Updated: Freshwater: Ohio Supreme Court oral arguments next week

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UPDATE: Video of the oral arguments is now up.

Oral arguments before the Ohio Supreme Court on the termination of John Freshwater’s contract as a middle school science teacher in Mt. Vernon, Ohio, are scheduled for the morning of Wednesday, February 27. Freshwater’s case is second on the schedule. Fifteen minutes of oral arguments are allotted to each side in each case, and I don’t know how long the break between cases is, so Freshwater’s case will be heard sometime after 0930 EST (1430 UT). Oral arguments will be live streamed on The Ohio Channel, and I was told by an administrator at the Court that video of the arguments should be archived at the same site that evening.

The documents in the Court’s review are here. The core documents are Freshwater’s Merit Brief (PDF here) and the District’s Merit Brief (PDF here). In addition, Steve and Jenifer Dennis, the National Center for Science Education, the Secular Student Alliance, the American Humanist Association, and Americans United for Separation of Church and State have filed amicus curiae briefs, all available at the general documents link above.

Recall that two lower courts, the Knox County Court of Common Pleas and the Ohio Fifth District Court of Appeals, both ruled against Freshwater. I still have no idea why the Ohio Supreme Court accepted the case for review, particularly in view of the bait and switch Freshwater’s attorneys pulled on the Court.

I suggest that interested folks preview a couple of the archived oral argument videos to get a feel for how the Court operates. In general, attorneys for both sides get to start their presentations but are rather quickly interrupted by questions from members of the Court.

112 Comments

Thank you, Richard, for your tireless work on this.

In the “bait and switch” link, you mention a “motion to strike”. Although the state supreme court has accepted the case, do you know if the court responded directly to the “motion to strike” request? I didn’t find anything obvious on the previous thread.

Thanks.

Richard said ..

Oral arguments […] are scheduled for the morning of Wednesday, February 27.

Oral arguments will be live streamed on The Ohio Channel.

Yes ! That makes one more item that I’ll be needing for Wednesday and will be adding to this evenings grocery list. If any of you folks are not stocked up on popcorn by then, you have only yourselves to blame.

Not that it’s difficult to find on the page that Richard linked to in the quote above, but here’s a direct link to The Ohio Channel Live Feed. It runs 24/7 and in the last half hour or so I learned that the first ever Dragonfly Conference was held there recently, a little bit on prairie conservation, how to rewire my own spinner for fishing, and playing now a nice and easy recipe for rabbit from the Game Gourmet. Go Buckeyes !

Richard, a sincere thank you for all your diligent work concerning the Freshwater debacle.

I am just aghast that Freshwater has been able to use and tie up the courts in Ohio for so long on this, and second the thanks for your attention on this Richard!

Scott F said:

Thank you, Richard, for your tireless work on this.

In the “bait and switch” link, you mention a “motion to strike”. Although the state supreme court has accepted the case, do you know if the court responded directly to the “motion to strike” request? I didn’t find anything obvious on the previous thread.

Thanks.

They denied it.

I was wondering, is the Ohio Supreme Court open to the public? I went to their website and was still uncertain.

Ye

Ed Elfrink said: I was wondering, is the Ohio Supreme Court open to the public? I went to their website and was still uncertain.

Yes, though I don’t know how many the site seats. I know that several people are going, though I will watch it on the web.

Thanks, Richard. You continue to do a top-notch job in your coverage of this spectacle.

It’s all moot because I’m going to offer Freshwater an opprtunity to teach creationism at double the salary he was making, and guarantee at least as many students as he had before. Though there’s a “slight” chance that he’ll turn down the lucrative offer because of my tiny little requirement that he teach all the creationism he wants and more.

RBH,

Remember Freshwater friend and adviser Coach Dave? Dave was fired from his football coaching job at a Christian school in Lancaster last Nov. Six years ago, he was hired to start a football team from the ground up, which he did, and did rather well (he took his team to 2 playoffs). But about 2 years ago he started to cross swords with the administration (something he has a history of doing). He pulled the baseball coach and athletic director into his posse. The administration gave him the run-around probably hoping that he would sit down and shut up. Dave upped the ante by drafting some parents into his posse. The posse stormed the administration building led by Dave carrying a cross in one hand and an American flag in the other! (sarcasm) The administration heard The Truth According to Dave! The next day the baseball coach was fired, on the second day the athletic director was fired, on the third day Dave was fired. The administration said he was too “divisive”. Just like Freshwater, the baseball coach and the athletic director got “daubenmired”. Throwing in your lot with this loose cannon has some serious consequences.

Grey Wolf said: Remember Freshwater friend and adviser Coach Dave?

For a taste of what Daubenmire is up to now, see http://www.newswithviews.com/Dauben[…]/dave311.htm - full P4 personal protective equipment is advised - Coach Dave has drunk deeply of the foaming-at-the-mouth ultra-right-wing fundagelical Kool Aid.

I love the “Where Reality Shatters Illusion” motto of that site.

