Freshwater brings suit against Board of Education

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John Freshwater (search PT on “Freshwater”), the middle school science teacher terminated by the Mt. Vernon, Ohio, Board of Education last year, has filed a federal suit against the Board, two individual Board Members, two current administrators and one former administrator, the independent investigators, and David Millstone, the attorney for the Board. According to the news report

The lawsuit, filed in US District Court for the Southern District of Ohio, cites free speech and equal protection violations under the US Constitution. Violations of Ohio Public Policy, religious harassment, retaliation, conspiracy, defamation, and breach of contract are also addressed in the claim filed Tuesday.

As I understand it, the suit was precipitated by the refusal of two Board members, Ian Watson (President of the Board) and Jodi Goetzman, to testify in the on-going administrative hearing on Freshwater’s termination. Apparently if they testify in the hearing the two Board Members would have to recuse themselves from voting on the final recommendation of the hearing referee (it’s a 5-member Board). At least that’s what I’ve heard as the reason for their refusal to testify.

So this is the legal situation (mess) as I understand it now:

1. Administrative hearing: In the spring of 2008 the Board hired an independent investigator to investigate various charges against Freshwater. As a result of that investigation, the Board voted in August 2008 to terminate Freshwater’s employment. As provided in Ohio law, Freshwater appealed that decision, and his appeal is being heard in an administrative hearing presided over by a referee who will make a recommendation when (if?) the hearing concludes. That hearing commenced in October 2008 and is still in progress (I use that word loosely). The Board completed its case in chief in January 2009, and Freshwater’s case in chief is still being presented. Once that’s complete, the Board has the option to bring a rebuttal, and Freshwater then has the option to rebut the rebuttal. The hearing is scheduled to resume on June 18, but in light of this new federal lawsuit and the refusal of the Board members to testify in the hearing, it’s unlikely that date will be kept.

2. The family’s federal suit: In June 2008 the family who originally complained to the District about Freshwater’s behavior brought suit in federal court against the Board, two administrators, and Freshwater, alleging violations of the Establishment Clause of the First Amendment. That suit is still pending.

3. Freshwater’s counterclaim: In September 2008 Freshwater filed a counterclaim against the family, alleging slander. As far as I know that counterclaim is still pending.

4. Freshwater’s federal suit: And now we have this new federal suit by Freshwater.

The Kitzmiller trial cost the Dover Area School Board $1 million. The direct cost of the Freshwater affair to the Mt. Vernon School District to date is now on the close order of $300K, with a lot more yet to come. Before this is all over just the legal costs may well approach the total cost of the Kitzmiller case. The central lesson for Boards and administrations like those in Mt. Vernon is that benign neglect is not a financially prudent policy. In testimony before the Ohio State Board of Education in 2003 I coined the phrase “Dover Trap” to describe the hole local districts could find themselves in when they fail to properly manage teachers and administrators who do not understand the secular nature of public education. Mt. Vernon is well and truly caught in a Dover Trap.

78 Comments

Sorry to go off topic with the first post but there’s a big article on the front page of today’s Courier Journal (Louisville) http://www.courier-journal.com/arti[…]PAGECAROUSEL for anyone who’s interested. I’ve been posting in the comment section and am comfortably holding my own. It’s been interesting though! Thanks.

The Kitzmiller trial cost the Dover Area School Board $1 million. The direct cost of the Freshwater affair to the Mt. Vernon School District to date is now on the close order of $300K, with a lot more yet to come. Before this is all over just the legal costs may well approach the total cost of the Kitzmiller case. The central lesson for Boards and administrations like those in Mt. Vernon is that benign neglect is not a financially prudent policy. In testimony before the Ohio State Board of Education in 2003 I coined the phrase “Dover Trap” to describe the hole local districts could find themselves in when they fail to properly manage teachers and administrators who do not understand the secular nature of public education. Mt. Vernon is well and truly caught in a Dover Trap.

I agree in principle with what you are saying. Let me see if I can illuminate some of this mess a little more.

Firstly, my understanding is that the teacher, Freshwater, is a tenured teacher and also that the teachers in the school district are represented by the OEA (Ohio Education Association). Standards of dismissal for tenured K-12 teachers in Ohio are defined by statute, and the threshold is pretty high. I have not seen the contract for this school district so i don’t know what it does and does not say.

A standard OEA contract however very carefully defines steps for dismissal. My own contract (also negotiated by the OEA but for higher ed) requires the University to show “just cause” to terminate my employment and also requires the University to apply proportionate and progressive discipline. I think we can safely assume that Freshwater’s contract says the same thing, and even if it didn’t the Ohio Statute defines his tenure.

This could have and should have been a pretty simple, straightforward matter for school officials years ago.

Freshwater could have been given written warnings to halt his misconduct (inappropriate use of the Tesla Coil), and/or a record of a written directive to cease using the Tesla Coil to burn students should have been given. Step 1 in progressive discipline: document and warn.

The other issues-such as not teaching the required curriculum also could have been dealt with similarly.

