it as being:

“Under Policy and Guideline 2270, the Board directed its teachers, including Freshwater, to be neutral in their approach and avoid using religious material to advance religion in anyway. Teachers were only to discuss religion [in] the classroom during an age-appropriate, objective lesson on, for example, religious practices around the world in social studies class or sixteenth century art in art class. Despite that directive, Freshwater chose to advance his Christian views in the classroom, where the curriculum specifically directed him to teach students about science, not theology.”

That must mean that the school-approved science textbooks never mention ideas that are religious or that stray from current establishment-accepted thinking.

But, wait, as Freshwater pointed out in his first appeal, the board-supplied “curricular materials—textbooks—for 8th-grade science” contained “numerous and common subjective, biased, religion-based, and non-scientific opinions.” He went on to say:

“Among the quotations are statements that scientists can be wrong, admissions of scientists changing their minds over time, narrations of ancient legends, speculation on ritual uses of geologic sites, science fiction stories, reasons to doubt the accuracy of scientists, instruction to students to debate scientific topics as well as moral or ethical topics relating to science.”

The board is going to need the dark side of the Force.

Regarding the third policy, 2240 - Controversial Issues, the board says, “Under that policy, only the Board, acting through its principals, could authorize teaching controversial topics that were not contained in the applicable Academic Content Standard, or course of study.”

However, the board, as mentioned before, did not challenge that evolution was part of the topics the school allowed Freshwater to teach.

According to the policy and guideline, once a controversial topic is allowed by the school, the teacher is then allowed to provide other viewpoints. Thus, the board’s argument rests on whether evolution is a controversial issue. If it were to be established that evolution is, in fact, a controversial issue, then the board’s defense would fall apart.

Of course, the board could always try to use the Force to levitate itself above the facts.

The school’s administrative guideline for “Controversial Issues in the Classroom” provides the following insightful details about how Freshwater was supposed to handle controversial issues:

C. When discussing a controversial issue, the teacher may express his/her own personal position as long as s/he makes it clear that it is only his/her opinion. The teacher must not, however, bring about a single conclusion to which all students must subscribe.
  D. The teacher should encourage student views on issues as long as the expression of those views is not derogatory, malicious, or abusive toward other student views or toward a particular group.
  E. Teachers should help students use a critical thinking process such as the following to examine different sides of an issue:
    For each stated position:
    1. What is the person (group) saying?
    2. What evidence is there that what is being said is true?
    3. What is said that would lead you to think the position is valid?
    4. What are the strengths and weaknesses of this position?
    5. What do you think would happen if this point of view was accepted and was put into practice?
  For reaching conclusions:
    1. On balance, what do you think is the most reasoned statement? the most valid position?
    2. What is there in the statements that supports your conclusion? What other things, beside what is being said, leads you to your conclusion?

In the board’s defense, it quotes from the Academic Content Standard, which it says requires that students “realize that the current body of scientific knowledge must be based on evidence, be predictive, logical, subject to modification and limited to the natural world.”

The very wording of the quote provided by the board does not preclude students from knowing about things that are not considered part of “the current body of scientific knowledge,” as, indeed, the schools own textbooks include information about past beliefs of scientists that are no longer accepted, even ideas that are religious.

That Freshwater’s students understood science, and understood it well, is evidenced by his students’ high passage rate on the Ohio Achievement Test.

The board also took the opportunity while on the topic of the controversial issues policy to criticize Freshwater’s 2003 “Objective Origins Science Policy” proposal.

After mentioning that the proposal was rejected, the board comments, “Simply put, Freshwater's proposal did not meet any of the criteria required for introducing a controversial topic to students, particularly young, impressionable students.”

It would be ludicrous to suppose that anytime a legislative body, such as a school board, rejected a proposal that the act of rejecting it automatically created an antithetical policy.

Not mentioned by the board was that two of the reasons the school’s Science Curriculum Committee recommended the board reject the proposal was because, “The board of education policy addresses controversial issues—Freshwater proposal is already addressed;” and the “Proposed [policy] mentioned critical thinking skills—redundant, we’re already doing this.”

Surely Freshwater should have at least been afforded the First Amendment and academic freedom to teach within the school’s own policies and administrative guidelines.

The James Stockdale problem

Another item included in the board’s resolution, in the teaching methodology category, was an allegation made by substitute teacher James Stockdale.

Stockdale had testified during the state administrative hearing that in the fall of 2006 he heard Freshwater make remarks to his class about the subject of homosexuality.

Freshwater, on the other hand, testified that he never made the statement that Stockdale credited to him.

In a subsequent public records request made by AccountabilityInTheMedia.com, it was discovered that the school's records showed Stockdale's duties did not take him into Freshwater’s classroom anytime Sept. 1, 2005 through June 30, 2008.

The board later told the 5th District Court of Appeals, “The records could be incomplete or, most likely, the witness could have been mistaken as to the date he heard the comments.”

The board insisted that Stockdale did hear the comments.

As the board puts it this time, in explaining it to the Ohio Supreme Court:

“This testimony by Jim Stockdale is disputed by [Freshwater], but it is irrelevant which particular day Stockdale witnessed the comments being made. The fact they were heard at all is what gave the Board cause for concern, and ultimately, corroborating evidence to support the good and just cause for [Freshwater]'s firing.”

In other words, the board knows Stockdale heard the remarks because Stockdale heard the remarks.

Aside from the board’s above-mentioned circular argument, the board is arguing that the records should not be considered by the court due to the fact the records were not submitted into evidence during the hearing.

‘Religious articles’ in the classroom

Insubordination

The final reason the board gave for firing Freshwater was that he did not remove all of the “religious articles” from his classroom.