For another taste of what he’s been up to lately, check out CoachDaveTV on youtube. You can watch him get all worked up but do wear your personal protective gear, he just loves to jab his finger in his audience’s face. I’d like to know how much this little attempt at big time Christian leader fame is costing him, what with all those swirling graphics, professional voice over intro and catchy theme music. A CBN star in the making!

Paul Burnett said:

Grey Wolf said: Remember Freshwater friend and adviser Coach Dave?

For a taste of what Daubenmire is up to now, see http://www.newswithviews.com/Dauben[…]/dave311.htm - full P4 personal protective equipment is advised - Coach Dave has drunk deeply of the foaming-at-the-mouth ultra-right-wing fundagelical Kool Aid.

Sheesh; more like Pass the Surphuric Acid Ministries. This character is corrosive.

That’s sulphuric.

It is a shame to me to share a name with this Nazi. Then I recall that Harpo Marx and Hitler had the same problem.

Mike Elzinga said:

Paul Burnett said:

Grey Wolf said: Remember Freshwater friend and adviser Coach Dave?

For a taste of what Daubenmire is up to now, see http://www.newswithviews.com/Dauben[…]/dave311.htm - full P4 personal protective equipment is advised - Coach Dave has drunk deeply of the foaming-at-the-mouth ultra-right-wing fundagelical Kool Aid.

Sheesh; more like Pass the Surphuric Acid Ministries. This character is corrosive.

A lot of standard cut and paste Fox News/Limbaugh/Tea Party stuff. And in fact Daubenmire has spoken at Tea Party rallies.

I mention this merely to remind people that efforts to insert sectarian evolution denial into public schools nearly always end up having a strong connection to authoritarian political/social movements, and current organized, political science denial in the US nearly all emanates from one particular political party.

This comment has nothing to do with any pro-science person’s economic or social policy preferences. It is, however, important to understand something if you want to work against it.

Quote the Coach.…” People are getting ready to leave the church and run to God. The religious system can’t save you. Your pastor can’t save you. Nor can his books and tapes. Only the Truth can. Religion has become a business…a spiritual ponzi scheme…shearing the sheep.”

Well, that explains why you see no ads on that web page..especially for books and tapes…:)

That guy’s anger and rants would put him in first place as a future recruiter for the first Xian suicide bombers…the epitome of a Retaliban.

Charley Horse said: (Daubenmire’s) anger and rants would put him in first place as a future recruiter for the first Xian suicide bombers…the epitome of a Retaliban.

The fundagelical home-schoolers and madrassas have been churning out cannon fodder for the War To Come for decades. Robert Heinlein was right on target in the stories preceding this one.

Coach Dave was my soccer coach in high school, 1978-1982. I have to say he never prayed or spouted any religious talk when I knew him, something must have happened to convert him.

Quoth the Coach.…”

Calling oneself an eagle does not make it possible to fly.…

If it walks like a duck, and talks like a duck…

The truth is harsh. It sounds mean, hateful, and intolerant. But the way one swallows the medicine does not determine whether or not the medicine is effective.…

Anything that is not the truth is a lie. A half-truth is a full lie. They call that deception. That is how most Americans operate. There is no “no-spin zone” anymore.

Hmmm.. Sounds like this guy has a real problem with lies, and feels you should always seek the truth no matter how personally inconvenient.

And yet he allows - no, forces - himself to believe in magic in the face of overwhelming evidence to the contrary

Now that makes a lot of sense.

https://www.google.com/accounts/o8/[…]s0OOm21vEpPA said:

Coach Dave was my soccer coach in high school, 1978-1982. I have to say he never prayed or spouted any religious talk when I knew him, something must have happened to convert him.

The current Coach Dave seems to be half Tea Party slogans and half dedicated to declaring himself “the only true Christian” and disparaging rival fundamentalist preachers, albeit not by name, as “not real Christians”.

This is a very, very common combination. It has been noted many times that if these types actually did manage to take over, they would turn on each other. Creationists maintain a united front in public but pick many ugly battles with each other in private.

The majority of authoritarians are authoritarian followerss, but there is a large surplus of would-be authoritarian leaders.

something must have happened to convert him.

God cured his sister of cancer. She had been told by several doctors that she probably had cancer. She prayed and felt that God had cured her. She went ahead and had the surgery anyway (I guess her faith wasn’t THAT strong) but when they opened her up, no cancer. A miracle! She dragged Dave to her church so he could be saved. He answered the altar call, fell to his knees, and was born again. Most significantly: he’s never drunk a beer since. You see, according to him, he used to serve the King of Beers (Budweiser - blechh!). Now he serves the King of Kings. Analyze that, Dr. Freud. This was in the late ‘80’s.

Grey Wolf said:

something must have happened to convert him.

God cured his sister of cancer. She had been told by several doctors that she probably had cancer. She prayed and felt that God had cured her. She went ahead and had the surgery anyway (I guess her faith wasn’t THAT strong) but when they opened her up, no cancer. A miracle!

