Freshwater: (Amended 3/4) Remarks on the oral arguments
Preface: These remarks are not particularly well organized (I’m fighting a lousy head cold), and are intended to serve as starting points for discussion based on the video of oral arguments before the Ohio Supreme Court on February 27.
Oral arguments before the Ohio Supreme Court in the case of John Freshwater’s termination as a middle school science teacher were held on February 27. News coverage is already out there: the Columbus Dispatch and HuffPo have stories, and the Mount Vernon News has the most complete news story, unfortunately behind a subscription wall.
At first blush the oral arguments did not helpful to the Board. The Rutherford Institute attorney representing Freshwater, Rita Dunaway, was polished and answered questions from the justices with facility. She seemed well-versed on the case and had references to the record and law at her fingertips. And she stayed on message: She knew the argument she wanted to make and stuck to it.
On the other hand, the attorney for the Board of Education (retained by the Board’s insurance company), David Kane Smith, was not as smooth and did not seem as well-prepared or facile in his responses to questions. He seemed to have trouble getting back on track after questions, and did not seem at ease, as Dunaway did.
However, Smith was operating under a disadvantage: he was subjected to exceptionally aggressive and discursive questions from one member of the Court, Justice Paul Pfeifer. Pfeifer’s questions departed significantly from the kinds of questions he has asked in other cases, he used details that were not part of the record before the Court and which were tangential (if not irrelevant) to the case and its record, and he posed at least one question which called for unfounded speculation from Smith.
I’ll make some more remarks about the oral arguments below the fold.
Overall Impression
A couple of quotations from the Dispatch story tell the tale of the oral argument made on behalf of the Board of Education:
“I would have preferred to be arguing it myself,” said David Millstone, the Cleveland attorney who represented the district through a two-year administrative hearing which concluded Freshwater injected his creationist religious views in the public classroom and wouldn’t stop when school officials asked him to do so.
and
“I was squirming,” said Douglas Mansfield, another attorney who has represented the school district in a federal lawsuit against Freshwater. “I think that the full and accurate record didn’t get heard by the court.”
I can almost hear Millstone and Mansfield, the two attorneys in the world who know the Board’s case best, grinding their teeth at the performance of David Kane Smith, the insurance company lawyer who represented the Board. I have to say that it was not evident to me that Smith knew either the details of the case or the relevant law well, and many of his responses were frankly mistaken (I’l describe a few examples below). But there are mitigating circumstances.
Smith’s efforts were not uniformly bad. He made several points well, including his description of the differences in scope of review at the several judicial levels, and in pointing out that in a case of differing witness statements in the hearing, the hearing referee, not an appellate court, is there to judge the competing credibility of witnesses.
In contrast with Smith’s problematic performance, the Rutherford Institute attorney who represented Freshwater, Rita Dunaway, was knowledgeable about her case and easily responded to questions from the Court, repeating her basic claims at every opportunity and specifically citing references from the law and the administrative hearing. She knew the argument that she wanted to make and she made it at every opening. Of course, she played fast and loose with the record, engaging in normal creationist tactics like cherry picking and misrepresenting testimony. For example, she suggested that the Board’s own experts in the administrative hearing said there are “debatable issues within evolution,” implying that’s what Freshwater taught, which is false. She flatly claimed that it was not creationism that Freshwater was teaching. She said that the Board jumped to the unjustified conclusion that “… discussion of peppered moths and gaps in the fossil record … happens to be consistent with principles of creationism and that that amounts to injecting personal religious belief.” Further, that leap of the Board “… manifests a very clear hostility toward religion,” which is the First Amendment argument the Rutherford Institute is pushing.
