‘Thoughtful legal analysis’: Q&A with school board’s attorney

“Strong defense of lawsuits filed against boards of education is achieved,” according to the philosophy statement on the website of Britton Smith Peters & Kalail, “through thoughtful legal analysis, vigorous advocacy, and effective courtroom skills.”

The “Smith” of Britton Smith Peters & Kalail is attorney David Kane Smith. He is representing the Mount Vernon Board of Education in the case Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn. 

The case is an appeal of the firing of science teacher John Freshwater. Earlier, the Ohio Supreme Court upheld the firing, in a 4-3 vote, on the sole ground that Freshwater was insubordinate for having two library books and a poster of George W. Bush in his classroom.

Later this year, the United States Supreme Court will decide whether to hear the case.

AccountabilityInTheMedia.com emailed a list of questions to Smith about the brief he submitted to the Supreme Court:

AccountabilityInTheMedia.com: In the brief you discussed at length the issue of academic freedom, citing various related court cases but without mentioning board policy 3218. On page 22 you wrote, "The academic freedom Freshwater tries to appropriate belongs to the District, not to him." Is it the position of the Mount Vernon Board of Education that board policy 3218, "Academic Freedom of Teachers," does not give teachers within the Mount Vernon City School District academic freedom?

David Kane Smith: No response.

AccountabilityInTheMedia.com: Regarding Freshwater's 2003 proposal titled "Objective Origins Science Policy," you wrote that "the Board pointedly rejected" the proposal. In what way was the rejection done such that it was "pointedly"? Did the board in 2003 document any criticism it had that formed the basis of the rejection?

Smith: No response.

AccountabilityInTheMedia.com: The Science Curriculum Committee reviewed Freshwater's 2003 proposal and submitted a letter to the board in which they listed their reasons for not supporting the proposal. Was the committee incorrect when it stated "Proposed mentioned critical thinking skills--redundant, we're already doing this. […] The board of education policy addresses controversial issues--Freshwater proposal is already addressed"?

Smith: No response.

AccountabilityInTheMedia.com: When you wrote about Freshwater's 2003 proposal, you characterized it as being a "proposal to teach creationism." As you are likely aware, the proposal does not directly mention creationism or even intelligent design. Upon what do you base your claim that the proposal was to teach creationism? If the proposal had been written and submitted by an atheist would you still describe it as a proposal to teach creationism?

Smith: No response.

AccountabilityInTheMedia.com: When you discussed the issue of the poster of George W. Bush and his cabinet you emphasized the quote, James 5:16, at the top of the poster. Is the board's claim of insubordination regarding the poster dependent upon the quote being on the poster? If yes, was it also necessary for the quote to be visible for it to be insubordination?

Smith: No response.

AccountabilityInTheMedia.com: Regarding the issue of the books in Freshwater's classroom, you argued that Freshwater having on a lab table the two library books The Oxford Bible and "Jesus of Nazareth" constituted insubordination. As you are likely aware, Ohio Supreme Court Justice Paul E. Pfeifer raised some questions about the issue of the library books. The following questions are borrowed or adapted from those raised by Pfeifer: What work rule or order did Freshwater violate by checking out books from the library? Was there a work rule in effect that a teacher could not borrow books from the school library and keep them in his work area? Do you really mean to say that books of a religious nature are acceptable in the library but not acceptable to be checked out from the library? Or is it only practicing Christians who cannot borrow such books from the library?

Smith: No response.

AccountabilityInTheMedia.com: In your brief you criticized Freshwater's attorney for not mentioning the allegation made by James Stockdale regarding comments he claimed to have heard in Freshwater's classroom in the fall of 2006. As you are likely aware, as a result of a public records request made by AccountabilityInTheMedia.com, it was discovered that the school's records show Stockdale's duties did not take him into Freshwater’s classroom anytime Sept. 1, 2005 through June 30, 2008. Do you feel you deserve any criticism for not informing the U.S. Supreme Court that your witness, according to your own client's records, was not even in the classroom during the time period he testified about?

Smith: No response.

