Thursday, October 21, 2010

Freshwater Lawsuit Dismissed

The federal case John Freshwater, et al., v. Mount Vernon City School District Board of Education, et al. was dismissed Thursday:

“Now come all parties, by and through counsel, to stipulate Plaintiffs John and Nancy Freshwater dismiss all claims contained in the First Amended Complaint with prejudice pursuant to Civ.R. 41(a)(1)(A)(ii).”

A copy of the stipulated dismissal is posted on the website of the National Center for Science Education.

UPDATE 10-22-10:

Don Matolyak, Freshwater’s pastor, provided with a copy of Freshwater’s statement regarding the dismissal of the lawsuit against the school board:

“I want to pass along this statement. My wife and I directly sent to the opposing attorneys the following statement by email on Wednesday, October 20, 2010. The truth is there was money offered to me several times to leave the district and stop the state hearing before Referee Shepherd could make his finding. If I took the money and left the district the opportunity for truth would never have come out and the eleven students from my 2007-2008 class would not have been able to testify about the truth. Most importantly if I took the money and left the district the Referee would have been prevented from making a decision. The Referee has heard 38 days of testimony and is the best opportunity for revealing the truth. I will await Referee R. Lee Shepherd’s decision.

“(this is the statement I made to the school board’s attorneys)

“Nancy and I prayerfully considered the settlement terms and have decided to REJECT the terms presented.

“From the beginning, my wife and I have only sought the truth. Revelations in the last few days exposed to us the strategy of those who have harmed me, a strategy designed to obscure the truth rather than seek justice and reconciliation. It has become obvious this federal platform and process will never result in the truth coming forward. Truth is not to be compromised or negotiated or hidden behind money.

“We feel confident that the hearing completed in August 2010, after 38 days of testimony before Referee R. Lee Shepherd is the best opportunity for revealing the truth we sought from the beginning. Therefore, we have decided to withdraw our federal lawsuit against all parties without any personal compensation or monetary gain as proposed, and we have instructed our attorney to file the proper paperwork. We seek no other option than to continue to patiently await the finding of Referee R. Lee Shepherd as he is the ONLY person to hear all of the testimony and most importantly see all of the students from my 2007-2008 class speak about the truth of what went on during my class.

“We have already spent our life savings and have pledged our farm to get to the truth. It is better to leave the money on the table than to take the Bible off of my desk.

“John and Nancy Freshwater”

According to Mount Vernon News reporter Pamela Schehl, school board attorney Sarah Moore said: “There was no settlement offer to accept or reject. There was no money on the table for [Freshwater] to leave there. We were baffled when we received the e-mail from him and we can't even begin to speculate why he is saying what he is saying.”

Tuesday, October 12, 2010 Reporter Responds to Subpoena

On Monday evening I submitted a written statement to the Mount Vernon Board of Education regarding the recent subpoena I received from the school board’s attorney Sarah Moore.

In the subpoena, Moore stated that it was for the federal case John Freshwater, et al., v. Mount Vernon City School District Board of Education, et al.

(Click here to view a copy my statement to the school board and a copy of the subpoena. 891 KB PDF.)

Below is a portion of my statement:

“I understand that attorney Moore has a job to do in defending the school district in the federal case. However, there is a difference between being thorough and casting such a wide net, while fishing for information, that one goes overboard. Attorney Moore’s actions appear to be the latter.

“What criteria did attorney Moore use in deciding to whom to send subpoenas? Has she also sent subpoenas to the Mount Vernon News,, 13WMVO or the countless television stations and other newspapers who have reported on the story involving Mr. Freshwater? Will she send subpoenas to every person who has ever blogged about the story, written a letter to the editor or spoken at a school board meeting?”

I wasn’t the only one that Moore sent a subpoena to recently. Among those that received a subpoena is Levi Stickle, who maintains the website

Three people spoke to the school board during the public participation portion of Monday’s school board meeting. Two of the individuals spoke about the recent subpoenas.

(“Levi Stickle to school attorney: Why did you send me a subpoena?”)

(“Community member responds to proposed MVCS levy”)

(“William Pursel: Frivolous subpoenas”)

Moore has been sent a request for comment. If and when she replies this article will be updated with her response.

Also during Monday’s meeting, school board treasurer, Barbara J. Donohue, provided an update to the school board regarding the district’s five-year forecast. She provided information regarding the financial challenges facing the district due to budget cuts at the state level.

UPDATE 10-16-10:

Moore still has not responded to the request for comment.

Mount Vernon News reporter Pamela Schehl did not include any mention of the subpoenas in her coverage of the school board meeting. See her article “McKinley honored by MV school board.”

The managing editor for the News, Samantha Scoles, provided an explanation in an email to :

“The reason we have not reported on the public participation portion of the most recent school board meeting is because we were not in attendance. Our education reporter was attending a different school board meeting.

“When we do not attend meetings, we can call on board members, the treasurer or the superintendent for details of the meeting, which we did in this case. I believe we were provided with the statements made in regards to the Behind the Scenes Award.

“Therefore, without being present to hear the public comments, we cannot possibly report on those.”

In an email on Oct 12, Scoles had been provided with links to videos of the public comments and a copy of the written statement given to the school board.

UPDATE 10-20-10:

Dave Daubenmire, through his attorney, has submitted a motion to quash a subpoena sent to him by Moore. Below is a portion of the motion:

“After reviewing the subpoena, it is clear that the only purpose of the subpoena was to harass, embarrass, and incur expenses for a non-party witness, simply because he is a friend of one of the parties. The subpoena should be quashed in its entirety, and attorneys fees awarded to Mr. Daubenmire from the Defendant for the expense of obtaining counsel to respond to this harassing subpoena.”

A copy of the motion is posted on the website of the National Center for Science Education.

Richard Hoppe, who writes for, wrote about the recent subpoenas issued by Moore. Below is a portion of Hoppe’s post:

“Essentially the defense is asking for everything Sam [Stickle] has ever written on the web, whether public or in private, about Freshwater, Hamilton, and the Freshwater hearing. That’s a remarkable demand. It has the effect of bringing everything a private citizen has written about this affair into a federal court proceeding for no discernible reason beyond the defense’s hope that something, anything, will turn up. It is a chilling affront to the First Amendment rights of the Stickle brothers and to anyone else (what, who me?) who might have commented somewhere on the web about this specific affair or who might write a blog post or even comment on a discussion board about any legal proceeding.”

Friday, September 17, 2010

Freshwater’s Closing Arguments: Allegations Unsubstantiated

John Freshwater’s “closing statement brief” was released Thursday.

The 180 page document, including diagrams, provides extensive arguments for why the allegations made against Freshwater are unsubstantiated. The brief draws upon the many witnesses who testified during the hearing that began in October of 2008.

(“Freshwater's Closing Statement Brief.” 4MB PDF.)

(The “Middle School FCA Speakers Survey” diagram, like others used in the brief, emphasizes significant details of the testimony.)

The following is from the introduction of the brief:

“Everything in this case is about purpose, context and intent with an ultimate goal of answering the question set forth in the opening statement –

What makes sense? versus What does not make sense?

“Shamefully and sadly, had the administration of the employer invested any zeal in investigative fact gathering to determine the basic:

Who?, What?, Where?, When?, Why? and How?

- legitimate answers could have been achieved both by the end of the last day of school in 2008, and before the employer’s resolutions of June 20, 2008, and July 7, 2008.”


“The sum of the decision calculus in this matter will demonstrate John Freshwater prevails in this matter because:

“1. Any and all matters related to John Freshwater’s use of a Tesla Coil were adjudicated by Principal William White’s letter to John Freshwater dated January 22, 2008.

“2. The Academic Content Standards were not applicable in the Mount Vernon City School District until the beginning of the 2004-2005 school year.

“A. John Freshwater taught his 8th grade students exactly as he was required as evidenced by the only known assessment tool authorized in the State of Ohio; the Ohio Achievement Tests. John Freshwater’s students received proper instruction resulting in him being the only 8th grade teacher whose students achieved a proficient rating of seventy-seven (77%) percent on the Ohio Achievement Tests despite his classes containing the most special education students.

“B. Ten (10) eyewitness students, two (2) teachers and one (1) principal testified John Freshwater never instructed on the topics of creationism nor intelligent design.

“3. John Freshwater complied with all of the known parameters as he facilitated, monitored and supervised the Fellowship of Christian Athletes (FCA).

