Freshwater: His Ohio Supreme Court Merit Brief filed

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John Freshwater’s attorney, R. Kelly Hamilton, has filed a Merit Brief, the document that presents his arguments for the Ohio Supreme Court to overturn the decision of the Mt. Vernon, Ohio, Board of Education to terminate Freshwater’s employment as a middle school science teacher. In the brief, Hamilton–really, the Rutherford Institute–attempts to re-interpret two key decisions of the Supreme Court of the United States bearing on the teaching of creation science–Epperson v. Arkansas and Edwards v. Aguillard–while wholly ignoring Kitzmiller v. Dover, which firmly established the equivalence of intelligent design with creation science. However, the brief itself lumps them together, treating creationism and intelligent design as near-identical siblings, in one place even referring to “creation science/intelligent design” (p. 12). The brief also says

However genuine it may be, the Board’s apparent belief that creationism and/or intelligent design theories have no scientific value cannot be accepted. The theories suggest that the physical universe and life within it appeared suddenly and have not changed substantially since appearing. (p. 17)

Shades of “Of Pandas and People,” which used the same word-for-word definition for creationism and intelligent design in successive versions spanning the 1987 Edwards decision.

The Merit Brief assumes as a foundational premise (without visible support except for a citation from Justice Scalia’s dissent in Edwards v. Aguillard) that intelligent design and creation science are actually legitimate alternative scientific theories, the mysterious “competing academic theories” cited in Freshwater’s appeal to the 5th District Court of Appeals and in his Memorandum in Support of Jurisdiction to the Supreme Court. Their religious implications are merely by-products, not central pillars. In fact, the Brief argues that teaching only evolution is tantamout to government endorsement of a religious view, secular humanism, and that therefore creation science and intelligent design should be taught alongside evolution! This has got to give the Disco ‘Tute boys a migraine.

The Rutherford Institute, using the Freshwater case as a vehicle and Freshwater’s attorney as a sock puppet, is attempting to induce the Ohio Supreme Court to endorse intelligent design and creation science as legitimate parts of public school science curricula. Accepting the arguments in Freshwater’s Merit Brief requires that we accept that teaching intelligent design and creationism is permitted–even desirable–in public schools. In the brief, filed by Hamilton on August 24, 2012, a main argument is that teaching intelligent design and creation science in public school science classes is not only Constitutionally permitted, it is damned near required by the desirability of “unbiased instruction” in science.

I’ll hit a few of the high spots below the fold, but the whole document, which runs 24 pages, is worth reading. There’s a 56-page Appendix that can be skipped, except, perhaps, for an extract from the District’s guidelines for handling controversial issues in the classroom:

A. When a controversial issue is not part of an approved course of study, its use must be approved by the Principal. (p. A52)

While it discussses the controversial issue policy, somehow the Merit Brief never quite gets around to mentioning that particular requirement, the first in the list of guidelines.

The Propositions of Law claimed to be at issue

As foreshadowed in his appeal to the Ohio 5th District Court of Appeals (which was denied) and his Memorandum in Support of Jurisdiction (full docs here) which persuaded the Supreme Court to accept his appeal, Freshwater invokes three “Propositions of Law” that he claims are grounds for reversal of the BOE’s decision. In the Merit Brief they are:

I. Proposition of Law I - The termination of a public school teacher’s employment based on the content or viewpoint of his curriculum-related academic discussions with students and use of supplemental academic materials violates the teacher’s and students’ First Amendment rights to academic freedom.
A. Freshwater’s teaching methods were good practices and were in accordance with the Board’s
policies
B. Freshwater’s termination based on the Board’s stated reasons is a form of government censorship
and a violation of the rights of academic freedom enjoyed by Freshwater and his students

II. Proposition of Law II - The termination of a public school teacher’s employment based on the fact that his academic discussions with students and supplemental academic materials include ideas that are consistent with multiple major world religions manifests hostility toward religion in violation of the Establishment Clause

III. Proposition of Law III- The termination of a public school teacher’s employment based on the presence of religious texts in the classroom and the display of patriotic posters violates the teacher’s and students’ First Amendment rights to academic freedom and manifests hostility toward religion in violation of the Establishment Clause
A. Freshwater’s classroom was in compliance with Board policy
B. Freshwater’s termination based on the Board’s stated reasons is a form of government censorship
and a violation of the rights of academic freedom enjoyed by Freshwater and his students
C. The First Amendment’s Establishment Clause does not justify, and in fact forbids, the Board’s actions

It’s not clear to me why Hamilton included Proposition III, since the Supreme Court accepted the appeal on the basis of I and II.

The first thing I note is that the wording of the two Propositions on the basis of which the Ohio Supreme Court accepted the appeal (I and II) differ in the request for acceptance of the appeal (the Memorandum in Support of Jurisdiction–MiS) and the Merit Brief (MB). I don’t know what standard practice is in this sort of case, but I present the two versions side-by-side so commenters more expert in the law than I am can weigh in:

Proposition 1, MiS:

The termination of a public school teacher’s employment contract based on the teacher’s use of academic freedom where the school board has not provided any clear indication as to the kinds of materials or teaching methods which are unacceptable cannot be legally justified, as.it constitutes an impermissible violation of the rights of the teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment’s Establishment Clause.

Proposition 1, MB:

The termination of a public school teacher’s employment based on the content or viewpoint of his curriculum-related academic discussions with students and use of supplemental academic materials violates the teacher’s and students’ First Amendment rights to academic freedom.
A. Freshwater’s teaching methods were good practices and were in accordance with the Board’s
policies
B. Freshwater’s termination based on the Board’s stated reasons is a form of government censorship
and a violation of the rights of academic freedom enjoyed by Freshwater and his students

===================================================================

Proposition 2, MiS:

The termination of a public school teacher’s employment contract based on the mere presence of religious texts from the school’s library and/or the display of a patriotic poster cannot be legally justified, as it constitutes an impermissible violation of the rights of a teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment’s Establishment Clause.