AccountabilityInTheMedia.com: As part of what you characterized on page 13 of your brief as "unfavorable facts," you stated "the referee found that Freshwater distributed religious handouts […] ." The handout you specifically cited was “Darwin’s Theory of Evolution—The Premise and the Problem." What about the handout makes it religious? Is it the position of the board that a handout is religious merely for critiquing aspects of Darwin's ideas about evolution? Or is it the position of the board that such a handout is religious only if the board believes it was written by someone who is religious?

Smith: No response.

AccountabilityInTheMedia.com: Regarding the handouts, you went on to say the referee found that Freshwater "then collected them covertly when class ended." Does the school have a policy or work rule that prohibits the environmentally friendly practice of collecting and reusing class handouts? Further, how does a teacher "covertly" collect handouts?

Smith: No response.

AccountabilityInTheMedia.com: You sprinkled your brief with remarks claiming that Freshwater "disparaged" and "discredited" science and that he "taught his students to doubt science" and sowed "seeds of doubt and confusion." As you are likely aware, the scientific method involves asking questions and testing knowledge claims. As you are also likely aware, the district's approved science textbooks for the eighth grade record examples of how scientists have changed their views on some things throughout the years and even mention some of the non-scientific views previously held by people. Is it the position of the board that an eighth-grade science teacher is not permitted to let students know that scientists have changed some of their views? Is it also the position of the board that an eighth-grade science teacher is not permitted to encourage students to use critical thinking when learning about science?

Smith: No response.

AccountabilityInTheMedia.com: You stated in your brief that Freshwater's "story changes with every new appeal." One aspect of the case to which you applied this characterization was how Freshwater has described his handling of the topic of origins. The explanation you offered depended upon Freshwater having "denied questioning evolution." However, the citation you included does not use the word "questioning" or any form of that word. In the included citation Freshwater merely states that he "denies that he taught either Creationism or Intelligent Design." Does the board not make a distinction between "questioning evolution" and "teaching creationism"? Also, does the board not make a distinction between "teaching creationism" and "discussing" or "considering" creationism?

Smith: No response.

AccountabilityInTheMedia.com: You stated in your brief that the U.S. Supreme Court lacks jurisdiction over this case and that this is "the appeal's fatal flaw." Specifically, you referenced 28 U.S.C. § 1257(a). As you are likely aware, 28 U.S.C. § 1257(a) states, in part, "Final judgments or decrees rendered by the highest court of a state […] may be reviewed by the Supreme Court… where any title, right, privilege, or immunity is specially set up or claimed under the Constitution […] ." Is it the position of the board that Freshwater has not claimed in his appeal any right under the Constitution?

Smith: No response.


Related documents

(PDF) School board brief in opposition to review of Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn.

(PDF) “Darwin’s Theory of Evolution—The Premise and the Problem"

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

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

Freshwater appeals to U.S. Supreme Court

John Freshwater’s attorney Rita Dunaway has petitioned the U.S. Supreme Court to review the firing of Freshwater from his job at Mount Vernon City Schools.

The petition presents two key questions to the court:

“Whether firing a public school teacher for checking out and possessing school library books as a form of passive protest violates the First Amendment.

“Whether firing a public school teacher for teaching the scientific strengths and weaknesses of biological evolution violates the First Amendment.”

Freshwater had two library books in his classroom: The Oxford Bible and "Jesus of Nazareth."

The Ohio Supreme Court earlier upheld the firing in a 4-3 vote.

Six out of the seven judges did agree that it was unconstitutional for the school to order the removal of Freshwater’s personal Bible.

The only reasons the court gave for upholding the firing were that Freshwater had two library books in his classroom and that he had a poster of George W. Bush.

 

The court sidestepped the issue of how Freshwater handled the subject of evolution.

AccountabilityInTheMedia.com is awaiting a response from the school.

Related document

(PDF) Petition to U.S. Supreme Court to review Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn.

Previous coverage

Editorial: Ohio Supreme Court decision shirks sworn duties

Video: Ohio Supreme Court hears Freshwater case

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

Press release: Rutherford Institute asks Ohio Supreme Court to reconsider ruling, focus on academic freedom issue in case of Christian teacher fired over evolution

The following press release was provided by The Rutherford Institute:

COLUMBUS, Ohio— Attorneys for The Rutherford Institute have filed a motion in Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn. asking the Ohio Supreme Court to reconsider its recent ruling upholding a school district’s decision to terminate a middle school science teacher who encouraged students to think critically about the school’s science curriculum.

