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Freshwater: The waiting continues

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John Freshwater’s petition for a writ of certiorari has been placed on the SCOTUS docket for a September 29, 2014, conference.

Discovery Institute still spinning Bryan Leonard

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Long-time readers of PT will recall the Bryan Leonard affair in Ohio. Now Casey Luskin harks back to that to criticize one of the Ohio State professors who called attention to anomalies in Leonard’s quest for a Ph.D. in science education from the Ohio State University.

To recap, in 2005 I wrote

Bryan Leonard is a recently visible figure in the intelligent design creationism movement. Leonard is a high school biology teacher at Hilliard Davidson High School in a suburb of Columbus. As an appointee to the Ohio State BOE’s model curriculum-writing committee, he was the author of the IDC-oriented “Critical Analysis” model lesson plan adopted by the Ohio State Board of Education last year, and he recently testified at the Kansas Creationist Kangaroo Court hearings. The credential that endears him to the IDC movement is that he is a doctoral candidate in science education at the Ohio State University, and his dissertation research is on the academic merits of an ID-based “critical analysis” approach to teaching evolution in public schools.

Leonard was scheduled to defend his dissertation yesterday, June 6, but we learned late last week that his defense has been postponed.

Briefly, the composition of Leonard’s committee did not meet the requirements of the program from which he sought the degree, and further, there was no indication that he had sought or received Institutional Review Board or parental permission to conduct his research, using misleading material about evolution, on public school students. As I wrote in 2005,

Leonard’s final dissertation committee did not meet those requirements. It was composed of his advisor, Paul Post from the technology education program area of the section for Math, Science and Technology; Glen R. Needham of the Department of Entomology in the College of Biological Sciences; and Robert DiSilvestro of the Department of Human Nutrition in the College of Human Ecology. For the final defense an Assistant Professor from the department of French & Italian in the College of Humanities was also assigned to the committee to monitor the procedure. Thus, there were no members from the science education program area on Leonard’s final dissertation committee.

That lack was pointed out to the University by three senior members of the University’s graduate faculty, evolutionary biologist Steve Rissing, paleoanthropologist Jeff McKee, and mathematician Brian McEnnis, in a letter to the appropriate administrators of OSU. (Full disclosure: all three are friends of mine.) All three were (and still are) full professors on the OSU graduate faculty. Excerpts from that letter are quoted in an excellent summary in the OSU newspaper.

Freshwater: Still waiting for the Ohio Supreme Court

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John Freshwater’s appeal of his termination as a middle school science teacher in the Mt. Vernon, Ohio, public schools is still hanging fire in the Ohio Supreme Court. Decisions normally are promulgated between three and six months following oral arguments, and it’s been four months since the February 27, 2013, arguments in this case. The Mount Vernon News had a story on it last week.

More below the fold.

My Freshwater analysis is a few days out there.

A brief note to let readers know that my analysis of the oral arguments before the Ohio Supreme Court will be up in a couple of days. I have some background material coming from outsiders that’s yet to arrive, and my tomorrow is almost fully booked already. So: Friday at the earliest, and possibly Saturday.

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.

Freshwater: Board motion denied

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You will recall that attorneys for the Mt. Vernon Board of Education moved to strike parts of his merit brief, the document that makes his argument to the Ohio Supreme Court to overturn his termination as a middle school science teacher in Mt. Vernon, Ohio. The Board’s argument was that his merit brief included Propositions of Law that are significantly different from those in his Memorandum in Support of Jurisdiction, the document on which the Court’s acceptance of the case was based. I described that in Freshwater: The bait and switch laid out.

This morning I was notified that the Court has denied that motion to strike. The notification reads in full:

DECISION: Denied Ref: Motion to strike propositions of law 1 & 2, appendix pages 49 & 55-56, and supplement pages 103-116 from the merit brief of appellant

Notification Date/Time: 11/28/2012 9:15:28 AM

The ruling is not yet on the case documents site. That should be up sometime in the next 24 hours. If it says more than the notification I received I’ll flag it here.

I find the ruling inexplicable: Why would the Court accept a case on one set of Propositions of Law but then permit the appellant to argue his case on the basis of a different set Propositions? Beats the hell out of me.

Freshwater: His Reply Brief

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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 Freshwater’s Merit Brief, and Freshwater has now filed a reply. I’ll describe some salient features of his reply below the fold.