Proposition 2, MB:

The termination of a public school teacher’s employment based on the fact that his academic discussions with students and supplemental academic materials include ideas that are consistent with multiple major world religions manifests hostility toward religion in violation of the Establishment Clause

I leave it to readers to determine for themselves if the two versions are making the same point(s). A component of Proposition I drops out of the MiS version–the ‘no clear indication’ language. (See here; maybe Hamilton read that post.)

The two versions of Proposition 2 seem to me to be quite different claims, and look to be open to a goal-post shift response. The Supreme Court accepted the appeal on the basis of the MiS version, but the MB version argues a quite different point. I have no idea if that’s relevant to the Court’s consideration of the appeal. And since the Court accepted the appeal on the basis of MiS Propositions I and II, I don’t know why the Merit Brief spends space on an argument for Proposition III. It may be a symptom of Hamilton’s ‘kitchen sink’ approach to writing briefs.

The Foundational Premise

The foundational premise of the Merit Brief, the premise that underpins its academic freedom arguments, is that intelligent design and creation science are legitimate academic theories competing with evolutionary theory. Throughout the brief that is assumed, but never established. For example,

“In light of the widely known, genuine intellectual debate that exists regarding the relative plausibility and weaknesses of evolution and intelligent design, providing students with “unbiased instruction” might well be said to require the juxtaposition of these two major theories, but a fortiori it cannot be said to forbid it. (p. 7; italics original)

And later:

While the case law on the issue of teaching evolution or creation science may appear, at first glance, to favor the Board’s position (that creation science/intelligent design may not be taught in public schools), the better view of the topically relevant cases is from a higher level of generality; the lesson to be gleaned is of a constitutional nature rather than a public policy concern, and the lesson is that the state may not censor ideas from the classroom. Indeed, this interpretation is the only way to harmonize the cases addressing evolution and creation science with the well-established First Amendment prohibition of governmental hostility toward religion and the Court’s explicit approval of including religious content in secular educational programs of public schools. See Epperson v. Arkansas, infra. If discussions of evolution may not be banned from a science classroom, then neither may discussions of creationism be banned. (p. 12)

This places evolutionary theory, intelligent design, and creation science on an equal footing: they are all scientific theories that just happen to have religious implications:

However genuine it may be, the Board’s apparent belief that creationism and/or intelligent design theories have no scientific value cannot be accepted. The theories suggest that the physical universe and life within it appeared suddenly and have not changed substantially since appearing. See Edwards v. Aguillard, 482 U.S. 578, 612 (Scalia, J., dissenting) (citing expert affidavits). According to experts, the concepts are strictly scientific and can be presented without religious reference. ld. (pp. 17-18)

Academic freedom and the First Amendment

Based on the foundational premise, the brief makes an audacious argument about academic freedom and the teaching of creationism and intelligent design alongside evolution, in essence skating right up to arguing that creation science and intelligent design should be required to be taught alongside evolution. Since creationism, intelligent design, and the theory of evolution are held to be equally scientific theories to explain the subject matter, the brief argues, to require that public school teachers present just one is a violation of the teachers’ and students’ academic freedom, which the brief holds to be a subset of the First Amendment’s freedom of speech right. Hence, Freshwater’s use of arguments and handouts from intelligent design and creation science is protected speech under the First Amendment. It gets more audacious, though. Re-interpreting Epperson and Edwards, the brief asserts

The all-important distinction, heretofore ignored in Freshwater’s case, is between a school board policy or state law mandating that a certain subject or viewpoint be taught or not taught, on the one hand, and an individual teacher’s exercise of academic freedom to discuss curriculum-related ideas and theories with students in the classroom, on the other. The former represents official indoctrination: an impediment to academic freedom that, under some circumstances, courts may find to violate the Establishment Clause. The latter, however, is a picture of academic freedom in action: a teacher striving to present students with a well-rounded education on topics within the curriculum. (p. 15, italics original)

Or put differently, a teacher striving to present students with whatever damned nonsense he pleases. Recall the glop that Freshwater used in his room–the giraffe handout he used in class, for example. I quote from the handout:

We all know that [ dead ] animals don’t evolve anything, even though evolution demands its creatures realize they need an improvement before that improvement begins to evolve.

If “academic freedom” can be construed to allow teaching that kind of pernicious bullshit then we are truly screwed. The brief goes on

Whatever its origins, creation science/intelligent design is a theory that continues to be believed and defended by numerous highly respected, internationally renowned scientists as well as countless laypersons. See Edwards, 482 U.S. at 622 (Scalia, J., dissenting) (citing witness testimony). Many scientists believe that the body of scientific evidence supporting creation science is stronger than that supporting evolution. Id. at 623 (Scalia, J., dissenting) (citing evidence). (pp 16-17, italics original)

Further, the brief argues that to teach just evolutionary theory in science classes is tantamount to endorsing a particular religious view, secular humanism. The brief even revives the old creationist reference to a footnote in a 1961 SCOTUS decision:

Not only does the Board’s censorship of creation science based solely on its consistency with major world religions demonstrate hostility toward religion, it also demonstrates a favoritism of the religion of “secular humanism.” See Torcaso v. Watkins, 367 U.S. 488, 495, n.11 (1961) (listing “Secular Humanism” as a religion along with Buddhism, Taoism, and Ethical Culture). Evolution is a central tenet of secular humanism. See Humanist Manifesto I, First, Second and Third (1933), available at www.americanhumanist.org (“Religious humanists regard the universe as self-existing and not created.” … “Humanism believes that man is a part of nature and that he has emerged as a result of a continuous process.”).