I realize some may slam me for this-but I’m not sure his display of the Bible per se was misconduct. Notably, Freshwater was apparently advised by his OEA Rep that if ordered to remove his Bible he should do and then grieve.

Dealing with Freshwater’s misconduct and sub-par job performance would have been time consuming and still potentially costly to the school district. Freshwater could still have grieved.

However, my sense is that if the school district had followed appropriate steps and crossed its i’s and dotted its t’s, it could have at least corrected the conduct and improved Freshwater’s teaching performance. And then if and when those steps failed, the new misconduct would have made the school district’s case extremely strong.

Some may be tempted to blame the OEA, teacher tenure and other similar features of K-12 education. That isn’t the problem. The problem lies with district officials refusing to read the contract and not wanting to deal with something difficult until it blows up in their face.

I still think that the school district is likely to prevail-but as you point out, it will cost a lot, lot more money than it needed to.

waynef said:

Sorry to go off topic with the first post but there’s a big article on the front page of today’s Courier Journal (Louisville) http://www.courier-journal.com/arti[…]PAGECAROUSEL for anyone who’s interested. I’ve been posting in the comment section and am comfortably holding my own. It’s been interesting though! Thanks.

The topic of the article is the Creation Museum in Northern Kentucky. Sorry for the omission.

Chip Poirot said: I agree in principle with what you are saying. Let me see if I can illuminate some of this mess a little more.

Firstly, my understanding is that the teacher, Freshwater, is a tenured teacher and also that the teachers in the school district are represented by the OEA (Ohio Education Association). Standards of dismissal for tenured K-12 teachers in Ohio are defined by statute, and the threshold is pretty high. I have not seen the contract for this school district so i don’t know what it does and does not say.

One note on this: Freshwater is not a member of the bargaining unit: He opted out years ago. He’s still covered by the master contract but is not a member of OEA. After the Board voted to terminate him he attempted to join the bargaining unit to get access to its legal resources but was refused.

This could have and should have been a pretty simple, straightforward matter for school officials years ago.

The Board thought they’d handled it in 2003 when it refused Freshwater’s proposal to add intelligent design creationist material to the science curriculum. However, at least one administrator at the middle school apparently was an enabler for Freshwater, insulating him from scrutiny subsequent to 2003.

Freshwater could have been given written warnings to halt his misconduct (inappropriate use of the Tesla Coil), and/or a record of a written directive to cease using the Tesla Coil to burn students should have been given. Step 1 in progressive discipline: document and warn.

Using the Tesla coil in the manner Freshwater did was apparently routine in middle school classes, though using it to ‘draw’ crosses on students’ arms was Freshwater’s innovation.

The other issues-such as not teaching the required curriculum also could have been dealt with similarly.

Again, there was administrative sloth, if not collusion.

I realize some may slam me for this-but I’m not sure his display of the Bible per se was misconduct. Notably, Freshwater was apparently advised by his OEA Rep that if ordered to remove his Bible he should do and then grieve.

If you read the investigator’s report, the family’s federal lawsuit, and the Board’s termination resolution you will not see an issue with the Bible on his desk. That’s a smokescreen thrown up by his fundamentalist supporters.

However, my sense is that if the school district had followed appropriate steps and crossed its i’s and dotted its t’s, it could have at least corrected the conduct and improved Freshwater’s teaching performance. And then if and when those steps failed, the new misconduct would have made the school district’s case extremely strong.

Again, there was rampant administrative bobbing and weaving for years, with what amounted to a ‘Don’t ask, don’t tell’ policy.

Some may be tempted to blame the OEA, teacher tenure and other similar features of K-12 education. That isn’t the problem. The problem lies with district officials refusing to read the contract and not wanting to deal with something difficult until it blows up in their face.

Yup. Exactly.

I still think that the school district is likely to prevail-but as you point out, it will cost a lot, lot more money than it needed to.

Not only money, but community conflict, bad feelings, and a hit to teacher morale (my wife teaches in the district).

Thanks for the additional information RBH-I’ve been following this on PT for some time and I’m relying on memory, so i’m not surprised I got some details wrong.

Since you have the bird’s eye view on this, can you clarify a little more on some of the following:

Using the Tesla coil in the manner Freshwater did was apparently routine in middle school classes, though using it to ‘draw’ crosses on students’ arms was Freshwater’s innovation.

As I recall (which admittedly could be a bad memory), the primary issue was the harm done to the student. Have other teachers been using the Tesla coil to “burn” students? As I recall the initial report, what set this off was the persistence and severity of the burn.

If you read the investigator’s report, the family’s federal lawsuit, and the Board’s termination resolution you will not see an issue with the Bible on his desk. That’s a smokescreen thrown up by his fundamentalist supporters.

OK-I guess I misunderstood or misremembered. I thought I recalled in some of the testimony an extended discussion about his having the Bible on his desk and being asked not to display it.

So who brought that issue up in the hearing and why?

