Freshwater: 2009 (but not the hearing) drags to an end

This week saw two more days of testimony in the administrative hearing to determine a recommendation on whether John Freshwater should be terminated as a middle school science teacher in the Mt. Vernon school district. The main witness for the two days, December 29 and 30, was Freshwater himself undergoing cross examination after his direct examination which is summarized here.

The proceedings went very slowly under both direct and cross examination because Freshwater has become much more cautious about answering questions, has begun reading all exhibits offered slowly and thoroughly, is frequently asking for clarification or rewording of questions, and in some cases repeatedly avoided answering until at a couple of points the referee intervened, instructing him to answer the question asked.

For additional coverage by reporters at the hearing I refer you to Pam Schehl’s story in the Mt. Vernon News here (29th) and here (30th), and to Dean Narciso’s stories in the Columbus Dispatch here and here. For updates by a creationist of the Kent Hovind kind who is also attending the hearing, see here.

The two days are summarized in 8,000 well-chosen words below the fold.

Rick Warren Testimony

Rick Warren (no, not that Rick Warren!), a former soccer coach at Kenyon College, was the first witness on Tuesday, Dec 29. Warren was an acquaintance of Freshwater and attended his church. Now living in Connecticut, he testified now since it was his first trip back to Ohio since the hearing started.

Warren had been invited to speak at the middle school Fellowship of Christian Athletes, and an email from Freshwater’s school account to Warren about that had been introduced early in the hearing. Warren testified that the email from him appeared to have been altered, and that in particular, he would have not used the salutation and signature style in the email. Born and educated through high school in Jamaica, Warren testified that he uses a “British style” in his email, that in a continuing email exchange with a peer or subordinate he does not use a salutation and that the signature he uses varies from formal to informal depending on the recipient. The signature in the email in the hearing exhibit did not correspond to what he used in that kind of context. As Pam Schehl reported in the story linked above, Warren testified that the email looked like someone may have backspaced to remove Jordan’s name. (“Jordan” is Freshwater’s daughter, who it was testified sometimes used Freshwater’s school email account for FCA business.)

John Freshwater Cross Examination

The rest of the two days were taken up with cross examination of Freshwater by David Millstone, attorney for the Board of Education, [added in edit:] and redirect examination by R. Kelly Hamilton, Freshwater’s attorney. (Direct examination by Hamilton earlier this month is here; direct examination by Millstone during the Board’s case presentation is here.)

First I’ll note that Freshwater was defensive and even truculent through most of the cross examination. As Pam Schehl reported, it got to the point on occasion when the referee intervened, instructing Freshwater to answer the question asked. From Schehl’s story:

For instance, Millstone attempted to find out when Freshwater understood that he was supposed to remove his Bible from his desk, and asked the question more than once.

“When did you understand you had to remove the Bible from your desk?” asked Millstone.
“Please restate the question,” Freshwater replied.
“What was your understanding after you were told to remove the Bible?”
“Your wording there … It’s a conflicting mess.”
“Did you understand you were told to remove your Bible?” Millstone asked.
“You can’t be deceptive and put things out of context.”
“Did you understand you were told to remove the Bible from your desk?”
“Yes, to remove it from my room.”

Shepherd said that was not the question, and Millstone repeated it.
Freshwater again answered “Yes, from my room.”
“That’s not responsive to the question,” Shepherd advised.
Millstone repeated the question again and Freshwater answered, “Yes.”

That gives the flavor of the testiness that cropped up often over the two days of Freshwater’s testimony.

The cross examination was a bit chopped up and covered a number of issues. I’ll try to break this up into topic areas, though there’s considerable overlap in some cases.

Contract and rights questions

After initial questions about his acquaintance with Rick Warren and their respective roles in the WIll Graham evangelical event held in 2007, Millstone moved on to the master contract with the bargaining unit. Freshwater testified that he had never been a member of the bargaining unit, but that he was subject to the bargaining agreement. He testified that he received salary and benefits determined in the contract, but was not particularly aware of the contract provisions. He agreed that he had testified earlier in the hearing that he didn’t know he had rights under the contract.

Millstone asked if he had a copy of the contract. Freshwater replied that he didn’t know. Asked if he had an electronic copy, he testified that might have, but didn’t recall reading it. Aked if he might have obtained one to check because of his 2003 proposal to introduce the ‘critical analysis of evolution’ in 8th grade, Freshwater replied he ddn’t remember. Millstone introduced a CD found in Freshwater’s room after his suspension that contained the 2002-2005 contract. Freshwater said he didn’t recall looking at it.

Millstone asked if Freshwater reviewed the contract once the investigation started. Freshwater replied he had not. Asked if he reviewed it with his attorney, R. Kelly Hamilton, Freshwater replied, “We talked about a lot of things.” He didn’t recall if Hamilton had specifically briefed him on his rights under the contract. “He advised me of a lot of rights.” Asked again if he was briefed on his rights under the contract, Freshwater repeated “He advised me of a lot of rights.”

(Note: For attorney/client confidentiality aficionados in the crowd, Hamilton objected to this line of questioning but was overruled on the ground that Freshwater had testified in direct about his rights, about some advice from his attorney concerning them, and about his lack of knowledge of them, so this line of questioning was allowed by the referee.)

