Freshwater: Dec 8, 10, & 11, 2009

Added in edit: This is a very condensed summary (three days of testimony in a bit over 2,000 words). If you have questions about specific issues or topics please ask them in the comments and I’ll respond as I can.

This last week saw us creep nearer to the conclusion of Freshwater’s case to keep his job as a middle school science teacher. He was the main witness for the greater part of three days on direct examination by R. Kelly Hamilton, his attorney. In late December when the hearing resumes he will be cross-examined by David Millstone, the Board of Education’s attorney. Unless Hamilton has other witnesses to call (not a negligible possibility), we should get to the Board’s rebuttal case (if one occurs) in January. There’s no telling how long that may take nor how long Freshwater’s rejoinder (if any) to the rebuttal might take.

Freshwater’s testimony this week had four main components:

  1. Denial: He denied many of the allegations, attributing the contradicting testimony from other witnesses to misperceptions, misunderstandings, or flat lying.

  2. Appropriate Use: He claimed whatever ID and/or creationist material he might have used was to illustrate bias and lack of objectivity in the interpretation of good science and was consistent with the Academic Content Standards.

  3. Confusing Directives: He claimed that he received confusing instructions from the administration concerning religious materials in his classroom, and to the best of his understanding complied with administrator’s directives.

  4. Incomplete Report: He claimed that the HR OnCall investigators’ report was incomplete and misleading, did not fully investigate the allegations, did not comply with the terms of the master contract between the Board and the bargaining unit, and did not keep a promised appointment for a second interview for which Freshwater had prepared a comprehensive report.

More below the fold.

In this account I’ll first describe the testimony of a late Board witness, James Stockdale, who was unavailable when the Board put on its case in the Fall of 2008. Then I’ll move on to Freshwater’s reenactment of the day this all started, December 6, 2007, when Zachary was allegedly burned with the Tesla coil. Then I’ll summarize Freshwater’s testimony in a pretty condensed fashion under the four headings listed above. There was a lot of redundancy. For example, we spent a good deal of time on the question of whether one can come to a conclusion about a person’s beliefs from the books or posters in their office or room, or whether one should ask the person what the books or posters signified.

Summaries of the three days are also in the Mt. Vernon News here and here, and in the Columbus Dispatch here and here.

James Stockdale testimony

James Stockdale was a witness for the Board’s case in chief but was unavailable last year, so he was called on Dec 8, 2009. At the time of the incident on which he testified he was a substitute intervention specialist, subbing for Kerri Mahan. The notebook with my notes on Stockdale’s testimony doesn’t seem to be around, so I’ll quote Pam Schehl’s account in the Mt. Vernon News:

To start Tuesday’s session, Stockdale was called by David Millstone, lawyer for the Mount Vernon Board of Education. He related what he observed and heard one day in Freshwater’s class as a substitute for an intervention specialist. The class was just beginning a unit on the origins of the earth, and Freshwater, Stockdale said, referenced a Time Magazine article that talked about a genetic link with homosexuality.

Stockdale said Freshwater told the students that was an example of how scientists and information in textbooks can be incorrect. Stockdale went on to say he was “in a state of disbelief” as Freshwater told the class the article is wrong because “the Bible” says homosexuality is a sin and anyone who chooses that lifestyle is a sinner. Stockdale said he felt that statement was giving the students license to continue homophobic attitudes and remarks to other students.

Hamilton asked whether Freshwater was using that article to illustrate scientific bias and Stockdale said he did not recall Freshwater ever using the term bias.

The reenactment

On Dec 8 the hearing room was re-arranged to resemble Freshwater’s classroom, with tape on the floor marking several students’ chairs – Zachary Dennis’s, Taylor Strack’s, and Justin Newlin’s. Recall that Taylor Strack testified that she saw students, including Zachary, place their arm on the overhead projector for the demonstration:

David Millstone, the Board’s attorney, had her clarify that procedure. She testified that Freshwater asked if anyone in the class wanted to try it (being zapped). A student would approach him at the front of the room and put an arm on the overhead projector and Freshwater would apply the arc to the arm. She testified that if the student asked Freshwater to stop, he would stop. That is consistent with Zachary Dennis’ description of what happened. Overall, it’s not clear in her testimony whether Freshwater put his hand on a student’s hand on the overhead or not. She implied both that he did and didn’t during her testimony.

