Freshwater: No ruling until 2011?

| 85 Comments

The Mt. Vernon News is reporting that R. Lee Shepherd, the referee in the administrative hearing on the termination of John Freshwater as a middle school science teacher in the Mt. Vernon City schools, says that his “personal goal” is to have a recommendation for the Board of Education by the end of the year. He has recently received new submissions from both attorneys, R. Kelly Hamilton for Freshwater and David Millstone for the Board, and is incorporating them into the mass of material he is evaluating. Most notably, Millstone submitted a case decided just a few weeks ago by the 6th Circuit Court of Appeals, the appellate court overseeing federal cases in Ohio. According to a summary

The appellate panel in Cincinnati upheld a lower court’s ruling for the Tipp City [Ohio] Exempted Village School District, writing that the right to free speech “does not extend to the in-class speech of teachers in primary and secondary schools made ‘pursuant to’ their official duties.”

One of Freshwater’s claims has been that the district’s restrictions on his classroom behavior violated his free speech rights and this case apparently contradicts that claim. Hamilton, of course, submitted a rebuttal to Millstone’s submission. (Parenthetically, I have to say that there are some aspects of the court’s ruling as summarized in the linked material that trouble me, but it seems on point for the present proceedings.)

Hat tip to reader CMB

85 Comments

Wow!

I have been telling my wife, an elementary school teacher nearing retirement, that she should emulate Freshwater- abuse some students, and then “play out the clock” until she retires.

Well, she is far too responsible to ever follow my “better than good” ideas. And she is far too kind to ever harm a student.

There is a misprint in the article. I’m sure you meant to write “until 2110”.

In many states it can take months and lawsuits to fire a teacher, even one who (like Freshwater) has done something egregiously wrong.

For example, NYC is replacing its “rubber rooms”–where teachers who were waiting to be fired drew full pay for doing nothing all day–with reassigning teachers who are waiting to be fired to administrative and non-classroom work–at full pay.

http://www.nytimes.com/2010/04/16/n[…]6rubber.html

As of the time of that article there were 550 teachers in NYC on full pay while they were waiting to be fired.

Besides the near-impossibility of firing teachers, it seems you cannot even lay them off by closing schools:

While the agreement may solve the thorny public relations problems for the city and the union, it does nothing to address the more costly absent teacher reserve pool, which consists of teachers who have lost their jobs because of budget cuts or when a school is shut down for poor performance, but have not been accused of incompetence or wrongdoing. Those teachers, who number about 1,100, do not have permanent classroom jobs but draw full salaries; the city spends roughly $100 million annually on the pool.

Other than Congress, is there any profession or industry in which incompetence and inefficiency are so carefully shielded from consequences?

Other than Congress, is there any profession or industry in which incompetence and inefficiency are so carefully shielded from consequences?

Catholic clergy?

Gary Hurd said:

Well, she is far too responsible to ever follow my “better than good” ideas. And she is far too kind to ever harm a student.

From such fragile strings - the unrewarded and inexpedient goodwill and kindness of individual human beings - hangs, well, everything.

Other than Congress, is there any profession or industry in which incompetence and inefficiency are so carefully shielded from consequences?

Goldman Sachs executive?

Gabriel Hanna said: Other than Congress, is there any profession or industry in which incompetence and inefficiency are so carefully shielded from consequences?

DI Fellow?

Perish the thought, but if this gets strung along, we could have another school board election next Nov before this is finally settled.

cue a Canadian troll’s verbal diarrhea about censorship in 3.…2.…1.….

seriously though the cited court case spells out that a school board can (and has a responsibility to) restrict the speech of teachers under their purview (even though I don’t agree with censoring WHAT they were censoring)

Virtually all the CEOs in the current capitalist system are on interlocking boards of directors. Their competency is never an issue one way or another. And their protections cost people thousands of times the money even the worst teachers can cost anyone. But. The same people who are right now on a market fundamentalist jihad against teachers, teachers unions, and public schools prostrate themselves before those CEOs and pray to them to make the corn grow and have the moon come back.

After reading that summary I’m kinda on the teacher’s side. It really does sound like the school fired her for having ninth graders read books that were not banned at the time she selected them, but banned post-facto, i.e., only after complaints by parents.

If a school bans books like Farenheit 451 or Siddhartha, I can personally think they’re idiots but I can understand the disciplinary need to make teachers follow that ban. What is not valid is firing a teacher for having kids read Farenheit when there was no rule against doing so - just because after the fact some parent complains. We are not talking about a teacher showing obvious poor judgement here (like, say, assigning playboy…or burning your students with an electrical device). The books cited in the article are very commonly accepted literature for teens. The teacher should’ve gotten a “don’t use them in the future” and that is all.

Are you seriously telling me that there are school boards in the US who (a) have the power to actually ban mainstream titles for teaching purposes and (b) are stupid enough to use that power, and then retrospectively fire teachers for having taught the titles, simply because a parent complained?

Dave Luckett said:

Are you seriously telling me that there are school boards in the US who (a) have the power to actually ban mainstream titles for teaching purposes…

Absolutely, yes. Here’s a list. You will not believe some of the things on it.

A local bookstore where I went to grad school had a ‘banned book’ sale once a year. It filled two large tables and they had to be selective, because not everything schools have banned would fit.

…and (b) are stupid enough to use that power, and then retrospectively fire teachers for having taught the titles, simply because a parent complained?