“A. Witness testimony from credible sources clearly demonstrates John Freshwater did not conduct nor lead any prayers during FCA meetings.

“B. Witness testimony from credible sources clearly demonstrates John Freshwater never asked non-familial students to lead prayer in FCA meetings.

“C. Witness testimony from credible sources clearly demonstrates John Freshwater did not exceed his role as facilitator, monitor and supervisor of the FCA.

“4. John Freshwater exercised a constitutional right to have a personal Bible in his classroom on his desk.

“A. John Freshwater removed all items he was lawfully asked to remove.

“B. John Freshwater did not receive any instruction from Principal William White or anybody else to remove the patriotic poster, which was distributed through the Mount Vernon Middle School office, depicting former President George Bush and Colin Powell.

“C. John Freshwater never intended or tried to make a point by bringing additional religious articles into his classroom.

“At the conclusion of this brief, John Freshwater will respectfully request the Referee to evaluate and find each of the employer’s allegations against John Freshwater as detailed in the Amended Resolution of Intent to Consider the Termination of the Teaching Contract(s) of John Freshwater to be unsubstantiated.

“John Freshwater prays this Referee, after consideration of the evidence presented, and assessment of the testimony heard, will find the Board of Education (BOE) has failed to prove the charges set forth in the resolution to consider his termination originally dated June 20, 2008, but amended on July 7, 2008.”

For additional coverage of the Freshwater hearing, see the articles in the archive.

UPDATE 9/20/10—related documents:

August 13, 2010 David Millstone’s brief on behalf of the Mount Vernon Board of Education. 239 KB PDF.

August 20, 2010 R. Kelly Hamilton’s rebuttal on behalf of Freshwater. 5.64 MB PDF.

August 20, 2010 Millstone’s rebuttal on behalf of school board. 180 KB PDF.

The above three documents were obtained from the National Center for Science Education.

UPDATE 9/22/10:

The links to the above three documents have been temporarily taken down. (The documents may not have been officially released.)

Freshwater’s “closing statement brief” was released Thursday by attorney Hamilton.

UPDATE 3/17/11:

The links to the above three documents have been reactivated. (The documents are part of the public record pursuant to Ohio Revised Code 3319.16.)

Wednesday, August 4, 2010

What’s in the Trash, Stays in the Trash, According to Judge

Federal judge Gregory Frost on Monday rejected the attempt by John Freshwater and attorney R. Kelly Hamilton to have previously issued sanctions lifted.

Frost sidestepped the various issues raised in the dispute and went to what he believed could resolve the matter—the credibility of the parties involved in Doe v. Mount Vernon Board of Education et al.

With $28,737.50 at stake, Frost decided against Freshwater and Hamilton because Freshwater testified to having pulled items back out of the trash.

“The Court finds Freshwater’s explanation is untenable and that it taints the credibility of his entire testimony,” Frost wrote.

Freshwater had merely explained in the federal hearing, like he had in the administrative hearing, that he pitched some items into a garbage can in his barn and then retrieved the items when his attorney requested them.

Frost also focused on a similar, though separate, situation. This time, Frost wrote that it couldn’t be true that Freshwater both put the item, a Tesla coil, in a trashcan and also gave the item to his attorney.

In research done by, it was found to be physically possible to place something in a trashcan and then remove the item.

Perhaps for a person such as Howie Mandel, with germaphobia, it would be psychologically impossible to remove an item from a trashcan.

(Mandel talks about his fear of germs.)

Mount Vernon City Schools’ superintendent Steve Short and Mount Vernon Board of Education attorney David Millstone both testified on behalf of the plaintiffs. Neither one mentioned anything about having every removed something from a trashcan.

“The Court has no uncertainty whatsoever as to the truthfulness of the testimony of these two witnesses,” Frost wrote.

Frost did not include any details about the testimony of Short or Millstone.

Other than the trashcan issue, the only other issue Frost offered as the basis of his decision involved the dispute over whether Hamilton delivered two affidavits on April 30, 2010 to the plaintiffs’ attorney Douglas Mansfield.

It was a matter of Hamilton’s word against Mansfield’s and his two associates. Even at that, Frost wrote that he didn’t even have to include Hamilton’s side of the story in his deliberation on the matter.

Frost wrote that Hamilton didn’t properly word his affidavit about the affidavits. What Hamilton wrote in his brief about the affidavits Frost did find to be properly worded. However, Frost wrote that statements made in a brief cannot be considered “evidence.”

While Hamilton was in the federal hearing, he said a couple of times that if Frost had particular wording he was looking for on any matter to direct him in what would satisfy the court. Hamilton told the judge that he was not trying to be evasive in how he responded to the various issues.

(The Trial by Franz Kafka, starting at 1:07 in video, provides a sense of the legal proceedings regarding Freshwater.)

Frost went ahead and wrote in his decision:

“And, it appears to the Court that the language utilized in Attorney Hamilton’s affidavit is carefully crafted to appear to state that he attached the affidavits to Exhibit 161 but does not actually state such. Moreover, although the affidavit does not state that Attorney Hamilton attached the affidavits to Exhibit 161, to the extent that the affidavit was meant to state such, the Court finds the testimony unbelievable.”

Credibility of judge Frost

During the federal hearing conducted on July 29, Frost did acknowledged twice, after being pressed, that he had been mistaken on something.

One issue had to do with who Freshwater’s attorney was in Doe v. Mount Vernon Board of Education et al. The other was regarding the wording of the 2008 requests by the plaintiffs for the production of documents. previously reported on Frost’s odd decision in April to grant the plaintiffs, the Dennis family, standing in regard to their claims of Establishment Clause violation. (See the article, “Christian Family Objects to Bible in Classroom.” )

The Dennises state in their lawsuit that they are Christians. The Bibles and Ten Commandments that were in Freshwater’s classroom, if seen as religious articles, were from the Dennis’ own religion. In order to have standing, the Dennis’ legal interests have to have been invaded by the presence of these items.

Frost, nonetheless, granted the Dennis’ standing.

Related document:

August 2, 2010 opinion and order by Frost on motion for reconsideration of sanctions. (Doc# 120) 28.32 KB PDF.

Saturday, July 31, 2010

Judge to Reconsider Previously Issued Sanctions

The dispute over discovery in Doe v. Mount Vernon Board of Education et al. continues.

On Thursday, a hearing was held in the courtroom of federal judge Gregory Frost to reassess the basis of his previously issued sanctions against defendant John Freshwater and attorney R. Kelly Hamilton.

Douglas Mansfield, attorney for the plaintiffs, had argued that Freshwater and Hamilton failed to turn over all items requested for discovery.

Freshwater and Hamilton have maintained that they did turn over all items subject to discovery that they have.

(See documents provided at end of article for the details of this ongoing dispute.)

Collaboration among attorneys

Although Hamilton is representing Freshwater in related legal matters—another federal case, the administrative hearing and formerly for the dismissed counter claims—he is not Freshwater’s attorney in Doe v. Mount Vernon Board of Education et al.

Freshwater testified in the hearing that he believes the dispute over discovery is about the other side trying to keep Hamilton busy so that he cannot focus on the other case and on writing the “massive brief” that is coming due in the administrative hearing.

Freshwater said that the attorneys are “collaborating” against him and Hamilton.

The attorneys on the opposing side of the legal matters regarding Freshwater have done nothing to hide that they are, to some degree, working together. During the administrative hearing the school board’s attorney, David Millstone, routinely allowed the attorney for the “Doe” family to sit at the table with him.

During the federal hearing, Sarah Moore, an attorney for Mount Vernon City Schools’ superintendent Steve Short, sat at the table with the plaintiffs. Ironically, Short was a defendant in the case until a partial settlement was reached in August of 2009.

The partial settlement removed all defendants from the lawsuit except for Freshwater. The only significant monetary consideration that the plaintiffs received in the settlement was $115,500 for the reimbursement of their legal fees. The money was paid by the school board’s insurance.

Short was brought as a witness for the plaintiffs to testify about a one-sheet handwritten inventory he said he made of items that he returned to Freshwater in August of 2008.

(Short’s testimony on this matter covered the same ground as when he testified about it in the administrative hearing. See the section “Inventory of Freshwater’s personal items” in the article “BIBLE ON THE DESK: Freshwater Hearing Comes Full Circle with Last Witness.” )

Moore stated—as an explanation for why the inventory sheet was not turned over in response to public record requests from Freshwater—that it is protected by the work product doctrine and not a public record.