After considerable pressing from Millstone and repeated rewording of the question (a pattern that become more and more pronounced over the course of cross examination), Freshwater finally conceded that “I’m sure Kelly talked to me about those rights … without a doubt.”

Asked if in his interview with the investigators he knew he had rights, Freshwater replied, “Yes.”

Hamilton asked if Freshwater had talked with an attorney on or before April 16, 2008. (Recall that the rally on the public square in Mt. Vernon where Freshwater read a statement written by “Coach” Dave Daubenmire was on April 16, 2008.) Freshwater replied that he had not. Asked if he met with Hamilton on or before the 16th, Freshwater replied he had not. Asked if he had met with attorney Roger Weber (spelling?) on or before the 16th, Freshwater amended his earlier response, saying he met with him and Weber the evening of the 16th. (That was modified in later testimony to the 17th.)

Taping of the investigation interview

Freshwater testified that he had several meetings with Hamilton in advance of his interview with the HR OnCall investigators on May 15th, 2008. Asked, he said it was his idea to record the interview, and that HR OnCall agreed to that. Asked if he agreed to provide HR OnCall with a copy of the tape within 48 hours, Freshwater didn’t recall that. Millstone then turned to a transcription of the tape produced by Freshwater himself and previously introduced, and read the portion where Freshwater had agreed to provide a copy within 48 hours. Asked, Freshwater said he made the copy(ies?) in the day or so after the interview.

Asked if he remembered giving a copy of the tape to HR OnCall, Freshwater replied he did not, but that he had given one to the union representative who was at the meeting and one to Bill White, Middle School Principal. He didn’t remember when he gave them the tapes. Asked if he sent an email to White telling him he would give White a copy, Freshwater testified that he may have, but didn’t recall it.

Presented with a copy of an email telling White he was going to give him a copy of the tape, Freshwater made a rambling response, saying “I have become very cynical, and what I’m seeing done in here, in what you and the other attorneys have done, it is … I’ve become very cynical.” Freshwater mentioned “forgery” and said he didn’t know if the email is “kosher.” In an emotional outburst he said, “Forgery, things have been changed … I can’t really tell you if this came from me or not.” The ‘forgery’ theme recurred several times in subsequent testimony, based on Rick Warren’s testimony about the possibility that his email had been altered.

Freshwater affidavits

We then trudged through a long series of questions about the 15 affidavits Freshwater had prepared for the HR OnCall investigators but never submitted to them. Basically, it established that Freshwater and Hamilton met multiple times to prepare them and that Freshwater signed all but one on May 25, 2008, at a temporary office Hamilton had set up at Trinity Assembly of God, Freshwater’s church. We also learned that Freshwater could not remember how much time was spent on each.

A few specific notes on the testimony surrounding the affidavits:

  1. With respect to the Tesla coil issue, Freshwater said he was surprised that it arose in the course of the independent investigation, since he assumed it had been resolved with the instructions from Principal White to not use them any more and the destruction of the one he used, which he claims was at Principal White’s instruction.

  2. Regarding the alleged teaching of creationism/ID, Freshwater testified that after the Board of Education turned down his 2003 proposal he depended on the objectivity and bias language of the state academic content standards (large pdf, p. 216) as bases for his teaching. Throughout his testimony Freshwater has cited that benchmark as justification for using such materials as the giraffe and woodpecker handouts and, as of this most recent testimony, providing extra credit to students for attending and writing a paragraph about “Expelled: No Intelligence Allowed.” More on that later.

  3. Freshwater agreed that David Daubenmire wrote a statement over Freshwater’s name for the April 16, 2008, rally on the public square, and that Freshwater said if it was supposed to be his statement he should read it. While he testified that he read only part of it–he couldn’t remember exactly what part(s)–he would not have excluded anything in it.

  4. Freshwater argued in one affidavit that the investigators misconstrued a statement he made in answer to a question of whether he prayed with students. He had responded that he prays all the time. The investigators interpreted that to mean that he did pray with students. Freshwater claims that what he meant was a “Nehemiah Prayer,” by which I understand Freshwater to mean essentially a silent prayer made at every juncture of life – this is apparently close to what he meant.

  5. In the interview with the investigators Freshwater agreed that he made “the same pattern on yourself as you do on kids.” However, he testified today that he just hits one spot on his own arm. On the kids, if they “leave [the arm] up I slide it down and then go across.” Asked if in the interview he said it was an “X” and not a cross, Freshwater agreed.

  6. Jeff Kesner, the OEA rep with Freshwater in the interview, mentioned several times that Freshwater had the right to submit a comprehensive response to the allegations; Freshware responded (in the interview transcript) “All right.”

Comprehensive response to allegations issue

Millstone referred to section 402 of the master contract, which gives a teacher the right to submit a comprehensive response. Millstone asked if Freshwater chose not to do so. Freshwater replied that was not correct, that “I was waiting for the second interview.” That was with reference to several mentions of a possible second interview with the investigators in the initial interview. There is some confusion about what happened to that second interview. Freshwater claims that it was scheduled and then cancelled. Somewhere in my earlier notes there is more about it but I can’t find that now.