It is less clear whether that happened or whether there is more to the story than that, but from my (albeit superficial) reading of the summary, that seems to be the case. You may want to click on the link RBH provided and come to your own conclusion; I don’t claim to know much about this.

As a personal aside, whether the teacher was fired for good reason or not, I think the school has its head up its ass for banning such books. I think her idea to teach a unit on banned books is spectacular, and I hope she finds a new job that supports her attempts to broadly educate children. The school she is leaving is not doing its kids any favors by attempting to limit their exposure to a small, narrow box of ideas.

My God. My church-run high school had a copy of “Fahrenheit 451” in the library. That was in 19 bleeding 66, for chrissake. And nobody said boo.

I know that title has been on State school reading lists for decades. Don’t know about “Siddhartha”. Would need to check.

But if they freaked like that over “Fahrenheit”, what would they do if someone taught “The Catcher in the Rye”? Or “Fanny Hill”, for Pete’s sake. Both of them are considered standard texts, now.

Cripes.

Dave Luckett said:

Are you seriously telling me that there are school boards in the US who (a) have the power to actually ban mainstream titles for teaching purposes and (b) are stupid enough to use that power, and then retrospectively fire teachers for having taught the titles, simply because a parent complained?

that’s not the way I read it, (a) is true,and (b) is partially true, she was not fired retrospectively: “After receiving positive performance reviews in her first year at Tippecanoe High School, Evans-Marshall came under scrutiny in 2001 when she assigned Ray Bradbury’s “Fahrenheit 451” and Hesse’s “Siddhartha” to her ninth-grade class. She asked her class to explore the government censorship theme of “Fahrenheit 451” by doing presentations on books that are frequently censored by schools and libraries. A parent complained that some students had opted to present “Heather Has Two Mommies” by Leslea Newman, and the school principal, co-defendant Charles Wray, asked Evans-Marshall to have the students choose a different book. Parents also objected to the explicit language and sexual themes of “Siddhartha.” About 100 parents attended the October school board meeting to question Evans-Marshall’s teaching methods and materials, and they submitted a 500-signature petition calling for “decency and excellence” in the classroom. School officials grew more concerned after they read writing samples from students in Evans-Marshall’s creative writing class, including a first-hand account of a rape and a story about a young boy who murdered a priest and desecrated a church. In the spring, Wray gave Evans-Marshall a critical performance evaluation, and the school board voted against renewing Evans-Marshall’s contract” (quoted from http://www.courthousenews.com/2010/[…]27/31408.htm)

she clashed w/ administration about choices she made that upset a group of parents/locals enough to get 500 names on a petition (IMHO busy-bodies) she didn’t have tenure, the school board caved to a vocal minority of voters and moved to not renew her contract.

I DON’T LIKE that a few busy-bodies and rabble rousers caused trouble for this teacher and that she has to find another job somewhere else.

I DON’T LIKE that some self-righteous, self appointed protector of decency objects to “Heather Has Two Mommies”

I think the whole episode is a tempest in a teapot - all of the books are legitimately literature and (although controversial) IMHO do have a place in an English class

BUT as a legal precedent it demonstrates that Academic Freedom (as it applies to University Professors etc) and 1st amendment rights they apply to private citizens DO NOT APPLY to public high school teachers (while teaching) Teachers are subject to restrictions imposed on them by management

I see that the list states that “Catcher in the Rye” was banned in Australia. That must have been quite some time ago. It was on the reading list for my son’s tenth grade. He thought it was very boring.

As it happens, I agree with him. But that’s no reason for banning it.

Marion Delgado -

I strongly agree with your comments.

I’ve mocked the idea that making teaching jobs less secure and lower paid will attract better people into the profession, all other things being equal, on more than one occasion. (For full disclosure I am an entrepreneur and investor, and don’t have anything against intelligently regulated free markets, combined with humane social insurance policies, whatsoever. In fact I think that system has performed the best historically. Not exactly on topic, but interlocking boards of directors and looting-level executive salaries are actually strongly anti-capitalist trends, terrible for the actual owners of the companies, AKA the shareholders. The degenerate post-modern right wing “economics” of America actually worships office politics players.)

However, we have to differentiate between a general level of anti-teacher bullshit, versus a propensity to protect teachers if they exhibit the right kind (no pun intended) of incompetence and student abuse.

The same people who (ostensibly) think that paying teachers lower wages and routinely firing teachers over test scores will create better teaching, will do anything to protect the teacher whose problems come from trying to push right wing religion into science class.

I have much respect for those teachers who fight the good fight against censorship - MY high school English teacher was among them - in 9th - 11th grades we read:

To Kill a Mockingbird To Inheirit the Wind Catcher in the Rye Huckleberry Finn all (alt the time) on “Banned Book” lists

WTF??? Fahrenheit 451 is banned?? That’s just fucking nuts. It’s a masterpiece and it’s about censorship. Morons. (Movie was boring as hell but that’s a different story.)

Don’t remember the sexuality in Siddhartha at all.

But they can read horrid, violent, cruel stories like “Lord of the Flies”. That was actually required reading in junior high.

1977, 11th grade, small Canadian town: our English teacher read us Johnny Got His Gun

In my school around 1978 they removed “Flowers for Algernon” from the reading list because our school started having special needs students in their own class. It wasn’t banned, it just was no longer taught, and there were copies all over the English classroom.