There were two main points made in the course of the reenactment. First, the way Freshwater set up the room layout, the overhead projector was behind him, pushed against his lab table at the front of the room, and he was standing roughly between the projector and the students being zapped. Hence in that arrangement the students wouldn’t have been able to put their arms on the projector; it played no role in the process. So we have two students testifying that the overhead projector was in play, and Freshwater claiming that it was not.

A further wrinkle in the reenactment was an effort to depict the room as fairly dark, the light having been left off from a previous demonstration of lighting ionized gases in clear glass tubes for the students to identify. The tubes were first lit one at a time, and students wrote down the specific gas displaying a particular color. Then the 8 tubes were laid in a row, end to end on the floor in random order, and Freshwater touched the Tesla coil to one at the end of the row, lighting all of them. Students were to refer to their previous answers about gases and colors to identify each of the 8 in order on the floor, writing their answers on their answer sheet.

Taylor Strack’s seat was in the back row of a double horseshoe arrangement of desks, and while it was not directly stated, Hamilton was clearly trying to make the argument that because the room was darkened from the previous demonstrations and her seat was some distance – ~20 feet – from where the zapping occurred, she could not have had a clear view and thus reported it inaccurately. However, the room was bright enough for students at their desks to read their previous color answers and write new ones, so it doesn’t seem to have been all that dark in there. Moreover, after at least 10 minutes in that dim light for the two earlier demonstrations their eyes would have been well adapted to the light level.

Moving on to the four headings above:


Freshwater denied a wide array of allegations from previous testimony and the investigators’ report. He dened teaching creationism or intelligent design, denied teaching thermodynamics, denied disparaging Catholics, denied referring to the Bible in class in connection with homosexuality, denied that he directed students to AIG’s site, denied praying with students, denied marking crosses on students with the Tesla coil, denied contacting speakers for FCA, denied saying in class that homosexuality is a sin according to the Bible, denied ever endangering or harming students, denied that he has taught beyond what is appropriate to teach in his class, and denied that he ever made a direct challenge to evolution in his classes.

He claimed that his 2003 proposal to the district to adopt the Intelligent Design Network’s “Objective Origins Policy” was not an effort to introduce ID into the classrooms, but was an effort to teach more evolution and to perform critical analysis of evolution, moving the 10th grade biology standard down to the 8th grade. Hamilton tried to portray that proposal as not being exclusively intelligent design by pointing to a couple of other sources Freshwater cited, including Unfortunately for Hamilton, that’s the site of what billed itself at that time (2003) as the Ohio affiliate of the Intelligent Design Network. Predictably, Freshwater also mentioned the so-called Santorum amendment.

There is, of course, contradictory sworn testimony on almost all of those points from one or more witnesses. Of most interest is that there is contradictory testimony on at least one of those from Freshwater himself. In his direct examination by David Millstone on October 28, 2008 (summarized here), Freshwater said this, according to the hearing transcript:

[“Q” is David Millstone; “A” is Freshwater]

Q. Zach also testified that you indicated this would leave a mark like a tattoo of a cross for a short period of time.
A. I do not remember saying that.
Q. You’re seen the pictures?
A. Yes.
Q. And do you find that those are accurate depictions of Zach’s arm?
A. Are they? Yes.
Q. At various times this has been described as an X or a cross. Quote frankly, I don’t care which one it is at the moment. But did you ever describe that you put an X on students?
A. I do not remember saying anything about a cross.
Q. That wasn’t my question. My question is, Did you ever say that you put an X on him?
A. Yes.
Q. Is an X a mark?
A. Yes
Q. And is it your position that you put an X on Zach and not a cross?
A. Yes.

So a bit over a year ago Freshwater agreed under oath that the pictures were accurate depictions of Zachary’s arm and that he had put a mark that he characterized as an “X” on Zachary’s arm. Now under oath he denies his previous sworn testimony. (This is the same issue on which he invoked his 5th Amendment right against self incrimination during his deposition for the Dennis family’s federal suit.)

Freshwater attributed the contradictory testimony to misinterpretations, misunderstandings, and in a few cases, to lying on the part of witnesses. He was careful not to specifically accuse any particular person of lying that I heard; he made it as a general statement.

Appropriate Use

In his testimony over the three days Freshwater attributed his use of creationist and ID materials to a legitimate effort to teach to a particular Academic Content Standard (p. 216) (LARGE pdf!):

Grade Eight
Ethical Practices
2. Explain why it is important to examine data objectively and not let bias affect observations.