The board says in its brief, “Not only did Freshwater refuse to remove several items, including his Bible and the ‘fervent prayer’ poster, but he went down to the school library, checked out the Oxford Bible and a copy of Jesus of Nazareth, and placed them in the plain view of his students.”

The Bible on the desk

Freshwater, however, did remove all the items he was directed, in writing, to remove with the exception of his personal Bible.

In contrast to the school’s directive regarding Freshwater’s Bible, the school has been allowing other teachers to each have a Bible out on their desks.

In response to this disparity, the board mentions the testimony of Steve Short, superintendent of the Mount Vernon City Schools.

Short said the difference was that parents Stephen and Jenifer Dennis complained that Freshwater referenced his Bible during class.

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

The poster

The “fervent prayer” poster, more commonly known as the Colin Powell/George W. Bush poster, had been on the wall in Freshwater’s classroom for years. Various faculty members at the school also displayed the poster at one time or another.

(This poster has been banned from Mount Vernon City Schools. The photograph was taken January 28, 2003. © Brooks Kraft/CORBIS. The poster was printed by Freeport Press, Inc.)

The school did not document any order to remove the poster.

The library books

The school library does not have any signs warning that checking out books could result in expulsion.

To the contrary, when the board met in the library to vote to fire Freshwater, hanging above the board was a poster of Yoda which stated, “Read and The Force is with you.”

Additional information

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

“Freshwater’s Closing Arguments: Allegations Unsubstantiated”

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

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

Press release: School officials ask Ohio Supreme Court to strike First Amendment from Freshwater lawsuit, reject science teacher’s right to academic freedom

The following press release was provided Tuesday by The Rutherford Institute:

MOUNT VERNON, Ohio—Attorneys for the Mount Vernon City School District have asked the Ohio Supreme Court to strike portions of public school teacher John Freshwater’s appeal briefing, including the text of the First Amendment. This technical motion is the School Board’s latest effort to counter an argument by Rutherford Institute attorneys that the School District violated Freshwater’s academic freedom rights by firing him for encouraging students to think critically about the school’s science curriculum, particularly as it relates to evolution theories. The Ohio Supreme Court has agreed to The Rutherford Institute’s request to hear the case, which arose after the Mount Vernon City School District’s Board of Education suspended Freshwater, a 24-year veteran in the classroom, in 2008 and officially terminated him in January 2011.

The Rutherford Institute’s merits brief to the Ohio Supreme Court is available here.

“It’s a sad day when public school officials want to eliminate the First Amendment from a discussion about classroom education and academic freedom,” stated John W. Whitehead, president of The Rutherford Institute. “It’s time that school officials stop paying lip service to the need for young people to learn about the Constitution and start putting those principles into practice.”

In June 2008, the Mount Vernon City School District Board of Education voted to suspend John Freshwater, a Christian with a 20-year teaching career at Mount Vernon Middle School, citing concerns about his conduct and teaching materials, particularly as they related to the teaching of evolution. Earlier that year, school officials reportedly ordered Freshwater, who had served as the faculty appointed facilitator, monitor, and supervisor of the Fellowship of Christian Athletes student group for 16 of the 20 years that he taught at Mount Vernon, to remove “all religious items” from his classroom, including a Ten Commandments poster displayed on the door of his classroom, posters with Bible verses, and his personal Bible which he kept on his desk. Freshwater agreed to remove all items except for his Bible. Showing their support for Freshwater, students even organized a rally in his honor. They also wore t-shirts with crosses painted on them to school and carried Bibles to class. School officials were seemingly unswayed by the outpouring of support for Freshwater. In fact, despite the fact that the Board’s own policy states that because religious traditions vary in their treatment of science, teachers should give unbiased instruction so that students may evaluate it “in accordance with their own religious tenets,” school officials suspended and eventually fired Freshwater, allegedly for criticizing evolution and using unapproved materials to facilitate classroom discussion of origins of life theories. Freshwater appealed the termination in state court, asserting that the school’s actions violated his rights under the First and Fourteenth Amendments to the United States Constitution and constituted hostility toward religion. A Common Pleas judge upheld the School Board’s decision, as did the Fifth District Court of Appeals, without analyzing these constitutional claims. In appealing to the Ohio Supreme Court, Institute attorneys argued that the Board through its actions violated the First Amendment academic freedom rights of both Freshwater and his students.

Additional information:

The following are three of the appendix pages that attorneys for the Mount Vernon Board of Education are seeking to have removed from John Freshwater’s merit brief:



For more documents from the case, see the Supreme Court of Ohio website: John Freshwater v. Mount Vernon City School District Board of Education

School attorneys argue for going back to the Bible

The controversy at the Mount Vernon City Schools began with the Bible, and it may soon get back to being about the Bible.

At least if attorneys for the Mount Vernon Board of Education get their way.

On Monday, school board attorneys David Kane Smith, Krista Keim and Paul J. Deegan motioned for the Ohio Supreme Court to strike from John Freshwater’s appeal all of the “Propositions of Law” except for the one that involves the Bible on the desk.

The school board’s attorneys argued that two out of the three propositions of law in Freshwater’s Aug. 24 merit brief, prepared by attorneys R. Kelly Hamilton and Rita M. Dunaway, did not match those approved for consideration by the court. Therefore, the school board attorneys argue, only the remaining issue should be considered by the court.

The court had accepted the following propositions for review:

“Proposition of Law No. I: The termination of a public school teacher's employment contract based on the teacher's use of academic freedom where the school board has not provided any clear indication as to the kinds of materials or teaching methods which are unacceptable cannot be legally justified, as it constitutes an impermissible violation of the rights of the teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment's Establishment Clause.