Dunaway falsely claimed that it is merely “coincidental” that what Freshwater taught by way of objections to evolution are consistent with “major world religions.” In fact, of course, creationism has no existence independent of fundamentalist sectarian Christianity. Moreover, it has no arguments except variants of “evolution can’t do this or that,” the very sort of arguments Freshwater’s handouts used. Its roots are in Seventh Day Adventist evangelist George McCready Price’s early 20th century critique of mainstream geology, which was repeated in Whitcomb and Morris’s The Genesis Flood, which repeated a good part of Price’s arguments while minimizing references to Price’s prior use of the same arguments. Its contemporary advocates are ministries like Answers in Genesis and propaganda mills like the ill-named Discovery Institute. When your materials come from sites like allaboutgod.com, which testimony in the administrative hearing established that some of Freshwater’s teaching materials did, it ain’t a coincidence that they are firmly grounded in fundamentalist Christianity.
In a question to Dunaway (ca. 63:00) Justice O’Neill noted that this is a hybrid case–a constitutional case and an employment case–and Dunaway is asking for reinstatement. O’Neill asked if that requires the Court to ratify everything [Freshwater] has done. Dunaway didn’t answer the question. Instead, she replied that
… it would still leave open to the Board the opportunity to give Mr. Freshwater whatever clear directives it wants to offer him.
…
If one of those orders were to constitute censorship, then you would have a different case. Then you would have a case like the other teachers’ speech cases that have been decided, where it might very difficult for Mr. Freshwater to argue that a specific order violates his First Amendment rights. But here you have an ad hoc non-policy based termination that is censorship and manifests religious hostility.(Italicized emphasis in her tone of voice)
You better believe that if Freshwater is reinstated, there’s going to be heavy pressure on the Board and school administration to write and promulgate some “clear directives”!
Justice Pfeifer’s peculiar questioning
In preparation for the oral arguments, I watched video of several other cases to get a feel for the style and manner of the justices. It looked to me like that style and manner differed in this case. Justice Paul Pfeifer in particular wandered far from the Court’s role in cases like this, a role that entails basing questions and decisions on the record before the Court (but see below about “de novo” consideration). When Freshwater appealed the decision of the Knox County Court of Common pleas upholding his termination to the Ohio 5th District Court of Appeals, I posted on the appeals court’s role:
The court of appeals is restricted to reviewing the record, which consists of the common pleas court judgment entry, the [official, minuted] actions of the school board, and the transcript of proceedings.
The Ohio Supreme Court, I am told by attorney friends, generally operates on the same principle, confining its review to the record generated by lower entities and the briefs filed concerning that record.
Pfeifer didn’t confine his questions to the record. For example, in a rambling and contentious question, Pfeifer asked Smith when the Board of Education really decided to fire Freshwater, insinuating that the Board began its investigation of Freshwater merely to provide cover for firing him. That’s reminiscent of the conspiracy theory that R. Kelly Hamilton, Freshwater’s lawyer, outlined in his summary brief to the administrative hearing referee. Smith did a good job of describing the circumstances that stimulated the investigation, though I think he erred when he speculated that the Board may have made its decision in April rather than at its meeting in June. Better to have said ‘That’s not something I can speculate about without violating attorney-client privilege’ or some such verbiage. It’s not uncommon for justices at this level to propose hypotheticals to explore the limits of a requested ruling, but Pfeifer’s question about when the Board decided to fire Freshwater was far from that vein.
Another example: In characterizing the meeting at which the Board of Education adopted its resolution to terminate Freshwater’s contract, Pfeifer mentioned that that decision on Freshwater was preceded in the meeting by a decision by the Board to grant a limited tax abatement to Rolls Royce. That’s a peculiar detail for a Supreme Court justice to notice. The insinuation seemed to be that the Board thought more of a luxury automobile maker than Freshwater. However, Pfeifer didn’t mention (or perhaps doesn’t know) that the Rolls Royce in question is Rolls Royce Energy Systems, a manufacturer of large turbine pumps for oil pipelines and major employer in Mt. Vernon, and that the manufacturing has been going on in Mt. Vernon for nearly two centuries, started by Cooper Industries (formerly Cooper Bessemer) which was founded in Mt. Vernon in 1833. Rolls Royce Energy Systems recently bought the facility from Cooper Industries after a period as a joint venture of the two. The tax abatement, a common occurrence in school districts, was tied to an expansion of that manufacturing facility with a corresponding increase in employment.