From that, the brief concludes that

The idea that evolution is a religiously-neutral theory is a myth. Just as the theory of creation or intelligent design depends on the unproven idea of an intelligent designer or creator, so the theory of evolution depends on the unexplained and unproven idea that inanimate materials suddenly became animated. The Board’s course of action is far more problematic under the First Amendment than a policy of academic freedom, whereby individual teachers and their students remain free to consider and discuss a variety of perspectives on topics in the school’s curriculum, free from state-mandated indoctrination in any.

The error here is obvious to those of us experienced in the ways of creationists: the theory of biological evolution is independent of any particular account of how life began–how “inanimate materials suddenly became animated.” Common descent, which is the fact of evolution, is indifferent to the question of how the first population of replicators came to be. But the issue is more serious. This argument would give free rein to individual teachers to determine the science curriculum. Not only would “state-mandated” requirements be toothless, local Boards of Education would be helpless to control their own science curricula.

Why is Freshwater the Rutherford Institute making that argument?

Right off hand, I see two possibilities. First, they anticipate losing in the Ohio Supreme Court and will appeal to SCOTUS. The case has the advantage of not having all the expert testimony on the record that Edwards and Kitzmiller did, and thus the record is more equivocal, which is a potential advantage for the appelant. As a result, SCOTUS might decide the case on a Scalia-like basis.

Second, they may believe that they actually have a valid case, and genuinely think they can persuade the Ohio SC of that. I know little about the individual members of the Ohio SC, and can’t even speculate on how they might respond to the argument.

Third (of two), John Whitehead, President of the Rutherford Institute, is occasionally a shit-stirrer just for the sake of stirring it, and this may be one of those occasions.

Which Freshwater version is the truth?

One of the fascinating aspects of this case is how Freshwater’s claims about his teaching of evolution, ID, and creationism have evolved over the last four years. I reviewed part of that history here. Initially Freshwater denied teaching creationism and/or intelligent design. On Day 3 of the hearing, called as a hostile witness by the Board, Freshwater testified that there are three categories: evolution, creationism, and intelligent design, and he taught only evolution. From the hearing transcript (October 28, 2008; Q is David Millstone, the Board’s attorney; A is Freshwater):


Page 376

25 Q Did you have an interview on Fox News with Larry

Page 377

1 Elder?

2 A. Yes.

3 Q. Where you appeared on television?

4 A. Yes.

5 Q. And during that interview, I believe you said–and

6 correct me if I’m wrong - or let me ask you this question:

7 Did you say there are three categories, evolution, ID, and

8 creationism?

9 A. I teach evolution. I do not teach ID or creationism.

10 Q. Did you say words to that effect?

11 A. I don’t recall. I don’t remember. I take it you’re

12 going to show the video.

13 Q. Happy to do that

14 (Board Exhibit 20 was played.)

15 MR MILLSTONE: I don’t think we need to hear his

16 comments.

17 MR HAMILTON: Any further comments by John

18 Freshwater?

19 MR MILLSTONE: No, that was the last comment by

20 John. I’m happy to play the rest of it if you like.

Page 378

1 BY MR.MILLSTONE:

2 Q. Now, Mr. Freshwater, again, in that video, you indicated

3 that there are three different areas, evolution, intelligent

4 design, and creationism, and you teach evolution, you don’t

5 teach intelligent design or creationism.

6 A. Yes.

7 Q. And has that been true throughout your career?

8 A. Yes.

But later in Freshwater’s testimony that day there’s this little nugget on p. 463:

12 Q. Did you ever indicate that dinosaurs and man walked the

13 earth at the same time to students?

14 A. Yes.

Board Exhibit 20 is this short video.

There’s not much wiggle room there. But then a year later, in December 2009, Freshwater began to equivocate:

In his testimony over the three days [Dec 8, 10, & 11, 2009] Freshwater attributed his use of creationist and ID materials [established in testimony subsequent to his earlier denial] to a legitimate effort to teach to a particular Academic Content Standard (p. 216) (LARGE pdf!):


Grade Eight
Ethical Practices
2. Explain why it is important to examine data objectively and not let bias affect observations.

Freshwater depended almost wholly on that standard to justify the use of the woodpecker handout, the giraffe handout, Wells’ “Survival of the Fakest” as a handout, and segments of Kent Hovind’s Lies in the Textbooks (Youtube video), among others, in class. Freshwater said he used them to illustrate how bias can lead to bad science and bad application of the scientific method. He said that the extra credit assignment to watch “Expelled: No Intelligence Allowed” fell under the same class, an illustration of bias in using science, and was therefore appropriate.

So he didn’t teach ID and/or creationism; he used their materials to illustrate (what he understood to be) bias in making observations. And still later, in late 2011 in an interview on revisionist “historian” David Barton’s radio show, Freshwater claimed that he taught “robust evolution.” From the interview:

At 9:20

RG (interviewer): So when you say you taught critical view of evolution, what does that mean?

JF (Freshwater): I teach what I … actually, I call it a robust evolution. I showed what was the evidence for evolution, I showed evidence that was opposed to evolution. I showed all sides.

RG: And let the kids decide?

JF: Yes. Let the kids decide. I stayed neutral on it, and let the kids make a decision on it.

RG: So what’s wrong with that? Why, why are they afraid to look at all the evidence? I mean, what’s wrong with saying ‘Look, you know, here’s the positives, I mean here’s the things that point to evolution, but here’s the problems, here’s the questions, how does this .. how does this …’. What’s wrong with letting kids look at all that and try to decide on their own?