No explanation was provided of how the plaintiffs ended up with a copy of the inventory sheet by May 14, 2010 when they used it as an exhibit in one of their motions regarding the discovery disputes.

Also brought as a witness for the plaintiffs was Millstone, attorney for the school board. The school board, as shown by the name of the case, was the primary defendant until the partial settlement was reached in August of 2009.

Millstone testified that he had a conversation with Hamilton in which Hamilton indicated that he had recorded an interview with retired science teacher Jeff George. Millstone said that he did not request a copy of the recording. (George was not brought as a witness in the administrative hearing.)

In Mansfield’s closing arguments, he said that any recordings should be turned over to him even if the person recorded was not listed in pre-trial as a witness.

Billing records

One of the documents that Mansfield had requested was the billing records for the production of Freshwater’s May 2008 affidavits.

Freshwater testified that he had created the affidavits in preparation for what was to be the second interview with the H.R. On Call investigators.

Hamilton said in his opening statement that he does not have the billing records from May of 2008 regarding the affidavits. He explained that the records were destroyed when a water pipe burst above his computer. Hamilton provided the court with supporting documentation.

Mansfield said that it doesn’t ring true that the records were destroyed in a “flood.”

In a memorandum, Mansfield had provided his summary of Hamilton’s billing records that he was able to obtain from an attorney for the school board. He said that the records included the May 2008 time period but did not mention the production of any affidavits.

Freshwater testified in the hearing that he had four separate fee agreements with Hamilton. In a written statement, Freshwater said:

“The two bills I got from [Hamilton for May 2008] were for two different processes. One bill was for the investigative interview and the other bill was for the legal works other than the interview preparation. I have never hidden the fact that I had separate legal billings.”

Judge Frost

At the close of testimony and arguments, Frost said that he wants this case and the related case to go away more than anyone else does.

Related documents:

2008 response by Freshwater to plaintiffs’ requests for production of documents. 828.8 KB PDF.

January 20, 2010 memorandum by Hamilton responding to plaintiffs’ motion to compel. (Doc#78) 43.93 KB PDF.

May 7, 2010 motion by Mansfield for sanctions. (Doc# 96) 56.57 KB PDF.

May 10, 2010 response by Hamilton to Mansfield’s motion for sanctions. (Doc# 97) 30.76 KB PDF.

May 14, 2010 Mansfield’s response to Hamilton’s response—main. (Doc#101) 44.59 KB PDF.

May 14, 2010 Mansfield’s response to Hamilton’s response—attachment, inventory. (Doc#101-8) 81.51 KB PDF.

June 1, 2010 opinion and order by Frost on motion for sanctions. (Doc# 106) 51.7 KB PDF.

June 15, 2010 motion by Hamilton for reconsideration of Frost’s opinion and order. (Doc#107.) 23.54 KB PDF.

July 2, 2010 Mansfield’s memorandum in opposition to Hamilton’s motion—main. (Doc# 114) 59.68 KB PDF.

July 2, 2010 Mansfield’s memorandum in opposition to Hamilton’s motion—attachment, inventory and photos. (Doc# 114-3) 7.49 MB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—main. (Doc# 116) 42.94 KB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—attachment one, Freshwater’s affidavit concerning billing records. (Doc#116-1) 1.65 MB PDF.

July 13, 2010 response by Hamilton to Mansfield’s memorandum—attachment two. (Doc# 116-2) 27.9 KB PDF.

The National Center for Science Education maintains an archive of many of the court documents for the case Doe v. Mount Vernon Board of Education et al. and for the related case Freshwater v. Mount Vernon Board of Education et al.

Monday, July 26, 2010

MV News: Agreement reached in civil suit

According to the Mount Vernon News, an agreement has been reached “between the Doe family and John Freshwater” regarding the civil suit that was scheduled to go to trial today.

The News stated that it was unable to obtain the details of the agreement.

The attorney representing Freshwater in the federal case, Sandra McIntosh, did not respond to a previous request for comment from

On July 16, 2010, sent the following email to McIntosh:

Will the jury trial for Doe v. Mount Vernon Board of Education et al. scheduled to begin July 26, 2010 continue as planned?

(In document number 116, attorney R. Kelly Hamilton states that “On Tuesday, July 6, 2010, the undersigned learned from communications with Attorney Sandra McIntosh that a resolution in this matter occurred on Friday, July 2, 2010, which will include resolving any concerns against John Freshwater alleged in Plaintiff’s Memorandum of Opposition [Doc. 114].”)

What was the “resolution in this matter” that occurred on July 2, 2010?
UPDATE 7-27-10:

According to the News, the "Doe" family's attorney Douglas Mansfield said that the trial was delayed due to settlement discussions. The News was unable to obtain details.


For details from the settlement, see the Oct. 27, 2010 News article by Pamela Schehl, “Settlement signed by both parties in civil lawsuit.”

Wednesday, July 7, 2010

Attorney Violates Federal Gag Order

The attorney was attempting to argue that the opposing attorney should receive sanctions—in the process, the attorney may have opened up the door for sanctions against himself. His mistake? In trying to prove his point, attorney Douglas Mansfield released information covered by a federal gag order.

Mansfield was fully aware of the nature of the information he released. The judge had issued an order stating that the documents Mansfield wanted to submit were to be “filed under seal.”

On Friday he did file the documents under seal but then went ahead and included his summary of their contents in a publicly available memorandum.

The reason that there was even a gag order in the first place was because Mansfield’s clients, the Dennis family, had complained about John Freshwater releasing information from settlement negotiations.

When Freshwater spoke to the Mount Vernon Board of Education in May, he briefly summarized a settlement offer made to him by the Dennis family.

Although the documents that Mansfield summarized are not of a settlement offer, they do come from settlement discussions that Freshwater had regarding the related lawsuit against the school board.

The documents in question are billing records from Freshwater’s attorney R. Kelly Hamilton.

Both Mansfield and judge Gregory Frost described the documents as being “subject to a gag order.”

In the gag order, Frost wrote, “Any violation will meet serious consequences, including monetary sanctions and other sanctions up to and including the most severe this Court can impose.”

Related documents

The National Center for Science Education maintains an archive of many of the court documents for the case Doe v. Mount Vernon Board of Education et al. and for the related case Freshwater v. Mount Vernon Board of Education et al.

Wednesday, June 23, 2010

BIBLE ON THE DESK: Freshwater Hearing Comes Full Circle with Last Witness

The following testimony took place 9:17 a.m.—2:48 p.m. on 6/22/10.

The last day of testimony brought the John Freshwater hearing, which has spanned 21 months, back to where it started: Steve Short testifying about the order for Freshwater to remove his personal Bible from off his desk.

Bible on the desk

When Short—who is the superintendent of the Mount Vernon City Schools—testified at the opening of the hearing, in October of 2008, he said that one of the reasons that he had recommend firing Freshwater was because of Freshwater’s refusal to remove the Bible.

During that previous testimony, Short explained that there were many items within Freshwater’s classroom that could be considered religious. Because of this, Short said that it created a religious display. “It was difficult to determine what was and wasn’t on display,” Short said. “So everything should have been put away.”

Also during the 2008 testimony, Freshwater’s attorney, R. Kelly Hamilton, asked Short how he handled the similar situation in which teacher Lori Miller had both a Bible on her desk and potentially religious items in the classroom.

“We told [Miller] to remove all the other items that she had,” Short replied.

The Bible remained on Miller’s desk.

When Short testified during Tuesday’s hearing, he changed the focus of his argument.

Short said that the difference between Miller and Freshwater is that the Dennis family complained that Freshwater referenced his Bible during class.

Short acknowledged that the Dennis family was the only family that made such a complaint to him.

In fact, the other students in the class with Zachary Dennis have stated that Freshwater did not talk about religion in his class. (For more information, see the article, “Student Testimony—John Freshwater Addresses School Board.” )

Short also acknowledged that while he did ask Miller if her Bible was part of the “display” in her classroom, he did not ask Freshwater a similar clarifying question.

During Short’s meeting with Miller, Short advised Miller that if she disagreed with the directive to remove the items from her classroom, she could use the union process to grieve the order. Short said that he did not tell Freshwater, who is not a member of the union, of his right to use the union’s grievance process.

Short’s religious display

Hamilton asked Short if he previously had a religious item hanging on the wall in his own office.

Short replied that he hadn't

Hamilton then asked Short if he had in his office a poster created by his son with “World’s Greatest Dad” written across it and at the bottom Romans 12:6.

