Freshwater (Updated): Summary of the referee's recommendation

Update: PDF of the recommendation at NCSE and NCSE’s article on it.

I obtained a copy of the referee’s recommendation (not from any of the principals in the case or their legal representatives) concerning John Freshwater’s termination and summarize it here with heavy quoting. I expect that the full document will be available on NCSE’s site soon, where “soon” is probably Monday.

The Board’s Amended Motion to Consider Termination adopted in June 2008 cited four grounds for the action. The referee addressed all four in his recommendation. They were (summarized briefly):

  1. Using the tesla coil to mark the shape of a cross on students’ arms.

  2. Failure to adhere to the established curriculum.

  3. Participation in (rather than passive monitoring of) Fellowship of Christian Athletes activities.

  4. Disobedience of Orders (insubordination).

More below the fold

1. Use of the tesla coil

With respect to the first ground, use of the tesla coil, the referee regarded the administration’s action to have taken care of the matter, since no evidence was offered that Freshwater continued the activity after having been instructed to not do so. The referee wrote

Due to the sensational and provocative nature of this specified ground, it and the facts and circumstances surrounding it became the focus of the curious, including those in the video, audio, and print media.  Once sworn testimony was presented, it because (sic) obvious that speculation and imagination had pushed reality aside.  There was a plausible explanation for how and why the Tesla Coil had been used by John Freshwater.  Further, and more crucial to a review of the Amended Resolution, the use of the Tesla Coil by John Freshwater did not seem to be a proper subject for the Amended Resolution.  By letter of January 22, 2008 as authorized by Principal William White (Board Exhibit 6 - Attachment 16) the Tesla Coil matter had been concluded.

In other words, the action of the administration was a sufficient remedy for that matter.

2. Failure to adhere to the curriculum

With respect to the second ground, failure to adhere to the established curriculum, the referee recognized that Freshwater was a good teacher:

Initially, it must be noted that a wealth of evidence was presented to substantiate that John Freshwater was a successful eighth grade science teacher.  Many, possibly most of his students seemed to enjoy his class and remember it fondly.  On the average, Freshwater students performed at or above the state requirements and expectations for eighth grade science students. 

However, the referee found that Freshwater went well beyond that:

Unfortunately, John Freshwater was not satisfied with the positive results of his teaching in terms of successful state test scores and the development of a love for the subject of science in the minds of his students.  John Freshwater was determined to inject his personal religious beliefs into his plan and pattern of instruction of his students.  In so doing, he exceeded the bounds of all of the pertinent Bylaws and/or Polices of the Mount Vernon City School District - “Religion In The Curriculum”; “Controversial Issues”; “Religious/Patriotic Ceremonies And Observances”; “Religious Expression In The District”; and “Academic Freedom Of Teachers”.

Shepherd noted that

Webster defines bias as a particular tendency or inclination that prevents impartial consideration of a question.  John Freshwater’s bias grew from his fervent and deep seated Christian beliefs.  Such beliefs and convictions, while admirable character traits in other settings, proved to be John Freshwater’s downfall as an eighth grade science teacher in a public school.  Time after time after time he injected his beliefs as associated with his own religious tenets into his science instruction.

After outlining the testimony and evidence for that, he concluded

Both overtly and covertly, John Freshwater began to instruct his eighth grade students in such a way that they were examining evidence both for and against evolution.  The evidence for evolution was the material(s) contained within the science textbooks as approved and provided by the Board.  The evidence against evolution was in the form of handouts (e.g. Board Exhibit 6 Attachment 10) motion pictures (“Expelled - Ben Stein”); videos (“The Watchmaker”); as well as a shortcut method of citing passages in printed materials that could be questioned (students needed only say “here”).