Millstone asked if Freshwater or Hamilton had asked about scheduling the second interview. In a non-responsive answer, Freshwater concluded “Why would I have to?” He didn’t remember if they in fact had. He was asked if he submitted the witness list he had prepared after the second interview was cancelled. He replied, “I was waiting for them to contact me.”

Millstone referred Freshwater to the grievance provisions in the master contract, and asked if he had filed a grievance. Freshwater replied he had not.

Federal case deposition and Answers in Genesis

Millstone then turned to Freshwater’s deposition taken a few months ago in the Dennis suit in which he is still a defendant. Freshwater said that he had not seen or reviewed the deposition prior to its introduction in this hearing, even though it was filed with the federal court after a 30 day waiting period for corrections. Freshwater said his assigned attorney in the federal suit, a Mr. Deschler (who has attended some of the hearing sessions but was not there this day), did not send him a copy of his deposition.

Freshwater agreed that in the deposition he was asked about the Answers in Genesis site, and denied that he had referred Zachary Dennis to it. He also agreed that in his testimony earlier this month he said he had not referred students to AIG’s site. However, Millstone referred to Freshwater’s hearing testimony in October, 2008, when he said he did refer Zach to AIG (Millstone read from the transcript of that testimony), and when he said he had referred perhaps a dozen students to AIG’s site and that he had accessed AIG’s site in class. Freshwater today testified that what he actually did was take a group of adults and young people from his church to the AIG creationism museum, and that some were current or former students in his class.

Asked, Freshwater denied that AIG had ever been a “research tool” for his classes. Asked if he passed out materials in class advertising an AIG event in Knox County in the 1994-95 school year, he replied that he had not. Presented with a memo from then-Principal Jeff Kuntz instructing Freshwater not to give extra credit for students attending the AIG event, Freshwater did not recall it.

Millstone asked if Freshwater gave extra credit for students who attended a “Hellfire” event in Mt. Vernon. He didn’t recall. (I’m not sure what that was. It might be associated with this ministry. That’s not at all certain, though.) Freshwater testified he was not aware of it.

Student questionnaires, trilobites, and religion

Turning to a new topic, Millstone asked Freshwater if he used any activities at the beginning of the school year to get to know the students. Freshwater replied that he did.

Millstone asked if he recalled the questionnaire used by Bonnie Schutte, a high school science teacher. (See here for her testimony.) Millstone asked Freshwater if he used a similar questionnaire. He replied he did not.

Millstone then introduced a “Science Student Data Sheet” filled out by Zach Dennis (having received clearance from the Dennis family attorney–present in the hearing room–to disclose Zach’s questionnaire). It is a questionnaire about prior science knowledge, and includes an exercise in which students are shown an object and are asked to describe it. Zach’s questionnaire was part of a larger set of similar questionnaires found in Freshwater’s classroom after his suspension.

Millstone asked if that questionnaire refreshed Freshwater’s memory about it. Freshwater slewed off into a sort of mini-rant, saying “I want to state that this bothers me because I’ve never seen this before.” Asked “Did you use this with students at the beginning of the year” Freshwater replied “No.”

Millstone asked if Freshwater ever did an exercise in which “you give them an object and have them write a description of it to determine the accuracy of their observations.” Freshwater replied “I’ve done some things like that.”

Millstone asked if Freshwater had ever told his students that trilobites were extinct 400 million years ago, and one or more was found with a sandal print on it. After four repetitions of the question, reworded each time, Freshwater answered ‘yes’ to the first part and ‘no’ to the second part. (That was another new general pattern of his testimony this day: Freshwater often asked for rephrasing of questions.)

I have read some of the students’ answers to that ‘describe a trilobite’ question in questionnaires from a stack found in Freshwater’s classroom, with the names and any identifying information concealed so I could not identify individual students. The answers to a number of them followed an interesting pattern. There would be two paragraphs. The first paragraph used phrases that one would expect from new 8th graders describing a trilobite fossil: “a fossil,” “a trilobite,” “a grey rock like a fossil,” “extinct 400 million years ago,” etc. Then there would be a break in the description, and in a new paragraph one would read the “one was found with a sandal print on it,” or “maybe lived at the same time as humans.” (See the Index to Creationist Claims on this.) It was a strange pattern, and looked as though the students first gave their own description, and then a little later regurgitated some creationist malarkey. It wasn’t clear where the creationist malarkey came from, and not all the questionnaire responses I read showed that pattern.

Millstone asked if Freshwater used a survey that tries to determine the ways in which students would learn. Freshwater said he didn’t recall. Millstone asked if Freshwater ever asked students if religion was important to them. He denied that.

Millstone then introduced a Multiple Intelligence Survey, also filled out by Zachary Dennis and also part of a larger set of questionnaires found in Freshwater’s room after his suspension. One question on the survey asks whether religion is important to the student. Freshwater denied giving the survey to students.

It was not made clear in testimony (or questions) whether the two questionnaires were commercial or home-brew. At a guess, I’d say the Multiple Intelligence Survey is a commercial instrument and the Science Student Data Sheet was home-brew. Bear in mind that while the questionnaires were found in Freshwater’s classroom, the only direct evidence that he used them are the two introduced in the hearing that were filled out by Zachary Dennis. However, as I noted above, I read a number of the responses to the “describe an object” exercise in the Science Student Data Sheets (with students’ names and identifying information concealed) that were in the same set from which Zachary’s came, so I myself have very little doubt that Freshwater used at least that one in the 2007-2008 school year despite his denials.