Short replied that he used to have that poster in his office and that it was a “religious display” but that it was never “hanging” on the wall.

It was following a meeting with Hamilton in July of 2008 that Short removed the poster. Short said that he noticed Hamilton walking around the office and looking at the items in the room. He said that fifteen minutes after the meeting he removed the poster.

Short acknowledged that at the meeting Hamilton did not make any complaint about the poster being a religious display.

Chain of evidence issues

Short addressed issues raised by Freshwater regarding how the items from his classroom were stored and why some of the items in storage were already labeled as board exhibits.

The materials from Freshwater’s classroom were moved into storage in August of 2008, Short said. He said the first storage site used was the director of business office—after about 20 to 30 days, the items were again moved, this time to a room on an upper floor of the central offices that used to be a women’s bathroom.

Short said the only time that anyone had access to the stored items, other than himself, was when the items were stored in the director of business office. The janitor had a key but was instructed to not enter the room, Short said.

The boxes were not numbered until there was a “plethora of attorneys” sorting through the materials and requesting copies, Short said. He explained that the numbers were added so that the items could get back in the right boxes.

Two of the boxes ended up falling apart and so were replaced with new boxes, Short said. These were the two boxes that had handwritten dates that preceded the packing label dates.

Regarding school board exhibit number 22, Short said a printout of the email was found among Freshwater’s items. Short explained that after school board attorney David Millstone three-hole punched the document they realized a copy should be included with the stored items.

Regarding school board exhibit number 91, Short said the situation was the same as for number 22 except that he was able to stop Millstone before he three-hole punched the document.

Regarding OAT grade sheets that were found in storage, Short said that a custodian probably included some of Freshwater’s mail in with the stuff that was moved to storage.

Inventory of Freshwater’s personal items

Short said that in August of 2008 Freshwater called him and requested the return of his belongings. Following the call, Short said he talked with council and that the instructions he was given was to make a list of all the items that he was giving back to Freshwater.

The one-sheet handwritten inventory Short said he made was entered as school board exhibit number 115. The list included items such as “clock radio,” “parachute,” “volcanoes book,” “t-shirts” and four Bibles.

Short then compared the inventory to photos supplied, apparently, by Freshwater of the personal items that Freshwater says were returned. Short said that some items included in the inventory are not in the photos and that there are some items in the photos that are not in the inventory.

Hamilton asked Short why this handwritten inventory was not provided in response to his public records requests.

Short replied that he does not believe that it is a public records document. He said his understanding is that it is protected under the work product doctrine.

Upon further questioning from Hamilton, Short agreed that he is no longer trying to protect the document from discloser.

Although Short considered the document to be protected under the work product doctrine, the Dennis family already had a copy of it by May 14, 2010 when they used it as an exhibit for one of their motions in their federal lawsuit against Freshwater. (Click here to view copy of the inventory. 81.51 KB PDF).

Short said that he has no knowledge of when the inventory sheet was given to the Dennis’ attorney Douglas Mansfield.

Additional statements by Short:

• Items not placed in a teachers personnel file can still be used later in evaluating the teacher. (Editor’s note: The master contract in effect at the time Freshwater was suspended stated the following: “The official personnel files of all teachers shall contain, if available, the following items: […] Appropriate letters of commendation or reprimand issued to the teacher by supervisors.”)

• Believes that Freshwater told him that he both handed out Bibles to students and talked about the meaning of Easter in class. (Editor’s note: When Short testified in 2008 he stated the following: “[Freshwater] said that maybe he’d given them [the Bibles] to some of the FCA kids if they forgot theirs when they came.” “[W]hat he talked about was Easter in relationship to the stars and astronomy where the different religious states were and fit in with the stars. […] Freshwater couldn’t remember if he brought it up or the students brought it up, but he said I may have spent one or two minutes talking about Easter and […] what it means to Christians.” Emphasis added.)

• Miller was at the meeting in which Freshwater addressed the issue of the Bibles and Easter. Does not know what would be in Miller’s notes of the meeting.

• Did search through the school buildings looking for the items identified in the first anonymous letter. Was not trying to hide materials.

• Does not have knowledge of the Dennis’ attorney taking items belonging to Freshwater. Considers it hard for it to be possible that the Dennises obtained information from Freshwater’s classroom that has not appeared at the hearing.

• A display becomes a religious display if someone perceives it as such.

• There is no definition of “religious display” in the school’s written policy.

• On August 7, 2009 individual school board members made the following comments related to evaluating his performance: Gives few updates regarding the Freshwater case. Does not always have good record keeping. Needs to have better control over the attorney. The school is in deficit spending mode.

• The school board gave him a rating of “1.7.” This rating falls between the categories of “needs improvement” and “satisfactory.”

• Believes that he did a good job related to his investigation of Freshwater.

The conclusion of testimony

Of the over 90 witnesses that testified during the course of the hearing, Short was both the first and the last witness.

The referee, R. Lee Shepherd, said that there has been a vast amount of information presented during the hearing. He said that the attorneys wisely agreed to do their closing arguments in writing.

Both sides have until July 26 to submit their briefs and until August 2 to submit a reply to their opponent’s brief.

Both sides agreed to have all exhibits entered as evidence and allow Shepherd, as the trier of fact, to decide what weight to give each exhibit.

Shepherd said that within ten days of reaching a decision, on what his recommendation will be, he will provide a written report to the Mount Vernon Board of Education.

The school board will make the final decision.

Shepherd concluded the day by thanking those that have been involved, most importantly, he said, Joan C. O'Donnell, the court reporter.

Shepherd thanked the attorneys for their professional conduct during the hearing. He said that he has not seen anything like it before from “both sides of the hall.”

His final comment was to the gallery. He thanked the people for wanting to stay the course and for having patience during all of the stops and starts of the hearing.

For additional coverage of the Freshwater hearing, see the articles in the archive.

Thursday, June 17, 2010

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

The following testimonies took place 10:09 a.m—11:15 a.m. and 2:25 p.m.—4:52 p.m. on 6/08/10.

Allowing eighth-grade students to debate would give them the wrong impression of how science works, Patricia Princehouse said. Debating, she said, is used in politics but is not used in science.

Mount Vernon Middle School teacher John Freshwater did allow one of his science classes in 2007-2008 to debate creationism and evolution. Freshwater previously testified that debating was something his students wanted to do and that his involvement was only instructing them to research their position, giving them a few rules and supervising the debate to keep it civil.

Princehouse and another expert witness were brought by Mount Vernon Board of Education attorney David Millstone to testify about whether debating is appropriate and to interpret both Freshwater’s 2003 proposal “Objective Origins Science Policy” and his teaching materials.

Patricia Princehouse


Princehouse teaches at Case Western Reserve University. Although she is not included on the list of faculty within the biology department, she is listed as a “Lecturer in Philosophy” in the department of history and philosophy of science. 

In addition to her work at the university, Princehouse is active in promoting evolution in the public sector. She serves on the board of Ohio Citizens for Science which she helped found.

(Princehouse is a signatory of the National Center for Science Education’s “Statement of Concern” regarding the Answers in Genesis’s creation museum. Highlighting added.)

Princehouse’s website includes the following description of her activities: “Believing firmly that academics must not isolate themselves from the public square, Princehouse has become a major voice in the struggle to secure the integrity of science education in America's public schools.”


Princehouse said the debate format is not appropriate for the science classroom. Even at the college level, debate skills would not come naturally to all students and the students would become bogged down trying to learn those particular skills, Princehouse said.

(The NCSE provides helpful advice to aspiring Darwinists—don’t debate creationists. Highlighting added.)

Instead of debating, scientists discuss things and do testing, Princehouse said. She gave the example of scientists looking to see whether particular fossils could be found where they were expected. She said that if the results do not support the hypothesis then the scientists correct their idea and test it again.

Freshwater’s 2003 proposal

Princehouse said Freshwater’s 2003 proposal to the school board was “very cleverly worded.” Although it was clever, she was able to determine that the proposal was to teach creationism.

The clues that Princehouse was able to use to deduce what Freshwater was really up to included his use of terms such as “critically analyze.”

After Princehouse reviewed the Science Curriculum Committee’s written response to the proposal—which said that the proposal was both illegal and addressed by school board policy regarding controversial issues—she said that there are issues in the proposal that are legitimate but that the proposal also brings in things that are not.

The only thing in Freshwater’s proposal that comes close to inclusion of creationism or intelligent design is this statement: “understand the full range of scientific views that exist regarding the origins of life and its diversity, and understand why origins science may generate controversy.”