Sooo… When the MDs said “probably” and did exploratory surgery to verify and found nothing, it was a miracle rather than being the short end of the odds, which would indicate that she never had cancer in the first place, so there was nothing to “cure”.

Most likely, the doctors were going on a shadow on an MRI image. MRI can pick up non-solid body tumours that no other external investigation can, but in the ‘eighties, the MRI technology wasn’t good enough to say better than “probably” there was a growth there. As good physicians, they went with the odds. If the best test they had said there was a likely tumour, they had to go in, because the risk of not doing so was greater. False positives in this case are better than false negatives.

This wouldn’t satisfy the Vatican’s guidelines for investigating a miracle. It would fail at the first hurdle.

And yet, it seems to have had a very great effect. It turned a person who appears to have been a reasonably ordinary decent man into an extreme bigot, one suffused with rage against an entire nation, a fanatical sectarian of the Phredd Felps stripe who has influenced others towards his own evil designs, and yet others towards disgust with and alienation from all Christianity.

If this were a miracle cure, one wonders exactly what supernatural power worked it.

Grey Wolf said:

something must have happened to convert him.

God cured his sister of cancer. She had been told by several doctors that she probably had cancer. She prayed and felt that God had cured her. She went ahead and had the surgery anyway (I guess her faith wasn’t THAT strong) but when they opened her up, no cancer. A miracle! She dragged Dave to her church so he could be saved. He answered the altar call, fell to his knees, and was born again. Most significantly: he’s never drunk a beer since. You see, according to him, he used to serve the King of Beers (Budweiser - blechh!). Now he serves the King of Kings. Analyze that, Dr. Freud. This was in the late ‘80’s.

He seems to have made several logical errors.

1) I’m a pathologist. It sounds to me as if his sister was given a presumptive diagnosis of cancer without tissue biopsy confirmation, which is sometimes reasonable, if clinical suspicion is very high and surgery risk is negligible. As in her case, patients are usually glad just to hear there’s no cancer. Alternate possibilities include an initial biopsy that sampled an entire small focus of neoplasm, a biopsy misread, or less much less likely but not impossible, tumor regression, which can sometimes happen with certain tumor types but does not rule out metastasis or later recurrence. It may not always be possible to distinguish between “excision by biopsy” and tumor regression, and even in the modern era, some few biopsies may be very hard to interpret definitively. No miracle required.

2) If it was a miracle, it certainly doesn’t justify Daubenmire’s hyper-specific conclusion that the post-modern politicized right wing version of Christianity is the one true faith, let alone his apparent presumption that he himself is some prophet of such a faith.

3) Directly relevant to the Freshwater story: Daubenmire makes constant claims to have “beaten the ACLU in 1997”. He is apparently deluded. The suit ended when the school district agreed to prevent further Christian prayer at football practice. Daubenmire attempted to sue the parents who complained and lost. Obviously, whether related or not, he doesn’t seem to be employed as a football coach, not even at a private Christian school, at the moment.

NOTE: I am familiar with once ancestor strain to toxic post-modern politicized, sensationalized Daubenmire style Christianity. I was raised in a tolerant, non-traumatizing, and ecumenical, but very austere Baptist church. Jimmy Carter or Flanders on the Simpsons are good examples of what sincere members tended to be like. There is a very strong vein of ambivalence toward football in that tradition. Ostentatious Tim Tebow types don’t change the fact that it’s a violent game associated with gambling, scantily clad cheerleaders, locker room vulgarity, etc. I’m old enough to remember when the idea of a “Christian football player” was odd and mildly controversial. Oddly enough hockey was considered perfectly respectable.

From Daubenmire’s website bio:

“Dave Daubenmire, a veteran 25 year high school football coach, was spurred to action when attacked and eventually sued by the ACLU in the late 1990’s for alledgedly (sic) mixing prayer with his coaching. After a two year battle for his 1st amend-ment (sic) rights and a determination to not back down, the ACLU relented and offered coach an out of court settlement. God honored his stand and the ACLU backed off. Coach’s courageous stand, an inspiration to Americans everywhere, demonstrated that the ACLU can be defeated.”

This is from the ACLU’s website: “During discovery depositions held in the last two weeks, Head Coach David Daubenmire admitted to leading the football team in the Lord’s Prayer after games, passing out a scriptural verse to team members, allowing ministers to lead the team in prayer, and to using Bible stories as a part of certain team meetings. Daubenmire denied having engaged in such misconduct after November 1997, although witnesses told the ACLU that such conduct persisted into the fall of 1998. The settlement comes just one day before the case was scheduled to be heard in Federal Court. Judge James Graham had set a hearing for today, but canceled yesterday afternoon, when attorneys agreed that a settlement seemed likely. Yesterday evening, the London School Board voted unanimously to accept the terms offered by the ACLU. Under the agreement, for the next two years the principal of London High School must report all complaints of religious activity not only to the district superintendent, but also to the ACLU.Violations of the Establishment Clause could result in a citation for contempt of court. A second agreement, previously ratified by the lawyers in the case, awards the ACLU nearly $18,000 in attorney fees and court costs.”

