Freshwater Hearing: Day 1 + DAY 2 Summary

Day 2 update at the bottom

October 2, 2008

The hearing on John Freshwater’s termination began today before an external referee. It’s expected that it will go on for 7 or 8 days, split between early October and late October. I’ll post updates on those sessions I can attend. There is very limited seating for spectators and press – just 21 seats – so one has to get there very early to get in. A number of people failed to be admitted on account of space.

In today’s session the morning had some innocuous preliminaries and then some fireworks. In the course of having the Superintendent of Schools (Steve Short) identify documents, the Board of Education’s attorney (David Millstone) submitted a letter from the Does, parents of the boy who was burned, with their names redacted to preserve their anonymity. R. Kelly Hamilton, Mr. Freshwater’s attorney, objected to the redaction, and moved to hold an evidentiary hearing to determine whether there was a credible threat if anonymity was breeched. After a 25 minute sidebar and a 2-hour adjournment for a cage match among the half-dozen attorneys involved, the hearing resumed with the Does’ attorney Jessica Philemond agreeing to restoring the redaction and identifying the family. So they’re no longer anonymous.

On direct examination Millstone led Superintendent Short through a narrative of the various events that culminated in the BOE’s resolution to initiate termination proceedings. It was a straightforward recital of a series of problems: the original complaint about burning the boy with a Tesla coil, displays of religious materials in Freshwater’s classroom, Bibles stored in his classroom and allegedly distributed to students, inappropriate behavior in his role as monitor of the Fellowship of Christian Athetes (FCA), using ID creationist materials and handouts in his teaching, and problems with parental permission slips for participation in FCA.

Cross examination and Day 2 below the fold

On cross examination Freshwater’s attorney, R. Kelly Hamilton, followed three main lines in his questions.

First, he attacked the supervision of Freshwater and alleged lack of clear direction to and communications with him by various administrators.

Second, Hamilton tried to poison the well with respect to subsequent witnesses yet to testify, for example by asking the Superintendent whether he thought people bringing complaints were lying to him, and asking him for all the reasons that a student might be biased against a teacher.

Finally, Hamilton implicitly but clearly made a bizarre argument regarding the effect prong of the Lemon test. Recall that the Lemon test for ascertaining whether a policy or action by a governmental body violates the Establishment Clause of the First Amendment has three prongs: Purpose, Effect, and Entanglement. A finding that a government action involves any of the three can result in an action being ruled in violation of the First Amendment.

Basically, Hamilton tried to make the point (via questioning the Superintendent) that a display of a Bible verse might just be a “virtuous statement” (direct quote) if the person seeing it doesn’t understand the method of identifying Bible verses. So for example, he asked if a person sees

“Blah, blah, blah …

–James, 5:16”

and doesn’t know that “James 5:16” means it’s a Bible verse, then it wouldn’t be an instance of promoting religion but would merely be posting a “virtuous statement.” Freshwater apparently had around 20 or so such verses on posters in his room. The attorney went at this at length with various questions.

That seems to me (and to a couple of the attorneys I talked with afterward) to be a pretty strained argument, verging on being stretched to invisibility.

More as I get it, and a full summary Monday night or Tuesday.

Day 2 Update: Oct 3, 2008

Brief Summary of Day 2: More of the same.

The whole of Day 2 was taken up with the cross examination of Superintendent Steve Short. The same themes were evident in the questions of Freshwater’s attorney Hamilton – the attack on the administration, poisoning the well (though somewhat less blatantly), and the bizarre First Amendment interpretation. In addition, he added one more: The beginning of the demonization of the family whose son was burned. That was subtle but real.

Two key points emerged from the Superintendent’s testimony today. First, when asked if he was surprised that Freshwater burned a cross on the boy’s arm, Short responded that he didn’t think Freshwater was abusive, but that he wasn’t surprised that it was a cross.

Second (and this is important), the Superintendent reported that another student came to him after the investigator’s report was completed and submitted and told him that Freshwater had “zapped” the boy on the butt with the Tesla coil when the boy bent over to pick up a test tube. The boy wasn’t one of the “volunteers,” regarded Freshwater as his “bud” (friend), and is a special education student. That will be explored further, I’m sure.

After the cross examination there was a short redirect, and then the hearing was adjourned. The hearing now goes into recess until October 28, the gap in order to accommodate the schedules of all the attorneys involved.

Dramatis personæ:


Referee: R. Lee Shepherd, Poland Depler & Shepherd Co LPA, Shelby, OH

Mt. Vernon District Board of Education, which passed the resolution to initiate termination proceedings at its June 20, 2008, meeting.

David Millstone of Squire, Sanders & Dempsey, attorney for the Mt. Vernon Board of Education for this hearing.

John Freshwater, middle school science teacher in Mt. Vernon, OH, Middle School, who appealed the resolution of the BOE to terminate him for cause.

R. Kelly Hamilton of Hamilton & Hawkins (Grove City, OH), Freshwater’s attorney.
(Hamilton was formerly a Sergeant on the Columbus, OH, police force.)

Four additional attorneys representing Freshwater, the BOE and the Doe family in the Does’ federal civil suit against the BOE, Freshwater, and sundry others sitting in as observers in their various clients’ interests

Witnesses (list updated as they testify):

Steve Short, Superintendent of Mt. Vernon School District (Oct 2 & 3)

(Edited 10/6/08 to insert appropriate names in the narrative)