And then I have a very, very minor quibble:

One note on this: Freshwater is not a member of the bargaining unit: He opted out. After the Board voted to terminate him he attempted to join the bargaining unit to get access to its legal resources but was refused.

Like I said-very minor: member of a bargaining unit means that you are an employee covered by the contract regardless of your membership in the Union. Obviously, you can probably check the contract easier than I can, but the contract should define “bargaining unit” and usually would at least include all teaching staff and define whether or not department chairs and/or librarians are members of the bargaining unit. The only way you can opt out of the bargaining unit is to take a post in the district that is not covered by the contract (e.g. become a principal).

I think what people mean to say is that he was not a member of the OEA.

Legally, the OEA has the legal obligation to defend teachers regardless of whether or not they are members of the OEA0-that is why we fought so hard on “fair share” (requiring non-members to pay about 90% of dues). Fair share is negotiated rather than mandated, so your district may not have fair share. So Freshwater would not have been eligible for the legal advice provisions of the OEA member benefits.

However, his OEA Rep would still have an obligation to represent him.

On the other hand, depending on the situation, a Union can look at a case and simply say “we don’t want to fight this one”.

I’m guessing the OEA doesn’t want any near one this one-for obvious reasons.

But I appreciate your insight into the inner workings of the school district.

Chip Poirot said:

Since you have the bird’s eye view on this, can you clarify a little more on some of the following:

As I recall (which admittedly could be a bad memory), the primary issue was the harm done to the student. Have other teachers been using the Tesla coil to “burn” students? As I recall the initial report, what set this off was the persistence and severity of the burn.

From the testimony, it appears that the other teachers momentarily shocked students with the T-coil. There was no testimony that anyone except Freshwater drew figures on students in an extended application of the arc from the T-coil.

OK-I guess I misunderstood or misremembered. I thought I recalled in some of the testimony an extended discussion about his having the Bible on his desk and being asked not to display it.

So who brought that issue up in the hearing and why?

After he was instructed to remove other religious materials (10 commandments poster, etc.), Freshwater went to the middle school library and checked out a Bible and a book titled “Jesus of Nazareth” and placed them on a lab table next to his desk. That was the Bible at issue, not his personal Bible on his desk. Freshwater’s attorney brings it up every chance he gets, waving Freshwater’s personal Bible at witnesses asking them if they can tell it’s a religious item just from the outside of it.

And then I have a very, very minor quibble: Like I said-very minor: member of a bargaining unit means that you are an employee covered by the contract regardless of your membership in the Union. Obviously, you can probably check the contract easier than I can, but the contract should define “bargaining unit” and usually would at least include all teaching staff and define whether or not department chairs and/or librarians are members of the bargaining unit. The only way you can opt out of the bargaining unit is to take a post in the district that is not covered by the contract (e.g. become a principal).Legally, the OEA has the legal obligation to defend teachers regardless of whether or not they are members of the OEA0-that is why we fought so hard on “fair share” (requiring non-members to pay about 90% of dues). Fair share is negotiated rather than mandated, so your district may not have fair share. So Freshwater would not have been eligible for the legal advice provisions of the OEA member benefits.

However, his OEA Rep would still have an obligation to represent him.

On the other hand, depending on the situation, a Union can look at a case and simply say “we don’t want to fight this one”.

Yes, you’re right – that was careless of me. He’s not a member of OEA, and OEA took a pass on him in this case. Several teachers had an OEA rep with them when they were interviewed by the investigators, while Freshwater brought another teacher. It’s not clear if he knew he could have an OEA rep with him or chose not to in those instances.

My favorite line:

“The museum shows how God discredits science.”

Priceless.

Look, the sooner these charlatans learn that there will be a price to pay for their duplicity, the sooner they will stop trying to force their nonsensical beliefs on others at tax payer expense. This is a lesson the Freshwater and the school board are currently learning. I’m sure he considers this a success, since the school dsitrict now has even less money to spend on science education. So much for loving science.

RBH-

Thanks a lot for clarifying those issues. That explains a lot I had not fully understood.

And your point is even more clear now. The school district really, really screwed up on this one.

Who is paying for Freshwater’s legal costs? He is adding up a very large bill.

Gary Hurd said:

Who is paying for Freshwater’s legal costs? He is adding up a very large bill.

No one knows, Gary. I do know that Freshwater speaks occasionally at churches in central Ohio, and there’s been talk of “Christian handshakes” for him at them. But beyond that there’s only speculation.

Gary Hurd said: Who is paying for Freshwater’s legal costs? He is adding up a very large bill.

Freshwater and Hamilton have declined to discuss Freshwater’s legal costs. “Since he isn’t teaching and has no steady income, Mr. John Freshwater has been taking up some jobs around the city of Mount Vernon,” according to the Web site, http://www.supportfreshwater.com, which accepts donations for his defense. Freshwater has not been paid since April. He worked briefly as a substitute teacher, and, recently, selling apples, pears and Christmas trees grown on his property. The Freshwaters have received numerous “Christian handshakes,” wrote Don Matolyak, Freshwater’s pastor and spokesman, “where people walk up to them and shake their hand and put money in.” - http://www.dispatch.com/live/conten[…]6UCE40P.html

You can also help Mr. Freshwater with his legal costs by sending a check to: The Community Council for Free Expression c/o Trinity Assembly of God, 1051 Beech Street, Mount Vernon, Ohio 43050” - http://www.bibleonthedesk.com/

Gary Hurd -

Who is paying his legal bills?