“A second agreement, previously ratified by the lawyers in the case, awards the ACLU nearly $18,000 in attorney fees and court costs.”

Oh yeah, that’s a victory for Jesus. They could have got $19,000!

Just Bob said:

“A second agreement, previously ratified by the lawyers in the case, awards the ACLU nearly $18,000 in attorney fees and court costs.”

Oh yeah, that’s a victory for Jesus. They could have got $19,000!

You are arguing that the source of the famous quote about rich men and eyes of needles would not approve of the giving away of money? :)

It seems possible that Dave Daubenmire may be partly, indirectly responsible for much greater expenses incurred by the Mount Vernon district.

We’ll never know, but we can note that one Freshwater characteristic is that he seems to obsessively believe that he can win his case. He had the easy choice of just teaching science and keeping his job. This may well have been true even despite the successful action of the Dennis family (the current case is not related to that incident).

The case isn’t over yet, and it is odd that the Supreme Court of Ohio is hearing it at all, so maybe he is right, but I’ll go out on a limb and say that I think he probably isn’t.

R. Kelly Hamilton is one enabler, but Freshwater was an associate of Daubenmire as well.

For your amusement:

http://www.youtube.com/watch?v=yn4USVRMAAc

Coach Dave defends John Freshwater on “Geraldo”. You can see why Dave was kicked off the Freshwater support team shortly after this.

Mcsnebber said: I don’t have a legal bone in my body but I would’ve been better prepared to answer some of these challenges than the school board’s attorney did.

That seems to have been the problem, it wasn’t the school board’s attorney, it was the insurance company’s attorney arguing the case. RBH can correct me if I’m wrong, but I believe the case would have been better served if David Millstone, who represented the district through the two-year administrative hearing, had argued for the board.

Richard B. Hoppe said:

DS said:

Here is a thought. If they do reinstate Freshwater, can the school district give him administrative duties or other duties that keep him out of the classroom? Do they have to put him back in front of children? Do they have to give him another chance to defy the law?

Hard to say. It might hang on the precise wording of the Court’s decision, if it goes that way. But I’m already thinking through recommendations to the Board and administration should he be reinstated in a teaching capacity. Those recommendations will take into account his propensity to use creationist materials, unsourced materials, and plainly false claims.

harold said:

MichaelJ said:

I think that if the OSC reinstate Freshwater that it will be a Pyrrhic victory for the creationists. It will turn what is for most people another ho-hum story about a creationist teacher to something that has world wide attention. I don’t think that the judges, the Ohio government and the progressives in the state will enjoy being laughed at by the rest of the world as science illiterates and religious bigots.

This is plausible and something we should aim for.

I’ve been criticized by many for wasting my time even paying attention to what creationists are up to. A vast number of people simply don’t understand the authoritarian relentlessness and deviousness of creationists and those who pander to them.

As outrageous as this is, it’s potentially a win-win.

If the court sobers up and realizes that it can’t reinstate Freshwater, that’s good. Although only in the limited sense that a troublemaker’s ability to violate the rights of others and waste public resources will be curtailed.

If they do reinstate him, financially ruining a humble school district in the process, that might make people sit up and take notice. And that might turn out to be a bad thing.

Unfortunately the Mount Vernon School District is already close to financial ruin. A new levy has not passed for years and the school board has cut deeply. A new levy will appear on the ballot in the near future and if it fails, almost all extra-curricular activities and some non-mandated courses will be cut.

tomh said: That seems to have been the problem, it wasn’t the school board’s attorney, it was the insurance company’s attorney arguing the case. RBH can correct me if I’m wrong, but I believe the case would have been better served if David Millstone, who represented the district through the two-year administrative hearing, had argued for the board.

That’s what it said in the news reports too. In fact, in one of them they interview Millstone and he says something like ‘I souhld’ve been the one to brief it.’

I would like to issue a general warning.

We may be angry about Judge “it’s a theory in’t it” Pfeiffer, but we should avoid attacking the Ohio judges personally, making accusations not based on evidence, speculating, etc. If we criticize the judges, our criticism should be limited to their professional behavior in the matter at hand.

I don’t want us to launch off into personal attacks analogous to the despicable behavior of Dembski and the DI’s attack on Judge Jones from Kitzmiller v. Dover.

We all remember Dembski’s Flash animation of Judge Jones being string-pulled by the ACLU, and making farting noises, provided by Dembski.

I hope you all remember how the DI’s John West launched his for despicable and revolting quote-mine of Judge Jones, a dishonest attack unrelated to the text of Jones’ Dover decision.

And Stephen Meyer’s dishonest, personal attacks on Jones in Signature in the Cell.