Freshwater depended almost wholly on that standard to justify the use of the woodpecker handout, the giraffe handout, Wells’ Survival of the Fakest as a handout, and segments of Kent Hovind’s Lies in the textbooks (Youtube video), among others, in class. Freshwater said he used them to illustrate how bias can lead to bad science and bad application of the scientific method. He said that the extra credit assignment to watch Expelled: No Intelligence Allowed fell under the same class, an illustration of bias in using science, and was therefore appropriate.

Both Hamilton and Freshwater seemed to be operating on a notion of “bias” as being an attitude or prejudice toward or against some position that can be countered by presenting an opposing position or view. However, the same Academic Content Standards on which Freshwater was depending treat bias and its cure differently. On the same page of the Standards, page 216, there is a parallel standard for 7th grade science where “bias” is defined in terms of reproducibility of results and replication of research:

Grade Seven
Ethical Practices
1. Show that the reproducibility of results is essential to reduce bias in scientific investigations.
2. Describe how repetition of an experiment may reduce bias.

This is how one ordinarily understands “bias” in science, dating back at least to Robert Rosenthal’s work on unconscious experimenter bias and expectancy effects in behavioral research. While Rosenthal’s research focused on the behavioral sciences, similar artifacts can plague data gathering and analysis in other sciences; and replication, particularly independent replication, is a safeguard against that. We’ve known that for a long time, even well before Rosenthal’s work. That’s what is captured in the 7th grade standard and what is absent from any of Hamilton and Freshwater’s uses of the term in attempting to justify Freshwater’s use of creationist materials in class.

I doubt that many of Freshwater’s supporters would agree that his creationist materials are examples of bad science; indeed, one of them had a letter in a recent Mt. Vernon News (not online but reproduced here) where a number of the good old creationist canards are repeated. it looks to me like he’s throwing his supporters’ beliefs (and his own, as far as that goes) under the bus in order to defend himself. How many times did the cock crow?

Oh, and Freshwater testified that he had students return the handouts at the end of class because he was conscious of the necessity to conserve paper.

Confusing Directives

The insubordination charge in the termination resolution depends in large part on a sequence of events in April, 2008, when Freshwater says he was first told in was OK to have his Bible on his desk, then was told he couldn’t have it on his desk, then was told it was OK. My notes on this are confusing – the testimony skipped from document to document, and since they are ordinarily referred to by exhibit number at times I had no idea what was being referred to. But the testimony netted out that Freshwater said he complied with administrative directives as he understood them, and that they changed several times over the course of a couple of weeks in April 2008. He also testified that sometimes the directives to him, e.g., instructions to him to remove his personal Bible from sight, conflicted with directives to other teachers, e.g.,, instructions to Lori Miller telling her she could keep her personal Bible on her desk but had to remove other devotional material.

In addition, the insubordination charge depends on another statement attributed to Freshwater in the report. The report says that when Freshwater was asked by the investigator if putting two additional religious books–another Bible and a book called “Jesus of Nazareth,” both checked out of the middle school llbrary–on his lab table was “to make a statement,” he reportedly replied “Yes.” In his testimony Freshwater said that account was incomplete, and reading from a transcript of his recording of the interview, added comments about the books having been bought with government money. (I have a faint memory that at one point Hamilton suggested in a question to someone that having the two Bibles might have been for purposes of comparison and evaluation, but I’ll be damned if I can remember where/when I heard that. After a while it all runs together.)

Incomplete Report

Freshwater testified that the HR OnCall investigation was incomplete and biased against him. Specifically, he said that he had just one interview with the investigators. He said they told him there would be a second interview, and in preparation for that he prepared a comprehensive statement and witness list, consistent with the language in the master contract, to present to the investigators at the second interview. He testified that the second interview was never held and that he received no information about the progress of the investigation until it was announced to be complete and a report submitted. We therefore went through a series of affidavits based on his comprehensive statement, all prepared by Freshwater to individually address the various allegations in the termination resolution adopted by the Board of Education. Among other examples of purported incompleteness, he testified that the investigators did not even interview the pastor at the center of the healing ceremony allegation, and did not interview witnesses Freshwater suggested in his interview.

As I noted, we walked through a long series of affidavits addressing each of the allegations based on his comprehensive statement. They mainly fell into the categories noted here.

And for some reason that I never got clear we spent a goodly amount of time on Mary Schweitzer’s research on the (possible) identification of soft tissue remnants in T. rex fossils. Freshwater used a Smithsonian article on it as a handout in class. He described the research as “very interesting.”

At the end of Freshwater’s testimony Hamilton asked what he would tell the referee. He replied, “Vindicate me from this mess.”

Cross examination in late December.