Freshwater: October 29, 2009.

On Thursday, October 29, the morning saw Tim Keib, former assistant principal and for a time interim principal of the middle school, continue his direct examination. R. Kelly Hamilton, John Freshwater’s attorney, introduced into evidence an affidavit Keib had signed and walked Keib through it. Keib is a graduate of Cedarville University, a very conservative Christian school in Ohio.

Keib testified that he was in Freshwater’s classroom for a number of 30+ minute observations for evaluation and perhaps 60 to 100 times for a few minutes over the years.

Over the years Keib did a number of evaluations of Freshwater, and testified that he never saw any problematic behavior in Freshwater’s classroom. Asked if he ever saw Freshwater teach creationism, Keib replied that there was “never any direct instruction pertaining to creationism that I heard.” Interesting locution there.

In a series of questions Hamilton pushed the case that Freshwater was using suspect materials in order to teach analysis and objective consideration of multiple hypotheses per the Academic Content Standards, using those materials to see whether students could use the scientific method.

Keib testified that he never saw Freshwater try to push his faith or proselytize students. He never heard Freshwater put down another person’s faith, though he voiced concerns about that to Keib privately. He testified that he never saw Freshwater teaching intelligent design.

Keib testified that he himself had a Bible on his desk while at the middle school, and knew of a “significant number” of teachers who also had Bibles on their desks. He named half a dozen. He said that Bibles mean one thing to one person and another thing to someone else. They’re used in poetry classes, as a reflective tool, in English classes, and in history classes.

He testified that he never saw Freshwater’s Bible open when students were around. He testified that he could tell the book was a Bible because he was familiar with it. Asked if in itself, sitting on a desk, the Bible denigrated or promoted a particular religion, Keib replied that “Some people might not be comfortable with it, but it’s not hurting anyone just sitting there.” Asked if the Bible on a desk constituted a “religious display,” Keib replied, “Just sitting there, no.”

Asked if it was appropriate to tell one teacher she could keep a Bible on her desk (apparently referring to Lori Miller) while instructing another to remove his Bible, Keib replied that it was hard to justify the inconsistency.

Asked what constitutes “insubordination,” Keib replied that it was a “punitive term,” and in when he uses it it is after “numerous verbal and written reprimands and warnings.” Asked if Freshwater was ever insubordinate to Keib, he replied “Not willfully.” Again, an interesting phrase.

Asked what evidence demonstrates that a teacher is teaching to the academic standards, Keib mentioned his being in the room observing during evaluations, inspecting the teacher’s quizzes and handouts, and student performance on standardized tests like the Ohio Achievement Test. Asked if a teacher can teach “beyond the standards,” Keib replied that it was sometimes desirable to do so, for example to connect classroom material with world events.

Keib testified that he does not consider Freshwater to be a “religious” man. He said that his definition of “religious” does not correspond to that of the rest of the world, that the latter is “too general.” We never did find out what Keib means by “religious.” He said some words, but I flatly couldn’t connect them into some sort of coherent thought.

Keib testified that he had had one conversation with Lynda Weston regarding Freshwater due to some complaints from high school science teachers. She had concerns he might be teaching creationism. Keib told her that he had heard it before, but he has been in Freshwater’s room countless times and never saw what she was alleging. He asked her how he could reprimand Freshwater if there’s no evidence. Keib talked to some students about it and was led to believe it wasn’t a Freshwater issue but was an issue of the town and its religious culture. When Keib asked Weston for evidence she didn’t provide any.

Shown the photos of Zachary Dennis’ arm, Keib said that he would first want to look the student in the eye and talk with him about it. He said that teachers, administrators, parents, and students are not always on the same page. When a child tells a parent what happened, it’s not always the version that another might have. In response to questions, Keib emphasized the necessity to talk directly to the child and parents in order to decide what appropriate steps to take.

Keib Cross Examination

Under cross examination by David Millstone, attorney for the Board, Keib testified that the main concern that Kathy Kasler, the high school principal, had was that Freshwater was teaching material outside the academic standards. Keib said that he analyzed lesson plans and observed Freshwater’s classes and never saw any evidence that it occurred.

Asked by Millstone what the “scientific method” is, Keib replied that it was “the steps to prove if something is a fact or a belief.” “Form a hypothesis and test the hypothesis against known laws (e.g., gravity)” (a pretty close quotation).

Millstone went through a calculation to show that Keib’s total time in Freshwater’s classroom amounted to less than 0.5% of Freshwater’s total class time during the period in question.