Let us not, therefore, speculate about the Ohio judges’ religious beliefs or other such topics. Let us limit ourselves only to criticisms which:

1. Are relevant to the topic at hand, and 2. Are backed up by evidence, not speculation.

Unfortunately the Mount Vernon School District is already close to financial ruin. A new levy has not passed for years and the school board has cut deeply. A new levy will appear on the ballot in the near future and if it fails, almost all extra-curricular activities and some non-mandated courses will be cut.

Not surprised.

1. By letting the fundie death cultists run around for years, they angered the normal people who are likely a majority.

2. By cracking down on the fundie cultists, they angered the christofascist community which probably isn’t that large but is more vocal.

Religion is a good way to divide communities, schools, and families. Dennett: Religion is the best vehicle for social conflict ever invented.

Even in good times, it can be hard to get a school levy passed. Although my local district just passed one. If I knew they were teaching creationism, I would have campaigned against it.

I don’t know the Mt. Vernon area well even though I’ve actually been there once. My two friends, married professionals with stable jobs suddenly quit and moved to southern California. It happened after their kid was born. I’m starting to get an idea of why they left the area.

Re, the reinstatement issue.

The school district in a worst case, might have to rehire him. They don’t have to let him near kids. In fact, they would be cosmically stupid to do so.

What they do in these cases is give the teacher an office and desk and no duties. Or makework if they are feeling generous.

There are near countless private xian schools everywhere and I’m sure a few around Mt Vernon. Any of them could have hired JF. None did. Even the xians aren’t going to risk their kids with this guy.

Sigh.…, where are Steve Harvey, Eric Rothschild, Nick Matzke (and other attorneys/staff that so well represented the plaintiffs at Kitzmiller v. Dover) when you need them?

You know the teaching point that this is reinforcing, over and over, to school boards all over the country?

Dover says, if you find that one of your teachers (or the school board itself) is a creobot fundamentalist who plugs their religion in class, you have to get rid of him or her, or sooner or later you’re going to get sued, and it will ruin you. The Freshwater affair says that if you do get rid of him or her, you’re going to have to fight through court after court, and it will ruin you. The creobot, buoyed by fanaticism and his co-religionists, has effectively limitless means and motivation, but every penny the school board spends come straight out of their levy, and nowhere else.

Damned if you do, and damned if you don’t.

Seems to me that there has to be some sort of fighting fund set up by rational people to help out the school board that is trying to get rid of the loonies.

Damned if you do, and damned if you don’t.

No, the message to intelligent taxpayers, insurers, and administrators is - damned if you do.

Damned if you do let creationists or other rights-violating reality-denying types get established.

If Freshwater loses here, the district if financially ruined. If he wins, they’re twice as ruined. If they hadn’t taken action, they would have been financially ruined soon. They took a huge insurance hit on the civil case with the Dennis family.

This happened because Freshwater was inadequately supervised.

Virtually all scientists active in biology or related fields accept the theory of evolution.

If you want to use taxpayer dollars to teach a high school class called “science” or “biology” you teach what 98% or more of scientists agree is the science.

Even putting aside violations of constitutional rights, if high school teachers have the “academic freedom” to arbitrarily teach any crap they want, then there is no point in even having high schools.

No creationist, no lawsuit. It’s that simple. Whoever “wins” in the end, one thing is for certain. If Mount Vernon hadn’t had Freshwater, they wouldn’t be financially ruined right now. No creationist, no lawsuit.

IANAL, but this thought occurred to me on reflection after watching the video.

It seems to me that several of the questions from the justices were about things for which no evidence was presented at the trial. The lawyer for the school board could not be expected to give testimony about whether evolution was a theory. Even if he knows better, he is not qualified to argue that point, and, I dare say, this is an inappropriate forum for him to argue that - I say that he ought not argue that point with the justices. He may have been personally embarrassed not to get into that, but that’s not his job.

Therefore, I say, an appropriate ruling from the OSC would be that the case must go back to the trial court and evidence must be obtained to determine points like whether evolution is controversial. I envision the re-trial turning out to be another one of the cases where expert witnesses are called to testify that evolutionary biology is standard science, and there is no non-religious alternative, and therefore to present objections to evolution is nothing other than to advance a (particular sectarian) religion.

TomS said: It seems to me that several of the questions from the justices were about things for which no evidence was presented at the trial. The lawyer for the school board could not be expected to give testimony about whether evolution was a theory. Even if he knows better, he is not qualified to argue that point, and, I dare say, this is an inappropriate forum for him to argue that - I say that he ought not argue that point with the justices. He may have been personally embarrassed not to get into that, but that’s not his job.

But it IS his job to point that out to the panel, to refocus the court’s time on his evidence and the case. Sure, if they have an agenda that’s going to be impossible to do. But its his job to try. To say, basically, that whether evolution is a theory or not is irrelevant to the case at hand; Freshwater was fired for breach of discipline having to do with teaching material he was ordered by the principal not to teach. If the court finds that ID is teachable, that will affect future administrative decisions, but it cannot be applied post hoc to Freshwater’s case: it is still the case that he disregarded a request by his boss that was perfectly legitimate at that time.