Jolo3509 said:

In my school around 1978 they removed “Flowers for Algernon” from the reading list because our school started having special needs students in their own class. It wasn’t banned, it just was no longer taught, and there were copies all over the English classroom.

Another gorgeous poem in novel form. Beautiful book. And from what I remember very tasteful in its depiction of the… ‘intellectually challenged’. :-\

Agreed. It’s among my favorite works of science fiction:

fnxtr said:

Jolo3509 said:

In my school around 1978 they removed “Flowers for Algernon” from the reading list because our school started having special needs students in their own class. It wasn’t banned, it just was no longer taught, and there were copies all over the English classroom.

Another gorgeous poem in novel form. Beautiful book. And from what I remember very tasteful in its depiction of the… ‘intellectually challenged’. :-\

I remember the fuss when people were talking - again - about banning Judy Blume’s book “Are You There, God? It’s Me, Margaret” around 1980 or so. http://bannedbookschallenge.blogspo[…]aret-by.html The talk about banning it actually led me to read the book - something I was quite unlikely to have done otherwise - when I was in 6th grade. I was struck by the fact that I really couldn’t find anything in the whole book worth banning - and that I had been exposed to far more serious literature.

One incident I clearly remember was in 4th grade - I was finished with classwork a bit early, and went to the bookshelf for something to read. I picked Shirley Jackson’s short story “The Lottery”. http://en.wikipedia.org/wiki/The_Lottery

Our teacher showed us a movie version of the lottery. I can’t remember how old I was but it was a religious school.

Here is more info on that other case.

Of particular interest to us Freshwater watchers may be the timeline. Seems the teacher’s reading assignments started in Sept 2001, she got non-renewed Spring 2002, then filed suit in 2003. That suit went on through at least 2006 because the original court (not the appeals court) cited a 2006 ruling. Sometime between 2006 and 2010 it got sent to the circuit court for appeal, and they decided on it in Oct 2010.

I may have to revise my opinion of the Freshwater proceedings. Resolving 3 court cases and an administrative hearing in approximately 2-3 years sounds practically like a sprint in comparison.

Look at this- Good people sometimes make bad decisions and they were put on leave until the investigation is over. !3 year olds shouldn’t be making those kinds of decisions.….…

PARMA, Ohio (AP) – Two middle school teachers have been placed on paid administrative leave for demonstrating acupuncture on students as part of a class lesson, a school superintendent said.

Superintendent Jeffrey Graham, of the Parma City Schools in suburban Cleveland, said the social studies teachers demonstrated acupuncture in a lesson on Chinese culture, Ohio News Network reported Tuesday.

The students were willing participants, but the teachers did not have their parents’ permission, Graham said, adding 13-year-old students shouldn’t be making those types of decisions.

The teachers performed acupuncture on themselves and seven students, and the needles were sealed and sterile, with each needle used only once, Graham said.

“These were very good teachers. Unfortunately, good people sometimes make bad decisions,” Graham told Cleveland’s WTAM-FM.

School officials were informed of the demonstration after a parent complained.

The school is continuing to investigate while the Hillside Middle School teachers remain on leave. The teachers’ names weren’t revealed.

Hell, my senior year high school teacher screened “Harold and Maude” for us, and we were behind the Orange Curtian. I never heard of her catching any flack for it at all. I feel sorry for any community that feel threatened by “Farenheit 451” or “Siddhartha”.

On a more Freshwater level,what does Shepherd have to do here? Does he have to evaluate all the evidence and testimony presented to him, evaluate it and state why each piece is or is not relevent to issue at hand, and how all relevent evidence informs his decision? If so an end of the year completion seems optimistic. Or can he just issue a ruling and point to the evidence and testimony that supports that ruling? The more saner route. or is it something in between?

JuicyHeart said:

…snip… On a more Freshwater level,what does Shepherd have to do here? Does he have to evaluate all the evidence and testimony presented to him, evaluate it and state why each piece is or is not relevant to issue at hand, and how all relevant evidence informs his decision? If so an end of the year completion seems optimistic. Or can he just issue a ruling and point to the evidence and testimony that supports that ruling? The more saner route. or is it something in between?

the referenced case demonstrates that Academic Freedom (as it applies to University Professors etc.)and 1st amendment rights as they apply to private citizens DO NOT APPLY to public high school teachers (while teaching) Teachers’ ‘free speech’ rights are subject to restrictions imposed on them by management. (I think the referee may be tipping his hand a little here)

:)

Teachers’ ‘free speech’ rights are subject to restrictions imposed on them by management.

Also, of course, Freshwater violated the first amendment rights of others by using tax dollars to favor one particular sectarian dogma.

“I have a first amendment right to take away your first amendment rights” is a pretty lame defense.

Isn’t there something wonderfully ironic and self-referential about banning kids from reading Fahrenheit 451?

Anyway, was it banned? The website quoted says “the superintendent instructed the the teacher to remove the book from the required reading list”.

Instructing a teacher that they cannot require a student to read a particular book doesn’t sound the same to me as banning it and saying students must not read it - or have I mis-understood something here?

Chip Poirot said:

RBH said:

Chip Poirot said: Did he deliberately and maliciously, or out of recklessness and stupidity misuse classroom equipment to harm a student.

I think that the whole long rigamarole about everything else gave him the opening to turn this into a circus.

There were other allegations that couldn’t be ignored, though, including insubordination, teaching unapproved material in the classroom, and misbehavior as adviser of the Fellowship of Christian Athletes. Once raised in the investigators’ report and included in the Board’s resolution to consider termination they couldn’t be closed off.