Keib was unaware that two teachers, Cunningham and Adkins, had traced one of Freshwater’s handouts to

Keib recommended Freshwater for a Distinguished Teacher Award. He could not remember who else he recommended for that award. Recall that in earlier testimony we learned that there were no criteria for receiving the award beyond being nominated.

Keib Redirect

In redirect Hamilton established that Keib’s observations met the requirements of the Ohio Revised Code.

There was no Recross.

The next witness was to have been Ted Kiger, a former student, but since he had been present in the hearing room while an earlier witness testified he was disqualified (the referee had ruled at the beginning that prospective witnesses were not to hear any testimony before they testified - witness sequestration).

Darcy Ann Miller

Darcy Ann Miller is a resident of the district, a mother of two FCA members (6th and 8th grades) in 2007-2008, and spoke several times at FCA at the invitation of her son, a member of Freshwater’s 8th grade science class.

Miller testified that before permission slips were required for FCA attendance (recall that FAC met during the school lunch period) there were 30-40 students per session (three sessions per lunch period). After permission slips were required attendance fell off drastically, and she found it “heart breaking.” I myself found it interesting that when parents were given some control over the religious influences their children were exposed to in the context of the school, they opted out of the apparently mainly fundamentalist views espoused at FCA. And it was also interesting that Miller apparently didn’t think that was a good thing.

Miller talked to both middle school Principal White and Superintendent Short about the permission slip policy, and they both invoked the issue of parental control over the religious training of their children, saying that without it students might wind up attending a Wiccan presentation. (Wicca is a bogeyman for Mt. Vernon fundamentalists. I think we might have all of two Wiccans in the county.)

She testified that she prayed at FCA meetings and was shocked that Freshwater didn’t join in. She didn’t know faculty members could not be actively involved in FCA proceedings.

There was no cross examination.

Robert Bender

Robert Bender is a local Salvation Army major, and spoke at FCA two or three times, invited by his daughter. He testified that Freshwater did not participate, didn’t pray, didn’t lead a healing session, and that students always appeared to be in charge.

In cross examination Millstone established that Bender was testifing pursuant to a civil subpoena issued by Hamilton and not a subpoena issued by the Treasurer of the school district, the ‘official’ issuing authority for the administrative hearing. I think this has some arcane implications, perhaps for downstream actions, but I’m not at all sure. Is there a lawyer in the house?

There was no redirect or recross.

Kerri Mahan

Kerri Mahan testified earlier in the hearing when the Board was putting on its case in chief. Hamilton elected not to cross examine at that time because he would call her now. Recall that her most telling points then were that she saw the “Watchmaker” video during Freshwater’s science class, that he used the handouts hinting at ID that were identified in the investigator’s report, that Freshwater taught the “hydrosphere” theory, and that humans and dinosaurs may have lived at the same time. She testified later in this session that Freshwater “… often presented things that were ‘off the wall’ to stimulate the kids to think about how they can test ideas.”

Mahan testified that she originally sent the Watchmaker video to Freshwater. She also sent it to Lori Miller and a couple of other teachers she thought would be interested. She thought she may have originally got it from her husband.

She said that she cannot now remember whether she saw Freshwater show it in science class or saw his daughter Jordan show it at FCA. However (and most missed this) she described herself as seeing the video while sitting in her normal place in the back of Freshwater’s classroom with a full complement of students in front of her when it was shown. Now, FCA did not meet in Freshwater’s room; it met either in the band room or a stage off the lunch room. The only FCA meetings in Freshwater’s room were ‘leadership’ meetings at which there were on the order of only half a dozen students, not a full complement of students. Further, Mahan testified that she had never attended a leadership meeting. Obvious conclusion: She saw the video in Freshwater’s science class.

Mahan testified that she did not see the Tesla coil used on students in the fashion that’s been described. (Millstone came back to this in cross examination, below.)

Mahan testified that the OAT (now called OAA ; educational reform by acronym revision) emphasizes abstract thinking, and that Freshwater used numerous classroom demonstrations to stimulate abstract thinking. In response to Hamilton’s question, she agreed that the four handouts could be tools to hep students learn the difference between concrete and abstract thinking.

She talked about the “spiritual nature” of children in 8th grade, and that children come with religious beliefs and some with creationist views.

Asked by Hamilton, she testified that the scientific method was at the heart of everything Freshwater did in classes. She testified that he talked about theories, inferences, hypotheses, and laws. He never used the words “intelligent design” – “Never in front of the class.” (Another of those interestingly phrased responses.) Asked by Hamilton if Freshwater ever talked bad about evolution, she replied “Not in front of the kids.”