JF: That’s exactly what I say: What is wrong with it? But obviously in America I do believe that evolution is sacred. And it’s evolution theory, it’s not evolution fact, it’s evolution theory. I’ll be quite honest with you, Rick, let me show you something real quickly. This past spring of 2011, May of 2011, they brought in two attorneys from another state, and it was mandatory, all teachers and administrators go to it, and they required, what they told, they did a Powerpoint presentation to all the teachers and administrators, and they came back and said, in this Powerpoint they said that…uh, let me see, I’ve got it written down here…they said this: “Evolution must be taught as a scientific fact.” And this was mandatory for all teachers to be there. “Evolution must be taught as a scientific fact. More precisely, evolution must be taught as the dominant paradigm for research in biological science.” And bullet point 3 was, “Creationism may not be taught as a science under any circumstance.”

So that was what was told to Mt. Vernon City Schools, which when I moved here was considered the Bible Belt of Ohio. And they … it’s mandatory that you must teach evolution as a fact. And that goes against academia. In academia they don’t declare evolution as a fact, they declare it as a theory.

RG: Yeah, it’s amazing to me that we’re so lopsided, we’re so one-sided. And I’m no scientist, I mean you tell me when you lay all the facts out there, the actual evidence, you don’t have any more for one theory than the other. You have to study all of them.

JF: Absolutely. You need to study it all, especially in a public school. You need to see all the evidence. And there’s some great evidence for, and there’s some great evidence that goes against it. And I think the kids need to see all evidence rather than indoctrinating them only on one side or the other.

“Teach the evidence for and against evolution,” of course, is common creationist code for ‘teach crappy creationist critiques of evolution.’

Finally, the Merit Brief mounts a spirited defense of the teaching of intelligent design and/or creation science in public school science classrooms, as I described above. That is a tacit admission that Freshwater in fact taught them both, contrary to his sworn testimony. What the arc of evidence and testimony over the last four years tells us is that Freshwater’s position is ‘I didn’t teach creationism or intelligent design, and even if I did, it’s OK.’ Testimony and exhibits in the administrative hearing strongly suggest that he did teach them. Among the indications in evidence and testimony are:


– A 2006 lesson plan prepared by Freshwater included the terms “specified complexity” and “irreducible complexity,” both core concepts from intelligent design, though he later testified he doesn’t know what those terms mean.

– He used Jonathan Wells’ “Survival of the Fakest” as a handout in class and gave extra credit for attending a showing of “Expelled: No Intelligence Allowed.”

– The source of at least one of his handouts was a Biblical creationist site.

– He used a Kent Hovind video in class, calling Hovind “a renowned scientist.”

– He told a class that carbon dating is unreliable, that the earth may be only a few thousand years old, and that dinosaurs may have lived at the same time as humans.

– Finally, and most damning in my view, one of his students summarized what he learned from Freshwater by saying “Science can’t be trusted. Science can’t teach us anything.”

Conclusion

There’s more in the Merit Brief, and the Supplement to the brief is not yet scanned and up on the Court’s website. Given Hamilton’s propensity to throw everything he can against the wall to see what sticks, I hesitate to speculate what might be in the Supplement. But the argument I described is enough to show that this is a potentially dangerous suit for those of us who defend honest science. If the Ohio Supreme Court accepts the brief’s arguments about creationism, intelligent design, and academic freedom in public school science classes, there are no limits on what any given Ohio science teacher can present. A local Board of Education will be helpless to govern the science curriculum. The pseudoscientific nonsense of creationism and intelligent design will spread further in Ohio classrooms and beyond, and generations of students will be even less well prepared to live in a science-dominated world. Ohio will have nothing on Louisiana in that respect.

Bill Nye, the Science Guy, said this recently:

“And I say to the grownups, if you want to deny evolution and live in your world that’s completely inconsistent with everything we observe in the universe, that’s fine,” he says. “But don’t make your kids do it because we need them. We need scientifically literate voters and taxpayers for the future.”

It’s still a struggle, folks. That candle does gutter, its pool of light still trembles, the darkness still gathers at the edge of the abyss, and demons of ignorance and superstition dance in the shadows. We all have to do what we can to hold back the Endarkenment.

64 Comments

Can they throw a guy in jail for just submitting crap and lying to the court repeatedly. Seriously, this is the very definition of a wasting the time of the court. They can’t possibly rule in his favor and he knows it. Apparently he just plans on throwing crap around until everybody gets tired of his lying.

Thanks as always Richard. I read parts of the Merit Brief and scanned through other parts and found it slow-going. I appreciate your summary and especially your comments and links.

Keep fighting the good fight!

Thanks again Richard for your excellent coverage of this case throughout!!

Superb post, Richard. I don’t think they imagine they’ve got a winning strategy here. They’re just waving the flag of creationism and expecting to lose. It’s good for fund-raising.

How can they think, and I use that word lightly, that they can set up this turkey to fail then appeal to SCOTUS when it’s settled law?

Legal boffins, please!

It’s anybody’s guess what will happen if this case gets to the Supreme Court. Scalia is already on record as supporting the teaching of creation science. Thomas will agree and they could easily bring Alito and Roberts along with them. Kennedy is always an unknown. And if a President Romney gets an appointment or two on the Court before the case arrives, all bets are off. The Court is very unpredictable on this.

Doc Bill,

They’ve already had the success of having their brief accepted by the Ohio Supreme Court when it should have been tossed out on its ear. And then, as tomh says, the US Supreme Court is a wildcard. Scalia is a duplicitous arsehole who insists on constitutional fundamentalism while frequently making up bullshit about the Constitution when it doesn’t match his arch-conservative views. I have no doubt whatsoever that the Scalia-Alito-Thomas-Roberts quadrangle will vote in favour of any old piece of legal shit provided it is anti-liberal. That automatically means that they only have to convince one other judge, and Kennedy although principled and less party-predictable, is still very conservative.

