Ohio science/religion teacher Freshwater loses yet again

JISHOU, HUNAN — So, here’s the short version. The Ohio Supreme Court ruled, 4-3, last week that the Mount Vernon School District was well within its rights to fire teacher John Freshwater for insubordination, given that he repeatedly ignored orders to remove religious material from his classroom and from his teaching.

The court’s ruling, however, sidestepped the thornier underlying question of how much discussion of creationism and Intelligent Design may be permissible in a science classroom. That question in fact was a large part of Freshwater’s appeal of a lower court’s decision. And the court’s failure to address the issue drew sharp words from the three dissenting judges.

Writing for the dissent, Justice Paul E. Pfeifer writes:

{¶ 105} What next? With the insubordination claim gutted, the lead
opinion should have moved on to consider the constitutional issues remaining in
the case. Instead, the majority walks away from the opportunity to provide
helpful guidance to every school board in Ohio and to the thousands of great
teachers who could benefit from knowing more about the extent of and limits on
their academic freedom. Justice O’Donnell’s well-reasoned dissent addresses the
issue, but goes unrebutted. In short, the majority shrinks from the chance to be a
Supreme Court. The lead opinion cobbles together the piddling other claims of
supposed insubordination, and, sitting as Supreme School Board, the majority
declares the matter closed. In a case bounding with arrogance and cowardice, the
lead opinion fits right in.


Now, here’s the longer version of the Ballad of John Freshwater, which I have visited and revisited here several times in the last five years.

Freshwater was a well regarded middle-school science teacher in Mount Vernon with one striking problem: his refusal to keep his Christian faith out of his science teaching. Despite repeated admonishments by his superiors to refrain from bring God into the science class, Freshwater continued to tell his students that evolution had many fallacies that science could not explain, but that the Bible could. Judging from the summary provided in the Supreme Court’s ruling (PDF), Freshwater and the administration had been knocking heads over these matters since 1994.

Things came to head in 2007, when he drew too much attention to himself and the Mount Vernon schools by what I would term reckless use of a tool called a Tesla coil. This device, also known as a handheld vacuum leak detector, produces 75,000-volt high frequency AC sparks when held near a conductor, such as a water faucet or, in his case, a human.

From testimony during his administrative hearing and court hearings, Freshwater each year would use the coil to make marks on students’ arms. Some students said the marks looked like Christian crosses; others (including Freshwater) said the marks were just X’s.

One of the students so marked showed the resulting superficial burn to his parents, and then all hell broke loose. In short order, Freshwater’s other questionable teaching methods came to light: handing out religious material about the origins of the Earth and life on it, giving students extra credit for watching the pro-Intelligent Design movie, Expelled (also analyzed here on this blog), putting posters of the Ten Commandments in the classroom, and more.

The parents of the student, Stephen and Jenifer Dennis (both Christians, by the way), filed suit in federal court, claiming Freshwater was violating the Establishment Clause of the US Constitution. They later withdrew the suit, but the resulting publicity led the school board to finally deal with its Freshwater problem.

Following an investigation, the board in June 2008 voted not to renew his teaching contract for the following school year.

Freshwater appealed his pending termination, as provided by Ohio law. What followed was a lengthy administrative hearing that dragged on for nearly two years. The findings of the referee are summarized in the Supreme Court ruling:

Background to the Referee’s Report and the Evidence at the Hearing
{¶ 9} After the hearing, which involved 38 different days of witness
testimony spread out over almost 21 months, included more than 80 witnesses and
hundreds of exhibits, and ultimately resulted in over 6,000 pages of transcript, the
referee issued a report on January 7, 2011. In his report, the referee set forth the
facts, including an overview of Freshwater’s sometimes contentious teaching
{¶ 10} The referee addressed the four grounds asserted by the board in
considering Freshwater’s termination: (1) the Tesla coil incident, (2) his failure to
adhere to established curriculum, (3) his role as administration-appointed
facilitator, monitor, and supervisor of the student group Fellowship of Christian
Athletes (“FCA”), and (4) his disobedience of orders.
{¶ 11} The referee ultimately concluded in his report that grounds two and
four were valid bases to support Freshwater’s termination.

By this time, Freshwater had become somewhat of a hero among conservative Christians. Perhaps encouraged by his supporters, or perhaps only by his own self-righteousness, he appealed the termination in Knox County Common Pleas Court. He also requested more hearings to examine the issues further. He lost that appeal.

He tried again, this time in the Ohio Fifth District Court of Appeals. And, he lost yet again.

Undaunted, he took the case to the Ohio Supreme Court, claiming his termination was improper and that the school district had infringed on his First Amendment rights of free expression and freedom of religion. And … he lost again.

In the majority’s summary, written by Chief Justice Maureen O’Connor, while they detail the various ways Freshwater ran afoul of the Establishment Clause, they deal only with the issues of his insubordination, agreeing with previous decisions that he did disobey direct orders by his superiors.

The three dissenting justices, while sharply criticizing the majority for its failure to address the thornier First Amendment issues inherent in the case, also criticized the school district and the school board for making a lot of fuss over nothing. Somewhat alarmingly, the dissent finds that Freshwater had done nothing wrong at all! Despite ample evidence to the contrary, the dissenting justices aver that Freshwater was not teaching religion in his classroom, and moreover was a well respected and effective science teacher. Curiously, they do not address one bit of evidence contradicting their opinion: one 8th grade science teacher said she had to reteach evolution to Freshwater’s former students because of the many misconceptions they had learned in the 7th grade.

I can detect no real understanding of science in any part of this ruling, which is alarming by itself. In their dissent, Justices Pfeifer, Terence O’Donnell and Sharon L. Kennedy gloss over the clear fact that creationism and Intelligent Design are NOT SCIENCE and have no place being presented as alternatives to modern biology in the public schools, much less to 7th graders unequipped to distinguish between religious belief and evidence-based theories. Rather, their dissent basically says, “No big deal here.”

I agree with Justice Pfeifer. The Ohio Supreme Court dropped the ball by not examining, in light of other court cases like Kitzmiller v. Dover, whether Freshwater was in fact teaching religion, or teaching, as he claims, a critical examination of the theory of evolution.

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