The language of the proposal contained no statement that creationism was part of “the full range of scientific views.” For Princehouse to come to the conclusion that the proposal was to teach creationism, she first had to accept creationism as science. However, in her testimony she stated that creationism was religion and not science.

(Bertrand Russell helps explain Princehouse.)

The department of philosophy at CWRU has the following quote by Bertrand Russell on its website: “The point of philosophy is to start with something so simple as not to seem worth stating, and to end with something so paradoxical that no one will believe it.”

Teaching materials

Princehouse said that the terms “specified complexity” and “irreducible complexity,” which were included in one of Freshwater’s lesson plans, are terms used in ID.

Freshwater’s attorney, R. Kelly Hamilton, asked Princehouse whether she would expect an evaluation of the lesson plan, by two teachers, to include a comment on the inclusion of the terms. Princehouse said that the teachers might not be familiar with “creationist labels.”

The lesson plan was made about four months after the 2005 Kitzmiller v. Dover decision that dealt with ID.

Princehouse said that it could happen that a student would bring up the topic of the court case in class. She added that a teacher shouldn’t include the topic in the lesson plan even if a student previously asked about it in class. Her reasoning was that the discussion of current events belonged more in a social studies class.

Test scores

Princehouse said that she has issues with the grading standards in Ohio. The state is lowering the bar further and further to the point that a student could do well on the Ohio Achievement Test and yet not know very much, Princehouse said.

The OAT results for Freshwater’s five classes during 2007-2008 came to an average of 415.2. (The state average was 407 and the school average was 413.)

Princehouse said that it is not Freshwater’s fault that the bar was lowered.

Although Princehouse said the test is not the best method to know how well the students perform, she acknowledged that it is the method used. She added that it is very hard to measure what student’s have learned.

Teacher’s ownership of books

Princehouse said that the possession of books on the topic of ID does not mean that the person teaches ID in class. She said that she also has books such as Icons of Evolution by Jonathan Wells.

Steve Rissing


Steve Rissing teaches at Ohio State University. He is a professor in the department of evolution, ecology and organismal biology.

When the Ohio academic content standards were revised, Rissing served on the advisory committee.

Rissing serves on the board of OCS and is a signatory of the NCSE’s “Statement of Concern” regarding the AIG museum.

Rissing said that he does know Richard Hoppe, who has been writing about the Freshwater hearing on, but that he has been avoiding reading Hoppe’s writings. Rissing said that he has worked with Hoppe on several projects.

(Hoppe is also a signatory of the NCSE’s “Statement of Concern.” Although Hoppe is not listed as being on the board of OCS, he is one of three contact people listed at the end of the OCS article “Creationist Pseudo-Museum Displays to Mislead Students.” )

Rissing said that during the last few weeks he did talk with Princehouse three or four times about coming to the Freshwater hearing. (Princehouse stayed after her testimony and joined the gallery to listen to Rissing.)

Hamilton asked Rissing if he was involved in Bryan Leonard’s doctorate evaluation. Rissing said that he knows Leonard but that he was not involved. (For more information on this controversy, see the article by Jerry Bergman, “The Strange Case of Steve Rissing.” 35.20 KB PDF )

Hamilton also asked Rissing if he had in any manner protested in front of the AIG museum. Rissing answered that he had not.


Using debate in science class is bad “pedagogy,” Rissing said. He went on to explain that “science is not a debate” but instead “science is a discussion.”

Rissing said that debate has a connotation of an athletic event in that there are winners and losers. He said he never does science that way.

Test scores

Rissing said he knows there is an OAT and that while he doesn’t know a lot about the test he imagines that a test called that would be intended to assess whether the students have “achieved” the standards. He said students would achieve proficient on the OAT if they were being taught the standards.

The method of teaching that Rissing said he uses is an “inquiry” approach instead of just directing the students in how to do projects and giving them rote memorization tasks such as fill-in-the-blank worksheets.

Rissing said that the state standards mention not memorizing terms.

Rissing did agree that different students require different methods of instructions.

Teaching materials

One of the standards for the eighth-grade states: “Explain why it is important to examine data objectively and not let bias affect observations.”

Freshwater previously testified that up until 2003 he used some worksheets called the “giraffe and woodpecker,” which were created by a former student, to show examples of improper use of the scientific method. (Click here for copy of the woodpecker worksheet. 137.77 KB PDF.)

Rissing said that using these worksheets to discuss the issue of bias with students would not be a proper way to teach the standard. What the writers of the standard had in mind regarding bias, Rissing said, was the issue of someone dismissing an explanation because of a preconceived notion.

Rissing did some research and found what he believes served as the basis of the two worksheets—The Evolution of a Creationist by Jobe Martin. Rissing said that the sections in the book about the giraffe and woodpecker are “great” and that “we can do that in the U.S.” He has students that believe in a creator but, he said, a teacher should not be asking questions about that.

Inside Rissing’s classroom

As it turns out, Rissing does incorporate discussion of religion into the biology classes he teaches at the college level. He even uses material developed by his students to facilitate that discussion.

Rissing said that he put together, from student research, a chart about diseases that contrasts 14th century beliefs and responses with that of the modern understanding about those diseases.

The column with the 14th century explanations for diseases includes “Devil,” “God,” “Sin,” “Hand of God” and “God’s wrath.”

Rissing explained that one of the learning objectives that he is following with this chart is discussing the history of science.

At the bottom of the chart, Rissing labeled the 14th century beliefs as “non-scientific” and the modern understanding as “scientific.”

When Rissing teaches the class, he said he cuts up the information from the chart and gives it to the students to discuss in groups. The students compare notes and talk about the differences between the columns. He said that it is appropriate for students to compare information that is scientific to that which is non-scientific.

Rissing, who happens to write a column on biology for The Columbus Dispatch, said that it is acceptable for teachers to discuss current events in class.

Tuesday, June 15, 2010

School Board Witness Says She ‘Heckled’ John Freshwater

The following testimonies took place 9:09 a.m.—9:33 a.m. and 11:33 a.m.—11:50 a.m. on 6/08/10.

The witness, Marcia Orsborn, said that she “heckled” John Freshwater about the need to bring a Catholic priest to speak at the school’s Fellowship of Christian Athletes.

Mount Vernon Board of Education attorney David Millstone brought Orsborn and another witness to the hearing to testify about Freshwater’s involvement in FCA and to testify about an alleged statement made by Freshwater about Catholics.

A previous school board witness, Simon Souhrada, testified that he overheard part of a conversation in which he believed that Freshwater said “Catholics aren't Christians.”

Marcia Orsborn

Orsborn, a teacher at Mount Vernon Middle School for the past 29 years, said that her relationship with Freshwater was one in which they both engaged in “good natured teasing.”

Someone told her that Freshwater did not like Catholics, to which she said her reply was that she had no reason to believe that. The complaint did get her to thinking about who the speakers at FCA had been and that none of them had been from her church, St. Vincent de Paul.

Orsborn said that she went and asked Freshwater, one of the club’s monitors, why he had not brought a Catholic speaker to FCA. Freshwater’s response, according to her, was that he would have to check his Bible. Orsborn then asked him what his Bible would say about that. Freshwater replied that he wasn’t sure that she was a Christian, Orsborn said.

After Freshwater’s reply, Orsborn said that she made the “L” loser sign with her hand and said, “Whatever, John.”

As time went by, she kept, in her words, “heckling” Freshwater about having a Catholic speak at FCA. Eventually, she said, Freshwater told her to go ahead and contact a priest about speaking.

Orsborn said she called the church and spoke with Father Mark Hammond’s secretary Shirley Lower. When Hammond did end up speaking at FCA, she said that she didn’t attend the meeting but that she did go to the room and thank him for coming.

Freshwater’s attorney, R. Kelly Hamilton, showed Orsborn a speaker request form filled out by a couple of students regarding having Hammond speak at FCA. Orsborn said that she doesn’t know what transpired after her initial call to the church and that she has no reason to dispute that the students sent an invitation to Hammond.

Orsborn said that she did not do any research into how FCA was run but that she assumed Freshwater was responsible for the speakers. (Teachers that monitor FCA are supposed to leave the inviting of speakers to the students.)

Hamilton asked Orsborn several questions about her knowledge of Freshwater and his family’s interaction with Catholics.

Orsborn said that she did not know that Freshwater’s daughter Jordon had dated someone from her church. She did not know that Freshwater transported someone to her church that needed a ride. She also did not know that Freshwater’s son Luke went to a Catholic college.