Homosexuality and sin

Recall that James Stockdale testified that Freshwater told his class that science can sometimes be wrong. As an example, Stockdale testified, Freshwater told his class that scientists who hypothesized a genetic link to homosexualilty are wrong because the Bible defines homosexuality as a sin, and it is therefore a choice, not genetic.

Millstone asked Freshwater if he personally believes that the Bible defines homosexuality as a sin. Freshwater replied, “I have no opinion on that.”

Millstone asked Freshwater if he believes that homosexual behavior is a sin. Freshwater replied, “I have no opinion on that.”

Millstone asked if the Bible says homosexual behavior is a sin. Freshwater replied, “I have no opinion on that.”

Dec 30, continuing Freshwater cross examination

August, 2008, BOE meeting

Millstone asked if Freshwater addressed the Board of Education during the public comments period at its August 4, 2008, meeting. Freshwater agreed that he had done so in order to make sure there was no confusion and mistakes about facts. Millstone asked if Freshwater gave the Board his 15 affidavits (which had been prepared the preceding May). He replied he did not. Millstone asked if those affidavits weren’t Freshwater’s comprehensive response. Freshwater replied he didn’t give the Board a written response.

Freshwater’s 2003 proposal on “critical analysis of evolution”

Recall that in 2003 Freshwater attempted to persuade the district to include “critical analysis of evolution” in the 8th grade life sciences curriculum. His proposal was a near-verbatim copy of Intelligent Design Network’s Objective Origins Science Policy. He first took it to the Science Curriculum Committee, which turned it down, and then took it to the Board of Education.

Millstone asked if Freshwater had appeared before the Board when he made his proposal. He replied that he had, after the Science Curriculum Committee rejected it. Millstone asked whether Freshwater had provided the Board with any supporting materials. Freshwater thought perhaps he had, maybe a Mason-Dixon poll in Ohio. (Freshwater did not note that the poll asked whether intelligent design should be taught alongside evolution; he has consistently denied that he wants to teach intelligent design or creationism.)

Millstone asked if Freshwater provided the Board with a letter signed by Representatives John Boehner (R-OH) and Steven Chabot (R-OH) regarding the teaching of evolution. Freshwater didn’t think so. He said he followed the No Child Left Behind Act, especially the so-called Santorum Amendment.

Millstone introduced an article titled “Survival of the Fakest” by Jonathan Wells, which Freshwater had used in his science class prior to 2003, and asked Freshwater if he provided it to the Board in support of his proposal. He couldn’t recall. (But I do recall: Freshwater did in fact distribute that article in support of his proposal in 2003. I was at that Board meeting.)

Millstone asked if Freshwater was familiar with a document titled “Ten Questions to Ask Your Biology Teacher.” Freshwater responded, “You’ll have to refresh me on that. I’m not recalling.” Millstone introduced the document, printed from the link above at After reading it, Freshwater said there were “… some good examples of bias in it, with the peppered moths and the embryos.” (He is here returning to his appeal to the academic content standard regarding objectivity and bias that he has used to justify his use of various creationist materials.) Asked again, Freshwater said “I’m not familiar with that. He wasn’t sure if he had used it as support for his proposal in 2003. Once again, Freshwater did that document in support of his 2003 proposal. (Yes, Ken Ham, I was there!)

Millstone asked if Freshwater has a copy of Wells’ “Icons of Evolution.” Yes, he does. Has he read it? Parts of it.

Millstone asked when the 2003 proposal was developed. Freshwater said that through the 2002-2003 school year he was watching the No Child Left Behind Act “moving through, Santorum was moving through.” And he was watching the direction the school was going, there was a lot of activity in science teachers, and again the Santorum “attachment” (sic) going through. Millstone asked if that was Federal, and Freshwater agreed. Asked what came to Ohio, Freshwater replied the 10th grade standard to critically analyze evolution but not teach ID. (See the 2002-2003 achives here for more than you want to know about that.) Asked if he followed the debate in Ohio, Freshwater said he knew there was some discussion.

Millstone asked Freshwater where his proposal came from. Freshwater replied “lots of different spots and places.” Asked what “spots and places,” Freshwater said that “… when you Google something like this you get lots of places, and I can’t zero in.”

Referring to page 1 of Freshwater’s 2003 proposal, Millstone read “This statement … copied from” He asked Freshwater if that means it came from Intelligent Design Network. Freshwater replied, “No. You have to put it in context. It wasn’t religious.” There followed considerable jousting about whether “copied from” means the proposed policy came from the Intelligent Design Network, with Freshwater bobbing, weaving, and dodging to avoid saying so and repeating that it doesn’t have anything to do with religion.

Millstone asked who was involved in preparing the proposal. Freshwater replied himself and a few others. Asked what others, he identified his wife and Evie Oxenford (former sister-in-law of Bill Oxenford, another middle school science teacher). He couldn’t recall any others. Millstone asked if a Barry Sheets was involved. Sheets was director of the American Family Association of Ohio, which (among other things) set up Science Excellence for All Ohioans (of which Sheets was executive director) to push the ID agenda in the Ohio State Board of Education in 2002-2003. Freshwater replied that he may have had email correspondence with Sheets and/or some phone conversations with him, and that it may have been about the proposal.