Let me draw a comparison. The speed limit outside my house is 25. If I go 35 and get caught, I’ve broken the law. If three years later a court decides that the speed limit should be 35, I don’t retroactively get my money back or my record wiped - I still broke the law. Same thing here. If this court decides that it should be legal in Ohio schools to present ID creationism, the disciplinary case against Freshwater should still be grounds for firing him.

eric said:

TomS said: It seems to me that several of the questions from the justices were about things for which no evidence was presented at the trial. The lawyer for the school board could not be expected to give testimony about whether evolution was a theory. Even if he knows better, he is not qualified to argue that point, and, I dare say, this is an inappropriate forum for him to argue that - I say that he ought not argue that point with the justices. He may have been personally embarrassed not to get into that, but that’s not his job.

But it IS his job to point that out to the panel, to refocus the court’s time on his evidence and the case. Sure, if they have an agenda that’s going to be impossible to do. But its his job to try. To say, basically, that whether evolution is a theory or not is irrelevant to the case at hand; Freshwater was fired for breach of discipline having to do with teaching material he was ordered by the principal not to teach. If the court finds that ID is teachable, that will affect future administrative decisions, but it cannot be applied post hoc to Freshwater’s case: it is still the case that he disregarded a request by his boss that was perfectly legitimate at that time.

Let me draw a comparison. The speed limit outside my house is 25. If I go 35 and get caught, I’ve broken the law. If three years later a court decides that the speed limit should be 35, I don’t retroactively get my money back or my record wiped - I still broke the law. Same thing here. If this court decides that it should be legal in Ohio schools to present ID creationism, the disciplinary case against Freshwater should still be grounds for firing him.

I have not watched the video beyond the first several minutes of the Board’s attorney time, but the one judge ( I think it was Pfeiffer) was out to throw the attorney off his game right off the bat. Before the attorney has a chance to really start his presentation he was interrupted with:

Judge: When did the board want to fire Freshwater?

Attorney: when the investigation was compete

Judge: No, no. When did the board really want to fire Freshwater?

Attorney: when the investigation was compete

Judge: Come on!! When did the board REALLY want to fire Freshwater?

This was straight out of Perry Mason or something where the attorney is trying to break the witness. If the rest of his time was anything like the beginning, the attorney didn’t stand a chance. I suspect the attorney was ready to discuss things relevant to the case (was the administrative hearing proper, does the teacher have a first amendment right to say wrong things even though the school says he can’t, etc). Although it would be nice, is it reasonable to expect the attorney to know every little detail about every little thing that might be tangentially relevant to the case (when did the board make a back room decision to fire Freshwater, where in the tree of life is the common ancestor of a weed and a cow, etc)? If I go to court for a speeding ticket, am I guilty because my attorney doesn’t know how the engine works??

Freshwater’s attorney clearly had the easiest case to present (and, in my opinion, she did a good job). For her, all of the answers to the questions were pretty much the same. All she had to do was state over and over Freshwater was within board policy etc. Plus, their whole appeal is based on an argument that was never presented in he original hearing: does he have first amendment right to teach crap. She did not have to get into the weeds of the case. The board attorney has to argue about the weeds. And, just like TOE, the weeds of the case are tough to discuss without the underlying context and the judges did not allow him to discuss the context. Was he stellar? Probably not. But he never had a chance.

I assume the attorneys for both sides will have a chance to give a written summary of their briefs. Both attorneys responded to questions with clear suppositions (how could they possibly know details that are not in the records). Also, I assume the judges will actually review the administrative hearing to find out the facts.

Finally, I have never understood this appeal. From what I saw, this was a new trial using arguments not even brought out by the original defense. If appeals courts can do that, why not save a lot of time and money by making all trials one-time, one-hour presentations in front of a panel of judges???

eric said:

Richard B. Hoppe said: Even if the Court rules for Freshwater on very narrow grounds, he and his supporters will still trumpet it as broadly endorsing his follies–one justice in the oral arguments actually asked that. I don’t recall the full answer, but the implication is already out there.

It’ll be bad if one of the judges broadly endorses the teaching of creationism, in either the court opinion or in writing a separate opinion.

But we have to expect that Freshwater’s PR will misrepresent any ruling as broad endorsement. IMO that will happen no matter what the ruling says. After all, the DI still puts out the occasional commentary about how Dover was a win for them. And I believe Coppedge’s lawyers also made public comments to the effect that the ruling against him was some sort of victory for ID. With these guys, claiming broad support for ID creationism when the ruling obviously says something else is just part of their standard MO.

This.

Yes Harold - my comment was excessively pessimistic. The above gives a pretty good explanation for why I feel that pessimism.