“Proposition of Law No. II: The termination of a public school teacher's employment contract based on the mere presence of religious texts from the school's library and/or the display of a patriotic poster cannot be legally justified, as it constitutes an impermissible violation of the rights of a teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment's Establishment Clause”

Not accepted for review was the following proposition:

“Proposition of Law No. III: Where the ‘investigation’ and subsequent termination of a public school teacher by his employer are demonstrably motivated by the teacher's public expressions of his personal religious beliefs, said investigation and termination violate the teacher's First Amendment right to free speech and Fourteenth Amendment right to equal protection under the law.”

Freshwater’s Aug. 24 merit brief had presented arguments in support of the following three propositions:

“Proposition of Law I - The termination of a public school teacher's employment based on the content or viewpoint of his curriculum-related academic discussions with students and use of supplemental academic materials violates the teacher's and students' First Amendment rights to academic freedom. 

“A. Freshwater's teaching methods were good practices and were in accordance with the Board's policies. 

“B. Freshwater's termination based on the Board's stated reasons is a form of government censorship and a violation of the rights of academic freedom enjoyed by Freshwater and his students.

“Proposition of Law II - The termination of a public school teacher's employment based on the fact that his academic discussions with students and supplemental academic materials include ideas that are consistent with multiple major world religions manifests hostility toward religion in violation of the Establishment Clause.

“Proposition of Law III -The termination of a public school teacher's employment based on the presence of religious texts in the classroom and the display of patriotic posters violates the teacher's and students' First Amendment rights to academic freedom and manifests hostility toward religion in violation of the Establishment Clause. 

“A. Freshwater's classroom was in compliance with Board policy. 

“B. Freshwater's termination based on the Board's stated reasons is a form of government censorship and a violation of the rights of academic freedom enjoyed by Freshwater and his students.

“C. The First Amendment's Establishment Clause does not justify, and in fact forbids, the Board's actions.”

If the court agrees with the motion, only the final proposition from the merit brief will be considered.

Additional information:

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

“Press release: Ohio Supreme Court agrees to hear Rutherford Institute’s case of science teacher fired for urging students to think critically about evolution”

“School board votes 4-1 to fire Freshwater”

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

MV school board attorneys ask court for more time to respond to Freshwater’s brief

The Mount Vernon Board of Education’s attorneys are requesting that the Ohio Supreme Court allow them additional time to respond to John Freshwater’s recently filed merit brief.

The attorneys want an extension of ten days, giving them until October 4 to respond to Freshwater’s claim that he was wrongfully terminated from his job teaching at Mount Vernon City Schools.

Although there are currently no other pending related legal cases or hearings, attorneys David Kane Smith, Krista Keim and Paul J. Deegan say that they need this additional time “to fully prepare and brief the issues presented by” Freshwater.

One of the difficulties they explain they are facing is, due to their dissatisfaction with Freshwater’s brief, they cannot simply cut-and-paste Freshwater’s summary of the case thus far. They have to actually write their own brief. And this takes time.

Also, they say they need the additional time to compile more supplemental materials than were included with Freshwater’s brief.

The final reason offered by the three attorneys is that the time leading up to the current deadline overlaps with the Jewish holiday of Rosh Hashanah and that the extension period overlaps with Yom Kippur.

Why would the timing of these holidays matter? Because, as the attorneys explain, some unnamed attorneys who want to file an amicus curiae brief are planning on celebrating those holidays.

Two parties did previously file amicus curiae briefs when the case was before the 5th District Court of Appeals in Ohio: the National Center for Science Education, an evolution advocacy group, and Stephen and Jenifer Dennis, witnesses in the state administrative hearing.

The NCSE website’s document list for the case does not list any documents showing that the court even accepted either of the previous amicus curiae briefs. Neither amicus curiae brief was cited by the district court in its decision in March.

See here for a copy of the motion for extension of time.

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

UPDATE:

Chief Justice Maureen O’Connor issued the following order on September 14:

“On written request of appellee, it is ordered that the time for filing the merit brief is hereby extended to October 4, 2012.”

Press release: Rutherford Institute asks Ohio Supreme Court to affirm right of science teacher to urge students to think critically about evolution

The following press release was provided Wednesday by The Rutherford Institute:

MOUNT VERNON, Ohio—In filing a merits brief with the Ohio Supreme Court in Freshwater v. Mount Vernon, attorneys for The Rutherford Institute have asked the Court to hold that the Mount Vernon City School District violated the academic freedom rights of teacher John Freshwater and his students by firing Freshwater for encouraging public school students to think critically about the school’s science curriculum, particularly as it relates to evolution theories. The Ohio Supreme Court agreed to The Rutherford Institute’s request to hear the case, which arose after the Mount Vernon City School District’s Board of Education suspended Freshwater, a 24-year veteran in the classroom, in 2008 and officially terminated him in January 2011. The Board justified its actions by accusing Freshwater of improperly injecting religion into the classroom by giving students “reason to doubt the accuracy and/or veracity of scientists, science textbooks and/or science in general.” The Board also claimed that Freshwater failed to remove “all religious articles” from his classroom, including a Bible.

The Rutherford Institute’s merits brief to the Ohio Supreme Court is available here.

“Academic freedom was once the bedrock of American education. That is no longer the state of affairs, as this case makes clear,” stated John W. Whitehead, president of The Rutherford Institute. “What we need today are more teachers and school administrators who understand that young people don’t need to be indoctrinated. Rather, they need to be taught how to think for themselves.”