What a good question.

The amount of money available for “wingnut welfare” seems fairly inexhaustible.

Freshwater could just drop all legal actions, resign right now, and get a job teaching in a religious school, or possibly even as a fellow at the Discovery Institute.

IANAL, but this seems early and cuckoo.

Usually in these cases, the courts including the feds, won’t hear a case until all other designated avenues are done.

The administrative hearing is ongoing and has not been concluded. Until then, there are no grounds to sue in federal court. He can’t say that the administrative hearing ruled against him because they haven’t ruled yet.

Really, this looks like a desperation move. Like he knows he has lost. Throw a bowl of spaghetti against the wall and see if any of it sticks.

Anyone who knows more about legal procedures, feel free to add something.

The lawsuit, filed in US District Court for the Southern District of Ohio, cites free speech and equal protection violations under the US Constitution. Violations of Ohio Public Policy, religious harassment, retaliation, conspiracy, defamation, and breach of contract are also addressed in the claim filed Tuesday.

Quit a bowl of spaghetti here tossed against the wall. None of it is likely to stick.

The US constitution does not allow wingnut religious teachers to spout lies to school kids in public school science classes.

The violations of Ohio laws, policies, and regulations are most likely to be handled in state courts, not federal courts. Lack of jurisdiction.

This school system has pervasive problems with teachers not knowing the rules or following them. They really need to have teacher education workshops and written policies or this will just happen again.

And not a word about burning crosses on kids with a Tesla coil. Gee, did they forget to put those incidences in the federal lawsuit?

raven said:

IANAL, but this seems early and cuckoo.

Usually in these cases, the courts including the feds, won’t hear a case until all other designated avenues are done.

The administrative hearing is ongoing and has not been concluded. Until then, there are no grounds to sue in federal court. He can’t say that the administrative hearing ruled against him because they haven’t ruled yet.

Really, this looks like a desperation move. Like he knows he has lost. Throw a bowl of spaghetti against the wall and see if any of it sticks.

Anyone who knows more about legal procedures, feel free to add something.

As I understand it (based mostly on hearsay), the suit was initiated when two members of the BOE refused to testify in the hearing. Freshwater’s contention (or that of R. Kelly Hamilton, his attorney) is that refusal cripples Freshwater’s ability to put on a complete defense in the administrative hearing. Hence his only alternative now is a federal suit. Or something like that.

As I understand it (based mostly on hearsay), the suit was initiated when two members of the BOE refused to testify in the hearing. Freshwater’s contention (or that of R. Kelly Hamilton, his attorney) is that refusal cripples Freshwater’s ability to put on a complete defense in the administrative hearing. Hence his only alternative now is a federal suit. Or something like that.

The testimony of the 2 BOE members may or may not exonerate Freshwater. The fact that they refused to testify and recuse themselves argues that they want to vote against him and he knows it. Otherwise he wouldn’t say anything, and count on two votes for himself.

Regardless, the administrative hearing still has to go through the motions and vote whether the teacher likes it or not. Otherwise the court will rule that prescribed channels of conflict resolution have not been followed and toss the case back to the school district.

In that case, if Freshwater refuses to continue for whatever reasons, he loses by default. Desperation move here.

Richard:

I’ve downloaded the complaint and hope to be able to OCR it sometime tomorrow. One interesting thing is that he alleges that the Board had a policy allowing religious and moral references in “instructional and resource materials approved for use in the District’s schools” to be employed by teachers as long as they are “neutral” in their approach to them. He is also apparently claiming that teaching creationism and giving additional credit for a project involving Expelled fits under the curriculum’s requirement of explaining the importance of reproducibility and reduction of bias in science.

Drop me a line at catshark101 AT yahoo DOT com and I’ll email you the pdf once it’s OCRed.

raven said:

IANAL, but this seems early and cuckoo.

Usually in these cases, the courts including the feds, won’t hear a case until all other designated avenues are done.

The administrative hearing is ongoing and has not been concluded. Until then, there are no grounds to sue in federal court. He can’t say that the administrative hearing ruled against him because they haven’t ruled yet.

Really, this looks like a desperation move. Like he knows he has lost. Throw a bowl of spaghetti against the wall and see if any of it sticks.

Anyone who knows more about legal procedures, feel free to add something.

The lawsuit states the reason for not waiting until the hearing is over:

“Plaintiff Freshwater has certain causes of action that have an approaching statute of limitations.

“In order to advance, protect and secure those claims Plaintiff Freshwater had to timely file this action prior to the conclusion of the statutorily prescribed hearing provided pursuant to Ohio Revised Code §3319.16.”