I understand your point on this Richard and as you have rightly pointed out, much of the fault here lies with the district. I’ll go out on a limb and say that some of the fault may also lie with the OEA in not fully educating its members (in the interest of full disclosure I am a member of OEA). True, Freshwater wasn’t a member of OEA but he was in the bargaining unit and at least some of his conduct was engaged in by other members of the bargaining unit as well.

The problem arises in this context of how and when teachers in K-12 can know when they are engaging in speech that in their view is consistent with the law and their Collective Bargaining Agreement and when they are not. And sometimes a CBA may grant more rights than you have under a strict understanding of the law, which can then raise conflicts if a broader, contractually defined understanding of academic freedom for example conflicts with vague areas such as religious expression in the workplace or hostile environment sexual harassment.

Freshwater, IMO, had at least a colorable argument on all these issues that he believed he was operating in accordance with District policy. He had never been warned, cautioned, disciplined, sent to training etc. And when it came, most of it came up well after the fact so that it degenerated into a he-said, he said over the last multiple years.

And that is why a fundamental point in progressive discipline is you discipline when a problem arises. Because failure to discipline sets a precedent that the employee reasonably believes his or her conduct is within the policy.

Anyway, this gets us into a whole other issue about how much academic freedom and First Amendment protection teachers should have at the K-12 level. You and I may disagree on that.

But I still think in this case the real issue comes down to his misuse of equipment. And even there, the school district really screwed up by telling him that if he did x and y, he wouldn’t be disciplined.

Just one more example of screw up administrators.

He HAD been warned previously about misconduct and classroom materials.

Chip Poirot said:

But I still think in this case the real issue comes down to his misuse of equipment. And even there, the school district really screwed up by telling him that if he did x and y, he wouldn’t be disciplined.

Just one more example of screw up administrators.

Without question the whole episode, starting years ago, was marked by a long series of administrative screwups. Unfortunately, most of the admins who did the screwing up are gone, retired. But none wanted to grasp the nettle and deal with the situation, so it festered for years.

wgwII said:

He HAD been warned previously about misconduct and classroom materials.

It might help if Richard can clarify/remind us of the precise sequence of events. This is my recollection of the record that has been posted here on PT.

1. During his entire teaching career he had no verbal or written reprimands in his personnel file. My best guess is that as in most CBAs it is only official records entered into the personnel file that count as warnings. There are some ways in which unofficial actions or events can be used as evidence, but they can’t count as steps in progressive discipline-which is an integral part of for cause dismissal in a CBA for a tenured employee and also I think wrt to the Ohio Revised Code;

2. There had been complaints from teachers in more advanced grades about his teaching beyond the curriculum. But right or wrong, that doesn’t count as evidence. His evaluations had been positive and his students had performed well on standardized tests (which I might add in a complete aside is a good illustration of what is wrong with tying performance of teachers to student performance on standardized tests);

3. In addition, if my memory is correct, he was told in a written memo well after the classroom incident to cease and desist from using the Tesla coil (which he did). My understanding is it was also at the same time that he was told to remove the posters and the Bible. Apparently he refused, and then eventually did it, or it was done-I’m unclear on that.

4. Anyway, he was told in the memo that if he complied there would be no record put in his file.

At that point, my memory is that the incident was considered closed and he had receive no formal reprimand at all-verbal or written.

It was after the lawsuit was filed that a personnel investigation was opened and after the personnel investigation by an outside firm that the recommendation was made to the Board. As I also recall, there was some kind of dispute on Freshwater’s part about the fairness of the personnel report.

Finally I might add on the free speech issue (a point on which some people seem to disagree with me) that the argument that Freshwater had **no** speech rights in performing his teaching duties on the part of the school bothers me. I understand that the District’s attorney is doing his job and would be remiss to not make this argument.

But notice that the attorney didn’t say that Freshwater exceeded the scope of his free speech rights, or that his free speech rights interfered with the establishment clause.

I agree, that just as in hostile environment sexual harassment cases free speech rights in a public employment or academic setting aren’t absolute and that the employer still retains some latitude to govern expressive speech, so too should a public school be able to prevent proselytizing or turning a classroom into a religious shrine. IMO, when you put the whole atmosphere in the classroom together, he seems to have done that. And that is where he stepped over the line.

But that’s the problem-the district isn’t arguing he stepped over the line. They are saying he has no rights at all. I suspect that is actually contrary to his CBA, though it is arguably now at least a valid legal argument absent the CBA protection.

Chip Poirot said: It might help if Richard can clarify/remind us of the precise sequence of events. This is my recollection of the record that has been posted here on PT.

1. During his entire teaching career he had no verbal or written reprimands in his personnel file. My best guess is that as in most CBAs it is only official records entered into the personnel file that count as warnings. There are some ways in which unofficial actions or events can be used as evidence, but they can’t count as steps in progressive discipline-which is an integral part of for cause dismissal in a CBA for a tenured employee and also I think wrt to the Ohio Revised Code;

IIRC (I haven’t reviewed all my posts), there was one letter from former Superintendent Maley instructing Freshwater not to use unsourced extra-curricular materials in class. Aside from that, there was nothing in his personnel record.