Pfeifer also took a gratuitous shot at R. Lee Shepherd, the administrative hearing referee, calling Shepherd’s final report to the Board of Education “superficial.” I don’t know if there is prior history between Shepherd and Pfeifer–they live in adjacent counties–and would discourage speculation about it unless a commenter has specific knowledge of relevant facts.
All in all, Smith was interrupted by questions more often than Dunaway and was subjected to more hostile questions. She got softballs, he got Nolan Ryan fastballs mixed in with spitters from Justice Pfeifer. That made it difficult for him to present a coherent case.
Standard and scope of review
One line of questioning to Ms. Dunaway asked whether she was requesting a “de novo” review by the Supreme Court. She answered in the affirmative. I am faaaaaar from an expert in legal matters, but consulting Wikipedia and looking at some cases produced by a search on [“Ohio Supreme Court” “de novo review”], it looks like a “de novo” review means that the appellate court, or in this case the Ohio Supreme Court, can bring into its consideration material that was not included in the record before it. [As noted in cepetit’s comment below, this is an inaccurate description of “de novo” review.] Dunaway clearly wants this to happen–she has to have it happen–since her argument on Freshwater’s behalf is different from the several arguments proffered by Freshwater in the administrative hearing and in his briefs submitted to the Knox County Court of Common Pleas and the Ohio 5th District Court of Appeals, all three of which rejected those (differing) arguments.
Smith did make a clear argument that the Court’s consideration ought not be de novo.
What do the oral arguments portend for the Court’s decision?
On the surface, as I’ve indicated, the Court seemed to be hostile to the Board’s case and sympathetic to Freshwater. Whether that is a reliable predictor of the Court’s decision is another question. Attorney Smith was quoted in the Columbus Dispatch story:
Asked about the questioning, Smith said at the hearing’s end, “That can be something that makes one uncomfortable.”
…
He said he has never been able to predict an outcome based on the line of questioning during oral arguments.
Other attorneys I have spoken with concurred with Smith’s suggestion that the tenor of questions in oral arguments is not a reliable predictor of decisions. One can hope!
What if Freshwater is reinstated?
In a question to Dunaway (ca. 63:00) Justice O’Neill noted that this is a hybrid case–a constitutional case and an employment case–and that Dunaway is asking for reinstatement. O’Neill asked if that requires the Court to ratify everything [Freshwater] has done. Dunaway didn’t answer the question. She replied that
… it would still leave open to the Board the opportunity to give Mr. Freshwater whatever clear directives it wants to offer him.
…
If one of those orders were to constitute censorship, then you would have a different case. Then you would have a case like the other teachers’ speech cases that have been decided, where it might very difficult for Mr. Freshwater to argue that a specific order violates his First Amendment rights. But here you have an ad hoc non-policy based termination that is censorship and manifests religious hostility.
You better believe that if Freshwater is reinstated there’s going to be heavy pressure on the Board and school administration to write and promulgate some “clear directives”!
The direction of this thread
Finally, an excerpt from a comment by diogeneslamp0:
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. I welcome comments on these or other aspects of the oral arguments.
Addendum: On the standard and scope of review
An attorney friend sent me this:
Freshwater’s attorney asked the S.C. to have a “de novo” review. That would be a change in the standard the S.C. applies to teacher termination cases. The standard of review for the S.C. and the Court of appeals is whether there was undue prejudice by the Common Pleas Court judge (Eyster) in his review of the case. The standard for the Common Pleas Court is whether the Referee’s report was supported by substantial evidence of record. At levels the review can be based upon misinterpretation or misapplication of law, but when a de novo review is requested, she is talking about the court looking at the evidence and reweighing it to determine whether there was sufficient evidence to support a finding of termination. (sort of a simplified explanation).
That’s different from my amateur attempt above. I welcome more clarifications.