In June 2008, the Mount Vernon City School District Board of Education voted to suspend John Freshwater, a Christian with a 20-year teaching career at Mount Vernon Middle School, citing concerns about his conduct and teaching materials, particularly as they related to the teaching of evolution. Earlier that year, school officials reportedly ordered Freshwater, who had served as the faculty appointed facilitator, monitor, and supervisor of the Fellowship of Christian Athletes student group for 16 of the 20 years that he taught at Mount Vernon, to remove “all religious items” from his classroom, including a Ten Commandments poster displayed on the door of his classroom, posters with Bible verses, and his personal Bible which he kept on his desk. Freshwater agreed to remove all items except for his Bible. Showing their support for Freshwater, students even organized a rally in his honor. They also wore t-shirts with crosses painted on them to school and carried Bibles to class. School officials were seemingly unswayed by the outpouring of support for Freshwater. In fact, despite the fact that the Board’s own policy states that because religious traditions vary in their treatment of science, teachers should give unbiased instruction so that students may evaluate it “in accordance with their own religious tenets,” school officials suspended and eventually fired Freshwater, allegedly for criticizing evolution and using unapproved materials to facilitate classroom discussion of origins of life theories. Freshwater appealed the termination in state court, asserting that the school’s actions violated his rights under the First and Fourteenth Amendments to the United States Constitution and constituted hostility toward religion. A Common Pleas judge upheld the School Board’s decision, as did the Fifth District Court of Appeals, without analyzing these constitutional claims. In appealing to the Ohio Supreme Court, Institute attorneys argued that the Board through its actions violated the First Amendment academic freedom rights of both Freshwater and his students.

Additional information:

"Attorneys ask Freshwater be reinstated as teacher" by Pamela Schehl, Mount Vernon News

"Firing of Bible-toting teacher under review: Ohio Supremes asked to restore John Freshwater to classroom" by Bob Unruh, WND

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

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

Freshwater files brief with Ohio Supreme Court

John Freshwater, through his attorneys, filed a merit brief with the Ohio Supreme Court on Friday. The brief presents the basis for his claim that he was wrongfully terminated from his job teaching at Mount Vernon City Schools.

(See here for a copy of the brief.)

In firing Freshwater, the Mount Vernon Board of Education took the position that a public school teacher could not present evidence both for and against evolution, allow students to question material in the textbooks or encourage students to think critically about science in general.

The school board’s resolution firing Freshwater also stated that the teacher failed to remove some unspecified “religious articles” from his classroom. (The only documented item that Freshwater was told to remove but didn’t remove was his personal Bible.)

 “As an eighth-grade science teacher,” the brief says, “Freshwater sought to encourage his students to differentiate between facts and theories or hypotheses, to question and test theories and hypotheses, and to identify and discuss instances where textbook statements were subject to intellectual and scientific debate. This teaching methodology—fostering critical thinking and the challenging and evaluation of a variety of postulated theories—is particularly appropriate in a science classroom.”

The school board’s resolution characterized this teaching methodology as being religious. In laying out the board’s reasons for the firing, the board used a hierarchical outline, divided into two sections, with the section about teaching methodology leading with the statement: “Freshwater injected his personal religious beliefs into his plan and pattern of instructing his students. In doing so, he exceeded the bounds of all the pertinent Bylaws/Policies of the Mount Vernon City School District.”

Freshwater’s brief rebuts the idea that it is improper for teachers to present material that coincides with religious beliefs:

“Academic freedom would be an empty platitude if it provided no protection from censorship of ideas that have religious connections or implications. The impact of the loss of academic freedom on the development of science, technology, and the pursuit of learning in general would be profound and tragic. Consider that while today’s science class may discuss modern theories of origins of life first espoused in the Bible (and censored on that basis alone), yesterday’s classes considered theories about the Hydrologic Cycle or the spherical Earth—also enshrined in religious texts long before accepted by science. The advancement of knowledge demands that students and teachers be free to consider, discuss and debate ideas of all kinds rather than forced to discard any due to the government’s disdain for its source.”

The brief concludes with the following statements:

 “The Board’s actions are nothing less than the censorship of ideas. As such, they eviscerate the First Amendment academic freedom rights of Freshwater and his students, and they transgress the neutrality requirement of the Establishment Clause. As the United States Supreme Court has instructed, ‘students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.’

“Here the Board has ignored these essential principles and attempted to transform students into ‘closed-circuit recipients of only that which the State chooses to communicate.’”

Freshwater is seeking monetary damages and reinstatement to his position teaching eighth-grade science.

The brief was filed on behalf of Freshwater by his attorneys R. Kelly Hamilton and Rita M. Dunaway, both affiliated with The Rutherford Institute.

Note: Internal case citations were omitted from the quotes from the brief. 

Additional information:

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

“Press release: Ohio Supreme Court agrees to hear Rutherford Institute’s case of science teacher fired for urging students to think critically about evolution”

“MV school board: Firing of Freshwater not of public interest”

“Press release: Rutherford Institute appeals to Ohio SupremeCourt on behalf of science teacher fired for urging students to think critically about evolution”

“District court rules against Freshwater’s appeal”

“Freshwater appeals to 5th District Court”

“County judge rules against Freshwater’s appeal”

“What does MV school board’s statement mean?”

“School board votes 4-1 to fire Freshwater”

“Freshwater’s Closing Arguments: Allegations Unsubstantiated”


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

The Columbus Dispatch takes a leap of faith, declares evolution a ‘fact’

Editorial

The Columbus Dispatch editorial writers have been at it again. This time, while writing about the John Freshwater case, they have taken it upon themselves to solve the hotly debated topic of origins.

It turns out, according to the gurus at the Dispatch, that the evolutionists have been right all along. We did evolve from the cosmic ooze.

The Dispatch said, “While there are scientific debates about the specific mechanisms of evolution, evolution itself is a scientific fact.”

In other words, the Dispatch doesn’t have a clue how life got from the first self-replicating molecule to highly complex human beings. It just happened. Believe.

Far be it from me to doubt a Dispatch editorial, especially one with the religious sounding title “Judgment day.”