On November 19, the Ohio Supreme Court handed down a 4-3 decision in Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn. which upheld the termination of John Freshwater, a Christian with a 20-year teaching career at Mount Vernon Middle School, despite a vocal dissent defending Freshwater’s right to academic freedom and insisting that his teaching methods are protected by the Constitution. The majority based their ruling of insubordination on the fact that Freshwater failed to remove from his classroom a poster depicting George W. Bush and Colin Powell, which he got from the school’s office, and an Oxford Bible and a book titled Jesus of Nazareth, both of which he checked out from the school library. In asking the court to reconsider the constitutional issues at play in the case, Rutherford Institute attorneys argue that the charge of “insubordination” against Freshwater is specious considering his “good-faith efforts to comply with vague, conflicting, partially illegal administrative directives.”

“This case speaks to an ongoing debate in America over whether we want schools that will teach young people to think analytically, critically and for themselves, or schools that will merely teach young people to parrot back what they are told,” stated John W. Whitehead, president of The Rutherford Institute. “It’s our hope that the Ohio Supreme Court will agree to reconsider this case and, in so doing, recognize that the future of this nation rests with the schools and their employees and the kind of citizen they churn out—either individuals who understand how to exercise their rights, or ones who view the Constitution as an antiquated relic of a bygone age.”

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 to remove “all religious items” from his classroom, including a Ten Commandments poster displayed on the door of his classroom, a patriotic poster of Bush and Powell with a Bible verse, and his personal Bible which he kept on his desk. Nevertheless, school officials suspended and eventually fired Freshwater, allegedly for criticizing evolution and using unapproved materials to facilitate classroom discussion of origins of life theories.

A Common Pleas judge upheld the School Board’s decision, as did the Fifth District Court of Appeals, without analyzing Freshwater’s constitutional claims to academic freedom. Likewise, the Ohio Supreme Court sidestepped the question as to whether Freshwater has a First Amendment right to include materials critical of evolution in his class. However, the Court did rule that Freshwater was not insubordinate for failing to remove his personal Bible from his desk because he was entitled to keep the Bible under the First Amendment’s guarantee to free exercise of religion.

Affiliate attorney Rita Dunaway is assisting The Rutherford Institute with Freshwater’s defense.

Related documents

John Freshwater’s motion for reconsideration, November 26, 2013 (PDF)

Minority opinion: Reinstate Freshwater (Justice Terrence O’Donnell, with Justices Paul E. Pfeifer and Sharon L. Kennedy concurring)

Justice Pfeifer: ‘In a case bounding with arrogance and cowardice, the lead opinion fits right in.’ (Justice Paul E. Pfeifer)

Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., Slip Opinion No. 2013-Ohio-5000 (PDF)

Previous coverage

Editorial: Ohio Supreme Court decision shirks sworn duties

 

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

Freshwater responds to school board’s arguments

Student was not burned, according to medical expert

School board votes 4-1 to fire Freshwater

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

UPDATE

On December 6, 2013, the Mount Vernon Board of Education filed a memo in opposition to the motion for reconsideration. (See here for a PDF copy.)

On January 22, 2014, the Ohio Supreme Court issued its ruling on the motion for reconsideration. The court ruled 4-3 to deny the motion.

The majority did not provide a written opinion.

Justice Terrence O’Donnell wrote a dissenting opinion, with Justices Paul E. Pfeifer and Sharon L. Kennedy concurring.

The dissent criticized the majority for “bypassing […] important constitutional issues and ignoring the defenses interposed by John Freshwater.”

O’Donnell concluded by saying, “I encourage reconsideration and further review of these important issues.”

(See here for a PDF copy of the ruling and the dissent.)

Editorial: Ohio Supreme Court decision shirks sworn duties

In a 4-3 vote the Ohio Supreme Court upheld the firing of John Freshwater. Apparently black robes are good for hiding yellow streaks.

Dissenting Justice Paul E. Pfeifer wrote, “In a case bounding with arrogance and cowardice, the lead opinion fits right in.”

