The Mount Vernon Board of Education lost a last-ditch effort
to keep significant portions of John Freshwater’s appeal from being heard by
the Ohio Supreme Court.
The decision by the court means that all of the issues presented
in the merit brief will be considered, the text of the First Amendment will
remain in the merit brief and the newly introduced evidence, discrediting a
board witness, will be considered.
John Freshwater, through his attorney R. Kelly Hamilton,
filed his reply brief with the Ohio Supreme Court on Tuesday. The brief is the
final step before oral arguments are presented in February 2013 regarding
Freshwater’s claim that he was wrongfully terminated from his job teaching at
Mount Vernon City Schools.
The Mount Vernon Board of Education fired Freshwater in January 2011 from his position teaching eighth-grade science. He had been
employed by the school since 1987.
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.
Freshwater’s brief takes the position that this “is a case
of first impression, and no known precedent provides a useful framework for its
analysis.”
The key aspects distinguishing this case from others are
that Freshwater’s actual teaching methods were within the scope approved by the
board’s own policies and administrative guidelines, and the items in
Freshwater’s classroom were permitted elsewhere in the school.
“Freshwater has never, at any time,” the brief says, “refused
to comply with any clear directive of the Board or administrators as to how he
should teach his class, what topics could be discussed in the classroom, or
what items could be displayed, and he has not challenged the Board's authority
to give these orders. This fact, and the correspondingly limited, defensive
First Amendment protection Freshwater claims, distinguishes this case from the
host of ‘teacher speech’ cases cited by the Board.”
Although the board attempted to support its censorship of
Freshwater’s classroom based upon the argument that it had the authority to
control Freshwater’s speech, the brief says the censorship the school engaged
in was ad hoc and circumvented the board’s own polices:
“Freshwater does not now dispute nor has he ever denied the
Board's authority to control its curriculum and classroom decor through
duly-enacted policies, even-handedly applied. However, Freshwater asserts that
the weight of First Amendment jurisprudence forbids the school's ad hoc
departure from governing policies and guidelines where it is undertaken to
eliminate discussion of viewpoints it disfavors or to sterilize the school of
words, pictures, or ideas that have a tangential association to religion.”
The brief also says,“[T]he Board's position ignores entirely
what was, perhaps, the most specific directive provided to guide Freshwater's
teaching methodology: the Academic Content Standards for Eighth Grade Science.
As Freshwater has consistently maintained, his teaching methodology was
purposefully and properly designed to fulfill his Board-given mandate to enable
students to ‘Explain why it is important to examine data objectively and not
let bias affect observations.’ In fact,
school officials admitted that materials used by Freshwater were properly
tailored to this standard.”
The brief concludes with the following statement:
“In terminating Freshwater, the Board has gone far astray
from foundational First Amendment principles. Freshwater does not claim a
general First Amendment right to determine school curriculum, to discuss
whatever he likes in the classroom setting, or even to decorate his classroom
free from Board directives. Rather, Freshwater asks this Court to rule that a
public school teacher retains at least this modicum of academic freedom and
protection from religious hostility: that school officials may not terminate
him for using teaching methods and materials or for possessing items that
comply with school policies and practices but are censored due to their
particular viewpoint on an otherwise approved topic, or due to their consistency
with the presumed religious beliefs of the teacher in question.”
Freshwater is seeking monetary damages and reinstatement to
his position teaching eighth-grade science.
Note: Internal citations
were omitted from the quotes from the brief.
The following press release was provided today by The Rutherford Institute: MOUNT VERNON, Ohio—Attorneys for the Rutherford Institute have filed a final reply brief in the case of science teacher John Freshwater, which arose after the Mount Vernon City School District’s Board of Education terminated his employment in January 2011. The Ohio Supreme Court has agreed to The Rutherford Institute’s request to hear the case, and the case will proceed to oral arguments in February 2013. Rutherford Institute attorneys argue that the School District violated Freshwater’s academic freedom rights—and those of his students-- by firing him for encouraging students to think critically about the school’s science curriculum, particularly as it relates to evolution theories. The Institute argues that where a teacher’s speech is in compliance with all Board policies and directly relates to the prescribed curriculum, the school should not be permitted to terminate the teacher’s employment as a means of censoring a particular academic viewpoint from the classroom.
“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. The Board attempted to have the Ohio Supreme Court strike the First Amendment claims from the lawsuit, but was unsuccessful.
“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.”
AccountabilityInTheMedia.com was begun in 2009 to respond to inaccuracies in the media’s coverage of the John Freshwater and Mount Vernon Board of Education controversy. Since posting a response to The Columbus Dispatch editorial of January 7, 2009, “Teaching moment,” which was about Freshwater, I followed up with details from the state administrative hearing. Although I do have opinions about various aspects of the controversy— I support Freshwater’s right to have a Bible on his desk; I also support his right to due process—this website is not affiliated with Freshwater or any other party involved in litigation with the school.