Millstone asked if Freshwater knows what is. Freshwater said he wasn’t sure, but obviously he had been there. Millstone asked if Freshwater knows what Access Research Network is. He doesn’t. Millstone asked if Freshwater knows what the Discovery Institute is. He replied he has been on that site, but he can’t say much about it. He said he knows about it from watching “Expelled.”

Millstone asked if the goal of his proposal was to teach the 10th grade biology standard in 8th grade, and he replied “Yes.”

Legos and self-assembly

For this I’ll steal Dean Narciso’s account in the Columbus Dispatch:

John Freshwater said yesterday that he couldn’t recall ever using Lego blocks to illustrate a scientific point in his eighth-grade science classroom.

David Millstone, an attorney for the school district here, then played an audiotape of an April radio program in which Freshwater described using Lego blocks to show that cars, buildings and other structures cannot build themselves.

If you mixed up the blocks for years, the likelihood that they would become something tangible is improbable, Freshwater told the show’s host, Dr. Patrick Johnson of He compared the blocks to human cells and said that the chances that a random combination of cells could become an eyeball are “slim to none.”

Freshwater also said he used the experiment in science classes until 2003, when school officials told him to stop.

Asked yesterday by Millstone why he couldn’t recall the blocks exercise, Freshwater testified that his students initiated it.

“Mr. Millstone, you have to understand my classroom. Students are doing experiments and bringing in things all the time,” he said.

The podcast of the radio program is here. The “Right Remedy” is underwritten by Pass the Salt Ministries which–by no coincidence whatsoever–is operated by “Coach” Dave Daubenmire. Freshwater’s segment begins around 18’30” and I’ve transcribed a bit that was played in the hearing beginning around 21’30”:

Patrick Johnston (PJ): Tell us about the Legos. I thought that was a fascinating illustration of one of the problems of evolution. Tell us about the Legos. I thought that was fascinating.

John Freshwater (JF): A student showed me many years ago, and I used it up until 2003, the Legos, he … uh … he actually did it for his senior paper. He showed it to me. It’s a very simple demonstration, gathering up a bunch of Legos and he made … when he demonstrated he made an airplane or a car out of the Legos, and he had bunch of other ones, same pieces, and he scattered them all on the floor, put them in a box and threw them on the floor, and, uh, he asked the kids to watch them there. And then we wacthed them for a while, and he says ‘Now, if we watched these things for a day will they form this car or this airplane?’ The kids said ‘No.’ ‘If we watched them for 5, 10 years would they turn into this airplane?’ ‘No.’ ‘Or anything like this airplane?’ ‘No.’ So he strung it out to 10,000 years, millions of ears, what’s the chance of this becoming like this airplane or this automobile? And the kids all agreed that it won’t happen. And then he .. we compare it to the eyeball. What is the complexity of the eyeball compared to the very simplicity of Legos coming together and putting … coming together and forming a car-like structure. And we all know just a simple cell or groups of cells forming an eyeball is so complex with its DNA molecules that the chances of that happening are slim and none.

PJ: Right. Wouldn’t you say that it’s a fair assertion to say that science has never seen order come from disorder. We’ve never seen complexity come from a random collision of anything.

JF: Absolutely. That’s a law. That’s a law. No sir, that’s a law. Thermodynamics.

PJ: Right. Second law. Now why are professors fearful of offering that criticism of macroevolutionary theory?

Because, you forking moron, it’s a specious goddam claim, that’s why! Fearful? SPARE US THE IDIOCY!

(Ahem) Forgive me for shouting. The smugly arrogant ignorance of creationists is sometimes too great to bear calmly. In that clip from April 25, 2009, Freshwater displays a profound ignorance of the science, and in my view he wholly disqualifies himself from teaching science in a public school. I truly wonder if these people believe that since–in their twisted world–order cannot come from disorder, each and every snowflake is hand-crafted by God. That’s a busy deity these days.

Millstone asked again if he used that exercise. Freshwater replied “Students did it. I encourage … involvement by students.” Contrast that answer with his remark in the interview that “I used it up until 2003.” Freshwater is having more and more problems with inconsistent stories. (More on that later.)

Building a tall building

Millstone noted that Freshwater previously testified [I have no idea when] about building tall buildings, to demonstrate building technologies. He asked if Freshwater ever used handouts with that demonstration. Freshwater said yes, instructions for it.

Millstone introduced an article from a magazine called Science World titled “Reaching for the Sky,” from 1988. (It’s not online; the archive only goes back to 1992.) It was among the materials in Freshwater’s room after he was suspended. Millstone asked if it was given in conjunction with the ‘tall building’ exercise. Freshwater replied “It’s clear you’ve gone through my classroom. I’m just wondering what else you have.” And “This worksheet is a Science World magazine purchased by the school that I received for many years. I cut out many articles from it.”

The article discusses the problems of building tall buildings exposed to high winds. There are a couple of sentences referencing the Tower of Babel in the first couple of paragraphs. I transcribe them here:

One of the main ingredients in a tall building, according to Seinuk [an engineer], is “ego.” Somebody has to want the tallest building bad enough. He adds, “there is something about men ever since the Tower of Babel that wants to go up and up and up.

