As those who follow the Freshwater affair know, John Freshwater appealed his termination as an 8th grade science teacher to the Ohio Supreme Court, filing a Memorandum in Support of Jurisdiction that induced the Court to accept his appeal, then a Merit Brief which laid out his argument for overturning the termination decision and which, not incidentally, made a different argument than that made in the Memorandum in Support; in effect, Freshwater pulled a bait and switch on the Court. The Board of Education filed a Memorandum in Response to Freshwaterâs Merit Brief, and Freshwater has now filed a reply. Iâll describe some salient features of his reply below the fold.
One preliminary remark: Freshwaterâs reply brief nowhere mentions his bait and switchâthe change in Propositions of Law between his Memorandum in Support of Jurisdiction and his Merit Brief. The Boardâs Merit Brief called attention to that shift, but Freshwaterâs reply ignores it. The Board also moved to strike the Propositions of Law of Freshwaterâs Merit Brief that were not previously contained in the Memorandum in Support of Jurisdiction. No action has yet been taken by the Court on that motion.
In his reply Freshwater makes several arguments. Iâll summarize those that are most interest to me, and refer you to the document itself for more. The core claims of Freshwaterâs argument are encapsulated here:
The Board has gone beyond its legitimate curriculum choices and enforcement of duly-enacted policies to systematically eliminate a single line of inquiry-that which challenges evolution theory. Along the way it has also undertaken an unlawful effort to sterilize the classroom of any acknowledgement of religion, having identified religion as the putative basis for the academic theories that challenge its orthodoxy. Under these circumstances at least, the Court should apply the First Amendment as a shield to protect Freshwater from the Boardâs fervor to indoctrinate students in evolution and to banish competing ideas from the classroom. (p. 8-9)
Ugh. So much trash in so few words.
Freshwaterâs first specific claim is that his case is unique, that prior jurisprudence associated with the creationism/evolution issue (e.g., McLean, Edwards v. Aguillard , and so on) and prior jurisprudence regarding the free speech rights (or lack thereof) of public school teachers is irrelevant.
Freshwater does not claim a generalized First Amendment right to free speech in the classroom or to determine classroom curriculum. Rather, he seeks a modicum of protection pursuant to academic freedom and free speech principles under the First Amendment where his teaching methods and speech were consistent with Board policy but singled out for viewpoint based censorship. This is a case of first impression, and no known precedent provides a useful framework for its analysis. (p. 1)
And a bit later:
Freshwater claims only that First Amendment free speech and academic freedom principles protect him from termination flowing from viewpoint-based censorship where he has complied with all Board policies and all clear directives from his superiors. The analysis applied in Evans-Marshall and other âteacher speechâ cases do not, therefore, provide a useful framework for this case. (p. 3)
In a John Scalzi novel, The Androidâs Dream, a case is won by appealing to the judgeâs vanity by claiming that the case enables the judge to make new law. I see hints of that tactic here.
Freshwaterâs argument revolves around the notion of âviewpoint discrimination,â and depends on the premise, unstated until later in the brief, that what Freshwater was teaching by way of intelligent design and creation science was purely secular and is only coincidentally consistent with three world religions:
On this record, where Freshwater did nothing more than facilitate discussion and consideration of elements of the alternative theories to evolution (which happen to be consistent with several major world religions) as part of a secular examination of the weaknesses of evolution theory, it defies logic to argue that he violated Policy 2270. (p. 10-11; italics original)
The Boardâs action, on this argument, discriminates against what the brief holds to be nothing more than alternative secular scientific viewsâintelligent design and creation scienceâwhich are only tangentially related to religion:
In this application, however, the Board itself violated the Policy by expressing intolerance for any idea that is tangentially related to religion and disposing of the idea and the one who expresses it as inherently inappropriate for the classroom.
In other words, the Board illegitimately fired Freshwater just because he taught legitimate secular scientific alternatives to evolution that happen to be distantly related to (some sects of) Judaism, Christianity, and Islam, and thatâs impermissible viewpoint discrimination. The First Amendmentâs Free Speech clause, or a subset thereof, âacademic freedom,â should be construed to protect Freshwaterâs (science classroom) speech in this respect.