However, I am having trouble reconciling the Dispatch’s claim that evolution is a scientific fact with the Dispatch’s own definition of science:

“Science, by definition, is the study of natural processes, not supernatural ones. Any theory that invokes supernatural explanations for natural phenomena is not science, it is religion, and therefore is inappropriate in a science class.”

Wouldn’t that mean that evolution is religion?

If the “specific mechanisms” (the natural processes) of evolution are unknown, then evolution has not invoked any explanation. To accept evolution as fact is a “leap of faith.”

That’s so religious of the Dispatch.

Related coverage:

“School Board’s Expert Witness: Debating Is for Politics, Not Science”

“Evolution – Is It More Speculative Philosophy than It Is Science?”

“Shame on The Columbus Dispatch”

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

Freshwater case could go to U.S. Supreme Court

Bob Kellogg, OneNewsNow, reports that John Freshwater’s case could go to the U.S Supreme Court.

Kellogg quotes John Whitehead, president of The Rutherford Institute, as saying:

"I think this is a case, depending on how the Ohio Supreme Court rules, that could trickle up to the [U.S.] Supreme Court, and there's a possibility the Supreme Court might look at this case depending on the issues," the attorney notes. "So, this may set national precedent."

Read the full article: “Freshwater's case could set national precedent.”

Press release: Ohio Supreme Court agrees to hear Rutherford Institute’s case of science teacher fired for urging students to think critically about evolution

The following press release was provided Friday by The Rutherford Institute:

MOUNT VERNON, Ohio— The Ohio Supreme Court has granted The Rutherford Institute’s appeal to hear the case of John Freshwater, a Christian teacher who was fired for keeping religious articles in his classroom and for using teaching methods that encourage public school students to think critically about the school’s science curriculum, particularly as it relates to evolution theories. Freshwater, a 24-year veteran in the classroom, was suspended by the Mount Vernon City School District Board of Education in 2008 and officially terminated in January 2011. The School Board justified its actions by accusing Freshwater of improperly injecting religion into the classroom by giving students “reason to doubt the accuracy and/or veracity of scientists, science textbooks and/or science in general.” The Board also claimed that Freshwater failed to remove “all religious articles” from his classroom, including a Bible.

The Rutherford Institute’s appeal to the Ohio Supreme Court is available here.

“Academic freedom was once the bedrock of American education. That is no longer the state of affairs, as this case makes clear,” stated John W. Whitehead, president of The Rutherford Institute. “What we need today are more teachers and school administrators who understand that young people don’t need to be indoctrinated. Rather, they need to be taught how to think for themselves.”

In June 2008, the Mount Vernon City School District Board of Education voted to suspend John Freshwater, a Christian with a 20-year teaching career at Mount Vernon Middle School, citing concerns about his conduct and teaching materials, particularly as they related to the teaching of evolution. Earlier that year, school officials reportedly ordered Freshwater, who had served as the faculty appointed facilitator, monitor, and supervisor of the Fellowship of Christian Athletes student group for 16 of the 20 years that he taught at Mount Vernon, to remove “all religious items” from his classroom, including a Ten Commandments poster displayed on the door of his classroom, posters with Bible verses, and his personal Bible which he kept on his desk. Freshwater agreed to remove all items except for his Bible. Showing their support for Freshwater, students even organized a rally in his honor. They also wore t-shirts with crosses painted on them to school and carried Bibles to class. School officials were seemingly unswayed by the outpouring of support for Freshwater.

In fact, despite the fact that the Board’s own policy states that because religious traditions vary in their treatment of science, teachers should give unbiased instruction so that students may evaluate it “in accordance with their own religious tenets,” school officials suspended and eventually fired Freshwater, allegedly for criticizing evolution and using unapproved materials to facilitate classroom discussion of origins of life theories. Freshwater appealed the termination in state court, asserting that the school’s actions violated his rights under the First and Fourteenth Amendments to the United States Constitution and constituted hostility toward religion. A Common Pleas judge upheld the School Board’s decision, as did the Fifth District Court of Appeals, without analyzing these constitutional claims. In appealing to the Ohio Supreme Court, Institute attorneys argued that the Board through its actions violated the First Amendment academic freedom rights of both Freshwater and his students.


Additional information:

“Ohio Supreme Court to hear Freshwater appeal” by Pamela Schehl, Mount Vernon News

“Ohio court to hear appeal of teacher in Bible case” by By Andrew Welsh-Huggins, The Associated Press

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

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

Barone to not seek re-election

Mount Vernon Board of Education member Paula Barone has announced that she does not plan to seek re-election to the board.

The announcement came in a May 10 email sent to members of the board.

Barone is one of three remaining board members who voted for the controversial firing of teacher John Freshwater.

In her recent email, Barone cited health problems of her daughter as causing her to “re-prioritize my time and energy.”

Although she is going to serve out the rest of her term, she asked board members to consider re-assigning some of her responsibilities to other board members.

One of the responsibilities that she asked be transferred to someone else was her role as an appointed member of the Knox County Career Center Board of Education.

The Mount Vernon News reports that at the May 16 meeting of the KCCC board, Steve Thompson was sworn in to replace Barone.

See here for a copy of Barone’s May 10 email.

MV school board: Firing of Freshwater not of public interest

Attorneys for the Mount Vernon Board of Education on Friday asked the Ohio Supreme Court to refuse to hear the John Freshwater case because it was “a run-of-the-mill termination case.”

The board’s attorneys assert in the memorandum that the case does “not involve matters of public or great general interest, and this case does not present a substantial constitutional question. Therefore, the Board respectfully requests this Court decline jurisdiction of the appeal.”

Apparently, those attorneys have been living under a rock for the past four years.

(See here for a copy of the board’s arguments.)