Richard, minor question:

You said:

In testimony before the Ohio State Board of Education in 2003 I coined the phrase “Dover Trap” to describe the hole local districts could find themselves in when they fail to properly manage teachers and administrators who do not understand the secular nature of public education. Mt. Vernon is well and truly caught in a Dover Trap.

If you are referring to Kitzmiller v. Dover, that didn’t take place until 2004-2005, one to two years after you coined the phrase “Dover Trap.” Did I parse the above sentences incorrectly?

-DU-

The old case (with Freshwater counter-claim) is:

2:08-cv-00575-GLF-NMK Doe et al v. Mount Vernon City School District Board Of Education et al Filed: 06/13/2008

The new case: 2:09-cv-00464-GLF-NMK Freshwater v. Mount Vernon City School District Board of Education et al Filed: 06/09/2009

He claims violations of First and Fourteenth amendments of the US constitution USC Title 42 section 1983 USC Title 42 section 2000 Ohio Code 4112.02-4112.99 and others including “Res Judicata” which really means that Freshwater says he relied on what the previous board said to his detriment.

He wants a jury to: 1) Give back his job 2) Order the Mt. Vernon board to be trained on Equal Employment law 3) Get a half-million dollars in missed teacher’s pay 4) Get another half-million dollars in punitive damages 5) Get the 10+ defendants to also pay his lawyers 6) Erase bad things from his personnel record 7) Prevent any retaliation 8) The usual boilerplate for all other just relief 9) Have the court continue to monitor for future violation of “his rights”

(6/10) It was noticed that the cases are fundamentally related, and therefore the same judge was assigned the newer case.

Paul Burnett said:

Gary Hurd said: Who is paying for Freshwater’s legal costs? He is adding up a very large bill.

Freshwater and Hamilton have declined to discuss Freshwater’s legal costs. “Since he isn’t teaching and has no steady income, Mr. John Freshwater has been taking up some jobs around the city of Mount Vernon,” according to the Web site, http://www.supportfreshwater.com, which accepts donations for his defense. Freshwater has not been paid since April. He worked briefly as a substitute teacher, and, recently, selling apples, pears and Christmas trees grown on his property. The Freshwaters have received numerous “Christian handshakes,” wrote Don Matolyak, Freshwater’s pastor and spokesman, “where people walk up to them and shake their hand and put money in.” - http://www.dispatch.com/live/conten[…]6UCE40P.html

You can also help Mr. Freshwater with his legal costs by sending a check to: The Community Council for Free Expression c/o Trinity Assembly of God, 1051 Beech Street, Mount Vernon, Ohio 43050” - http://www.bibleonthedesk.com/

I wonder if income taxes are being paid?

Richard, minor question:

You said:

In testimony before the Ohio State Board of Education in 2003 I coined the phrase “Dover Trap” to describe the hole local districts could find themselves in when they fail to properly manage teachers and administrators who do not understand the secular nature of public education. Mt. Vernon is well and truly caught in a Dover Trap.

If you are referring to Kitzmiller v. Dover, that didn’t take place until 2004-2005, one to two years after you coined the phrase “Dover Trap.” Did I parse the above sentences incorrectly?

-DU-

rpenner said:

He wants a jury to: … 3) Get a half-million dollars in missed teacher’s pay …

He was fired in 2008, right? So even if he’s missed a full two years of teaching, he’s claiming his annual teaching salary was $250,000.

Doesn’t even come close to passing the smell test. Sure, neither does the whole of the action itself, but this gross error does nothing for Freshwater’s credibility.

David Utidjian said:

Richard, minor question:

You said:

In testimony before the Ohio State Board of Education in 2003 I coined the phrase “Dover Trap” to describe the hole local districts could find themselves in when they fail to properly manage teachers and administrators who do not understand the secular nature of public education. Mt. Vernon is well and truly caught in a Dover Trap.

If you are referring to Kitzmiller v. Dover, that didn’t take place until 2004-2005, one to two years after you coined the phrase “Dover Trap.” Did I parse the above sentences incorrectly?

-DU-

You parsed it correctly: I was mistaken in the date of that particular testimony. It was actually in January 2006, right after the Kitzmiller decision came out and shortly before the Ohio BOE rescinded its intelligent design creationist model lesson plan. My 2003 testimony was about the inclusion of ‘critical analysis of evolution’ in the new science standards that were up for adoption then. Sorry. After a while it all blurs together for us old guys. :)

mountvernon1805 said: The lawsuit states the reason for not waiting until the hearing is over:

“Plaintiff Freshwater has certain causes of action that have an approaching statute of limitations.

“In order to advance, protect and secure those claims Plaintiff Freshwater had to timely file this action prior to the conclusion of the statutorily prescribed hearing provided pursuant to Ohio Revised Code §3319.16.”

Thanks for that clarification.

tsig wrote:

“I wonder if income taxes are being paid?”