This argument ignores both the judicial record concerning creationism and intelligent design, and expert testimony given during the administrative hearing on Freshwaterâs termination, where Patricia Princehouse analyzed handouts and a video used by Freshwater, and traced the history of creationism up through intelligent design. Freshwaterâs argument requires accepting the false proposition that creation science and/or intelligent design are secular scientific alternatives to evolutionary theory.
I am reminded of plaintiff Fred Callahanâs testimony in Kitzmiller:
Weâre said to be intolerant of other views. Well, what am I supposed to tolerate? A small encroachment on my First Amendment rights? Well, Iâm not going to. I think this is clear what these people have done. And it outrages me.
Me, too. Though I have to confess: I practice viewpoint discrimination. I discriminate against the views that the earth is flat, that the sun goes âround the earth, and that Celine Dion is a good singer. :)
Thereâs a fair amount of text that argues that the narrow protection Freshwater claims to seek is not covered in preceding cases. Iâm not qualified to evaluate that argument, but it seems to be fishy on the face of it. The brief argues that Kitzmiller is not applicable here because it addressed a curricular requirement of a Board of Education, while Freshwaterâs case involves a teacher:
The U.S. Supreme Courtâs precedents addressing laws mandating certain treatments of origins of life theories are useful in understanding its perspective on academic freedom, but do not provide a useful framework for analyzing this case, where no general Board mandate is at issue. Kitzmiller v. Dover, a federal district court opinion relied upon heavily by the Board, is inapposite for both factual and analytical reasons; it involved a challenge to a school district policy that compelled teachers to make statements about intelligent design. 400 F.Supp.2d 707 (M.D. Pa. 2005). McLean v. Arkansas Board of Education is likewise unhelpful for the same reason. 529 F. Supp. 1255 (E.D. Ark. 1982). The Board has never officially prohibited classroom discussion of intelligent design, and Freshwater has not challenged its mandate of evolution curriculum. (p. 5-6)
In fact, of course, the District Science Curriculum Committee and the Board of Education both rejected Freshwaterâs proposal to teach intelligent design in 2003. (I should also note that the Board has never officially prohibited classroom discussionâas legitimate competing academic theoriesâof phlogiston theory, N-Rays, astrology, alchemy, homeopathy, and the bad air theory of disease causation.
Freshwaterâs reply ignores the salient findings of McLean, Edwards v. Aguillard, and Kitzmiller that are in fact directly relevant to Freshwaterâs behavior. Those findings are that creation science and its lineal descendant intelligent design are inherently religious notions; they are not secular scientific alternatives, as Freshwaterâs argument would have us believe. In all three cases, expert testimony, including that of Barbara Forrest in Kitzmiller, established that the teaching of both creation science and its intellectual offspring intelligent design (here in its Discovery Institute guise of âhelping students to understand the strengths and weaknesses of aspects of evolution theoryâ (p. 10)) is in itself unconstitutional. The issue is not whether the Board did or did not require it, it is that Freshwater himself chose to introduce constitutionally impermissible material in his 8th grade science classes. As the Board argued in its merit brief, Freshwaterâs behavior, acting in his role as an agent of the Board, put the Board itself in legal jeopardy, and the Board has the right and obligation to ensure that it is protected from that jeopardy. Since Freshwaterâs behavior was persistent over the years, and since the Board, both itself in 2003 and via administrators subsequently, had given Freshwater clear indications of his problematic behavior, termination was the final step in the Boardâs effort to stop the unconstitutional behavior.
Thereâs more in the document. The last part of it is devoted to arguing that the Boardâs action in terminating Freshwater fails all three of the prongs of the Lemon test. Again, Iâm not competent to evaluate that, though some of the claims of fact in the section are dubious. For example, the document says
Recall that Freshwater was not terminated for having a classroom âfull of religious itemsâ but rather for failing to understand the administrationâs alleged desire for him to remove a few items from his room that were permitted elsewhere in the school.
That ignores the fact, established in testimony in the administrative hearing, that subsequent to the instruction to remove the religious display from his room he added two religious books, âJesus of Nazarethâ and a Bible, to his lab table in the front of the room.
I still see Freshwaterâs argument to the Ohio Supreme Court as being mainly an attempt to induce the Court to accept the premise that creation science and intelligent design are legitimate secular scientific theories, and that their congruence with sectarian religious views is purely incidental. If the Court accepts that premise the public schools are in (more) trouble, kids.
Thatâs all my commentary on the document. I commend it to readersâ attention for more.