2. There had been complaints from teachers in more advanced grades about his teaching beyond the curriculum. But right or wrong, that doesn’t count as evidence. His evaluations had been positive and his students had performed well on standardized tests (which I might add in a complete aside is a good illustration of what is wrong with tying performance of teachers to student performance on standardized tests);

There was some documentary evidence of the high school teachers’ concerns introduced in the hearing, the questionnaire responses Freshwater’s students gave in a 9th grade science class. There was nothing about it in his personnel record, though, and no documentation of any feedback to Freshwater about it. The high school principal testified that she brought the concerns to the attention of the middle school principal and didn’t know what, if anything, happened as a consequence.

3. In addition, if my memory is correct, he was told in a written memo well after the classroom incident to cease and desist from using the Tesla coil (which he did).

That instruction came verbally almost immediately after the incident in Dec, 2007; the written memo from the Principal was in mid-January 2008.

My understanding is it was also at the same time that he was told to remove the posters and the Bible. Apparently he refused, and then eventually did it, or it was done-I’m unclear on that.

Freshwater complied with that instruction in part. But he also added material (another Bible and the “Jesus of Nazareth” book from the school library) to his classroom in plain sight of students.

4. Anyway, he was told in the memo that if he complied there would be no record put in his file.

IIRC, that’s correct.

At that point, my memory is that the incident was considered closed and he had receive no formal reprimand at all-verbal or written.

That was the case as of early 2008, yes.

It was after the lawsuit was filed that a personnel investigation was opened and after the personnel investigation by an outside firm that the recommendation was made to the Board.

Right, in Spring 2008; I don’t recall the exact date(s).

As I also recall, there was some kind of dispute on Freshwater’s part about the fairness of the personnel report.

Freshwater objected (publicly in a rally on the town square) to the instruction to conceal his personal Bible, announcing his intention to disobey that instruction.

His ‘fairness’ argument was aimed at the investigative procedure, and at his claimed inability to file a “comprehensive written response” to the allegations. He claimed to have prepared 15 affidavits in late May, 2008, as that response, but no one ever asked for them. He himself did not volunteer them at that time, didn’t proffer them to either the investigators or administration, and there is some question about whether they were actually prepared when he claims they were. That was the hoorah concerning Hamilton’s billing records that were allegedly lost when Hamilton’s laptop was flooded.

Finally I might add on the free speech issue (a point on which some people seem to disagree with me) that the argument that Freshwater had **no** speech rights in performing his teaching duties on the part of the school bothers me. I understand that the District’s attorney is doing his job and would be remiss to not make this argument.

We don’t know whether the Board’s attorney made such an argument since we don’t have the prose from the Board’s attorney that was submitted to the referee accompanying the citation of the recent 6th District Court of Appeals decision. All we know is that he made a submission to the referee citing that decision that put boundaries on the free speech rights of teachers in the classroom.

But notice that the attorney didn’t say that Freshwater exceeded the scope of his free speech rights, or that his free speech rights interfered with the establishment clause.

Again, we don’t know that either, since we don’t have the attorney’s submission to the referee. We do know that Freshwater claimed that the administration infringed on his free speech rights.

I agree, that just as in hostile environment sexual harassment cases free speech rights in a public employment or academic setting aren’t absolute and that the employer still retains some latitude to govern expressive speech, so too should a public school be able to prevent proselytizing or turning a classroom into a religious shrine. IMO, when you put the whole atmosphere in the classroom together, he seems to have done that. And that is where he stepped over the line.

That’s one of the the Board’s claims, yes.

But that’s the problem-the district isn’t arguing he stepped over the line. They are saying he has no rights at all. I suspect that is actually contrary to his CBA, though it is arguably now at least a valid legal argument absent the CBA protection.

Again, I know of no instance where the Board argued that Freshwater has no free speech rights.

It’s messier than the summary above might suggest, though, and I reckon that’s what the referee is trying to sort out.

RBH said:

Again, I know of no instance where the Board argued that Freshwater has no free speech rights.

It’s messier than the summary above might suggest, though, and I reckon that’s what the referee is trying to sort out.

Two point-thank you very much for doing that.

This is where I got the idea the the Board’s attorney had claimed Freswhater has no free speech rights. Above, in the post, you indicate the Board’s attorney submitted the following case:

“The appellate panel in Cincinnati upheld a lower court’s ruling for the Tipp City [Ohio] Exempted Village School District, writing that the right to free speech “does not extend to the in-class speech of teachers in primary and secondary schools made ‘pursuant to’ their official duties.”

So technically, the Board’s attorney or the Board my have never made this claim directly.

This case does not imply that teachers have limited free speech rights or that their rights are subject to a balancing test. This case says that the First Amendment clause on free speech “does not extend to the in-class speech of teachers in primary and secondary schools made “pursuant to” their official duties.”

This translates into no First Amendment protection wrt to speech made in the classroom, pursuant to official duties.

As I said, Millstone would be remiss not to cite it-but he did. And this case, like a lot of other cases, clearly puts an end to the previous Pickering standard. I’ll wager that this case rests on Garcetti .

How long do you think it will be before a teacher in Texas is terminated/disciplined, etc. for introducing material that contradicts the new Texas history standards and that termination is upheld on the basis of Garcetti.

right now, I think the vote is 5-4 on the Supreme Court to prevent the full application of Garcetti to higher ed-but there are cases coming down the pipeline on this, and I don’t think Kenneddy’s vote is assured.

In fact, after reading the link, it is very clear.