Well, if this guy claims that his annual teaching income was $250,000 then it should be easy to confirm with his W2 forms. If the two don’t match, he either lied about his income in his suit or did not pay income tax on the entire amount. That could get him a conviction for tax evasion. Of course, if he didn’t report all of his contributions that might be a violation of tax law as well. I wonder if he applied for charity status?

If he is serious about the federal lawsuit this could drag on for a few more years. The courts aren’t known for speed. It will also cost the school district a lot more money. Anyone’s guess but it could go over $1 million.

Freshwater probably is getting legal help from one of the many xian foundations and firms that pick up these sorts of cases.

Thanks for your continued provision of information re: Freshwater. I would have long ago abandoned interest. Salud a todos.

DS said:

tsig wrote:

“I wonder if income taxes are being paid?”

Well, if this guy claims that his annual teaching income was $250,000 then it should be easy to confirm with his W2 forms. If the two don’t match, he either lied about his income in his suit or did not pay income tax on the entire amount. That could get him a conviction for tax evasion. Of course, if he didn’t report all of his contributions that might be a violation of tax law as well. I wonder if he applied for charity status?

Umm – gifts aren’t taxable. If Bill Gates decided to give me a million dollars tomorrow (he won’t), it wouldn’t be taxable income to me. (He may have gift/inheritance taxes on it, but I won’t have any tax consequences at all.) Similarly, if wingnuts give Freshwater $1,000,000 for his defense, that’s not taxable income to him either, as long as he is not providing any goods or services in return.

Just thought I’d clarify that a bit.

Wow. It looks like Freshwater believes that he is the second coming. I give Freshwater little credibility, since it seems he refuse to recognize “separation of Church and state.” Freshwater wants the law to work form him, and him only.

dogematIB said: I find the calling of the board members an interesting move. I would not be at all surprised to learn that two of the board members agree with Freshwater, or at least might be seen by Freshwater and his attorney to be friendly to his position. Calling two board members known to be hostile to his position to testify (thereby removing them from the final vote) was actually a nice move. Had they testified, it might have hurt him, but then the board vote might have been 2-1 in his favor.

Actually, attorney R. Kelly Hamilton is attempting to get four of the board members to testify at the hearing. I did some research into it and posted an article at my blog:

“School Board ‘quashed’ Subpoenas in the John Freshwater Hearing”

I don’t have a response yet from any of the board members or any conformation on the idea that board members would not being able to vote if they testify. I would be interested if anyone has any credible legal information on that subject.

Is there someplace where documents about this case are kept on line. I know PT has linked to the original investigator’s report before. Can this be provided again? Is there a copy of the original student/parent complaint? And is it possible to get a copy of the Collective Bargaining Agreement?

I have a kind of morbid curiousity about cases like this.

What worries me about this suit is that as far as I can see, if a judge reads it as if the facts alleged are true (which isn’t the same as saying they are), then I think Freshwater will at least get past summary judgement.

I’m surpised however that his lawyers really think or wish to argue that the motivation of the school district was about Freshwater’s Bible. It seems to me that the motivation of the school district was to respond to a complaint by parents about an alleged injury in a classroom. Also, Freshwater alleges that he was treated differently from other teachers, but these other teachers seem to share his religious views (unless I misread something).

What I don’t understand is why his lawyers haven’t filed this as a second amendment case (violation of his substantive due process rights-e.g. the failure of the investigating firm to fully consider exculpatory evidence).

The one fact that I see that may give the school district trouble is that Freshwater was never officially reprimanded and had positive evaluations for 19 years.

Again, I want to stress that I’m not saying I think Freshwater will or should win.

But it may as I said before come down to another instance where a school district screwed up termination/discipline procedures.

Reader’s of PT might find it interesting to compare this case with the Ward Churchill case. The Law students at Colorado University live blogged Ward Churchill’s First Amendment suit against Colorado University: http://www.theracetothebottom.org/ward-churchill/

Though the issues in the cases are very different, the similarity lies in the allegation that the employee committed misconduct but was able to document that the employer was not motivated by the alleged misconduct but by improper motives and was also able to cast some degree of doubt on the allegations of misconduct in court.

For those who may not remember, Churchill fist came to light several years ago when he wrote in an essay about Post-911 words to the effect that the people who were killed in the Twin Towers were not “innocent victims” but “little Eichmans”. The wording is inflammatory and in my view an inappropriate comparison. But Churchill’s point was that the people in the Twin Towers were active participants in an unjust world economy. These words, published in an essay, caused a cry for Churchill to be fired. Colorado University, where Churchill is/was a tenured faculty member, investigated his remarks in an effort to fire him for his remarks. They determined they could not fire him for his remarks.

At that point, CU investigated Churchill for allegations of fraud and plagiarism in his research. The allegations were investigated by a faculty committee which agreed the allegations were true and recommended his dismissal. A second faculty committee agreed as did the President of the Universiity and the Board of CU then voted to revoke Churchill’s tenure.

Churchill then sued claiming the University fired him because of his speech, not because of the misconduct and argued that the allegations of misconduct were also untrue. During the trial Churchill was able to persuade a jury that he had been fired for his speech and that there was at least some doubt as to whether or not he had committed the misconduct. In other words, Churchill won his case.