It is the sworn duty of the justices to support the Constitution of the United States and the Constitution of Ohio. That duty is not fulfilled when the majority justices hide behind superficial excuses to avoid rendering support for rights they don’t like:

 “Courts sometimes don't want to rule on controversial legal questions, especially when doing so might force them to rule in favor of viewpoints they find distasteful, like the rights of teachers to teach scientific critique of evolution. As a result, you see narrow, hair-splitting, fact-intensive rulings like this one which do everything they can to settle the case on other issues, and avoid any explicit finding that it might be legal to critique Darwin.”

—Casey Luskin, “In the Freshwater Case, the Ohio Supreme Court Dodges Ruling on Academic Freedom to Critique Darwinian Evolution” (Evolution News and Views)

Those other issues the court used to settle the case were Freshwater having in his classroom a George W. Bush poster and two religious books from the school’s library.

Not exactly fireable offenses. Unless, of course, you count breaking ad hoc rules that exist only in the imagination of the people making the firing decision.

For the justices to grasp at these items as the basis of their decision shows how desperate they were. They had already recognized that Freshwater’s personal Bible was off limits as a basis for the firing. Now they needed something. Anything. The best they could find was a poster of a president and a couple library books.

And with that the majority opinion claimed to have solved the case: The items in Freshwater’s classroom provided sufficient grounds for firing him. Therefore the court did not need to touch the issue of whether it is legal to critique evolution.

What a relief for them. Had they needed to address the evolution issue they would have run into a sticky problem: Freshwater’s teaching methodology had been authorized by the school’s written policies and guidelines.

(See 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 four majority justices, and I use that term loosely when applied to them, could have used this case as an opportunity to assure Ohioans that they can count on their courts to have the courage to uphold the law.

Instead, we’re left wondering if a dystopian novel somewhere is missing four characters: Chief Justice Maureen O'Connor, Justice Judith Ann Lanzinger, Justice Judith L. French and Justice William M. O'Neill.

Related documents

Minority opinion: Reinstate Freshwater (Justice Terrence O’Donnell, with Justices Paul E. Pfeifer and Sharon L. Kennedy concurring)

Justice Pfeifer: ‘In a case bounding with arrogance and cowardice, the lead opinion fits right in.’ (Justice Paul E. Pfeifer)

Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., Slip Opinion No. 2013-Ohio-5000 (PDF)

Previous coverage

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

“Freshwater responds to school board’s arguments”

“Student was not burned, according to medical expert”

“School board votes 4-1 to fire Freshwater”

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

Press release: Ohio Supreme Court affirms science teacher’s right to keep personal Bible on desk, sidesteps issue of academic freedom in firing over evolution lessons

The following press release was provided by The Rutherford Institute:

COLUMBUS, Ohio—In a mixed ruling that affirms the First Amendment right of a public school teacher to keep a personal Bible on his desk, while sidestepping larger questions of academic freedom, the Ohio Supreme Court has upheld a school district’s decision to terminate a middle school science teacher who encouraged students to think critically about the school’s science curriculum, particularly as it relates to evolution theories, on the grounds that there was sufficient evidence to support the school’s charge of “insubordination” against the teacher.

The 4-3 decision in Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn. upheld the termination of John Freshwater, a Christian with a 20-year teaching career at Mount Vernon Middle School, despite a vocal dissent defending Freshwater’s right to academic freedom and insisting that his teaching methods are protected by the Constitution. The majority based their ruling of insubordination on the fact that Freshwater failed to remove from his classroom a poster depicting George Bush and Colin Powell, which he got from the school’s office and an Oxford Bible, and a book titled Jesus of Nazareth, both of which he checked out from the school library.

In coming to Freshwater’s defense after he was discharged in January 2011, Rutherford Institute attorneys argued 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. Institute attorneys plan to file a motion to ask the Ohio Supreme Court to reconsider their opinion in order to focus on the constitutional issues at the heart of the case, particularly as they relate to academic freedom in the classroom.

“School officials should stop talking about the need for young people to learn about the Constitution and start putting those principles into practice by creating a robust environment in the classroom where free speech can flourish and thrive,” stated John W. Whitehead, president of The Rutherford Institute. “It’s our hope that the Ohio Supreme Court will send a strong message to the nation’s schools that the First Amendment protects both teachers and students, no matter how controversial or politically incorrect the topic under discussion.”