Freshwater: The big guns come out

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The big guns are out in the Freshwater appeal to the Ohio Supreme Court. A slew of briefs–including the Board of Education’s merit brief and amicus briefs from the National Center for Science Education, the Dennis family, Americans United for Separation of Church and State with the Anti-Defamation League, and the American Humanist Association with the Secular Student Alliance, along with requests for permission for attorneys to appear representing several of those organizations–were filed yesterday with the Court.

It will take me a while to read all the material, but below the fold I’ll mention a few highlights from a fast first reading.

Freshwater: The bait and switch laid out

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Freshwater aficionados will recall that I pointed to differences between Freshwater’s request to the Ohio Supreme Court to hear his case (his Memorandum in Support of Jurisdiction–MiS) and the subsequent Merit Brief (MB) in which he actually argued his case. The Court accepted his appeal on the basis of two Propositions of Law (I and II) described in the MiS, but in the actual argument of the Merit Brief those two Propositions changed into two quite different propositions. Now the Mt. Vernon Board of Education has filed a motion to strike the two Propositions–in effect, to strike the whole basis for the acceptance Freshwater’s appeal–because of that bait and switch.

More below the fold.

Freshwater: No clear indication?

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One of the claims in John Freshwater’s appeal to the Ohio Supreme Court is that he was “…not provided any clear indication as to the kinds of materials or teaching methods which are unacceptable…”. That is, no one told poor John what he couldn’t teach by way of alternatives. I spend a little time looking for evidence that he was in fact given guidance with respect to material inappropriate for use in his 8th grade science classroom. It turns out that there’s a fair amount of evidence that on a number of occasions Freshwater was specifically instructed that creationist and intelligent design material was not appropriate. I’ll mention a few salient occasions here that took me less than 30 minutes to find. Note that they’re from sworn testimony in the administrative hearing, the basis for the original resolution to terminate Freshwater’s employment as a middle school science teacher.

First, of course, there’s Freshwater’s 2002-2003 proposal that the Mt. Vernon district adopt the Intelligent Design Network’s Objective Origins Science Policy, and to add “critically analyze evolution” language to the district’s science curriculum. In support of his proposal Freshwater offered Jonathan Wells’ Survival of the Fakest, originally published in that distinguished science journal The American Spectator (actually a conservative commentary rag). He also distributed Wells’ Ten questions to ask your biology teacher about evolution, and among those who spoke to the BOE in support of his proposal was young earth creationist Georgia Purdom, then an assistant professor at Mt. Vernon Nazarene University, now a full-time employee of Answers in Genesis.

Freshwater’s proposal was rejected by the District’s Science Curriculum Committee and then by the Board of Education. That looks like a clear indication to me.

Freshwater: The Columbus Dispatch editorializes

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The Columbus Dispatch is the major (and conservative-leaning) newspaper in central Ohio. Its coverage of the Freshwater case has been quite good–it had a reporter attending many of the sessions of the administrative hearing. Now, with the Ohio Supreme Court having accepted Freshwater’s appeal for consideration, the Dispatch has a strong editorial on the topic. The last three paragraphs of the editorial are

Lower courts have spoken clearly: Freshwater violated the Constitution by using his position as a teacher to attempt to impart his religious beliefs.

Equally important, he failed his students, by presenting a religious belief as science, when it is nothing of the sort. Science, by definition, is the study of natural processes, not supernatural ones. Any theory that invokes supernatural explanations for natural phenomena is not science, it is religion, and therefore is inappropriate in a science class.

The Supreme Court can do public education a great service by upholding the right of school boards to insist that science classrooms be reserved for the teaching of science.

It was good to read that.

The Ohio Supreme Court has accepted John Freshwater’s appeal of his termination as a middle school science teacher in the Mt. Vernon, Ohio, City Schools. The appeal was accepted on two Propositions of Law asserted in Freshwater’s Memorandum in Support (large-ish pdf).

The first Proposition of Law in the appeal claims that

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.

The second Proposition of Law claims that

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.

More below the fold (if my power stays on!)