As of now, the University has moved to dismiss the case because they argue that the Board is a quasi judicial body under Colorado’s Constitution and therefore may not be sued for their actions taken in that capacity.

Chip Poirot said:

Is there someplace where documents about this case are kept on line. I know PT has linked to the original investigator’s report before. Can this be provided again? Is there a copy of the original student/parent complaint? And is it possible to get a copy of the Collective Bargaining Agreement?

Here are a few sources for documents in the Freshwater controversy:

Documents related to the Freshwater case.

Public/Media Download Page (from supportfreshwater site)

2008 Agendas and Minutes-see June 20 (Special) for Text of “Termination” Resolution by School Board

Okay, I’ve only skimmed Freshwater’s federal complaint, but I have to say my favorite part so far is paragraph 100, where he alleges the following:

Despite the plain language and meaning of Ohio Revised Code §2151.421, “Reporting Child Abuse or Neglect”, Defendant Short [Superintendent] failed to report the alleged harm to the public children services or local law enforcement.

That takes serious balls. “I didn’t do it, but if I did, you’re the bad guy for not reporting me to the police.” Just amazing. It’s like something a five-year-old would say.

Lowell said:

Okay, I’ve only skimmed Freshwater’s federal complaint, but I have to say my favorite part so far is paragraph 100, where he alleges the following:

Despite the plain language and meaning of Ohio Revised Code §2151.421, “Reporting Child Abuse or Neglect”, Defendant Short [Superintendent] failed to report the alleged harm to the public children services or local law enforcement.

That takes serious balls. “I didn’t do it, but if I did, you’re the bad guy for not reporting me to the police.” Just amazing. It’s like something a five-year-old would say.

The line of argument being taken here is that there must not have been an injury, since the administration didn’t report it. Hamilton’s questioning in this regard in the hearing has been to that point: ‘Hey, you people claim a kid was injured, but no one reported it to Children’s Services in spite of a statutory requirement to report it, so there actually must not have been any injury.’

That argument was famously used by Nanki-poo. Successfully, too.

RBH said:

Lowell said:

Okay, I’ve only skimmed Freshwater’s federal complaint, but I have to say my favorite part so far is paragraph 100, where he alleges the following:

Despite the plain language and meaning of Ohio Revised Code §2151.421, “Reporting Child Abuse or Neglect”, Defendant Short [Superintendent] failed to report the alleged harm to the public children services or local law enforcement.

That takes serious balls. “I didn’t do it, but if I did, you’re the bad guy for not reporting me to the police.” Just amazing. It’s like something a five-year-old would say.

The line of argument being taken here is that there must not have been an injury, since the administration didn’t report it. Hamilton’s questioning in this regard in the hearing has been to that point: ‘Hey, you people claim a kid was injured, but no one reported it to Children’s Services in spite of a statutory requirement to report it, so there actually must not have been any injury.’

Thanks, RBH. That’s a much better argument that they’re making in the hearing.

The five-year-old’s argument is in the complaint, however. Count 14 alleges that the defendants “performed with gross incompetence and or malicious intent,” in part, based on their “failure to report alleged harm to a student . …”

So, it’s in the pleadings. I’d like to think Hamilton doesn’t raise it in open court because he has some sense of how petty it sounds.

Lowell,

RBH is right and strange as it may seem, they will actually raise this argument in open court.

It’s pretty standard “gotcha” kind of arguments for a legal proceeding of any kind.

The school claims Freshwater harmed the kid and that that was the primary motivation to fire him (combined with insubordination). Freshwater then claims there was no injury, or if there was any “injury” then it was inconsequential.

The school claims there was an imjury and Freshwater’s attorney comes back with “well if it was so serious, why didn’t you report it?” The lack of a report becomes evidence of there not being an injury.

This is not as spurious as it sounds. It actually comes up a lot in harassment and abuse cases. Credibility of a complainant is enhanced when this person reports it to the police-if it really was a serious matter.

That’s not to say the argument can’t be overcome-but it is a valid argument.

During my one experience as a juror in a criminal case it really did seem like the prosecutor and the defense attorney were sometimes at the level of “I’m rubber your glue”. But those arguments actually did matter to the members of the jury.

Chip Poirot said:

Lowell,

RBH is right and strange as it may seem, they will actually raise this argument in open court.

It’s pretty standard “gotcha” kind of arguments for a legal proceeding of any kind.

The school claims Freshwater harmed the kid and that that was the primary motivation to fire him (combined with insubordination). Freshwater then claims there was no injury, or if there was any “injury” then it was inconsequential.

The school claims there was an imjury and Freshwater’s attorney comes back with “well if it was so serious, why didn’t you report it?” The lack of a report becomes evidence of there not being an injury.

This is not as spurious as it sounds. It actually comes up a lot in harassment and abuse cases. Credibility of a complainant is enhanced when this person reports it to the police-if it really was a serious matter.