Let me make a prediction. If the Ohio Supreme Court finds against Freshwater’s appeal, the US Supreme Court will decide to hear his next appeal on the grounds of important constitutional issues. If the Ohio Supreme Court finds for Freshwater, any higher appeal by the ACLU or other groups will be rejected on the grounds that the law was already settled by the Ohio Supremes. I hope I’m wrong.

I. Proposition of Law I - The termination of a public school teacher’s employment based on the content or viewpoint of his curriculum-related academic discussions with students and use of supplemental academic materials violates the teacher’s and students’ First Amendment rights to academic freedom.

I had thought that court cases such as Bishop v. Aronov and Webster v. New Lenox School District clearly established that schools have a right to restrict teachers to a set curriculum and that teachers don’t have a right to teach anything they like. What legal precedent do these documents attempt to use to establish this “proposition”?

tomh said:

It’s anybody’s guess what will happen if this case gets to the Supreme Court. Scalia is already on record as supporting the teaching of creation science. Thomas will agree and they could easily bring Alito and Roberts along with them. Kennedy is always an unknown. And if a President Romney gets an appointment or two on the Court before the case arrives, all bets are off. The Court is very unpredictable on this.

Doc Bill said:

How can they think, and I use that word lightly, that they can set up this turkey to fail then appeal to SCOTUS when it’s settled law?

Legal boffins, please!

In the mind-reading competition, I agree with Tomh more here (I think they they think they can win).

But it doesn’t matter.

What does matter is that even if Sensuous Curmudgeon is right about their intent, they could still win.

Even if they started out intending a symbolic defeat, but win anyway, it’s just as much a disaster.

This case can still now go to SCOTUS, no matter how Ohio decides. The best hope is that Ohio decides against Freshwater and SCOTUS refuses the case. But I wouldn’t count on that.

I can’t read the minds of Scalia, Thomas, Roberts, and Alito either, but I can predict their legal decisions with very high accuracy. I have no legal, nor even pre-law or paralegal training. Yet I can predict their legal decisions with very high accuracy, and if anyone reading this can’t, well, that means either that you are not very informed (about the current SCOTUS), or that your biases are interfering with your observations. Or both.

Scalia openly and vigorously supported teaching of the near-strongest version of sectarian creation science in taxpayer funded public schools in Edwards. At that time Rehnquist was the only other extreme right justice, so creationism only got two votes. Now Scalia has got Thomas, Alito, and Roberts. Don’t be fooled by the fact that Roberts “broke ranks” once when Obama’s Heritage Foundation health care bill came up. The fact that he loves the Heritage Foundation even more than he hates Obama should not be terribly comforting here.

Kennedy is a loose cannon with a statistical propensity to turn right. But if Romney is elected, Kennedy won’t even be needed.

Creationism in public schools is now and has always been primarily a political issue. It’s considered illegal under current SCOTUS precendent, so only politicians and judges appointed by politicians can make it legal.

To a large degree, judges at all levels can say whatever they want. The main check on completely outrageous judicial decisions, a very imperfect one, is the appeals process. But you can’t appeal past SCOTUS. SCOTUS can say whatever they want and make anything the law of the land until civil war, amendment of the constitution, or a far future SCOTUS changes it. I repeat, they can make nearly anything, anything, law.

The only protection is a supreme court that decides cases in good faith.

A vote for Romney is a vote Freshwater, period. Whatever else such a vote accomplishes, it is a vote in favor of the candidate who is far, far, far more likely to make a SCOTUS appointment that will help Freshwater or the next Freshwater.

Mount Vernon School District bankrupted, Freshwater a multi-millionaire and celebrity on the lecture circuit, and religious persecution and science denial in at least half the public schools in the country. That’s what happens if Freshwater wins here.

I have followed this case closely here over the years, and I just read the brief. The claims in the brief seem to have nothing to do with the original case. I also cannot believe that “hostility to religion” in science class will win you any court cases. Will this be Dover II?

https://me.yahoo.com/a/WzabmdljuJyU[…]McYes-#ce8b0 said:

I have followed this case closely here over the years, and I just read the brief. The claims in the brief seem to have nothing to do with the original case. I also cannot believe that “hostility to religion” in science class will win you any court cases. Will this be Dover II?

This is in a state rather than federal court system, but…it can only be Dover II if the Ohio court not only finds against Freshwater’s legal team, but in doing so, writes a decision so clear and convincing that further appeal is not possible.

In a perfect world, that would be the expected outcome, but in a perfect world this thing would not be in front of this court to begin with.

I think there is a great deal of whistling past the graveyard going on here.

It is obvious that the claims have nothing to do with the original case. What happened was (terse summary but I defend my basic accuracy) -

1) Freshwater was a superficially popular but grossly unprofessional teacher who used inappropriate material, at least mildly injured a student in a bizarre way during a demonstration, and showed favoritism to students of one religious group in a variety of ways.

2) Due to all of this he was eventually ordered to stop certain religion-flavored behaviors.

3) He didn’t, and got involved in a lengthy termination hearing, during which he and his attorney offered multiple mutually contradictory defenses, although mainly focusing on denying that he had ever indulged in teaching creationism.

4) He was eventually terminated for insubordination, after a remarkably lengthy hearing.

5) He then turned to the courts, initially continuing to use the baffling mix of mutually contradictory claims that characterized his hearing.