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 to remove “all religious items” from his classroom, including a Ten Commandments poster displayed on the door of his classroom, a patriotic poster of Bush and Powell with a Bible verse, and his personal Bible which he kept on his desk. Nevertheless, school officials suspended and eventually fired Freshwater, allegedly for criticizing evolution and using unapproved materials to facilitate classroom discussion of origins of life theories.

A Common Pleas judge upheld the School Board’s decision, as did the Fifth District Court of Appeals, without analyzing Freshwater’s constitutional claims to academic freedom. Likewise, the Ohio Supreme Court sidestepped the question as to whether Freshwater has a First Amendment right to include materials critical of evolution in his class. However, the Court did rule that Freshwater was not insubordinate for failing to remove his personal Bible from his desk because he was entitled to keep the Bible under the First Amendment’s guarantee to free exercise of religion. Affiliate attorney Rita Dunaway is assisting The Rutherford Institute with Freshwater’s defense.

Additional information

Freshwater v. Mt. Vernon City School Dist. Bd. of Edn.,  Slip Opinion No. 2013-Ohio-5000 (PDF)

“Supreme Court upholds firing of Freshwater in religious-symbols case”  by Darrel Rowland, The Columbus Dispatch

“Court: Freshwater’s termination valid” by Pamela Schehl, Mount Vernon News

Previous coverage

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

“Freshwater responds to school board’s arguments”

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

Meet the school board candidates Oct 1

There will be an opportunity to meet the candidates for the Mount Vernon Board of Education on October 1 at the Mount Vernon High School Theater at 6:30 p.m.

This event is sponsored by the Ohio Association of Public School Employees and the Mount Vernon Education Association.

For more information, see the KnoxPages article “Candidates night slated for Mount Vernon school board hopefuls.”

The following are the candidates running for the two open seats:

Mary Rugola-Dye

Daniel Hamman

Stephen L. Thompson (incumbent)

Information regarding Rugola-Dye’s candidacy can be found at www.friendsofrugoladye.org.

Also, see here and here for video of Rugola-Dye’s remarks as an audience member during a meet the candidates night in 2011.

UPDATE

For coverage of the event, see the Mount Vernon News article “Candidates discuss views for Mount Vernon schools.”

UPDATE (2013 SCHOOL BOARD RESULTS):

The following are the results for the school board race (there were two open seats on the board):

Stephen L. Thompson 2,874   (39.19%)

Mary C. Rugola-Dye  2,770   (37.77%)

Daniel Hamman 1,689   (23.03%)

The election results are from the Knox County Board of Elections summary report of 8:18 p.m. Nov. 5, 2013.

Podcast: TRI attorney discusses Freshwater case

The following is from a June 24, 2013 post by IDTheFuture.com:

 “On this episode of ID The Future, listen in as Joshua Youngkin and attorney Rita Dunaway of The Rutherford Institute discuss the academic freedom case of John Freshwater, an Ohio middle school science teacher of 24 years. Freshwater was fired after it was revealed that he was teaching both the strengths and weaknesses of Darwinian evolution in his classroom.”

Ohio Supreme Court hears Freshwater case

The Ohio Supreme Court heard oral arguments Wednesday regarding John Freshwater’s claim that he was wrongfully terminated from his job teaching at Mount Vernon City Schools.

 
(“Case No. 2012-0613 John Freshwater v. Mount Vernon City School District Board of Education”)

 Additional information 

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

“Freshwater responds to school board’s arguments”

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

UPDATE

See here for an article by Freshwater’s attorney Rita M. Dunaway which gives a behind-the-scenes look into her experience arguing the case before the court.

Press release: Rutherford Institute defends academic freedom of teacher fired for urging students to think critically about evolution

The following press release was provided by The Rutherford Institute:

MOUNT VERNON, Ohio—In oral arguments before the Ohio Supreme Court on Wednesday, February 27, The Rutherford Institute will defend the right to academic freedom of a science teacher fired for encouraging students to think critically about the school’s science curriculum, particularly as it relates to evolution theories. In coming to veteran science teacher John Freshwater’s defense, Institute attorneys argue that the Mount Vernon City School District violated John Freshwater’s academic freedom rights—and those of his students—by firing him in January 2011. 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. By firing John Freshwater for challenging his students to think outside the box, school officials violated a core First Amendment freedom—the right to debate and express ideas contrary to established views.”