That’s not to say the argument can’t be overcome-but it is a valid argument.

During my one experience as a juror in a criminal case it really did seem like the prosecutor and the defense attorney were sometimes at the level of “I’m rubber your glue”. But those arguments actually did matter to the members of the jury.

Thanks, Chip. I don’t doubt RBH’s account at all. Just to clarify, though, there are two separate arguments: (1) that the defendants’ failure to report the alleged injury demonstrates that there was no injury and (2) that the defendants’ failure to report is part of the “gross incompetence and malicious intent” that makes them liable for Freshwater’s damages.

You’re talking about the first argument, the one that is at least colorable. The second argument (Count 14 of the complaint) is the one that (I would think) Hamilton would be ashamed to bring up in court.

Lowell wrote: …(2) that the defendants’ failure to report is part of the “gross incompetence and malicious intent” that makes them liable for Freshwater’s damages.

The second argument (Count 14 of the complaint) is the one that (I would think) Hamilton would be ashamed to bring up in court.

Well, as long as I’m being an armchair lawyer, I wouldn’t have made the argument they have made in the entire complaint. From my perspective, if Freshwater has a case he has one as a due process case (but what do I know-I don’t even play a lawyer on TV).

I guess the argument would be that this (the failure to report an alleged injury to the police), combined with everything else (such as the school district’s failure to take corrective action):

1. Is evidence that the district’s case is contrived; or 2. Since Freshwater is tenured, the district had a responsibility to warn Freshwater that his conduct was out of bounds.

Strange as it may sound, I think 2 **can** be a valid argument, but it can be defeated if the school district can show that Freshwater should have known how far out of bounds his conduct was.

Chip Poirot Wrote:

Is there someplace where documents about this case are kept on line

Aside from the links already mentioned by mountvernon1805, the NCSE has document archives up for both the family’s and Freshwater’s lawsuits. We’ll keep those updated as more documents show up on PACER.

The line of argument being taken here is that there must not have been an injury, since the administration didn’t report it. Hamilton’s questioning in this regard in the hearing has been to that point: ‘Hey, you people claim a kid was injured, but no one reported it to Children’s Services in spite of a statutory requirement to report it, so there actually must not have been any injury.’

I don’t find the reasoning compelling. The kid’s cross seems well documented. In that case, an injury is an injury whether it was life threatening, life ending, or not reported to CPS. This is a finding of fact, not a finding of are all the boxes checked.

As to whether it is consequential or not, that is a matter of opinion.

It is starting to look like the school district’s “See no evil, hear no evil” policy of doing nothing until bodies start piling up is backfiring on them.

It also seems like Freshwater and his attorney are way behind and playing defense.

The school district should offer them a token settlement and Freshwater should take it. The main goal here should be to keep this guy away from normal kids. Let him do his religious indoctrination in xian private schools.

raven said:

The school district should offer them a token settlement and Freshwater should take it. The main goal here should be to keep this guy away from normal kids. Let him do his religious indoctrination in xian private schools.

Technically speaking, in the United States, it’s illegal to brand crosses into the arms of children even in private, religious schools.

Technically speaking, in the United States, it’s illegal to brand crosses into the arms of children even in private, religious schools.

It is? Big deal.

It is also technically illegal for Xian terrorists to assassinate whomever they feel like. That hasn’t stopped them yet.

Mike said: … the obvious short term incentive is to avoid all controversy. That has produced the dominant reality across the US of “teach the controversy” compromises…

Further proof that only very short lines are needed to connect Lewis Carroll, George Orwell, and 21st-century US creationism. Words today mean nothing, or everything, or whatever the speaker/hearer wants them to, and don’t you forget it!

raven said:

[SNIP]

It is starting to look like the school district’s “See no evil, hear no evil” policy of doing nothing until bodies start piling up is backfiring on them.

Big time. That’s one of the lessons the district had damned well better learn from this: Benign neglect is not a viable policy.

The school district should offer them a token settlement and Freshwater should take it. The main goal here should be to keep this guy away from normal kids. Let him do his religious indoctrination in xian private schools.

In recent public statements by his attorney and pastor, it looks like Freshwater’s minimum conditions for a settlement include payment of back salary (he’s on unpaid administrative leave) and reinstatement as a middle school science teacher. While the first might be acceptable to the Board, I strongly doubt that the second is in the cards.

I was told when i was little and heard it that “not yours to yours” was a Chinese story but it’s a traditional Jewish story:

http://books.google.com/books?id=Rt[…]amp;resnum=6

Then one day, when he was old, he walked along the road past the great estate that had once been his. As he walked, he stumbled among the stones on the road. His feet were bare, and the stones cut them and bruised them. He stopped near the wall to rest his sore feet. And then he recalled the words of the villager who had said long ago, “ Why do you throw stones from ‘not yours’ to ‘yours’?”

And as always thanks for these updates Richard Hoppe, I never miss them.

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This page contains a single entry by Richard B. Hoppe published on June 10, 2009 12:05 PM.

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