Note: Day 9 summary will be delayed: I’m going to watch some football!
Day 8 of the hearing saw the completion of cross examination of the independent investigator Thomas Herlevi and fairly brief testimony from Joe Barone, a former student in Freshwater’s class. This will be a brief summary identifying the main lines of questions and responses.
Kelly Hamilton, Freshwater’s lawyer, pursued several themes in his continuing cross examination of Herlevi. One main theme was the accuracy and completeness of the report HR On Call, Inc., submitted to the Board of Education.
More below the fold
One line of questioning on that theme concerned the sentence on page 13 of the investigation report that says
He also said he has a Bible beside desk on his lab table that he checked out of the school library. When asked if the school Bible was there to make a statement, he said, “Yes.”
Focus was on what that “statement” was. In an affidavit submitted by Kelly Hamilton, Freshwater’s attorney, and signed just this morning by Freshwater, Freshwater claimed that he checked the extra Bible and “Jesus of Nazareth” out of the middle school library both so that he’d have a Bible in case he lost his “inspiration,” his own Bible, which he apparently thought might be confiscated by the administration. The affidavit also said that these were religious books that were in the middle school library having been bought with government funds, and were checked out and placed on the table in his room because Freshwater was “curious” (it was never made clear about what; bear in mind that the gallery, including me, were not able to read the affidavit and thus I depend on its description in questioning and testimony.)
Herlevi acknowledged that Freshwater had told him in his interview about the “government funds” reason but that he had not included that detail in the report. Hamilton used that opening to press on whether there were other “details” that had been omitted from the report. Herlevi repeatedly denied that relevant facts were omitted.
A second theme of the cross examination was a continuation of Hamilton’s earlier effort to place responsibility for Freshwater’s problem now on the Dennis family. Hamilton spent a good deal of time walking through portions of the investigation report, asking about the provenance of a number of statements attributed to “a student” or “a teacher.” At the time the report was written there was apparently an effort to preserve the anonymity of many of the people interviewed, or at least to not tie specific statements to specific people. In the case of the Dennis family that was on account of the anonymity privilege they had invoked in filing their federal suit against Freshwater and the District. It’s not clear specifically why the anonymity was preserved for others.
At any rate, the provenance of many of the statements in the report as established by this line of questioning did not trace back to the Dennis family and Zachary Dennis in particular. Though the initial lines of the investigation were set by the Dennis’ complaint in the federal suit, a number of other emerged in the course of the investigation. At one point Hamilton had Herlevi count up the number of specific allegations, identifying which went into Herlevi’s “supported” category and which were insufficiently supported by evidence found in the investigation. Herlevi identified 12 such allegations, of which 7 were found by the investigators to have substantial support and therefore seem to be actionable, and 5 were found to have insufficient evidence to classify as substantially supported.
Hamilton also pressed on whether Herlevi sought corroboration for some allegations. For example, referring to an email from Jim Stockdale (formerly a substitute teacher who visited Freshwater’s classroom), Hamilton wondered why Herlevi didn’t seek corroboration or question Freshwater about it. (That email, a paragraph of which is reproduced in the Day 7 post, identified what amounts to a homophobic atmosphere in Freshwater’s class. Herlevi replied that he found Stockdale to be credible.
Hamilton asked why Herlevi didn’t contact FCA speakers to ascertain whether they were contacted by Freshwater, in contravention of the FCA faculy monitor guidelines. Herelevi replied that he didn’t think it was necessary. (Recall that yesterday a pastor testified that Freshwater had indeed contacted him regarding his FCA visit.)
Hamilton asked a series of questions about the occasion on which Herlevi used the Tesla coil on his own arm. Herlevi stated that it “wasn’t the smartest thing I’ve done,” and that a 1-2 second application from about an inch hurt. In that same scene, which was in Middle School Principal Bill White’s office, they found that the arc from the coil would burn paper.
There was a long series of questions directed at Zach Dennis’ account of the “healing” prayer. In the federal complaint the description is quite detailed, with the participants (including Freshwater) forming a circle around the pastor who was being prayed for, and holding hands, and Freshwater raising his hands over the victim. There was reference to casting Satan out, or something along those lines. In his response Herlevi said the main components of Zach’s description were substantiated, even to another teacher saying that “Satan” could have been mentioned (though she wasn’t sure of it), but that the prayer was a prayer of encouragement, not a prayer of command. (I’m sorry if this description is kind of blurred, folks, but I’m color-blind in that range. Apparently in the particular sect of which Freshwater is a member one can command Satan in a prayer, thereby driving Him out, or one can pray to encourage the victim who has to do the actual work of casting Satan out, or something. It all seems pretty bizarre to me, but I guess once one has swallowed a half a glass of Kool Aid, another half-glass is easy.)
Regarding the extra credit assignment to watch “Expelled: No Intelligence Allowed” and write an “objective, unbiased” paragraph about it, Hamilton made the point that the language (“objective, unbiased”) reproduced language in Mt. Vernon School Board policy for the treatment of controversial issues. Herlevi testifed that Freshwater characterized “Expelled” as “a science movie,” but that he (Herlevi) found that it was an intelligent design film. Students were given a choice whether to do the “Expelled” assignment for extra credit, or write “on any other current event.” (Once again, note that this is a science class.)