Freshwater never talked about his church background but Orsborn said that she knew where he attended because she taught Freshwater’s three children.

Orsborn said that Freshwater never made the statement “Catholics aren’t Christens.”

According to Orsborn, the Dennis family—who brought the primary complaints against Freshwater that resulted in the hearing—also attends St. Vincent de Paul.

Father Mark Hammond

Hammond said that to the best of his recollection it was Freshwater who asked him to speak at FCA. He did not recall Orsborn or any students talking with him about coming to FCA.

Hammond admitted that his recall of the events is not good.

Although he schedules his own calendar, Hammond said it was possible that someone contacted one of his secretaries.

Hammond said that Freshwater either called him or approached him at a banquette that was held for Care Net Pregnancy Services. He did not recall whether Freshwater’s pastor, Don Matolyak, introduced him to Freshwater.

No one told him what to say at FCA, Hammond said, but he believed that he was there to share about the Catholic faith. He said that when he spoke he tried to clear up misunderstandings about Catholicism and help the students understand that Catholics believe many of the same things as Protestants.

Hammond said that of the three sessions he held at FCA, Freshwater only attended one. Hammond said that he was the one that prayed and that he does not recall Freshwater praying at the meeting.

Monday, June 14, 2010

Rebuttal Witnesses Testify About Documents in Freshwater Hearing

The following testimonies took place 3:31 p.m.—4:41 p.m. on 6/07/10.

Mount Vernon Board of Education attorney David Millstone brought two experts as rebuttal witnesses to testify about documents in the John Freshwater hearing.

Harold F Rodin

Harold F. Rodin, a certified questioned documents examiner, said that the handwriting at the top of the school board’s exhibit number 91— “Reaching for the Sky”—was made by Freshwater.

Rodin based his conclusion on what he said were similarities between several of the letters in the document questioned and in the sample of Freshwater’s handwriting he was given.

The magazine article “Reaching for the Sky” was published in 1988 in Science World. The writing on the document contained references to the biblical story of the Tower of Babel.

Rodin admitted that he did not examine the original document that had the handwriting. He said that when an original is available it is preferred but is not necessary.

The original of the article was found in storage after an anonymous tipster sent a letter to Freshwater. No writing, however, was on the top of the article.

When Freshwater and his attorney, R. Kelly Hamilton, were able to review the storage room full of stuff, earlier this year, they found multiple copies of the article. Those copies—except for a photocopy that was already labeled “Bd 91”—did not contain the writing at the top.

(Multiple copies of the article, minus the handwriting, were found with Freshwater’s classroom stuff.)

For more information, see the section “Reaching for the Sky” in the article “John Freshwater Testifies About ‘Truckload’ of Information.”

Rodin said that he could not tell whether the document was used in the public school classroom.

John Liptak

John Liptak, a computer forensic expert, testified about the authenticity of several emails.

One of the emails—school board exhibit number 22—had been described by a previous witness, Ricky Warren, as looking like it was altered.

The email was a reply by Warren to an email sent through Freshwater’s account. The content of the email is about Warren coming to speak at a Fellowship of Christian Athletes meeting. Freshwater’s daughter, Jordan, previously testified that she was the one who invited Warren to speak at FCA.

Liptak said that he observed a local IT person restore a November 2009 backup of the school’s email system. He said he then took a copy back to his lab and examined the data.

Liptak said that he found a copy of Warren’s email within Freshwater’s account that matched that of the copy used as an exhibit in the hearing.

(A copy of the email was found among Freshwater’s classroom stuff already labeled as “BOARD EXHIBIT – 22.”)

Upon questioning from Hamilton, Liptak said that the electronic copy does not have a three-hole punch along the left margin.

Liptak said that his company probably also obtained a copy of the hard drive on Freshwater’s classroom computer but that he was not involved in that task.

Liptak said that he did not examine who had access to Freshwater’s account.

Former Assistant Principal Testifies about Photos of Freshwater’s Classroom and Lab

The following testimony took place 2:10 p.m.—2:46 p.m. on 6/07/10.

The pictures taken of John Freshwater’s classroom and lab focused on potentially religious items. “I could have taken more pictures, but I wasn’t asked to document everything in his classroom,” said Brad Ritchey, former Mount Vernon Middle School assistant principal.

Ritchey said areas he did not photograph “were not as concerning.”

Ritchey photographed the Bible on Freshwater’s desk, the poster of George Bush and Colin Powell, the Ten Commandment poster, a Cross Club sign, the “Good Thinking and Ten Commandment” book covers and several small posters in the lab area.

Ritchey was brought to the hearing as a rebuttal witness by school board attorney David Millstone.

An expert witness, Michael Molnar, previously testified that the items in Freshwater’s classroom were not part of a “religious display.”

Posters in lab area

There were 14 lab stations with two doors above each one—on the doors were posters about the size of oversized index cards.

Principal Bill White previously testified that there were verses written below the statements on the posters. “There were papers posted around on the cupboards that had what I would refer to as study skills or those types of things at the top,” White said, “and then at the bottom there was a biblical verse and reference that went with each one of them.”

Pictures were not taken of all of the lab stations.

Ritchey testified that, as best as he can recall, not all of the lab posters had Bible verses.

The only close-up photo that Ritchey took was of a poster that did have a Bible verse but, Ritchey said, he thought there was more than one poster like that.

Freshwater’s attorney, R. Kelly Hamilton, showed Ritchey a photo sent to Freshwater by the anonymous tipster.

In the photo—according to Freshwater’s previous testimony—is one of the posters Freshwater had in the lab area. In large print is the statement, "You can build a throne with bayonets but you can't sit on it for long." Below that in smaller print is, “‘What you do not want done to yourself, do not do to others.’ Confucius.”

(A photo provided by the anonymous tipster to Freshwater.)

Ritchey agreed that the poster in the photo might be the type of thing that was on the rest of the posters.

Freshwater previously testified that the original of the lab poster, as well as the other lab posters, has yet to be found. The posters were not located among the items discovered in the storage room at the school district’s central offices.

Ritchey said that he believes the items that were in Freshwater’s classroom were “unlawful.”

Fellowship of Christian Athletes

Ritchey said that he was in a meeting with White and Freshwater regarding the student club Fellowship of Christian Athletes. According to Ritchey, Freshwater raised his hands during the meeting and told them that he might have done the same during FCA.

Ritchey said that Freshwater did not mention anything about having said “amen” so that the FCA students could go on to class.

(For Freshwater’s side of the story, see the section titled “Fellowship of Christian Athletes/Alleged exorcism” in the article “John Freshwater: Investigation Didn’t Follow Contract.” )

Ritchey did attend a few of the FCA meetings but did not see a problem with Freshwater’s handling of his role of monitor. He said that he never spoke with the pastor or the students that were at the meeting in which student Zachary Dennis said Freshwater raised his hands and prayed.

Tesla coil

Ritchey said that he and White did have the authority to write the January 22, 2008 letter to Freshwater regarding the Tesla coil.

During the meeting he was at with Freshwater, White did not direct Freshwater to destroy the Tesla coil, Ritchey said.

Ritchey also said had there been an allegation of a student’s arm being held down during the Tesla coil demonstration he would have remembered such a claim.

Ritchey said that he did not remember taking any notes of the meetings with Freshwater.

Saturday, June 12, 2010

Secret Audio Recordings: Former School Board Member Talks about John Freshwater Controversy

The following testimony took place 12:25 p.m.—2:05 p.m. on 6/07/10.

Steve Hughes, a former Mount Vernon Board of Education member, spoke with John Freshwater in January in two conversations that were secretly recorded by Freshwater.

A copy of the recordings, and a transcript made by Freshwater, were submitted as exhibits in the hearing that is taking place before a referee. Hughes was brought to the hearing to testify about the content of his conversations with Freshwater and his knowledge of the matters related to the charges brought against Freshwater by the school board in 2008.

(Hughes in 2009 at a meeting of the school board.)

Secret audio recordings

Prior to the recorded conversations, Hughes and Freshwater had occasion to speak briefly when Hughes purchased apples and then later a Christmas tree from Freshwater.

Five days before the January 19 recordings, Hughes spoke with Freshwater’s attorney R. Kelly Hamilton. Hughes said he happened to meet Hamilton near the Knox County Service Center where Freshwater’s hearing was taking place that day.