6) However, since the Rutherford Foundation entered the picture, things have cleared up. They seem to have told him to stop denying creationism, and to pretend that he never denied it. The case is now a do-over of Edwards v. Aguillard, plausibly targeted toward a much more right wing SCOTUS. They have changed it from a bumbling series of desperate and contradictory denials of teaching creationism by a man trying to hold on to teacher job and pension, to a brazen claim that hell yes, he taught creationism, and that no-one has the right to stop him or anyone else from using the public schools to spread harsh religious persecution and science denial at a level that would have been controversial in the twelfth century. (Implied - but only to do those things in the service of right wing Christianity - fundamentalist Islam, Hindu extremism, Communist ideology, etc, need not apply.)

Steps “1)” through “5)” are now irrelevant, what matters now is that Rutherford is potentially presenting Scalia with an Edwards do-over via “6)”.

I will leave the plaintive mewling that reality cannot possibly be real to the creationists. All you (or I) know right now is that these articles generated comments sections filled with plaintive cries that the Ohio court “would never” accept this case, yet they did.

Maybe I missed something, but it seems to me a couple things are being overlooked. While perjury may be difficult to establish, there’s no question that, based on the Rutherford Institutes appeal Propositions, Freshwater entered false statements in his administrative hearing. Those statements amount to Class 6 felonies and carry a maximum penalty of 5 years in jail. I don’t see any reason why the board’s lawyer would not bring those up to the Ohio Supreme Court.

However, assuming those are not pursued, there’s still the issue that Freshwater was not solely removed from his position based on his religion teachings. He was also removed (IIRC) for misuse of a Tesla coil, misapplication of material outside the curriculum (including geology, cosmology, and SLOT), and conducting prayer meetings. While the Rutherford Institute can certainly try to make this a case solely focused upon the teaching of ID/Creationism, it is a matter of record what the Administrative Hearing actually covered and the reasons that Freshwater was actually let go. Assuming this even makes it as far as SCOTUS (which I sincerely doubt), I don’t see anyway they could possibly review the case considering the actual foundation of Freshwater’s dismissal.

Richard:

Another excellent article. I disagree with one point, though:

If the Ohio Supreme Court accepts the brief’s arguments about creationism, intelligent design, and academic freedom in public school science classes, there are no limits on what any given Ohio science teacher can present.

Arguments about teaching the controversy will only come from Christian fundamentalists. Any other views will be suppressed, including the teaching of evolution. We know this from the sacking of Christine Comer.

There is a longer story on CNN Belief Blog about Bill Nye’s video:

http://religion.blogs.cnn.com/2012/[…]creationism/

Here is the YouTube video to which they are referring, and it includes a transcript of Nye’s remarks:

http://www.youtube.com/watch?featur[…]=gHbYJfwFgOU

The YouTube video is 2:32 minutes long, and as of right how it has received 1,698,380 views and 55,426 comments; also 34,918 likes and 7,061 dislikes. The title is: “Bill Nye: Creationism Is Not Appropriate For Children”.

However, assuming those are not pursued, there’s still the issue that Freshwater was not solely removed from his position based on his religion teachings. He was also removed (IIRC) for misuse of a Tesla coil, misapplication of material outside the curriculum (including geology, cosmology, and SLOT), and conducting prayer meetings.

I may be corrected on details, because I have followed this, but to nowhere near the extent of RBH and some others here, but…no.

He was basically fired for insubordination after failing to stop certain specific behaviors.

The Tesla coil incident did not contribute directly, even though it was the basis of a civil suit.

The Tesla coil contributed very much indirectly. The incident was publicized, and that drew attention to everything else.

While we all agree that oversight was probably lax, that a reasonable person should have known the behaviors were wrong, and that the hearing was a bit confused, I think that overall this is a very good way to deal with such a situation.

Telling someone “now that I know that you did such and such a year ago I retroactively fire you” is tricky, and probably best reserved for really obvious violations like theft or the like. Telling someone “stop such behavior going forward” is a good method. If they do stop, problem over, and if they don’t, it’s well-documented that they were asked to. The school board exhibited some inevitable mild pathologies of bureaucracy, but behaved in a fair and rational way, in my opinion.

Freshwater himself has deliberately made the case confusing with his constant shifting and contradictory claims.

I welcome clarification or corrections if my terse summary here needs to be expanded, or is wrong in a major way.

Freshwater is a form of malignant cancer growth that just never seems to die. It needs to be cut out at its roots.

Freshwater defense:

I never taught creationism in my classes, just critical analysis of evolution.

If I had taught creationism in class there is nothing wrong with it, since I have freedom pf speech.

I did teach creationism in class, but there is nothing wrong with it because it is real science.

Now all you have to do is ignore all of the court decisions so far and give me another chance. I promise never to teach creationism again, even thought I never taught it in the first place and there was nothing wrong with it when I did.

DS said:

Freshwater defense:

I never taught creationism in my classes, just critical analysis of evolution.

If I had taught creationism in class there is nothing wrong with it, since I have freedom pf speech.

I did teach creationism in class, but there is nothing wrong with it because it is real science.

Now all you have to do is ignore all of the court decisions so far and give me another chance. I promise never to teach creationism again, even thought I never taught it in the first place and there was nothing wrong with it when I did.

Wish it was that.

Now it’s “I only taught evolution, wait, I taught critical analysis of evolution, wait, other teachers also have Bibles so it must be okay, wait, no…what’s that Mr. Rutherford?…whoops, I meant forget everything I just said, hell yes I taught right wing Christian Biblical creationism as science, I’ll do it again, every public high school teacher has a right to, and now let’s get this thing in front of Scalia for an Edwards do-over!!!!.

For what it’s worth, here’s how I see it. First, the lower court record is quite clear that Freshwater was fired for violating the school board’s policies. And he had a fair hearing. That should be the end of it.

However, now it’s being argued that the school board’s policies were unconstitutional because: (1) creationism is good science; (2) teaching “evolution only” is discrimination against religion; and (3) the First Amendment lets Freshwater do whatever he wants to do.