The Tower of Babel was topped off, unfinished, at seven stories. In the biblical story, God made the construction crew speak so many languages that they couldn’t communicate and finish their work.

The article goes on to discuss the engineering problems associated with building skyscrapers. There are some paragraphs marked with marginal notes or lines.

Millstone asked if Freshwater had testified earlier that he made notes in texts on what he wanted to cover. Freshwater agreed that he did.

Millstone then introduced another copy of the same article from Freshwater’s classroom with the same marginal notes and lines marking paragraphs. However, this one also has handwritten notes in the roughly two-inch space above the title on the first page. The notes provide a rough chronology of the lead up to the Tower of Babel in Genesis 11 (which is referenced as “Gen 11”). The notes are headed “After the Flood,” and run in two columns:

left column:


right column:
-GOD - ‘NOTHING WILL BE UNATTAINABLE FOR THEM” (sic on the quotation marks)


Below the title is “BABEL - CONFUSION.” Millstone asked Freshwater if that was his handwriting on this exhibit. Freshwater invoked the ‘forgery’ possibility, said it was not his handwriting and he did not recognize the notes. While he was answering, R. Kelly Hamilton, his attorney, silently mouthed “forgery” to Millstone, and showed the exhibit to Freshwater’s wife, who laughed derisively.

We then had some histrionics from Hamilton about forgery that I didn’t get notes on. Hamilton asked for a recess so he could “… caution my client to be … um … cautious” about documents. The request was denied.

As it happens, I have a paper copy of the article with the handwritten notes and I also have a scan of the lesson plan that Freshwater wrote and gave to former Superintendent Maley in 2006, which his attorney submitted as an exhibit in the hearing, so I compared the writing on the two documents.

Bearing in mind that I am not a professional handwriting analyst, there are a number of clear similarities between the writing on the handout and the writing on the lesson plan. Both use a species of block printing rather than cursive writing. The form of a number of letters is very similar in the two documents.

  1. The trailing leg of the capital “R” is noticeably extended to the right, tracing a significantly ‘flatter’ slope in both documents than that, say, in a typewritten “R”.

  2. The half-circle of the capital “P” in both documents is noticeably elliptical, with the major axis of the ellipse sloped up roughly 45 degrees from the horizontal.

  3. The same is true of the half-circle of the capital “R” in both documents.

  4. Similarly, the right half-circle of the capital “D” is sloped up to the right in both documents rather than being symmetrically convex to the right.

  5. In both documents the cross-bar of the capital “T” is fully extended to the left of the vertical stroke but is truncated (a few instances) or wholly absent (most instances) on the right side of the vertical stroke.

  6. The vertical stroke of the capital “L” leans slightly to the right in both documents, with the angle between the vertical and horizontal strokes 10 or 15 degrees less than 90 degrees.

  7. The capital “K” has a characteristic and obvious distortion of the upper right quadrant that is identical in the two documents.

No doubt there are others, but the specific and obvious similarities I described together with the impression of overall similarity induced by such things as the relatively close spacing between letters within words as compared with a relatively wide spacing between words strongly suggests to me that the same person wrote both documents. Later in his testimony Freshwater identified the handwriting on the lesson plan as his own. It follows that the ‘Babel’ notes were also written by him if my analysis is correct.

Darwin’s Theory of Evolution - The Premise and Problem

That’s the title of a handout Freshwater used in 2006 to which a parent had objected. At (former) Superintendent Jeff Maley’s instruction, Freshwater prepared a justification for using the handout. That justification included the lesson plans I mentioned above.

Millstone asked where in the lesson plan the handout was tied to an academic content standard. Freshwater identified the ‘bias and objectivity’ standard that he has been using to justify the use of such materials. It appears that Freshwater or his advisers are reading Panda’s Thumb, because he has begun trying to relate ‘bias’ to data. Recall that the seventh grade standards talk about the replication of observations and reproducibility of results. So Freshwater said that the use of the ‘Premise’ handout was justified on that standard because “There’s some data there, the number of fossils in museums.”

Millstone pressed, asking how he would use that. Freshwater replied, “You’re really stretching me on this. I don’t know how I taught that this day.”

Specified and Irreducible Complexity

In the lesson plan for Monday, April 3, 2006, there are a couple of interesting entries in the column Freshwater entered the daily topic(s) in. They are “specified complexity” and “irreducible complexity.”

Millstone asked Freshwater what “specified complexity” is. Freshwater replied, “I do not know.” Millstone asked what standard or benchmark it is relevant to. Freshwater replied, “I don’t know. I’d have to be refreshed on that.” Millstone asked Freshwater if the name “William Dembski” was familiar to him. He answered it was not. Millstone asked if Freshwater knew Dembski is an intelligent design proponent. Freshwater said he didn’t know the name.

Millstone asked what “irreducible complexity” means. Freshwater said he didn’t recall, and would have to be refreshed on that. Millstone asked if Freshwater had ever heard of Michael Behe. Freshwater said that he had, that his son spent a year at DeSales University in Pennsylvania, and Lehigh University is near there and Behe is at Lehigh.