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. The Board attempted to have the Ohio Supreme Court strike the First Amendment claims from the lawsuit, but was unsuccessful.


Additional information

Press release from Ohio Supreme Court's Office of Public Information: Did Public School Teacher’s Firing for Presenting Religious Doctrine In Science Class Violate His Free Speech Rights?

A thank-you to readers

Four years ago AccountabilityInTheMedia.com was launched to respond to inaccuracies in the media’s coverage of the John Freshwater and Mount Vernon Board of Education controversy.

During the intervening years, I’ve striven to provide alternative news coverage of the ongoing story. 

To all of my readers, thank you for your interest in this project. 

I’ve had the opportunity to meet some of you. I appreciate the encouragement and thanks that you have offered.

Recently, I’ve obtained a job that requires moving out of the country. This change combined with pursuing other writing projects means that I will no longer be providing in-depth coverage of the Freshwater controversy.

I will, however, like many of you, continue to follow the story as the case continues its way through the court system.

Sincerely,

Sam Stickle

MVCS superintendent to retire in June

During Monday’s meeting, the Mount Vernon Board of Education approved the retirement of Steve Short, superintendent of schools, effective June 30, 2013.

In a Jan. 11 letter to the board, Short cited changes in the state retirement system as influencing his decision to retire this year:

Dear Members of the Board of Education,

This is a community that is special to me. We have great staffs, students and administrators. It has been a pleasure to work in this District for 29 of my 31 years in education. 

The change of the State Teachers’ Retirement System benefit packages have impacted my decision on when to retire. I will be retiring effective at the end of the day on June 30, 2013. 

Thank you for your support and encouragement. 

Respectfully, 

Stephen J. Short

According to a Mount Vernon News article, Short’s current salary is $122,000 per year. His retirement will come a year before his contract was set to expire.

Short became superintendent in January 2008. Prior to that, he served a brief period as interim superintendent. He also served in other positions with the district.

The board’s 2009, 2010 and 2011 written evaluations of Short’s performance as superintendent show mostly positive remarks and ratings.

A notable exception had to do with personnel management. In the 2010 performance review, four out of five board members rated Short as needing improvement in the category of maintaining “high, clear and fair standards of performance for all personnel.” 

One board member commented in the review: “I believe Steve, as a person, wants to be fair and consistent. However, the system for which he is responsible lacks consistency, thoroughness, and timeliness.”

The review cited the “handling of John Freshwater and recent administrators’ performance” as “evidence of weakness in this area.”

Short’s retirement was first announced by the district in a Dec. 20 press release. Both the News and KnoxPages.com ran the press release as a news story that same day.

In the press release, Dr. Margie Bennett, president of the board, expressed her appreciation for Short’s years of service with the district:

“We are deeply saddened by Mr. Short’s decision to retire. He has always been a strong proponent of this community and deeply cares about our students and employees. I have the greatest respect for Mr. Short; his decisions evidence wisdom and compassion. He will be sorely missed.”

Additional information:

Press release: Mount Vernon City Schools Superintendent Steve Short to Retire (PDF)

Jan. 11, 2013 letter from Short to board (PDF)

2009 performance evaluation of Short (PDF)

2010 performance evaluation of Short (PDF)

2011 performance evaluation of Short (PDF)

Ohio Supreme Court denies school board motion

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 court on Wednesday denied the board’s “motion to strike propositions of law 1 & 2, appendix pages 49 & 55-56, and supplement pages 103-116 from [Freshwater’s] merit brief.”

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.

Additional information

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

“Freshwater responds to school board’s arguments”

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

“Freshwater files brief with Ohio Supreme Court”

“EXCLUSIVE: Witness impeached by school records”

Freshwater responds to school board’s arguments

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.

(See here for a copy of the brief.)

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.

Additional information:

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

“Press release: Rutherford attorneys file final brief with the Ohio Supreme Court in case of teacher fired for urging students to think critically about evolution”

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

“Freshwater files brief with Ohio Supreme Court”

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

Press release: Rutherford attorneys file final brief with the Ohio Supreme Court in case of teacher fired for urging students to think critically about evolution

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.