Hamilton spent a good deal of time on the various handouts from Freshwater that were included in the investigator’s report as attachments, attempting to cast doubt on their provenance. I won’t even attempt to summarize that line except to say that Herlevi basically took the word of the various people who gave him the handouts.
Hamilton’s questioning returned to his earlier theme of administrative inaction in previous years. Along those lines, one Freshwater handout that included ID creationist material was found in a file maintained by the former Superintendent, Jeff Maley. It had been sent to Dr. Linda Weston, then the director of curriculum, from Elle Button, a middle school science teacher and mother of Kate Button, a former Freshwater student who testified on Day 6. Elle Button’s note to Weston, not reproduced in the report or read in the hearing, apparently identified the handout as inappropriate. Hamilton pressed on the lack of action by Dr. Weston, who told the investigator that she didn’t remember the incident. And there was no record of any action taken by Maley, in whose file it was found. Maley told the investigator that there were no complaints in Freshwater’s file “,,, because parents did not want him fired, so there is nothing in writing in his file” (p 13 of investigator’s report).
The administrative inaction theme was raised again in connection with high school science teacher Bonnie Schutte’s “annual note of concern” to Linda Weston, about the questionnaire responses from former Freshwater students in Schutte’s 9th grade science class. (Schutte’s Day 5 testimony here.) Hamilton also asked what actions were taken by Weston regarding Schutte’s concerns. Herlevi replied that he didn’t know.
Apropos of the administrative inaction theme, the Columbus Dispatch published a very strong editorial today about the Freshwater affair. The money quote:
The unfortunate experience should be a cautionary lesson to other school districts dealing with teachers whose personal beliefs get in the way of their responsibility to educate: Don’t look the other way for years, even if the teacher is well-liked and personable. The mistake was not in firing Freshwater but in waiting so long to do it.
Returning to the question of the completeness and adequacy of the investigation, Hamilton pressed Herlevi on why he didn’t get written statements from withnesses. Hamilton referred to the master contract, in which in the case of grievances requires written witness statements. Herlevi responded that he didn’t think it was necessary, and that he gave witnesses the opportunity to provide additional material if they wished after the interviews.
Finally, Hamilton pressed Herlevi on why he didn’t re-interview Freshwater, who was initially interviewed very early in the investigation. Herlevi basically responded that he didn’t think it necessary. While there was apparently a tentative appointment for a second interview set up by Superintendent Short, Herlevi said that he himself had not requested a specific second interview.
That ended the cross examination of Thomas Herlevi.
Joe Barone, former student
Joe Barone was a student in Freshwater’s 8th grade science class in 2001. In diret examination by David Millstone, the Board’s attorney, Barone testified that Freshwater raised questions whenever evolution came up in class, telling the class that he (Freshwater) “didn’t believe in evolution.”
Barone identified several handouts he had saved from Freshwater’s class, on several of which at the end was the question “Was an ID involved?” One handout, for example, was about the angler fish, with notations indicating it was too complicated to have evolved – “Can a high-tech light on a low-tech angler fish evolve?”
Freshwater encouraged debates over evolution and creationism in class, and Barone testified that other students brought their Bibles to class to argue for creationism. He said the debates got very heated. Barone said that when he tried to argue what amounts to a Catholic theistic evolution position (my gloss of Barone’s description), four named students in particular attacked with gibes, including Freshwater’s son Luke who was in the class. Barone testified that he was the only student arguing for the theistic evolution position, and that he wasn’t sure that Freshwater was aware of what it meant to have the rest of the class was ganging up on him.
Barone testified about one handout that contrasted “three theories” – Darwinian/natural selection vs. Wallace ‘all but the brain’ vs. creationism. Freshwater used a picture of Lucy – an Australopithecus afarensis – to illustrate the “Wallace” position.
In cross examination Barone was asked why he came forward. He responded that he thought things had got better in Freshwater’s class after he left for the high school, and that the current public controversy convinced him that things had had not improved and the kind of persecution he experienced in Freshwater’s class had apparently got worse rather than better. His parents had spoken out about it at school board meetings in the spring, and had asked his permission to look through the materials he had saved from Freshwater’s class.
Hamilton asked Joe why he had not complained at the time, particularly since his mother was a music teacher in the Mt. Vernon system. Joe replied that it mostly occurred int he spring, in MAy, and that since he’d soon be getting out of middle school to go to high school he rode it out. He mentioned that his older sisters and he were accustomed – inured? habituated? All capture something of Joe’s testimony on this point – to what amounts to casual prejudice against Catholics in the school system from the Protestant fundamentalists.
Joe testified that Freshwater had put up a swathe of butcher paper on the wall for written comments about the evolution/creationism debates in class. That, he said, allowed the same sort of persecuting comments and gibes by other students to be written down on the paper when Joe wrote his position, in a sense concretizing the persecution.
Joe testified that he had expected that in Freshwater’s classroom there would be less of that sort of thing – he had been a classmate of Luke Freshwater since 2nd grade and knew the family. But it wasn’t different in Freshwater’s class. Joe said that the lack of response to Joe’s classmates gibes on Freshwater’s part indicated to him silent agreement.
That was the main burden of the day’s testimony. We resume the Board’s case tomorrow.
Once again, I’ll edit for typos when I’m more awake.