Millstone asked if Freshwater was aware that irreducible complexity is an argument for intelligent design. Freshwater replied, “I was given a book by him [Behe]. I’d have to refresh my memory on it.”

We then had a strange little sequence in which Freshwater came close to denying the validity of his own exhibit introduced into evidence by his attorney. Referring to page three of the document,

Millstone asked if Freshwater made them. Freshwater replied, “I would assume I did.”
Millstone asked, “Is this the lesson plan that you prepared?” Freshwater replied “I would assume that is mine. I’m being very guarded because of some of the things that have taken place…I’m being very cautious.”
Millstone asked, “You entered this [exhibit] into evidence?” Freshwater replied, “Yes.”
Millstone asked, “Does ‘I assume’ mean you have doubts about it?” Freshwater replied, “I’m being cautious.”
Millstone asked, “Did you prepare this lesson plan?” Freshwater replied, “I would say yes.”
Millstone asked, “Is this your handwriting on it?” Freshwater replied, “Yes.”

Expelled for Extra Credit

Millstone asked if Freshwater gave an extra credit opportunity for seeing “Expelled.” He replied that he did. Millstone asked what academic content standard that addressed. Freshwater replied, “The document speaks for itself.” Millstone asked again what standard the movie was relevant to. Freshwater went back to his ‘bias and objectivity’ claim. Millstone asked what bias was exhibited by the movie that supports the standard. Freshwater replied, “There was a lot of data there, and it’s a movie about evolution.” He said it was “a science documentary and there aren’t many of them.” (Yeah, yeah, I know: the tongue bleeds. Recall that we were enjoined to silence in the hearing room on pain of expulsion.)

Millstone asked what data there were in it. Freshwater replied there were times and dates. Millstone asked what experiments did the data support. Freshwater replied that he’d have to see it again to refresh himself on it. Millstone asked again what the bias was that the movie was showing. Freshwater replied, “You’re asking me to interpret it. … Each student watched it and had their own interpretation.”

I’m skipping some stuff that doesn’t seem to me to be real pertinent or interesting.

The Tesla Coil Resurrected!

Millstone introduced into evidence a plastic bag containing the remnants of the Tesla coil that Freshwater said he destroyed December 10, 2007, by dropping a brick/block on it several times. He said he did so pursuant to instructions from Principal White. Freshwater had later given it to his attorney, who surrendered it to Millstone some time or other. It sure enough was in pieces.

A Conscious Decision?

This is about when the exchange described in the Mt. Vernon News story quoted above came in. Immediately following that exchange, Millstone asked Freshwater when he understood that. He replied two different times, April 7, 2008, and April 16, 2008.

Millstone asked if Freshwater made a conscious decision that he wouldn’t remove it. Freshwater replied, “Define ‘conscious’.”
Millstone asked if Freshwater made an “intentional decision” not to remove it. Freshwater replied “Give me a date.”
The referee interjected an instruction to Millstone to associate the question with one or both dates.
Millstone asked if Freshwater made an intentional decision not to remove the bible on April 7. Freshwater replied, “It was not removed on that date. Please define “intentional.”
Millstone asked if on April 7 Freshwater made a decision not to remove the bible. Freshwater replied, “I needed clarity on it then. I was doing a lot of research on it.” He mentioned consulting Finding Common Ground, used in the Nazarene University class taught by David Daubenmire.
Millstone asked, “On April 16 did you make a decision not to remove it?” Freshwater replied, “On April 16 I made a constitutional decision not to remove it.” (Emphasis in his tone of voice.) “I had a constitutional right to have silently at the corner of my desk.”
Millstone asked if, before making the decision, Freshwater prayed with his family over whether to comply. Freshwater replied, “I pray all the time. I pray on all my issues.”
So, Millstone summarized, “You prayed with your family on the Bible issue, and you made a constitutional decision to keep the Bible on your desk.” Freshwater replied that was correct.

That ended cross examination.

Freshwater redirect examination

In redirect Hamilton first asked Freshwater if there’s a difference between trying to prove a point and tring to demonstrate the truth. Freshwater answered, “Yeah, the Board is trying to prove a point.” Asked if he thought they have demonstraetd the truth, Freshwater answered, No.” Asked what in what areas they Board had not demonstrated the truth, Freshwater replied to go all through the HR OnCall investigation report and the Board’s termination resolution.

Hamilton had Freshwater read the enumeration of teachers’ rights in section 402 of the master contract. Then he asked if at any time Freshwater’s personal activities interfered with his teaching. Freshwater answered “No.”

Hamilton asked if Freshwater ever received a clear directive concerning his Bible. Freshwater answered, “No clear directive.”

Hamilton asked if Freshwater met with Daubenmire on April 16, 2008, (the day of the public rally on the square) as “a citizen engaged in activities you had a right to on the town square.” Freshwater answered “Yes.”

Hamilton asked if Freshwater had a constitutional right to keep his Bible on his desk. He replied that he did.

Turning to the union, Hamilton ascertained that Freshwater was not and had never been a member of the bargaining unit. Freshwaer said he didn’t get updates on union matters – “I wasn’t in that loop.” Hamilton asked what help Freshwater had received from the union. Freshwater replied, “Very little.” Asked, Freshwater testified that he had been asked by the union to sign a letter stating it had no responsibilit toward him. Freshwater said he didn’t sign it.