Asked about the difference between fact and belief, she testified that Freshwater taught that “There are some things you can’t prove because you can’t go back and test it.”

Mahan testified that during her time in his classroom he used a lot of class demonstrations and experiments, but that following the December 7, 2007 incident he stopped doing so for the remainder of the year.

She testified that she has seen the Tesla coil used to “light up gases,” but not to make marks on students’ arms. She said she never heard Freshwater refer to “temporary tattoo,” “make red marks”, or “make crosses.” She testified that if she thought a student had been hurt she would have reported it.

Mahan testified that Freshwater never referred to the “motivational statements” containing verses from Proverbs that were displayed in his room, nor did he refer to the 10 Commandments displayed on the door of his room.

After some personal comments regarding her distress after her earlier testimony and her hope that testifying today would give her closure the direct examination ended.


In cross examination David Millstone walked Mahan back through the topics he had covered when he interviewed her prior to her earlier testimony. She agreed that she had said that Freshwater taught hydrosphere theory; that some tracks showed that humans and dinosaurs lived together; that Tyrannosaurus rex’s teeth showed that it could not have been a carnivore; that Mt. St. Helen’s could have produced coal rapidly; and that Freshwater had said that “there are things I would like to say but can’t unless you [students] bring it up.”

There were some questions that tried to establish whether Mahan was in Freshwater’s classroom the day Zachary was allegedly burned, and it was not clear that she was.

She re-affirmed that Freshwater never used to phrase “intelligent design,” and “The kids would ask him. He’d never say.” She conceded that the last line of several worksheets had the question “Was an ID involved,” and that the key had the blank filled in with “ID.”

That ended Mahan’s testimony.

Jeff Kuntz Testimony

The final witness on Thursday was Jeff Kuntz, retired middle school principal.

In preliminaries, Kuntz testified that he was not interviewed by HR OnCall, the firm that did the independent investigation for the Board, and that Millstone had interviewed him in November 2008, after the hearing had begun.

A good deal of Kuntz’s testimony was taken up with walking through 13 evaluations of Freshwater that Kuntz (and in one case, a prior assistant principal) performed over the years. In all cases but the last, in 2003, the evaluations were mostly boilerplate with some specific laudatory remarks. The last referred to “Continue to adhere to Board guidelines regarding religion in the classroom.” Asked by Hamilton, Kuntz testified that that remark was in the evaluation for two reasons.

First, Kuntz had a meeting with high school science teacher(s) and Kathy Kasler, high school principal, regarding problems teaching evolution in high school because of Freshwater’s teaching in middle school. Kuntz then talked to Freshwater about it. Subsequently Kuntz again met with Freshwater, high school science teachers Bonnie Schutte and Dick Cunningham, at which he tried to get the various parties to agree on what was appropriate. Second, Kuntz received a complaint from a parent about a handout Freshwater used in class. He spoke with Freshwater about it. Because of those two incidents Kuntz inserted the language quoted above in Freshwater’s evaluation.

Asked by Hamilton if Schutte and Cunningham and Kasler produced any evidence to support their claims, Kuntz replied that he couldn’t remember specifically but that “something in what what they said had caught my attention.”

Kuntz testified that in his experience Freshwater never failed to do what he was instructed to do.

Kuntz testified that he never sw Freshwater participating in FCA on the occasions he walked through. He testified that he knew Freshwater had a Bible in his classroom, and thought others did, too, but couldn’t remember an specifically. He thought perhaps Tim Keib did. He never saw Freshwater use the Bible in class or have it open when students were present.

Kuntz Cross Examination

Again, Millstone established that the subpoena issued to Kuntz was a civil subpoena issued by Hamilton rather than by the Treasurer if the Board of Education.

Kuntz testified that he may have seen the Tesla coil used in a class perhaps once in his time at the middle school, by a Mr. Farmer.

Kuntz testified that he was surprised to learn that Freshwater claimed to have not received any direction regarding his role in FCA. Kuntz said that on at least two occasions he gave Freshwater specific guidelines covering faculty members’ role with respect to FCA, and went on to recite half a dozen of them. He said he had reviewed the guidelines with Freshwater at least twice, and had also done so at least once with Lori Miller, another middle school FCA monitor. He said he made enough copies so Freshwater could distribute them to the other FCA faculty monitors, and that he regarded Freshwater as the ‘lead’ FCA monitor.

That ended the cross examination. In redirect Kuntz testified that he couldn’t recall receiving complaints about Freshwater following the 2002-2003 school year except the interactions with Kasler and the parent who complained in 2004-5 or 2005-6. He was vague about the dates.

That ended Thursday’s testimony.