Is this Mt Vernon OH same as the Mt Vernon of Freshwater fame?

http://edition.cnn.com/2010/CRIME/1[…]ily.missing/

Ravilyn Sanders said:

Is this Mt Vernon OH same as the Mt Vernon of Freshwater fame?

http://edition.cnn.com/2010/CRIME/1[…]ily.missing/

Yup.

If Freshwater’s church is a 501-c-3 or whatever organization, apolitical and getting a tax exemption, then by Freshwater precedent, can we send agents every Sunday to cough and say “HERE!” every time the minister says something dubious?

And can those be students we’ve trained to do that in Chess Club?

Just wondering.

Referring back to your Marcus Ross thread, why all this indignation? After all, lawyers all the time will put forward positions for the sake of argument (i.e., arguendo). Are you saying that scientists are better than lawyers and expected to hold to a higher standard?

Willim Paley said:

Referring back to your Marcus Ross thread, why all this indignation? After all, lawyers all the time will put forward positions for the sake of argument (i.e., arguendo). Are you saying that scientists are better than lawyers and expected to hold to a higher standard?

In a word, yes. A lawyer’s job is to put the very best face for his or her client on the evidence and the law. The other lawyer’s job is to put the very worst face on the evidence and the law for the other client’s lawyer. One time, as a juror, I tried to keep track of the logical fallacies employed by both sides, but lost count and gave up.

It’s the judges’ job to hold them both in check.

It’s the jury’s job to try and wade through the BS on both sides and arrive at a conclusion, based on the judge’s instructions and the evidence as to the outcome.

A scientist’s job is a little bit like a jury’s job. But the analogy doesn’t completely hold. Good scientists need to limit what they do to areas where there is good evidence and good theory. That isn’t easy.

Critical thinking in the classroom is supposed to help students learn to make that distinction. The problem is that very few students have the appropriate foundations to engage in good critical thinking. You don’t teach good critical thinking by asking students to decide between two ridiculous extremes or by putting bad arguments in front of them all the time. Even good arguments can sometimes be confusing to students. We don’t for example confuse students with Reimannian geometry when we teach them Euclidean geometry or explain to them why some aspects of Newtonian physics are superceded by general relativity until advanced levels.

Frankly, I think a good teacher’s job by definition is to filter some information out.

I realize my views may go aaginst the grain a bit with respect to current pedagogical theory. But sometimes a teacher’s job really is to put a set body of information in front of students, communicate that information to students clearly, and do what they can to make sure students learn that information.

Good critical thinking can’t start until that kind of foundation is laid.

One last point-some subjects are more interpretive-a World History class for example is much more interpretive than high school biology.

Why we need teacher’s unions, why now is a very bogus time, and why sometimes you need to make teachers harder to disciplline:

http://jezebel.com/5692317/heroic-t[…]true&s=i

Willim Paley said: Referring back to your Marcus Ross thread, why all this indignation? After all, lawyers all the time will put forward positions for the sake of argument (i.e., arguendo). Are you saying that scientists are better than lawyers and expected to hold to a higher standard?

Yes, scientists (as a group) are better than lawyers (as a group), and yes, scientists (as a group) are expected to hold to a higher standard than lawyers (as a group). How could it be otherwise? A scientist’s explicit duty is to discover what’s true; a lawyer’s explicit duty is to do whatever it takes to win the case for their client. Two very different goals, which entail commensurately different modes of ethics/morals, yes?

Willim Paley said: Referring back to your Marcus Ross thread, why all this indignation? After all, lawyers all the time will put forward positions for the sake of argument (i.e., arguendo). Are you saying that scientists are better than lawyers and expected to hold to a higher standard?

No, scientists are not necessarily “better than” lawyers, nor held to a “higher” standard. They are held to a different type of standard.

There are many sleazy lawyers. Bluntly, there are plausibly some sleazy scientists as well.

The professions have an underlying similarity. Both are involved in the analysis of evidence and its evaluation in the light of prior work.

But one difference is indeed advocacy. Scientists should not be (although often are) excessive advocates for any one hypothesis. Lawyers advocate for their clients.

When lawyers act as advocates for their clients, they are acting in a highly ethical way.

In America’s post-modern, post-civil-rights-backlash rush to throw away constitutional rights almost as rapidly as we throw away basic economic security, it is often overlooked that the presence of a skilled advocate for the accused is one of the most most fundamental protections we can have.

For full disclosure, I am not a lawyer, and I am a member of a profession that is frequently victimized by the worst types of lawyers. But I don’t agree with all the bashing of lawyers as a group. There are plenty of good, honest lawyers who adhere to high standards.

Scientists are paid to be diligent, conscientious, meticulous, and thorough. Occasionally imaginative.

Trial lawyers are paid to win. If this involves being unethical, then they are PAID and EXPECTED to be unethical. And occasionally imaginative.

Flint -

No, seriously, the vast majority lawyers respect a code of ethics.

Scientists are paid to be diligent, conscientious, meticulous, and thorough.

A good lawyer would also exhibit these characteristics.

Occasionally imaginative.

Trial lawyers are paid to win. If this involves being unethical, then they are PAID and EXPECTED to be unethical. And occasionally imaginative.

Some lawyers are unethical - Hamilton is an example - but most aren’t.

I find it strange to be making this argument.

It’s sometimes torturous, but I subscribe to an email list from Freshwater’s “spiritual adviser” Coach Dave. I’d like to share with the commenters a recent email I received from Coach Dave, I’m thrilled to know he is not making “Rod Parsley money” if he is begging for a car.