The first recorded conversation took place outside Hughes’s law office. The second conversation took place that evening over the phone.

The school board’s attorney, David Millstone, frequently objected to questions that Hamilton asked Hughes. The concern that Millstone raised was that some of the content in the recorded conversations dealt with matters covered by attorney client privilege, confidentiality agreements and executive session rules.

One of the questions Millstone objected to concerned why Hughes said that he had “wanted to get rid of Millstone from the very beginning” and that he was “not happy with the way [Millstone] is handling” the Freshwater matter.

The referee upheld the objection.


Hughes stated in one of the recorded conversations that if the school board wanted to fire Freshwater based on insubordination that “it still has to be refusing to obey a legitimate and reasonable order.”

Hughes said in the hearing that his statement was based on his limited experience with employment law.

Religious display

It could be a lawful order for an administrator to tell a teacher to remove his or her Bible, Hughes said. The individual circumstances, Hughes said, would determine whether the Bible was part of a religious display and needed to be removed.

Hughes said that a singular Bible on a desk does not make it a religious display.

Hamilton asked Hughes if having the “Good Thinking and Ten Commandments” book covers placed over an interior window, for security reasons, was lawful.

Hughes said in that context, alone, the book covers have a legitimate purpose.

School board’s 2008 resolution

Hughes said that when he voted for the 2008 resolution “Intent to consider the termination of the teaching contract(s) of John Freshwater” he didn’t know Freshwater’s side of the story.

Between Hughes’ statements in one of the recorded conversations and his testimony in the hearing, the reason Hughes voted for the resolution was apparently so that Freshwater’s side of the story could be brought out during the hearing.

Hughes said that he did understand that if there had been no resolution that there would have been no need of a hearing.

The school board did base their resolution on the investigative report done by H.R. On Call, Hughes said.

In one of the recorded conversations, Hughes gave his understanding of how the insurance industry works: “the whole idea is to […] starve them out, to postpone the case, make it last as long as possible.”

Hughes testified that he used to be employed by an insurance company.

Hughes said that he didn’t know why Freshwater was suspended without pay. He did not recall any others teachers within the school district being suspended without pay.

Anonymous tipster

Hughes said that he has no knowledge of who the anonymous tipster is. He also said that he never communicated with Freshwater by anonymous letter.

Hughes said that he is not aware of any stuff from Freshwater’s classroom being stored anywhere in the school district.

Legal fees

In one of the recorded conversations, Hughes said that the school board does not know how much Millstone is charging them per hour. “All we know is we get a statement that says the total number of hours and what the bill is, but doesn’t say who did what,” Hughes said.

Millstone did not cross examine Hughes.

Thursday, June 10, 2010

John Freshwater Testifies About ‘Truckload’ of Information

The following testimony took place 12:54 p.m.—4:01 p.m. on 6/03/10; 9:17 a.m.—4:36 p.m. on 6/04/10; and 9:53 a.m.—12:07 p.m. on 6/07/10.

A letter from an anonymous tipster back in January resulted in the discovery of what John Freshwater described as a “truckload” of stuff from his classroom.

The longest exhibit in the hearing came from that batch of stuff—7,242 pages.

Freshwater said that the information from that storage room provides a better understanding of what he taught at Mount Vernon Middle School.

(Freshwater examines items from his classroom.)

Anonymous tipster and the “black bag”

Freshwater received the first letter, through the mail, from the anonymous tipster on January 14, 2010. Freshwater said that on February 2 he received a message on his voice mail that said there was something he might be interested in near a trashcan at the school’s ballpark.

(See previous article for related video and documents: “Photographs of Missing Evidence — John Freshwater Addresses School Board.” )

Over 400 pages of material were found in the “black bag” left by the anonymous person. (This was the same bag that Freshwater had used in 2003 to store items regarding his curriculum proposal “Objective Origins Science Policy.” ) In the hearing, Freshwater went through the stack item by item. He testified that in the stack was:

• A document related to his 2003 proposal that has handwritten notes in the margins. Nowhere on the document does it say that he wants to teach Creationism or intelligent design.

• A copy of the school’s controversial issues policy.

• A letter dated May 26, 2003 from a parent of one of his students. The letter sounds like the person understands that he wants to teach more about evolution.

• A letter, not written by him, that says the 2003 Science Curriculum Committee brought up their perception of his religious beliefs during a committee meeting.

• A piece of “hate mail” that says he should go teach at Bob Jones University.

• A letter-to-the-editor written by Richard Hoppe. There is a note written on it by another person who probably gave him the newspaper clipping.

• The notes he took to the school board meeting in 2003. Part of the notes mention critically analyzing aspects of evolution.

• A letter from then superintendent Jeff Maley. He had asked Maley if he could tape record the conversation with the Science Curriculum Committee. In this letter it looks like Maley is suggesting that he not do that because it would inhibit conversation.

• A letter related to No Child Left Behind.

• A letter from the National Center for Science Education. The NCSE tries to defend the teaching of evolution in schools.

• A copy of a page from the NCSE website that says people can call or write them for advice.

• An article by Rick Santorum in a science teacher’s magazine.

• One of his quizzes. The quiz covers Charles Darwin and also the Big Bang. The material is in line with the academic content standards and is not oriented toward Creationism or ID.

• A document that directed him in 2002 to block his classroom windows that faced the hall. This is the reason that he placed the “Good Thinking and Ten Commandments” book covers over the windows. When he and his attorney R. Kelly Hamilton went through his classroom stuff previously they did not find this document. The instructions do not say what type of covering to use—he obtained the covers from the administrative office.

(The book covers Freshwater used to meet a security directive to cover interior windows.)

• A document about Darwin’s theory of evolution—there is nothing in it about Creationism, ID or the Bible.

• A document from a publisher about a 150 million-year-old fossil of a dinosaur.

• A document on the scientific method.

• A letter to Marcy Rinehart, WNZR director, about his 2003 proposal. In the letter he says that the issue is not about religion and that he does not want to take evolution out of the curriculum.

• A couple of the permission slips for Fellowship of Christian Athletes that he created. The school administration had stated that permission slips would need to be used but did not provide any—so he created the slips.

• A poster created by the FCA club.

• A “curriculum map” that was used after 2004 that included the teaching of the periodic table of elements. This provides counter evidence to the school board’s resolution that stated he was not supposed to be teaching the periodic table of elements.

He also said that there were materials in the bag that had been in the classroom when he inherited the room.

Freshwater said that if the anonymous person had not left the bag he would be hampered in offering his defense—the items contain clarifying information regarding the charges made against him.

The Mount Vernon News article “Anonymous source leads to ‘black bag’ find,” by Samantha Scoles, includes a response from the school board’s attorney regarding the black bag find.

Truckload of stuff

After Freshwater testified about the items in the black bag, his attorney began presenting the items found in the storage room at the school district’s central office.

Freshwater said that there was enough stuff to fill-up the back of a regular size pickup truck and that it took approximately five days to review all of it. Of the 50,000 pages of materials, Freshwater said he requested that the school provide copies of over 11,000 pages.

Other people’s materials were mingled in with his classroom content, Freshwater said. Those other people included students and the teacher that used to have his position. He noted that he did have some of his items stored in what the teachers called the “rat hole” that had open access.

Freshwater said that there were discrepancies in the labeling and dating of the 16 boxes of stuff. As an example, a box labeled “11” has a shipping label on it that shows the school received the cardboard box on or after November 13, 2008. However, there is also handwriting on it that says “2 of 2 ROOM 215 8-12-08.”

Freshwater said that it’s confusing as to why there is a handwritten date on a box that hadn’t even arrived yet.

Freshwater said that he has the impression that someone was trying to set him up, that people took items and added items.

Freshwater testified that in the collection of stuff from the storage room there was:

• A poster titled “Culture America: African Americans.” He had this hanging up in his classroom during February.

• A poster titled “Spoken from the heart” that shows images of hearts with quotes within the hearts. Does not see anything religious about this poster.

• A sheet about hissing cockroaches.

• A document about “science in the news” that was used as an extra credit assignment. Would sometimes give the assignment, when he saw that a student’s grades were low. Was not giving them the grade but instead was making them work for it.

• A poster titled “Winners vs. Losers.” Was from a book on wrestling and was intended to emphasize positive character traits.

• A paper that lists videos that he requested the librarian retrieve from another town’s library. The document is from the mid nineties. The videos are not religious.

• A page from the book Professional Reference for Teachers that recommends doing something similar to what he did so that absent students could still get handouts: he had a shelf in which he stored the handouts and that the students could access.