A matter of public interest

The controversy concerning Freshwater and the Mount Vernon City Schools began back in the spring of 2008 when the school ordered Freshwater to remove his personal Bible from off his desk. (See the Mount Vernon News article “Wednesday afternoon rally in support of teacher.”)

That order and the ensuing allegations have spawned numerous broadcast and print stories. Community members have engaged in lengthy discussions both online and offline concerning the rights and responsibilities of public school teachers and the meaning of the First Amendment.

Some of the details of the case even found their way into the series finale of Law & Order. (See the article “Freshwater Controversy in Episode of Law & Order.”)

Various rallies have brought community members together over their shared concern with how the school administration and the school board have handled the matter. (See the video “John Freshwater Rally.”)

Community members have also shown up at school board meetings to express their views. The meeting held on Aug. 4, 2008 drew so many people that the board had to change the venue to accommodate the crowd. (See the video of the meeting and the Mount Vernon News article “Large crowd addresses MV school board.”)

Any serious examination of the facts by a reasonable person would lead to the conclusion that this case does involve matters of law that are of public interest. The public has clearly demonstrated its recognition of the importance of this case.

Unfortunately, the position taken by the board’s attorneys is one that is dismissive toward the views of the public to the extent to even deny that the public cares. It is, then, no wonder that the board’s attorneys would also take the position that Freshwater had no First Amendment rights as a teacher.

The First Amendment and academic freedom

The board’s Jan. 10, 2011 resolution firing Freshwater included a significant focus on how Freshwater handled the topic of evolution. The board said the problem had to do with the evidence offered as being against evolution: “Freshwater’s ‘evidence’ against [evolution] was based, in large part, upon the Christian religious principals (sic) of Creationism and Intelligent Design.”

The board also took issue with Freshwater encouraging his students to think about the material in the science textbooks instead of blindly accepting everything as written.

The board’s attorneys state, “Public employees have no free-speech rights when they speak pursuant to their official duties. […] A teacher’s speech is the speech of the board of education. […] A board of education has the right to control its own speech, and cannot violate the First Amendment by doing so. […][Freshwater] erroneously argues he had academic freedom. […] Freshwater’s actions violated all the Board’s pertinent Bylaws and Policies and the Establishment Clause.”

Neither the resolution firing Freshwater nor the board’s memorandum to the Ohio Supreme Court cite any of the bylaws or polices that Freshwater supposedly violated.  Considering that they are not cited, the existence of any violated bylaws or policies is highly suspect.

Even without considering the information Freshwater offers in support of the First Amendment and academic freedom, the board’s assertions are puzzling. (See here for a PDF copy of Freshwater’s arguments.)

Freshwater’s teaching practices could not possibly be contrary to any right the board may have to “control its own speech” if the speech has already been approved by the board.

In this case, the speech appears to be within the scope approved by the board. The school’s “Controversial Issues” policy states, “The Board of Education believes that the consideration of controversial issues has a legitimate place in the instructional program of the schools.”

The policy says that no prior permission is needed from the principal if the controversial issue has been specified in the course of study. That the Ohio Achievement Test for eighth-grade science includes questions about evolution, in the life science portion of the test, indicates that some inclusion or discussion of the topic would be appropriate for an eighth-grade science class.  The board’s resolution did not challenge the appropriateness of the topic of evolution in the eighth grade.

Further, the school’s administrative guidelines for “Controversial Issues in the Classroom” provide details about how to handle controversial issues:

C. When discussing a controversial issue, the teacher may express his/her own personal position as long as s/he makes it clear that it is only his/her opinion. The teacher must not, however, bring about a single conclusion to which all students must subscribe.
  D. The teacher should encourage student views on issues as long as the expression of those views is not derogatory, malicious, or abusive toward other student views or toward a particular group.
  E. Teachers should help students use a critical thinking process such as the following to examine different sides of an issue:
    For each stated position:
    1. What is the person (group) saying?
    2. What evidence is there that what is being said is true?
    3. What is said that would lead you to think the position is valid?
    4. What are the strengths and weaknesses of this position?
    5. What do you think would happen if this point of view was accepted and was put into practice?
  For reaching conclusions:
    1. On balance, what do you think is the most reasoned statement? the most valid position?
    2. What is there in the statements that supports your conclusion? What other things, beside what is being said, leads you to your conclusion?

See here for a full copy of the policy and administrative guidelines.

Although the board’s attorneys did not cite any violated bylaws or policies, both the 2011 resolution and the recent memorandum mention the rejection of Freshwater’s 2003 “Objective Origins Science Policy” proposal as if that rejection of the proposal constitutes a substitute for a bylaw or policy.

The resolution stated, “Despite the Board’s rejection of this proposal, Mr. Freshwater undertook the instruction of his eighth grade science students, as if the suggested policy had been implemented.”

It is puzzling that the board would mention the 2003 proposal as if it was evidence against Freshwater.

It would be ludicrous to suppose that anytime a legislative body, such as a school board, rejected a proposal that the act of rejecting it automatically created an antithetical policy.

To the contrary, in this case, two of the reasons that the school’s Science Curriculum Committee recommended that the board reject the proposal was because, “The board of education policy addresses controversial issues—Freshwater proposal is already addressed;” and the “Proposed [policy] mentioned critical thinking skills—redundant, we’re already doing this.”

Surely Freshwater should have at least been afforded the First Amendment and academic freedom to teach within the school’s own policies and administrative guidelines.

The Bible on the desk

One of the reasons the school board gave for firing Freshwater was that he did not remove all of the “religious articles” from his classroom.

Freshwater, however, did remove all the items he was directed, in writing, to remove with the exception of his personal Bible.

Especially considering that the school continues to allow other teachers to have a Bible on their desk, it is inconceivable that the presence of Freshwater’s Bible was a violation of the Establishment Clause.