From: Pass the Salt Sent: Tuesday, November 09, 2010 3:06 PM To: Subject: We Ran the Wheels Off!

…::: News and Announcements :::…

Dear Friends, Last weekend our 1999 Plymouth Voyager started sounding like a Helicopter. It seems that after 238,000 miles “Old Red” had made her last trip out of the driveway. This comes on the heels of our 2001 PT Cruiser suffering a similar fate after 228,000 miles early last Spring. Pass The Salt currently stands in need of reliable transportation. We were wondering if someone would like to a make an end-of-the-year donation to Pass The Salt in the form of a set of wheels. Your gift would be tax-deductible and would help as Coach Dave travels around to pound knots on the Devil’s head. If you have an interest in helping, please contact us at [Enable javascript to see this email address.] or 740-323- 0871. You have not because you ask not.… Pass The Salt Coach Dave Daubenmire Passing the Salt, Coach Dave Daubenmire www.ptsalt.com

Harold:

Some lawyers are unethical - Hamilton is an example - but most aren’t.

Your response is misdirected. Most of the time, there is no need for any lawyer to be unethical. But to a trial lawyer, ethics is a tactic deployed as necessary.

Let’s say you are a lawyer, hired to defend someone you know to be guilty. Let’s say the facts in the case, outside of your and your client’s private knowledge, permit you to make a strong defense. Let’s say nobody knows that you know your client is guilty. Remember, you are hired to get your client off.

What do you do? If you kept your knowlege to yourself and freed your client, would that be ethical, or merely professional? You are PAID to get your client off. If I knew all this, would I hire you?

I’m reminded of the case (possible apocryphal) where a robber baron who wanted to do something illegal called in his layer and said “Find me a legal way to do this.” His lawyer said “but sir, that’s not legal” and the robber baron said “that’s not what I asked”. There are many roads to a result some specific law was passed to prevent. If your job is to find another road to the same destination, that nobody has thought to block with a law, should you find it?

The Jews with whom I grew up were prohibited by their faith from handling money on the Sabbath. Yet Saturday was a lucrative business day. So before sundown Friday, they tied various amounts of change into little bags. On the Sabbath, they didn’t handle money, they only handled little bags. Were they unethical?

On the Sabbath, many Jews are forbidden from operating machinery. But they live in high-rises in Israel, with mechanical elevators. Should they be trapped in their apartments for 24 hours? Well, the elevators are programmed to go from bottom to top, stopping at every floor whether someone is waiting (or wishes to get off) there are not. Since it’s automatic, nobody is “operating machinery”, so they all use it. Is this ethical?

There is a long and cherished tradition of honoring the letter of the law while circumventing its intent. Is this unethical? Lawyers are paid to do this. Should they betray their clients?

Flint said:

There is a long and cherished tradition of honoring the letter of the law while circumventing its intent. Is this unethical? Lawyers are paid to do this. Should they betray their clients?

Sometimes, yes.

Burns: That’s right, keep eating…Little do you know you’re drawing ever closer to the poison donut! cackles evily There is a poison one, isn’t there, Smithers?

Smithers: Err…no, sir. I discussed this with our lawyers and they consider it murder.

Burns: Damn their oily hides!

Let’s say you are a lawyer, hired to defend someone you know to be guilty. Let’s say the facts in the case, outside of your and your client’s private knowledge, permit you to make a strong defense. Let’s say nobody knows that you know your client is guilty. Remember, you are hired to get your client off.

What do you do? If you kept your knowlege to yourself and freed your client, would that be ethical, or merely professional? You are PAID to get your client off. If I knew all this, would I hire you?

Someone who knows more may feel free to correct me:

My understanding is that if a prosecutor has exculpatory evidence, he/she has to hand it over to the defense. To fail to do so, would be unethical. But if a prosecutor looks at the evidence, is unsure that the defendant is guilty, but finds the evidence supports prosecuting the case, then that decision is ethical.

Normally, I don’t think that a defense attorney is obligated to hand over incriminating evidence-but a defense attorney can’t suppress evidence. Maybe there are some circumstances under which some evidence has to be brought forward since a defense attorney is an officer of the court. I’m not sure.

A defense attorney acts unethically and illegally if he knowingly (what knowingly means I’m not sure) puts the defendant on the stand and encourages/permits perjury.

Even so, if a defense attorney believes/knows the client is guilty, it is unethical not to defend the client to the best of the attorney’s ability. Of course, a defense attorney can always refuse to take a case.

This issue of what is “ethical” is a complex one and raises many multiple questions about the source of ethics, the context of ethics and the difference between what is ethical and what is legal.

The idea of a lawyer as advocate on either side to my way of thinking is justified since one knows that the other side gets to present their side as well. Many practices that are ethical in law would be grotesquely unethical in science. For example, a researcher failing to note that there is considerable evidence to refute a hypothesis and only publishing evidence for an hypothesis would be unethical. Not so for a lawyer.

I think it was Harold though who said it well-having lawyers to come and argue as best they can in court, even to defend people they have good reason to believe are guilty, is one of our best and last defenses against the slow, steady but sure erosion of our freedoms. One person who I think is a really great expositor of how much of our freedoms we are really losing is Glenn Greenwald.

But I’m pretty sure I’m wandering off topic now, so I’ll stop.