Freshwater: Board’s Supreme Court Memorandum in Response

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As I posted earlier, in April John Freshwater filed a Notice of Appeal and a Memorandum in Support of Jurisdiction with the Ohio Supreme Court, asking that the Court consider an appeal of his termination. Now the Board’s attorneys have filed a Memorandum in Response. Basically, the Board argues that the case as decided by the 5th District Court of Appeals is a narrow one, a “run of the mill termination case,” concerned solely with whether the Knox County Court of Common Pleas abused its discretion in denying Freshwater’s appeal of his termination. The Court of Appeals ruled that there was no abuse of discretion.

The Memorandum in Response argues that Freshwater’s appeal to the Supreme Court is no more than a ploy to convince the Supreme Court that it should “take another look at the facts”–in effect, to rehear the case. It argues that Freshwater is attempting to “transform this case into one about academic freedom and free speech,” but no substantial constitutional question is raised by it. It says that Freshwater’s invocation of academic freedom and free speech in his MIS is a “… desperate attempt to make this case appear as a matter of public or great general interest … [and] … has no basis in reality” (p. 11). The Memorandum in Response argues that had Freshwater been allowed to continue his behavior in the classroom, the Board of Education, in its failure to control Freshwater’s behavior, would itself have been exposed to the risk of violating the Establishment Clause and resulting litigation.

The next step is for the Supreme Court to decide whether it will hear the case or let the Appeals Court ruling stand. I have no idea how long that will take, but I’ll try to find out what typical delays are.

Freshwater, Dover, and the Rutherford Institute

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I’ve been rereading “Monkey Girl,” (Amazon; Barnes&Noble) Edward Humes’ excellent book on the Kitzmiller trial, and ran onto something I’d either missed first time through or forgotten. As is the case in the Freshwater affair, the Rutherford Institute got involved in Kitzmiller. It represented three sets of Dover parents who requested that they be allowed to intervene in the case, joining the school board as defendants. Filed the same week that the Board’s intelligent design-based statement was read to the first classes in school, the Application to Intervene argued that those parents had a stake in the outcome of the trial, and therefore should be allowed to participate as defendants, represented, of course, by the Rutherford Institute.

The Rutherford Institute argued on behalf of the three sets of parents that if the plaintiffs (Tammy Kitzmiller, et al.) prevailed and the ID statement to biology classes was forbidden to be read, their children would not be able to hear about intelligent design. The Application to Intervene as Defendants (PDF) claimed that

The Intervenors seek to participate in this action because, if the Plaintiffs are successful, the lawsuit will have the effect of censoring the Dover Area School District Board and shielding all ninth graders from criticism of Darwin’s Theory of Evolution.

[The intervenors] seek to ensure that their children will have full access to information concerning the theory of evolution, including its many gaps for which there is no evidence. The Applicants further seek to ensure that their children not be denied access to a critical analysis of evolution merely because some persons believe that critics of the theory are religiously motivated. (pp. 2-3)

Further, in the Application to Intervene Rutherford argued that parents of school children are entitled to assert a “… First Amendment right of access to information and ideas in an academic setting…”. Still further,

The Applicants have a substantial legal interest, rooted in the First Amendment, in making sure that their children are not prevented from learning about intelligent design.

That is, parents are constitutionally empowered to determine what should be covered in public school science curricula, regardless of whether it’s accepted science or fringe pseudoscience. Consistent with Michael Behe’s and Scott Minnich’s admissions in their Kitzmiller testimony that their redefinition of science would substantially broaden the landscape of admissible explanations in science, extending it into the supernatural, the Rutherford Institute’s argument would pave the way for the return of astrology and alchemy to the science classroom, should some parent or teacher wish it.

In a way the route for Rutherford Institute’s involvement in both Dover and Mt. Vernon was similar. Rather than being a principal actor, involved in the original disputes, Rutherford was a late-comer, entering the processes well after they were in progress. It attempted (in Dover) and succeeded (in Mt. Vernon) in inserting itself into an on-going process, making arguments that neither side made prior to Rutherford’s participation. In both cases it is arguing for an expansion of First Amendment rights, in the Dover case the right of parents to determine what will be taught in public school science classrooms, and in the Mt. Vernon case the right of a teacher to override instructions from the Board of Education regarding curriculum matters. And in both cases the result would be the inclusion of any damn fool thing a parent or teacher wants taught, regardless of its appropriateness to the class or the validity of its content. As the response from the plaintiffs in opposition to the Application to Intervene put it,

Second, if Applicants were correct that there is a First Amendment right of parents to dictate the content of public school curricula, that right would eviscerate the well-recognized authority of school districts to set their own curricula. (p. 7)

The Rutherford Institute’s argument has developed and been elaborated in the seven years between Kitzmiller and Freshwater, but it rests on the same foundation: A claimed First Amendment right to allow anything at all to be taught in science classes, subject only to the idiosyncratic wishes of individual parents or teachers.