That’s not only crazy stuff, but (Richard may well know something I don’t know) there are no facts in this case on the “creationism = science” issue. They’re just declaring it to be science. I don’t see how a state supreme court can even consider such ideas.

I recall no mention of the equivalence of creationism and science in the evidence and testimony in the administrative hearing. There was a lot on Freshwater’s right to have his Bible on his desk, but nothing about the claim of academic freedom to teach glop.

I’m still wondering about the bait and switch pulled on the Supreme Court, from the Memorandum in Support and the Merit Brief on Proposition of Law II. Is there a legal-type out there who can shed some light on the legitimacy of that switch?

SensuousCurmudgeon said: That’s not only crazy stuff, but (Richard may well know something I don’t know) there are no facts in this case on the “creationism = science” issue. They’re just declaring it to be science. I don’t see how a state supreme court can even consider such ideas.

SensuousCurmudgeon said: That’s not only crazy stuff, but (Richard may well know something I don’t know) there are no facts in this case on the “creationism = science” issue. They’re just declaring it to be science. I don’t see how a state supreme court can even consider such ideas.

The problem for me is, I don’t see any good reason for them to touch this case unless they are considering such ideas.

Its possible that they took this case in order to say something about the (State) constitutionality of administrative firing procedures. Another possibility: they want to add their own beat down to what the district and appeals judges have already said. But both of those are long shots, don’t you think? Both would seem to me to be insufficient reasons to elevate the case to this level.

The only reason for even taking this case that makes sense (at least to me) is if they want to say something about the bigger question of what teachers can teach in the classroom. And if they wanted to message support for the status quo, they could’ve done that by not taking the case at all. So even just accepting the case indicates, to me, that some of the judges may be inclined to support the RI’s bigger argument.

The long and short of it is, I agree with you in that I don’t see how they could side with Freshwater. But the Ohio supreme’s decision to accept it has me worried. Had you asked me before the Ohio supreme court decided to take it, I would’ve said 0.0001% chance the Ohio court system would declare teaching ID constitutional. Now that they have accepted it, I’ll say 25-40% chance.

eric said:

SensuousCurmudgeon said: That’s not only crazy stuff, but (Richard may well know something I don’t know) there are no facts in this case on the “creationism = science” issue. They’re just declaring it to be science. I don’t see how a state supreme court can even consider such ideas.

The problem for me is, I don’t see any good reason for them to touch this case unless they are considering such ideas.

Its possible that they took this case in order to say something about the (State) constitutionality of administrative firing procedures. Another possibility: they want to add their own beat down to what the district and appeals judges have already said. But both of those are long shots, don’t you think? Both would seem to me to be insufficient reasons to elevate the case to this level.

The only reason for even taking this case that makes sense (at least to me) is if they want to say something about the bigger question of what teachers can teach in the classroom. And if they wanted to message support for the status quo, they could’ve done that by not taking the case at all. So even just accepting the case indicates, to me, that some of the judges may be inclined to support the RI’s bigger argument.

The long and short of it is, I agree with you in that I don’t see how they could side with Freshwater. But the Ohio supreme’s decision to accept it has me worried. Had you asked me before the Ohio supreme court decided to take it, I would’ve said 0.0001% chance the Ohio court system would declare teaching ID constitutional. Now that they have accepted it, I’ll say 25-40% chance.

100% agreement.

Furthermore, SCOTUS is now potentially in the picture. If this specific argument is evaluated by the Ohio court and they find against Freshwater, no doubt Rutherford will appeal to whatever the next court up the food chain is. I don’t know whether that is SCOTUS but it must be either that, or something getting very close.

If they find this thing in favor of (the new openly creationist) Freshwater, it’s pretty much guaranteed to go to SCOTUS.

If there is an outraged response to the bait and switch, verbal beat down of Rutherford, and perhaps penalties, that will mean that the Ohio court wasn’t in on the game, and isn’t sympathetic to these machinations.

If there is anything else, whether blatant finding that creationism can be taught, or weakly worded “appealable” softball negative decision lobbed in the direction of Scalia, it will resemble what a deliberate scheme to do over Edwards would look like, with the Ohio court at least passively sympathetic.

harold said: Furthermore, SCOTUS is now potentially in the picture…

If they find this thing in favor of (the new openly creationist) Freshwater, it’s pretty much guaranteed to go to SCOTUS.

I’d agree. I’d also use the same argument I make about the state supremet court to SCOTUS. I.e., if Ohio finds against Freshwater, he appeals, and SCOTUS agrees to take the case, then SCOTUS’ mere acceptance of it indicates to me that at least four of the judges are unhappy with the status quo in what is considered constitutional to teach.

When all but three (or less) SCOTUS judges are happy with thet status quo (and there are no contradictory circuit court decisions - which there aren’t in this case), the standard response is to not take the case at all. IANAL but it seems to me they would not take a case just to underline a currently broadly accepted point of law.

The whole thing makes no sense to me. This isn’t the same case that was tried in the courts below. It’s like losing a speeding case in traffic court, appealing, and then when you get to the state supreme court, you claim – for the first time – that it’s all about racial discrimination. Would the state supreme court even listen to an issue that wasn’t discussed in the lower courts? It seems to me that Freshwater waived these new issues by not bringing them up much earlier.

Supplement to brief

I noted in the OP that the Supplement to the Merit Brief was not yet on the Supreme Court’s site. I called the Clerk, and it consists of the record from the lower courts and won’t be scanned and put up. The lower court records are from the Knox County Court of Common Pleas and the Ohio 5th District Court of Appeals. They’re available here.