The Rutherford Institute’s reply brief to the Ohio Supreme Court is available at www.rutherford.org.

“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.

Was the 2012 MV school board oath legal?

When the Mount Vernon Board of Education met for its organizational meeting in January 2012, it was missing something very important: A copy of the oath of office.

As even Chief Justice John Roberts could tell you, it’s probably better to have a copy of the oath in front of you than to try to wing it.

Nonetheless, Superintendent Steve Short decided to wing it. Or, as he put it, “We’re making this up as we go.”

The 2012 oath of office

Here’s what happened at the opening of the meeting:

Dr. Margie Bennett: Are you going to give us the oath of office?

Steve Short: I don’t have it.

MB: We may have to wait. … Because we won’t have a quorum.

SS: We need to. Go ahead, and I’ll give it if that’s OK.

MB: OK

SS: We’re making this up as we go.

MB: Is it legal, then?

SS: Well, as the treasurer is not here, and I don’t anticipate her getting here until close to 7:30, I can go ahead and ask the question; what do you guys think, would you rather wait—

MB: Are you going to do us together, or do you want one at a time? You probably wouldn’t say the same thing three times.

SS: Let’s all do it together. How’s that? Let’s go over here. And let’s put the left hand on the Bible; raise the right hand. ‘I swear to do the duties of a board member of the Mount Vernon City Schools.’

MB, Cheryle Feasel and Jody Goetzman: I do.

SS: I hereupon decree that you are a board member of the Mount Vernon City Schools. Thank you.

(See here for a video clip from the meeting.)

The oath as reported in the official record

Here’s what was recorded in the minutes of that meeting:

“Do you solemly (sic) swear that you will support the Constitution of the United States and the Constitution of the State of Ohio; and that you will faithfully and impartially discharge your duties as a member of the Board of Education of the Mount Vernon City School District, Knox County, Ohio, to the best of your ability, and accordance with the laws now in effect and hereinafter to be enacted, during your continuance in said office, and until your successor is elected and qualified?”

For you math folks, the oath reported in the minutes showed a 418.75% increase in word count over the actual oath administered.

The board subsequently approved the minutes of the meeting.

During research for this article, AccountabilityInTheMedia.com submitted a public records request for copies of the relevant minutes.

Due to several tell-tale shadow lines around a group of signatures on the minutes of the organizational meeting, AccountabilityInTheMedia.com requested to examine the original at the school’s district office.

The examination of the original document showed that the signatures had been physically cut-and-pasted onto the document.

(The Mount Vernon City Schools occasionally uses cut-and-paste signatures, such as those shown in this photo.)

“The signatures are authentic, as you saw,” Short told AccountabilityInTheMedia.com in an email. “To place the document in the minutes book it had to be reduced.  The Board members signed the oath and those signatures were placed in the minutes book after the original was signed.  It was simply a process that allowed the oath to be printed in the minutes book.”

Research by AccountabilityInTheMedia.com did not find anything in Ohio law that specified that the oath was required to be signed or that signing the oath would substitute for a properly administered oath.

Ohio law and board bylaw

As noted earlier, Bennett raised the following question at the organizational meeting: “Is it legal, then?”

Both Ohio Revised Code 3313.10 ("Oath of office of member") and board Bylaw 0142.1 (“Oath”) require that the oath be taken before entering into the duties of the office:

O.R.C. 3313.10: 

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.

Board Bylaw 0142.1: 

Before entering upon the duties of a member of the Board, each elected or appointed member shall make the following oath, which may be administered by the Treasurer, or any member of the Board: 

I, __________________, do solemnly swear (or affirm) that I will support The Constitution of the United States and the Constitution of the State of Ohio; and that I will faithfully and impartially discharge my duties as a member of the Board of the Mount Vernon City School District, Knox County, Ohio, to the best of my ability, and in accordance with the laws in effect during my term of office until my successor is chosen and qualified.

Both O.R.C. 3313.10 and board Bylaw 0142.1 include explicit reference to supporting the Constitution of the United States and the Constitution of Ohio.

The oath administered by Short did not include any such explicit reference: “I swear to do the duties of a board member of the Mount Vernon City Schools.”

Although someone could attempt to argue that supporting the Constitution is implied through the words “the duties,” Ohio law makes a distinction between the wording and the content of the oath.