For more, see NCSE’s Archive of Rutherford Intervention documents.

Added in edit: I’m not sure I made it clear that Judge Jones denied the request to intervene in Kitzmiller.

Freshwater: Misrepresenting the case

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One of the salient properties of anti-evolutionist coverage of the Freshwater affair has been a systematic misrepresentation of the case. On various anti-evolutionist blogs and Christian news outlets, the case has consistently been characterized as being concerned solely with Freshwater’s personal Bible on his desk, excluding any mention of the various religious items displayed in his classroom, his use of blatantly creationist materials in class, his insubordination, and his multiple mutually contradictory accounts of what he in fact taught and what he did with the Tesla coil. In a recent report of an interview with Freshwater all those themes are repeated. It’s of note that the interview is on a web site with the motto “Restoring Truth to History Class,” one of whose recent emphases appears to be on Islamic infiltration into public school curricula in the U.S.

Given the false statements in its Freshwater story, I wonder what “truth” means to that site. The first paragraph of the story has four sentences. Every sentence has an error of fact. Below the fold I’ll walk through parts of the story, pointing out some of the distortions, misrepresentations, and plain falsehoods it contains.

Freshwater: Appeal to the Ohio Supreme Court

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Recall that John Freshwater, former middle school science teacher in the Mt. Vernon (Ohio) City Schools, appealed his termination to the Knox County Court of Common Pleas, which denied his appeal. He then appealed to the Ohio 5th District Court of Appeals, which also denied the appeal. Now he is appealing to the Ohio Supreme Court. Today he filed a Memorandum in Support of Jurisdiction (MIS) with that court. The MIS is filed by R. Kelly Hamilton, Freshwater’s personal attorney, who is identified as “Affiliate Attorney with The Rutherford Institute”. The appeal document is up on NCSE’s site.

I have not done a detailed comparison of Freshwater’s (really, Rutherford’s) appeals court brief with the Supreme Court appeal, but a fast reading suggests they make essentially the same arguments.

In the Supreme Court document, which is essentially a condensed version (14 vs. 33 pages) of the brief submitted to the Ohio 5th District Court of Appeals, Freshwater once again makes the academic freedom and free speech arguments that were raised in his 5th District brief, as well as raising the “religious hostility” argument he made in that appeal. Both documents refer to “competing academic theories,” echoing the appeals brief’s claim that Freshwater only taught “alternative theories,” never mentioning the intelligent design and creationist materials he used. His behavior in that regard is called “neutrality toward religion.” The MIS says that

The fact that one competing theory on the formation of the universe and the beginning of life is consistent with the teachings of multiple major world religions simply does not justify interference with students’ and teachers’ academic freedom.

Additionally, the Board’s action manifests a clear and distinct hostility toward the major world religions whose teachings are consistent with the alternative theories discussed in Freshwater’s classes. (pp. 5-6)

As with the appeals court brief, the appeal to the Supreme Court does not actually get around to mentioning just what “alternative theories” Freshwater taught. In sworn testimony in the administrative hearing Freshwater denied teaching creationism. In an interview with faux-historian David Barton, Freshwater claimed to have taught “robust” evolution, teaching the evidence for and against. Now he says he taught “alternative theories.” One wonders what they were. Lysenkoism? Lamarckism? Mutationism? What?

The appeal claims that “Moreover, the academic freedom concern expressed here is of heightened importance because it involves the banishment of academic theories from the classroom based solely on the fact that they are consistent with certain religious traditions.” That is the core of the Rutherford Institute’s approach in this case, and represents an instance of the broader ID strategy to reverse the causal arrow between creationism and religion. It seeks to make the former the prime mover, not the latter. By very carefully not naming the “alternative theories” Freshwater supposedly taught, the Rutherford Institute is once again trying to slide creationism into public school curricula without actually naming it. It’s just coincidence that religion-based creationism is consistent with those alternative academic theories. Nothing to see here, folks. Move along.