SensuousCurmudgeon said:

The whole thing makes no sense to me. This isn’t the same case that was tried in the courts below. It’s like losing a speeding case in traffic court, appealing, and then when you get to the state supreme court, you claim – for the first time – that it’s all about racial discrimination. Would the state supreme court even listen to an issue that wasn’t discussed in the lower courts? It seems to me that Freshwater waived these new issues by not bringing them up much earlier.

This is the whole point to me. The Court of Common Pleas’ and the Ohio 5ht District Court’s ruling cannot be ignored, nor for that matter can the mediated hearing. I don’t think the Ohio SC will even hear this case quite frankly, but if they do, I’m about 99% certain that they will place very strict parameters on what they can rule on and what they can’t.

Robin, the SC has already agreed to hear the case, as I understand it. See here:

Upon consideration of the jurisdictional memoranda filed in this case, the court accepts the appeal on Propositions of Law Nos. I and II. The clerk shall issue an order for the transmittal of the record from the Court of Appeals for Knox County, and the parties shall brief this case in accordance with the Rules of Practice of the Supreme Court of Ohio.

Robin said: This is the whole point to me. The Court of Common Pleas’ and the Ohio 5ht District Court’s ruling cannot be ignored, nor for that matter can the mediated hearing. I don’t think the Ohio SC will even hear this case quite frankly, but if they do, I’m about 99% certain that they will place very strict parameters on what they can rule on and what they can’t.

I’ve been paging through the Ohio Supreme Court’s Rules of Practice. The deadline for the Board’s response merit brief is Sept 23, which is a Sunday, so I assume it’ll be filed either Friday Sept 21 or Monday Sept 24. Amicus briefs are due the same date–30 days after the filing of the appelant’s (Freshwater’s) merit brief.

The more I read this, the less understand the Rutherford Institute’s reason for doing this. Maybe it’s just to bring more attention to the subject, but I don’t see it having any merit. In reading through some case law over the past 10 years, it’s pretty clear that the Propositions are weak. For example:

I. Proposition of Law I - The termination of a public school teacher’s employment based on the content or viewpoint of his curriculum-related academic discussions with students and use of supplemental academic materials violates the teacher’s and students’ First Amendment rights to academic freedom. A. Freshwater’s teaching methods were good practices and were in accordance with the Board’s policies B. Freshwater’s termination based on the Board’s stated reasons is a form of government censorship and a violation of the rights of academic freedom enjoyed by Freshwater and his students

There have been a number of attempts to justify religious teaching (almost universally conservative Christian) using “academic freedom violations” as the basis of argument. However, they’ve all been shot down primarily due to the fact the academic freedom is a concept used as a guideline, not a basis of law. Further, it’s only loosely associated with the 1st Amendment, having more to do with what authority can establish what is to be taught - which was established to prevent this specific type of behavior.

II. Proposition of Law II - The termination of a public school teacher’s employment based on the fact that his academic discussions with students and supplemental academic materials include ideas that are consistent with multiple major world religions manifests hostility toward religion in violation of the Establishment Clause.

The problem with this Proposition is that the case evidence clearly shows that Freshwater did not in fact present supplemental academic materials consistent with multiple major world religions, he in fact presented materials that are consistent with ONLY fundamentalist Christianity. That’s a problem because it squarely violates the 1st Amendment. I can’t wait to see how the Discovery Institute Rutherford Institute tries to spin this one.

The whole thing looks like a big face palm to me. Here are two summaries for those interested:

Religious Freedom of Faculty Members

Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991)

An exercise physiology professor referred to his religious beliefs during instructional time. The university requested that he discontinue this practice, and he challenged the action as violating his freedoms of speech and religion. The court held that the university’s actions of exercising editorial control over style and content of speech in school-sponsored expressive activities were permissible, so long as the university’s “actions are reasonably related to legitimate pedagogical concerns.” The court further ruled that academic freedom is not an independent First Amendment right, and refused to substitute its discretion for that of the university. The court rejected the free exercise of religion claim, holding that the professor “made no true suggestion, much less demonstration, that any proscribed conduct of his impedes the practice of religion.”

Edwards v. California University of Pennsylvania 156 F.3d 488 (3rd Cir. 1998)

A professor who was suspended with pay for advancing his religious beliefs through his lectures sued the university for violating several of his constitutional rights. The court rejected his claim, relying on its conclusion that a public university professors’ First Amendment rights do not extend to choosing their own curriculum or classroom management techniques in contravention of school policy or dictates. The court also reasoned that a university, as well as a professor, has certain academic freedoms, and therefore, a university can make content-based decisions when shaping its curriculum.

Richard B. Hoppe said:

Robin, the SC has already agreed to hear the case, as I understand it. See here:

Upon consideration of the jurisdictional memoranda filed in this case, the court accepts the appeal on Propositions of Law Nos. I and II. The clerk shall issue an order for the transmittal of the record from the Court of Appeals for Knox County, and the parties shall brief this case in accordance with the Rules of Practice of the Supreme Court of Ohio.

My bad. I thought they were still reviewing the case to decide whether to hear it. It will be interesting to see where this goes.

And how could he teach “critical thinking about creation”, if he didn’t teach creationism, (something that is illegal and which he denied, then confirmed, then denied again)?

The Court has granted the request for an extension to Oct 4 for the Board’s Merit Brief. According to the request, now on the web, the delay was necessitated by more R. Kelly Hamilton fooling around.

Richard B. Hoppe said: the delay was necessitated by more R. Kelly Hamilton fooling around.

I,m shocked! Shocked! Pretty soon you’ll tell me there’s been gambling at Ricks.

Richard B. Hoppe said:

The Court has granted the request for an extension to Oct 4 for the Board’s Merit Brief. According to the request, now on the web, the delay was necessitated by more R. Kelly Hamilton fooling around.

Color me shocked as well…about Hamilton’s silliness. I can’t fathom why the court is putting up with it though.

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