O.R.C. 3.21 (“Form of oath”) says, “Subject to any section of the Revised Code that prescribes the form of an oath, a person may be sworn in any form the person deems binding on the person’s conscience.”

However, O.R.C 3.23 (“Contents of oath of office”) says, in its relevant part, “The oath of office of every other officer, deputy, or clerk shall be to support the constitution of the United States and the constitution of this state, and faithfully to discharge the duties of the office.”

The oath administered by Short closely matches the wording of the second half of the required content of the oath: “[F]aithfully to discharge the duties of the office.”

The flexibility allowed in the form or wording of the oath would conceivably allow the second half of the oath’s content to be worded as, say, “I’ll never let you down.” That flexibility in the form of the oath, however, does not negate that both the Constitution of the United States and the Constitution of Ohio are included under the required content.

Of possible relevance to the impact of an incorrectly administered oath are O.R.C. 3.01 (“Continuation in office until successor elected or appointed and qualified”) and O.R.C 3.22 (“Oath of office”).

O.R.C. 3.01 says, “A person holding an office of public trust shall continue therein until his successor is elected or appointed and qualified, unless otherwise provided in the constitution or laws of this state.”

Two out of the three people given the oath in January of this year had been re-elected to the position. Assuming they had been given a valid oath previously, O.R.C. 3.01 would seem to allow them to continue in office.

O.R.C 3.22 says, in part, “The failure to take such oath shall not affect his liability or the liability of his sureties.”

AccountabilityInTheMedia.com has requested comment from the Ohio Department of Education regarding the legality of the oath administered by Short.

Additional information

Emails to and from AccountabilityInTheMedia.com regarding the oath of office

Julian & Grube, Inc 2011 audit of the MVCS

The signed minutes of the Jan. 10, 2012 MVBOE organizational meeting

The signed minutes of the Feb. 13, 2012 MVBOE regular meeting

UPDATE 10-22-2012:

John Charlton, a spokesperson for the Ohio Department of Education, declined to comment on whether the wording used by Short complied with Ohio law.

Charlton did comment on whether Short was qualified to administer the oath: “The superintendent is not qualified to administer the oath, unless the superintendent also is a notary public.”

According to research done by a person from the Knox County Clerk of Courts Office, no one by the name of “Stephen Short” is listed as a notary public in Ohio.

Short told AccountabilityInTheMedia.com in an email this afternoon that he is not a notary:

“My administration of the oath was purely ceremonial for the public meeting, I am not a notary.  I gave them a verbal representation of the oath.  Our Treasurer fulfilled the requirements of giving the oath that night when she presented the incoming board members the oath and had them sign it.  The minutes reflect the actual oath given by the Treasurer which she had the incoming board members execute.”

AccountabilityInTheMedia.com has requested comment from Judy Stahl-Reynolds, the school’s treasurer, regarding whether she administered the oath of office.

(See here for part two of emails to and from AccountabilityInTheMedia.com regarding the oath of office.)


UPDATE 10-24-2012:

Stahl-Reynolds said that she officially administered the oath of office by way of having Bennett, Feasel and Goetzman sign a copy of the oath:

The Oath of Office was officially administered to the newly elected/re-elected Board members by me on January 10, 2012.  As you know, Mr. Short administered a modified version of the Oath of Office verbally because I was not at the meeting in time.  After I arrived, all three members in question signed, witnessed by me, the Oath of Office stating the following:

“Do you solemnly swear that you will support the Constitution of the United States and the Constitution of the State of Ohio, and that you will faithfully and impartially discharge your duties as a member of the Board of Education of the Mount Vernon City School District, Knox County, Ohio, to the best of your ability, and in accordance with the laws now in effect and hereinafter to be enacted during your continuance in said office, and until your successor is elected and qualified.”

Based on the information supplied by the school, what remains of the document signed is the signatures pasted onto the minutes of the organizational meeting.

Ohio Supreme Court schedules oral argument for Freshwater case

The Ohio Supreme Court announced today that oral argument for John Freshwater v. Mount Vernon City School District Board of Education has been scheduled for February 27, 2013.

According to court rules, both sides will each have 15 minutes for “argument on the merits.”