Freshwater case could go to U.S. Supreme Court

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

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

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

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

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

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

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

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

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

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

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


Additional information:

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

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

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

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

Barone to not seek re-election

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

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

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

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

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

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

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

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

MV school board: Firing of Freshwater not of public interest

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

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

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

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

A matter of public interest

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

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

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

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

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

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

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

The First Amendment and academic freedom

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Bible on the desk

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

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

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

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

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

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

Related coverage:

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

“District court rules against Freshwater’s appeal”

“Freshwater appeals to 5th District Court”

“County judge rules against Freshwater’s appeal”

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

“School board votes 4-1 to fire Freshwater”

“Freshwater’s Closing Arguments: Allegations Unsubstantiated”

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

MV school board allows teaching of controversial issues

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

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

Policy 2240 - Controversial Issues

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

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

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

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

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

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

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

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

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

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

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

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

R.C. 3313.601

Revised 1/6/03

Controversial Issues in the Classroom

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

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

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

    1. the chronological and emotional maturity of the students;

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

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

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

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

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

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

    For each stated position:

    1. What is the person (group) saying?

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

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

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

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

  For reaching conclusions:

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

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

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

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

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

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

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

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

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

District court rules against Freshwater’s appeal

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

More information about the U.S. court system:

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

Jail4Judges.org

LawlessAmerica.com

FAQUSAJudicialCorruption.blogspot.com

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

MVBOE Members Sworn In

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

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

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

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


MVBOE Members Sworn In (Jan 2012)


Richard Hoppe invites MVBOE to science fair

UPDATE - “Oath of office of member”:

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

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