I am acquainted with an attorney who was exceedingly happy not to be assigned by the court to defend a particular client who couldn’t afford one on his own.

As the attorney explained it to me, from the publicly available data (security camera footage) there was no doubt at all the guy was guilty and there was no real way to defend him. The only recourse would be to throw himself on the mercy of the court to try to get a less than maximum sentence.

So, yes, there are ethical attorneys, in the colloquial sense of ethical.

–W. H. Heydt

Old Used Programmer

As one columnist wrote (I think it was George Will), the case against OJ Simpson was so sound and so airtight that they could have thrown out 90% of the evidence and let the defense pick which 90% to throw out, and still had enough to convict.

So were Simpson’s attorneys unethical? Was it unethical (albeit brilliant) to hire a psychologist to select a jury incapable of distinguishing between reasonable doubt and absolutely no doubt, however imaginary or far-fetched? Was it unethical for them to misrepresent everything presented in a way that would make a creationist proud? Or were they ethically performing the task they were hired to do?

Contrast this with the number of destitute, publicly defended prisoners on death row, who were released when the (recently developed) DNA evidence, considered incontrovertible, showed them innocent. Were THEIR appointed attorneys unethical for putting up a defense poor enough to allow innocent people to be convicted?

A friend of mine spent a year in jail for something he didn’t do, because it was a highly public political case, sentiment ran strongly against the crime, and his appointed attorney was about to run for public office. Those who DID do it hired their own high-powered expensive attorneys, and got a slap on the wrist.

Which of these lawyers were ethical? All of them? Any of them?

“I’m thrilled to know he is not making “Rod Parsley money” if he is begging for a car.”

Daub and his wife have been living hand-to-mouth on part time jobs, their 401Ks and “the generosity of others” ever since his wife quit her teaching job “to join Pass The Salt Ministries” about 5 years ago. About 3 years ago I was listening to his radio show and heard him begging for donations (his website has a feature that can set up monthly donations to be taken right from the donor’s credit card!) and he was also asking for the donation of a laptop computer. Daub specified that he need a recent model laptop not an older model, because he needed to have access to the latest technology to do god’s work. If that wasn’t nervy enough, Daub went on to say that every day he prays that someone will come along and pay off his “ministry debt” (credit cards)!!! The man has no shame! No pride either.

In these tough economic times people are not very likely to donate money to an able-bodied, college educated couple who CHOOSE not work full time like the rest of us. And of course he doesn’t pay taxes like the rest of us do either. I think that most of central Ohio has figured out what an egostistical, self-righteous, self-serving piece of shit Daub is. Therefore he has to travel outside the state (hence the high mileage on his cars) to give speeches at churches and pass his donation basket. It has always baffled me how someone could be so delusional in their I-am-serving-the-lord beliefs that they feel entitled to ask others to pay their bills. Daub’s ministry is just himself and his wife. They have no church, no congregation, no charitiable works, and perform no services for anyone but themselves. Like you, Sir Lickspittle, I am thrilled that his ministry is a failure. His financial picture is very grim. I don’t know how they sleep at night, but The Lord Will Provide. Yeah, right. Even his god isn’t helping him.

Mary said:

“I’m thrilled to know he is not making “Rod Parsley money” if he is begging for a car.”

Daub and his wife have been living hand-to-mouth on part time jobs, their 401Ks and “the generosity of others” ever since his wife quit her teaching job “to join Pass The Salt Ministries” about 5 years ago. About 3 years ago I was listening to his radio show and heard him begging for donations (his website has a feature that can set up monthly donations to be taken right from the donor’s credit card!) and he was also asking for the donation of a laptop computer. Daub specified that he need a recent model laptop not an older model, because he needed to have access to the latest technology to do god’s work. If that wasn’t nervy enough, Daub went on to say that every day he prays that someone will come along and pay off his “ministry debt” (credit cards)!!! The man has no shame! No pride either.

In these tough economic times people are not very likely to donate money to an able-bodied, college educated couple who CHOOSE not work full time like the rest of us. And of course he doesn’t pay taxes like the rest of us do either. I think that most of central Ohio has figured out what an egostistical, self-righteous, self-serving piece of shit Daub is. Therefore he has to travel outside the state (hence the high mileage on his cars) to give speeches at churches and pass his donation basket. It has always baffled me how someone could be so delusional in their I-am-serving-the-lord beliefs that they feel entitled to ask others to pay their bills. Daub’s ministry is just himself and his wife. They have no church, no congregation, no charitiable works, and perform no services for anyone but themselves. Like you, Sir Lickspittle, I am thrilled that his ministry is a failure. His financial picture is very grim. I don’t know how they sleep at night, but The Lord Will Provide. Yeah, right. Even his god isn’t helping him.

Plus they have a son in college who must be getting some public assistance in the form of student loans from the “evil government” he is always railing against.

The son who was convicted of pandering child porn and is still serving out his 5 year probation is in his third year of law school at Case Western. Yeah, he’s piling up a huge amount of student loan debt. Daub is always railing against the evil government schools but at least two of his kids, including the son, went to college on sports scholarships, scholarships that they never would have gotten if they had been home schooled as Daub now strongly recommends to others. His wife currently subs as a teacher in the public school system so the whole family takes money from the public system with one hand while slamming the public schools with the other hand. Hypocrites!

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This page contains a single entry by Richard B. Hoppe published on November 9, 2010 4:55 PM.

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