The fact is, in some respects it matters little what the OSC finds as creationists will spin it as a win no matter what. In some ways, simply getting the case as far as the OSC is a win for them. As long as their view is being discussed on such a level, they feel that their views are being taken seriously and that they are being given some endorsement for their behavior. Keep in mind, they don’t care about the kids, the truth, the economy, the nation, etc. Their whole outlook is based on some imagined wonderful afterlife. They believe they are - in a much grander context than we really conceive - saving souls. So this little publicity stunt is of little consequence to them. However, a vote in favor of Freshwater will be seen as a legal endorsement of their behavior and I really believe that with that, they will retriple their efforts to put such teachings in place throughout the US.

alicejohn said:

I assume the attorneys for both sides will have a chance to give a written summary of their briefs. Both attorneys responded to questions with clear suppositions (how could they possibly know details that are not in the records). Also, I assume the judges will actually review the administrative hearing to find out the facts.

Finally, I have never understood this appeal. From what I saw, this was a new trial using arguments not even brought out by the original defense. If appeals courts can do that, why not save a lot of time and money by making all trials one-time, one-hour presentations in front of a panel of judges???

This is what struck me, and led me to what I wrote above.

“how could they possibly know details that were not in the records” - are the justices asking them to present testimony? Lawyers are not supposed to present testimony in any case (that’s what witnesses are for), and I thought that an appeal is not supposed to consider new evidence.

What can the lawyer do when asked about such things?

And what can the justice who brings up such things be looking for?

So, I conclude, the justice was not satisfied with the case that was brought before him, and the only thing that he could do would be to send the case back to the trial court with the order that certain points have to be discovered.

Dave Luckett said:

You know the teaching point that this is reinforcing, over and over, to school boards all over the country?

The teaching point I see in watching the mess from the beginning is ‘Document the hell out of things as they are occurring!’ Had the prior administration of the district done that, the initial case would have been firmly established and the record would have been unequivocal. Because the documentation was scanty, there was way too much room for Freshwater to change his story through the several legal venues.

diogeneslamp0 said:

I would like to issue a general warning.

We may be angry about Judge “it’s a theory in’t it” Pfeiffer, but we should avoid attacking the Ohio judges personally, making accusations not based on evidence, speculating, etc. If we criticize the judges, our criticism should be limited to their professional behavior in the matter at hand.

I don’t want us to launch off into personal attacks analogous to the despicable behavior of Dembski and the DI’s attack on Judge Jones from Kitzmiller v. Dover.

QFT

Richard B. Hoppe said:

Dave Luckett said:

You know the teaching point that this is reinforcing, over and over, to school boards all over the country?

The teaching point I see in watching the mess from the beginning is ‘Document the hell out of things as they are occurring!’ Had the prior administration of the district done that, the initial case would have been firmly established and the record would have been unequivocal. Because the documentation was scanty, there was way too much room for Freshwater to change his story through the several legal venues.

Agreed. Document the hell out of everything.

Unfortunately, the other lesson is that it does not pay to be flexible or accommodating about ANYTHING which could come back to bite you (religion, gender, race, etc). Although you end up a rigid, impersonal, bureaucratic school or organization easily ridiculed by others, individuals who push the envelope require you to do so. The fact the school system allowed a poster with clearly religious implications (the POTUS is on the “right” side with “us”) in other classrooms has put them in a bad position with Freshwater who pushed the envelope. To the “casual” observer, Freshwater was singled out. Although the details of the administrative report gives details about why Freshwater was “singled out”, the judges don’t appear to be interested in those details.

I see several possible outcomes. 1) This was a show trial and the judges will reaffirm the lower rulings, 2) The judges will rule the administration illegally prevented Freshwater from presenting the First Amendment argument (I do not recall this being the case nor did the defense make this accusation) thereby ordering a new hearing, 3) The judges will rule the defense should have made a First Amendment argument (If I recall, incompetent defense has been a successful argument on appeal but again, the appeal is not based on incompetent defense), thereby ordering a new hearing, 4) the judges rule in Freshwater’s favor on the First Amendment issue ending the hearings giving Freshwater a clear victory, but ensuring the case ends up in the US Supreme Court.

If this case ends up in the US Supreme Court, I suspect the religious side is NOT going to be happy. This seems like an awful weak case for their side to take to the Supreme Court.

One of the issues this case highlights, as alluded to by Richard, is that school administrators can be incredibly cowardly and stupid, with no knowledge of the law; and it is the students, the school district, and the teaching staff that end up paying the price.

I watched a similar situation in which the administration was too cowardly and stupid to step in and terminate an untenured, proselytizing teacher until it was too late. Now they are stuck with him. The rest of the teaching staff had to carry the extra load while this teacher was placed in a non-teaching set of “remedial activities” - with full pay - for several years. The idiot couldn’t even teach the subject matter in which he was alleged to be trained.

He still bribes students with extra points – points unrelated to course content - in order to get them to give him good student evaluations. His social interactions with other people in social situations are still scripted segues into his sectarian beliefs.