Hamilton asked about his first meeting with Freshwater, what they talked about the first hour. Freshwater said it seemed strange. Hamilton said he (Hamilton) was trying to determine if Freshwater was a whacko (his word), where Freshwater stood spiritually, before he took the case.

Hamilton asked if Freshwater had a bad attitude about Catholics. He replied that his son attended a Catholic university (DeSales) for a year, and he wouldn’t have let him do so if he had a bad attitude toward Catholics.

Hamilton asked if HR OnCall had done all they could to get to the truth of the matter or were they trying to prove a point. Freshwater replied that they were trying to prove a point.

Hamilton asked whose responsibility it is to ensure that the bargaining agreement is followed. Freshwater replied it was the administration.

Hamilton asked if Freshwater was ever sent a copy of the investigators’ report. He said he had not. Hamilton asked if anyone told him he should get his comprehensive response turned in. No. Hamilton asked if the contract says a teacher has to make sure the comprehensive response is in. No.

Hamilton asked if Superintendent Short or Principal White had ever told him he could file a grievance. No. He asked if Freshwater felt he was treated differently from Lori Miller, who was told she could file a grievance. Yes.

Regarding the several versions of Freshwater’s testimony regarding Answers in Genesis, Hamilton asked if it was conflicting or clarifying. Freshwater said it was clarifying.

Hamilton asked if Freshwater had ever been evasive in his testimony. Freshwater replied, “No. It may have looked like that, but I was being guarded.”

Regarding his 2003 proposal, Hamilton asked if Freshwater ever tried to hide information. (I found that interesting, since the “10 Questions” handout Freshwater used in the Board meeting in 2003 had the source redacted.) He replied he did not. He was asked if he used one source or multiple sources. Multiple.

With respect to the Legos deal, Hamilton asked if when Millstone asked his question Freshwater remember the Legos exercise. He said he did not. Hamilton asked if Millstone playing the clip from the radio interview refreshed Freshwater’s memory. It did. Hamilton asked if Freshwater or a student brought in the Legos and do something with them. A student, Freshwater replied. Hamilton asked if prior to the Johnston radio interview he and Johnston had talked. Freshwater said they had, and that Johnston had done some research on the Mt. Vernon situation. Hamilton asked if Freshwater or Johnston brought the Legos issue up. Freshwater said Johnston did. (I genuinely wonder how the Hell Johnston knew about it to bring it up.)

Referring to a conversation between Hamilton and Dean Narciso, a reporter from the Columbus Dispatch, during an earlier break in the hearing, Hamilton asked Freshwater what he would do if Narciso filed a story tomorrow saying Freshwater lied about using the Legos. Freshwater replied that Narciso would “have a hard time getting an interview out of me.”

Hamilton asked if Freshwater had seen “Expelled” before assigning it. No, he said, he just assigned it. It was a “science documentary.” Hamilton asked if there were multiple biases showin in “Expelled,” and Freshwater answered there were. Asked, he said there was evidence for evolution in it, and that is showed multiple sides.

Hamilton asked if some things had been presented in the hearing that indicated someone looked through his room, and Freshwater agreed that was the case. Hamilton asked what happened to Freshwater’s teacher’s version of the text and his lesson plans. Freshwater said the district has them as far as he knows. Hamilton asked if those texts and lesson plans would provide exculpatory evidence for him. He replied they would.

Hamilton asked if the Science Student Data Sheet was familiar. Freshwater answered, “No.” Hamilton asked if the Multiple Intelligences Survey was familiar. Freshwater answered, “No.”

Hamilton noted that the “Ten Questions to ask your biology teacher about evolution” sheet introduced into evidence by Millstone was printed on 12/9/2009, and asked if Freshwater every used it in class. Freshwater answered “No.” (Of course, no one has suggested he used it in class. He used it as part of the supporting material for his 2003 proposal.)

Freshwater testified he was not familiar with the ‘Building’ article, and testified that the handwriting on it is not his. (Recall my remarks above.)

Hamilton asked why Freshwater went on the local conservative talk radio show last week. Freshwater said it was to extend a hand to the current Board of Education, before the membership changes the first of the year, to try to resolve the issue, and to try to ensure they knew that the master contract had been breeched, and that they did not have considerable information – the 15 affidavits.

Referring to the use of the Tesla coil, Freshwater said that most students pull away quickly, and that there is no evidence that Freshwater has harmed a student in 21 years of using it. Referring to the call-in portion of the talk show after Freshwater’s presentation was done, he said that I (naming me) had implied in a call that Freshwater had lied, and that he was angry about it. In actual fact, I called in and described the three different answers Freshwater has given in sworn testimony on three different occasions, and said “That bothers me.” I did not accuse him of lying; I merely laid out what he’d said on thse three occasions. See A Bonsell in the Offing?.

Finally, Hamilton asked if the Board’s presentation of evidence in the hearing has been selective in nature vs putting on everything that’s relevant. Freshwater replied “Selective.”

That ended redirect examination and we were kicked out of the building before recross could start. So we resume January 15, when I expect Freshwater’s case to be concluded and the Board’s rebuttal to begin. We have still another day in January scheduled, but I am beginning to feel some faint hope that this will finish before the daffodils bloom in another spring.