The board’s recent memorandum says Freshwater “removed some of the religious materials but failed, and consistently refused, to remove a religious poster, his Bible, a Living Bible, and the book Jesus of Nazareth.”

The school did not document any order to remove the Colin Powell/George W. Bush poster. The last two books mentioned were from the school’s library.

Apparently, a person should just know that checking out books from the school’s library is cause for being expelled.

Related coverage:

“Press release: Rutherford Institute appeals to Ohio SupremeCourt on behalf of science teacher fired for urging students to think critically about evolution”

“District court rules against Freshwater’s appeal”

“Freshwater appeals to 5th District Court”

“County judge rules against Freshwater’s appeal”

“What does MV school board’s statement mean?”

“School board votes 4-1 to fire Freshwater”

“Freshwater’s Closing Arguments: Allegations Unsubstantiated”

Updates: The section “The First Amendment and academic freedom” has been updated in a few places to clarify a few points. 

MV school board allows teaching of controversial issues

No, it’s not a new development. It has been the policy, at least on paper, of the Mount Vernon Board of Education to allow the teaching of controversial issues.

The following is the board’s “Controversial Issues” policy followed by the administrative guidelines for “Controversial Issues in the Classroom”:

Policy 2240 - Controversial Issues

The Board of Education believes that the consideration of controversial issues has a legitimate place in the instructional program of the schools.

Properly introduced and conducted, the consideration of such issues can help students learn to identify important issues, explore fully and fairly all sides of an issue, weigh carefully the values and factors involved, and develop techniques for formulating and evaluating positions.

For purposes of this policy, a controversial issue is a topic on which opposing points of view have been promulgated by responsible opinion.

The Board will permit the introduction and proper educational use of controversial issues provided that their use in the instructional program:

  A. is related to the instructional goals of the course of study and level of maturity of the students;

  B. does not tend to indoctrinate or persuade students to a particular point of view;

  C. encourages open-mindedness and is conducted in a spirit of scholarly inquiry.

 Controversial issues related to the program may be initiated by the students themselves provided they are presented in the ordinary course of classroom instruction and it is not substantially disruptive to the educational setting.

Controversial issues may not be initiated by a source outside the schools unless prior approval has been given by the principal.

When controversial issues have not been specified in the course of study, the Board will permit the instructional use of only those issues which have been approved by the principal.

No classroom teacher shall be prohibited from providing reasonable periods of time for activities of a moral, philosophical, or patriotic theme. No student shall be required to participate in such activities if they are contrary to the religious convictions of the student or his/her parents or guardians.

The Board also recognizes that a course of study or certain instructional materials may contain content and/or activities that some parents find objectionable. If after careful, personal review of the program lessons and/or materials, a parent indicates to the school that either the content or activities conflicts with his/her religious beliefs or value system, the school will honor a written request for his/her child to be excused from a particular class for specified reasons. The student, however, will not be excused from participating in the course and will be provided alternate learning activities during times of such parent requested absences.

R.C. 3313.601

Revised 1/6/03

Controversial Issues in the Classroom

The following guidelines are designed to assist teachers in the instruction of controversial issues in the classroom, as defined in Policy 2240.

  A. When a controversial issue is not part of an approved course of study, its use must be approved by the Principal.

  B. Before introducing a controversial issue, teachers should consider:

    1. the chronological and emotional maturity of the students;

    2. the appropriateness and timeliness of the issue as it relates to the course and the students;

    3. the extent to which they can successfully handle the issue from a personal standpoint;

    4. the amount of time needed and available to examine the issue fairly.

  C. When discussing a controversial issue, the teacher may express his/her own personal position as long as s/he makes it clear that it is only his/her opinion. The teacher must not, however, bring about a single conclusion to which all students must subscribe.

  D. The teacher should encourage student views on issues as long as the expression of those views is not derogatory, malicious, or abusive toward other student views or toward a particular group.

  E. Teachers should help students use a critical thinking process such as the following to examine different sides of an issue:

    For each stated position:

    1. What is the person (group) saying?

    2. What evidence is there that what is being said is true?

    3. What is said that would lead you to think the position is valid?

    4. What are the strengths and weaknesses of this position?

    5. What do you think would happen if this point of view was accepted and was put into practice?

  For reaching conclusions:

    1. On balance, what do you think is the most reasoned statement? the most valid position?

    2. What is there in the statements that supports your conclusion? What other things, beside what is being said, leads you to your conclusion?

See here for a PDF compilation of the “Bylaws & Policies and Administrative Guidelines” adopted by the school board.  

Press release: Rutherford Institute appeals to Ohio Supreme Court on behalf of science teacher fired for urging students to think critically about evolution

The following press release was provided Friday by The Rutherford Institute:

MOUNT VERNON, Ohio— The Rutherford Institute has appealed to the Ohio Supreme Court on behalf of John Freshwater, a Christian teacher who was fired for keeping religious articles in his classroom and for using teaching methods that encourage public school students to think critically about the school’s science curriculum, particularly as it relates to evolution theories. Freshwater, a 24-year veteran in the classroom, was suspended by the Mount Vernon City School District Board of Education in 2008 and officially terminated in January 2011. The School Board justified its actions by accusing Freshwater of improperly injecting religion into the classroom by giving students “reason to doubt the accuracy and/or veracity of scientists, science textbooks and/or science in general.” The Board also claimed that Freshwater failed to remove “all religious articles” from his classroom, including a Bible.

The Rutherford Institute’s appeal to the Ohio Supreme Court is available here.

“Academic freedom was once the bedrock of American education. That is no longer the state of affairs, as this case makes clear,” stated John W. Whitehead, president of The Rutherford Institute. “What we need today are more teachers and school administrators who understand that young people don’t need to be indoctrinated. Rather, they need to be taught how to think for themselves.”