[UPDATED] Freshwater: Appeal denied

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Recall that John Freshwater appealed the Knox County Common Pleas Court’s affirmation of the Board of Education’s termination of his teaching contract. (See also here.)

While it is not yet posted It is now posted to the Ohio 5th District Court of Appeal’s Opinions page. I received a copy of the Court’s decision that was filed just this morning and is signed by the three-judge panel that considered the appeal. It denies Freshwater’s appeal in its entirety, affirming the decision of the Knox County Court of Common Pleas that the Board of Education’s termination of Freshwater was justified. One quotation to give the flavor:

(32) During the proceedings [the administrative hearing] appellant [Freshwater] was represented by a competent attorney, he was permitted to fully explain his actions, he presented witnesses on his behalf, and he had a full opportunity to challenge the Board’s key witnesses. R.C. 3319.16 does not contain any requirement that a teacher be afforded an opportunity to refute the contents of a referee’s report in the period between the filing of the report and its acceptance or rejection by the board of education, nor does it provide for an additional hearing before the board if the teacher does not like the results of the hearing before the referee.

Given what I saw in the administrative hearing, I might take issue with the “competent attorney” phrase, but let that be.

The Appeals Court ruled that

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Knox County, is affirmed. Costs to appellant.

The Appeals Court did not address several of the questions Freshwater’s appeal raised. For example, it did not address Freshwater’s claim that he was just “… informing students of various alternative theories without regard to those theories’ religious or anti-religious implications.” The appeals court did not mention Freshwater’s claim that his termination violated his right to free speech and what his appeal called “the subsidiary right of academic freedom.” The Appeals Court confined its ruling to the question of whether the Court of Common Pleas “abused its discretion” in affirming the Board’s decision, and rejected Freshwater’s appeal on that basis.

The next step, should Freshwater and the Rutherford Institute take it, is an appeal to the Ohio State Supreme Court. I cannot predict whether that will happen. My intuition is that the Rutherford Institute would like to find a case invoking academic freedom, free speech, and free exercise on the part of a public school teacher that could make its way to the U.S. Supreme Court, but while IANAL, I suspect that Freshwater’s case is way too weak for them to risk it on that case.

Freshwater: RNCSE article published online

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For the addicts, my article on the Freshwater affair was published online today in Reports of the National Center for Science Education. Table of Contents of the issue, and PDF of the article.

Freshwater: Is Hogwarts a religious school?

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Those who are unfamiliar with issues sometimes raised by religious fundamentalists may be excused for finding the question that is the title of this post a little weird. But out here in Knox County, Ohio, home of the Freshwater affair, it could turn out to be a serious question.

Accountability in the Media is a blog that comments mainly on local doings here in Knox County. Its author, a fundamentalist Christian, is a strong supporter of John Freshwater. He regularly videotapes Board of Education meetings, and has posted numerous videos on Youtube. (Those who are morbidly interested can see me in one.)

In December 2011, Accountability wrote about Freshwater’s appeal of the decision of the Court of Common Pleas upholding Freshwater’s termination. As an aside in that post, Accountability published a photo of the Hogwarts coat of arms on a banner hanging in the middle school library where school board meetings are held, and captioned the photo

(The Mount Vernon Board of Education met recently below a poster that could be interpreted as being of a religious nature: The Hogwarts School of Witchcraft and Wizardry coat of arms.)

I can’t tell you how amusing it is to see a fundamentalist Christian implicitly equating the Bible with a work of fiction, and how much fun I’ll have with that if the author of Accountability and his co-religionists push that notion. I suppose it’s possible that Accountability was engaging in humor here, but given that there is a history of fundamentalist religious hysteria over Harry Potter (see, e.g., here for an example and here for an overview), I wouldn’t be amazed to learn that Accountability is serious.

Freshwater: The role of the appeals court

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Given some dispute and confusion in comments earlier, I asked Ken Lane, an attorney friend of mine who has considerable prosecutorial and civil law experience, especially in legal issues associated with local governments and administrative agencies, to write a paragraph or two on the role of appellate courts in cases like Freshwater’s appeal of his termination by the Mt. Vernon City Schools Board of Education. His excellent and helpful response is below the fold.

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