• A lab book that is labeled for the high school level. He was given this book by the school. He received books from many sources including parents and other teachers.

• A document labeled “scientific method.” He understands that topic to be the primary thing that he needs to teach as a science teacher.

• An agenda for the middle school from August 25, 2004 that lists “Channel 1” as the first item during homeroom time. In order for the school to receive free TVs, the students were required to watch a set number of hours of “Channel 1” each school year. Topics covered on “Channel 1” included religion and homosexuality. There were advertisements within the programming. When he was teaching health class, he found the Snickers candy bar ads to be counterproductive.

• A document labeled “The Chemistry of Chili Peppers.” Along with it is a copy request for 33 copies. This is an example of the kind of handout that he would have students turn back in to conserve paper.

• A “Channel 1” video that has a handwritten list on the outside detailing its contents: “DNA: Life Controller;” “Reproduction: Designer Babies;” “The Science of Cloning;” “The Ethics of Cloning;” “Organic Evolution: In the Beginning. Darwin Naturally. Factoring In Mendel. The Meiotic Mix. The Population Picture. Mutation and all that.” (Click her to view “Organic Evolution” video clips.)

• A poster of Albert Einstein with a speech balloon that says, “I like science, Mr. Freshwater.”

• A copy of the Ohio Achievement Test scores for his 2007-2008 classes. The average for his five classes was a score of 415.2. (The state average was 407 and the school average was 413.) Zachary Dennis scored very well on the OAT.

• Notes taken by Kerri Mahan. Mahan would sit in on his classes and take notes so that she could use it for her class. The notes are about volcanoes.

• A document about scientists only knowing the “most likely solution” to a given problem. It is a resource related to one of his textbooks. The project that he would do with students involved having them try to identify a particular animal by providing the students with bones and other clues. He would encourage the students to come up with their best answer. In order to show how science really works, he would end the project without giving them a definitive answer.

• A picture of young Joseph Barone looking happy. The first time that he found out that Barone had a problem with his class was in the hearing.

• A classroom seating chart that would have helped him earlier on in his defense. Sometimes he has trouble remembering who was in each of his classes and where they sat.

• A document dated July 21, 2008 that lists his students’ grades. He was already suspended by that date. Somebody else placed the document with the items.

• A document about radiometric dating.

• A three-hole punched document that looks like an email. Believes someone else placed it among his stuff because he does not three-hole punch documents.

• A document about the geological time scale. The document says that the age of the earth is 4.6 billion years old. This is what he would teach in his science class.

• A document titled “Mr. Freshwater’s suggested sites for Science Research Reports.” There is no religious website promoted on the list.

• A document about balancing equations from Jeff George. Would not be surprised to find materials from that teacher with his stuff.

• A training announcement from Mount Vernon Nazarene University dated 2003 that lists Dave Daubenmire. In 2003 or 2004 he attended a workshop taught by Daubenmire on the topic of religion and the classroom. What he learned in that class collaborated what he learned from the book Finding Common Ground. (Click here to go a website where you can download a free electronic copy of the book.)

Freshwater said that for the record he does not want to review every last item from his classroom.

“Reaching for the Sky”

The school board’s exhibit number 91—an article titled “Reaching for the Sky”—was, interestingly, found among Freshwater’s classroom stuff already labeled as “Bd 91.”

Attorney Hamilton asked Freshwater if he’d had the foresight to know that someday the document would become an exhibit—and that it would be number 91.

Freshwater answered that he’d not had that foresight.

Hamilton went through a serious of questions on this topic, seemingly puzzled as to who could possibly have written that on the document.

The school board’s attorney David Millstone eventually interrupted and said that he would stipulate that it was his own handwriting that was on the document.

Hamilton replied that he didn’t actually need Millstone to stipulate that.

In addition to the handwriting that says “Bd 91,” the document contained some handwritten notes along the top of the first page that gives some details about the Genesis story of the Tower of Babel. Freshwater testified December 30, 2009 that he did not write the notes that are on the top of the document.

The article was written by Billy Goodman and published in 1988 in Science World, a publication that Freshwater said the school purchased. The beginning of the article includes a quote from someone who says that “ego” is involved in the building of tall structures. The person quoted then goes on to compare modern ego to that of the ego of those who built the Tower of Babel. The bulk of the article deals with the subject of modern tall towers and how they are constructed.

When Freshwater and his attorney were able to review the storage room full of stuff, earlier this year, they found multiple copies of the article. Those copies—except for the one that was already labeled “Bd 91”—did not contain the writing at the top.

There were materials related to the article found in the storage room. After examining the various transparencies and documents, Freshwater said that none of the materials on that topic contained the Biblical references handwritten across the school board’s exhibit.

(An old test that is an example of what Freshwater taught his students on the topic of building tall towers.)

Freshwater told that his students would spend about three days working on building their own towers. He would provide them each with 150 straws to use. The students’ projects were tested based on how much weight they could hold. The height of the towers was also factored into the results.

Freshwater said that the students had a lot of fun with the project.

Further reflection

One of the documents presented previously by the school board’s attorney was a “Multiple Intelligences Survey” created in 1999 by Walter McKenzie. Of the 90 questions on the survey, one of the questions asked if religion was important to the person taking the survey.

Freshwater testified at the time that he did not create the survey and had not used it.

After further reflection, and seeing the document again, Freshwater said that he does recognize the survey. He said it was used on the first day of school by the group of teachers designated as “Team 8-1,” of which he was a part.

The survey was not used to find out the students’ religious preferences, Freshwater said.

Freshwater said that based on what a colleague of his said the survey is still being used to this day.

Another document presented previously by the school board’s attorney was one titled “Science Student Data Sheet.” The form asks for the student’s contact information. It also has questions such as “What was the most important concept that you learned in science last year?” and “What are your hobbies?”

There are no questions of a religious nature on the form.

When Freshwater previously testified, he did not acknowledge using this form.

Attorney Hamilton brought the subject up again by asking if Freshwater had a better recollection now that he has reviewed the contents of his classroom.

Freshwater explained that while the form has his name printed at the top he did not create the form. It was, he said, used at the beginning of the school year as a team effort with the other teachers to collect student information.

The very last question on the form is a short creative writing assignment: “CREATIVE WRITING: Write a paragraph describing what this object is, how and where it formed, what are its physical properties. Do not worry about the spelling or grammar, just get your thoughts down on paper.”

While the students were working on filling out the form, the “object,” a fossil, was passed around the room.

One of Freshwater’s students, Zachary Dennis, included in his creative writing that the fossil of a trilobite was stepped on by a human.

Freshwater said that scientifically it is not possible for a human to step on a trilobite because humans and trilobites are from two different time periods. He agreed that students have said that the fossil looks like it was stepped on.

Additional statements by Freshwater:

• Spoke several times with former school board member Steve Hughes. Secretly audio recorded two of those conversations. Hughes, an attorney, gave his understanding that the insurance industry as a general strategy tries to “starve them out, to postpone the case, make it last as long as possible.” Hughes told him that if the school board wants to fire someone based on insubordination that “it still has to be refusing to obey a legitimate and reasonable order.”

• When he previously testified that he had “pitched” stuff from his classroom he was referring to physically tossing the stuff into a trashcan in his barn. The items were stored there until his attorney requested the items. The only items that were actually given to the garbage man were twenty or thirty “Chinese letters” that had lain on the top and were water damaged.

• An email from a school librarian, to him, ends with Psalms 93:4. (The email was brought as an exhibit by Millstone.) Expects that this would be a concern to school administration. Did see other emails from people within the school that included Bible verses.

• Another email from a school librarian, to him, ends with a quote about there being many different sides to an issue. (The email was brought as an exhibit by Millstone.)

• The school, for many years, had an “Advisory Period” which dealt with moral and patriotic topics. Can still deal with those topics in conjunction with “Channel 1” time.

• His personal Bible is missing. This is the same Bible that he kept on his classroom desk and that he has been with him for most of the hearing. The last time that he had the Bible was in the hearing room.

Freshwater said that he has been in the witness chair for over fifty-five hours and that it would be easy to catch him up on a detail. He has been asked to testify over a large portion of his teaching career. He said that when he was teaching he never thought that he would need to take notes so that he could speak about his teaching career with absolute precision.

Coverage of Freshwater’s previous testimony:

“John Freshwater: Investigation Didn’t Follow Contract”

“Missing Evidence in John Freshwater Hearing”