In June 2008, the Mount Vernon City School District Board of Education voted to suspend John Freshwater, a Christian with a 20-year teaching career at Mount Vernon Middle School, citing concerns about his conduct and teaching materials, particularly as they related to the teaching of evolution. Earlier that year, school officials reportedly ordered Freshwater, who had served as the faculty appointed facilitator, monitor, and supervisor of the Fellowship of Christian Athletes student group for 16 of the 20 years that he taught at Mount Vernon, to remove “all religious items” from his classroom, including a Ten Commandments poster displayed on the door of his classroom, posters with Bible verses, and his personal Bible which he kept on his desk. Freshwater agreed to remove all items except for his Bible. Showing their support for Freshwater, students even organized a rally in his honor. They also wore t-shirts with crosses painted on them to school and carried Bibles to class. School officials were seemingly unswayed by the outpouring of support for Freshwater. In fact, despite the fact that the Board’s own policy states that because religious traditions vary in their treatment of science, teachers should give unbiased instruction so that students may evaluate it “in accordance with their own religious tenets,” school officials suspended and eventually fired Freshwater, allegedly for criticizing evolution and using unapproved materials to facilitate classroom discussion of origins of life theories. Freshwater appealed the termination in state court, asserting that the school’s actions violated his rights under the First and Fourteenth Amendments to the United States Constitution and constituted hostility toward religion. A Common Pleas judge upheld the School Board’s decision, as did the Fifth District Court of Appeals, without analyzing these constitutional claims. In appealing to the Ohio Supreme Court, Institute attorneys argue that the Board through its actions violated the First Amendment academic freedom rights of both Freshwater and his students.

District court rules against Freshwater’s appeal

The 5th District Court of Appeals in Ohio issued a decision Monday affirming a lower court’s decision to uphold the firing of former eighth-grade science teacher John Freshwater.

The appeal to the district court came after Knox County Court of Common Pleas Judge Otho Eyster ruled against Freshwater in October of 2011. In that prior decision, the county judge did not cite any evidence or applicable law to support upholding the firing.

Freshwater’s appeal to the district court argued that Eyster’s decision to uphold the firing “without the examination of any factual issues disputed by Appellant or any analysis of his First and Fourteenth Amendment claims, constitutes an abuse of discretion.”

The district court explained in a written opinion that it is very limited in how it is allowed to review cases brought before it. According to the three-judge panel, “unless this court determines that the trial court abused its discretion, we are compelled to affirm its decision.”

The court then cited a prior decision that defined “abuse of discretion” as being “an attitude that is unreasonable, arbitrary or unconscionable.”

After having provided multiple citations explaining the limited role of the district court and the concept of abuse of discretion, the court then skipped reviewing the decision of the county judge and instead proceeded to review the recommendation given by state administrative hearing referee R. Lee Shepherd.  

The district court apparently made the switch to evaluating the reasoning process of Shepherd instead of Eyster because Eyster did not show his reasoning process in his decision.

Ultimately, the district court decided to suppose that Shepherd’s “memorandum” could have served as the basis for Eyster’s decision and thus showed a reasoning process that, in the opinion of the district court, was not an abuse of discretion.

Eyster, however, never specifically stated that the document written by Shepherd was the basis of his decision.

(See here for a copy of the district court’s decision. PDF.)

(The district court's three-judge panel was comprised of W. Scott Gwin, William B. Hoffman and Sheila G. Farmer.)

Does it matter that Eyster did not provide his reasoning process?:

According to one law review article, a judge failing to provide his reasoning process does create “the appearance of arbitrariness”:

“Justice must not only be done, it must appear to be done. The authority of the federal judiciary rests upon the trust of the public and the bar. Courts that articulate no reasons for their decisions undermine that trust by creating the appearance of arbitrariness.” (“An Evaluation of Limited Publication in the United States Courts of Appeals: The Price of Reform” by William L. Reynolds and William M. Richman, The University of Chicago Law Review, [1981].)

Another law review article took the position that, “In our law... the exercise of a power to speak authoritatively as an interpreter carries with that an obligation to explain the grounds upon which the interpreter gives the authoritative judgment.” (Textualism, Constitutionalism, and the Interpretation of Federal Statutes” by Jerry L. Mashaw, William & Mary Law Review, [1991].)

(The above two quotes are from the website nonpublication.com.)

More information about the U.S. court system:

There are a few folks out there who think the U.S. courts could use some improving, among them are people writing for the following websites:

Jail4Judges.org

LawlessAmerica.com

FAQUSAJudicialCorruption.blogspot.com

As always, the views and opinions expressed on sites linked to are those of the individuals expressing them and are not necessarily those of AccountabilityInTheMedia.com.

MVBOE Members Sworn In

New Mount Vernon Board of Education member Cheryle Feasel and re-elected members Dr. Margie Bennett and Jody Goetzman took an improvised oath of office at the board's Tuesday organizational meeting. The organizational meeting was followed by the first regular meeting of the year.

For a non-paraphrased version of the oath, see the 2010 swearing in: "MVBOE New Members Sworn In."

See here for a PDF copy of the agendas for both meetings.

During public participation, Richard Hoppe spoke to board members about the importance of attending the local science fair.


MVBOE Members Sworn In (Jan 2012)


Richard Hoppe invites MVBOE to science fair

UPDATE - “Oath of office of member”:

The following is Ohio Revised Code 3313.10 (“Oath of office of member”):

“Before entering upon the duties of his office each person elected or appointed a member of a board of education shall take an oath to support the Constitution of the United States and the constitution of this state and that he will perform faithfully the duties of his office. Such oath may be administered by the treasurer or any member of the board.”