I don’t understand why the comments here are so sanguine. Have you seen the video? “Don’t criticize the judges.”?! Especially on the bench there is a clear need to have a judge that recognizes clear falsehood. Freshwater’s lawyer kept throwing out some of the oldest and most discredited canards in creationism and the only reaction in the room was essentially an “Amen”. The level of ignorance among the judges on the key facts in front of them, and the clear prejudice for Freshwater displayed by several, is completely shocking.

Mike Elzinga said: One of the issues this case highlights, as alluded to by Richard, is that school administrators can be incredibly cowardly and stupid, with no knowledge of the law; and it is the students, the school district, and the teaching staff that end up paying the price.

Keep in mind that, IIRC, the administrators that fired Freshwater were not the same people that tolerated his shenanigans for umpteen years. They were relatively new and acted relatively quickly (i.e. within a year or two of having his crap brought to their attention).

I’m in total agreement with RBH and Alicejohn about documentation being a key to preventing such things in the future (and I seemed to have lost a post to that effect…oh well, never mind). However, that solution may not have worked in this case. AIUI the earlier administration just put up with his crap without reprimanding him (and might even have tacitly approved it). We can certainly blame that earlier administration for that, but not the administraters that came in later and actually did the firing. They lacked good documentation of Freshwater’s history of teaching creationism because they weren’t there to document it, not because they were shoddy at keeping disciplinary records.

trnsplnt said:

I don’t understand why the comments here are so sanguine. Have you seen the video? “Don’t criticize the judges.”?!

I am sanguine because RBH had an earlier post detailing just how corrupt they could be. For example, some of them take reelection campaign contributions from people in cases they are presently hearing. That was unbelievable to me. But now that I know it, how they acted in this court case is not surprising. The calm is due to them living down to my expectations, not because I agree with the job they’re doing. Am I disappointed? Yes. Surprised? No.

Secondly, ever since they agreed to take the case, a lot of the PT posters have been speculating that it can only mean they intended to support Freshwater. There was really no other obvious reason to take it. Sure, we could’ve been wrong about their motives for taking the case. But now it appears that we weren’t, its (again) not much of a surprise.

eric said:

trnsplnt said:

I don’t understand why the comments here are so sanguine. Have you seen the video? “Don’t criticize the judges.”?!

I am sanguine because RBH had an earlier post detailing just how corrupt they could be. For example, some of them take reelection campaign contributions from people in cases they are presently hearing. That was unbelievable to me. But now that I know it, how they acted in this court case is not surprising. The calm is due to them living down to my expectations, not because I agree with the job they’re doing. Am I disappointed? Yes. Surprised? No.

Secondly, ever since they agreed to take the case, a lot of the PT posters have been speculating that it can only mean they intended to support Freshwater. There was really no other obvious reason to take it. Sure, we could’ve been wrong about their motives for taking the case. But now it appears that we weren’t, its (again) not much of a surprise.

In this context “sanguine” means “optimistic”. http://www.merriam-webster.com/dict[…]ary/sanguine

In fact, some comments are excessively melancholic. I would describe my personal reaction as mildly choleric, but would advise that we all remain phlegmatic http://en.wikipedia.org/wiki/Four_humors.

We don’t know how the judges will decide, but let’s assume I’ve been right all along and, to state my original hypothesis bluntly, they took the case because they are Republicans and wanted to pander to their religious authoritarian allies.

1) They still might throw it back to the lower courts, which might result in an even stronger decision against Freshwater.

2) They might over-reach and make a First Amendment claim, in which case it goes to SCOTUS eventually, by hook or by crook.

3) The worst case scenario would be for them to order his reinstatement on some kind of nit-picking procedural grounds, as I gather that might be final. A big payoff for a liar would be sickening, but he still won’t be able to take it as a free license to teach creationism. There will clearly be much more oversight if he is re-hired.

4) The undeniable message to a watching world is that Freshwater generated a huge amount of expense, division, and ill will. There is a reason why Coach Dave Daubenmire can’t keep a coaching job, even at a private Christian school. The comments from fellow science supporters that I have disagreed with here, maybe in an excessively emphatic way, are the ones that suggest that any outcome here is a broad victory for creationists.

It’s important to remember that even an unlikely SCOTUS decision to permit teaching of ID/creationism would not make most school districts do it. Currently we are fighting to protect students and families in those conservative, rural districts where this has even come up at all.

ID/Creationism is completely on the defensive and always will be. Even if the US becomes a theocracy and teaching of ID/creationism as science is ordered by the federal government, there will likely be a religious faction among the theocrats that disagrees with that, and wars between competing creationists.

It is an odd feature of post-modern US society that an absurdist political faction exists, who support naively destructive economic policies, flat denial of scientific reality with numerous attendant disastrous consequences, and hate-based social policy. However, recently, even the hate has been selling more poorly, and the other two were always unpopular, and tolerated merely because of their association with the hate.

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This page contains a single entry by Richard B. Hoppe published on February 27, 2013 12:26 PM.

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