Exacerbating this situation was the fact that the evidence against evolution was based, in large part, upon the Christian religious principals (sic) of Creationism and Intelligent Design.  Thus, John Freshwater’s instruction, in these “against evolution” instances, ran afoul of the District’s Bylaw/Policy regarding “Religion In The Curriculum” (2270 - Employee Exhibit #9) - “Instructional activities shall not be permitted to advance or inhibit any particular religion”.  Further, the District’s Bylaw/Policy regarding “Religious/Patriotic Ceremonies And Observances” was violated as pertains to that portion of said Bylaw/Policy which states “Decisions of the United States Supreme Court have made it clear that it is not the province of a public school to advance or inhibit religious beliefs or practices”.

3. Participation in FCA activities

The referee found that Freshwater participated in, rather than passively monitored, Fellowship of Christian Athletes activities, including contacting at least one speaker and participating in prayer. Shepherd wrote

The testimony of Father Mark Hammond (TR 6066) indicated that John Freshwater had asked him (Father Hammond) to speak at the FCA.  The testimony of Ruth Frady (TR 5194) indicated that John Freshwater moved from the back of the room toward a prayer circle which had formed to pray for Pastor Zirkle.  She further testified that John Freshwater instituted a “concluding prayer” in order to get the students moving toward their next class.  Ruth Frady testified that the concluding prayer, though innocuous, ended with an “amen”.  The testimony of former Assistant Principal Brad Ritchey (TR 5945) indicated that John Freshwater admitted to having “put my hands up” during the prayer for Pastor Zirkle.  The testimony of Principal White (TR 503) indicated that John Freshwater admitted that he (John Freshwater) “probably did pray for him to be feeling better and well….”.

There is ample evidence that John Freshwater knew or should have known of these mandates and restrictions and that he knowingly or recklessly violated them.

4. Disobedience of orders (insubordination)

This section reviewed the events of April 2008, when the Dennis family’s federal suit was looming and the administration was attempting to get Freshwater to bring his classroom into compliance with the district’s policy on religious displays.

Principal White testified that “there were several meetings and several conversations in April” (TR 506).  He further testified that multiple contacts with John Freshwater became necessary “because the things that I had asked to happen on April 7th were not attended to” (TR 507).  Granted, there may have been some confusion about the instructions, orders, and directives which Mr. White gave John Freshwater.  However, it is abundantly clear that what may have begun as confusion soon transformed into defiance.

Two days prior (April 14, 2008), Mr. White and John Freshwater had a discussion about whether his disobedience would constitute insubordination.  He (Freshwater) was told that it would be (TR 513).  Nevertheless, John Freshwater decided to comply only in part.  To make matters worse he (Freshwater) also decided to add another element to the controversy.  He checked out religious texts from the school library and added them to the array on his classroom desk.  John Freshwater’s explanation for this act included the phrases “it was a curiosity” and “it’s my inspiration” (TR 447).  These explanations seem questionable.  The act appears to have been one of defiance, disregard, and resistance.


In the conclusion, Shepherd first noted that his consideration was independent of the several federal actions and their outcomes. He also commented on the level of proof he employed:

Secondly, the debate concerning the level of proof required in this matter need not be argued further.  After a thorough review of the evidence as presented to me, I am satisfied and do so determine this matter by either and both a preponderance of the evidence and clear and convincing evidence.

That is, on either level of proof–less stringent or more stringent–his conclusions hold.

I will quote the last paragraphs of the recommendation in full:

Thirdly, as concerns the applicability of the pre or post 2009 version of Ohio Revised Code § 3316.19, my determination rests upon the standards established for termination in either of those versions.  Each version permits termination for “good and just cause”.  The Ohio Supreme Court provided some clarification of the phrase “good and just cause” in it’s 1968 case Hale v. Board of Education 13 Ohio St. 2d 92.  Therein, the Court notes that the conduct of the teacher in question must constitute a “fairly serious matter” in order to cross the threshold of “good and just cause”

John Freshwater’s conduct as set forth hereinabove represents a “fairly serious matter” and is, therefore, a valid basis for his termination in accordance with ORC 3319.16 based upon “good and just cause”.  It is not herein determined whether any one of the bases/grounds for consideration of termination would be sufficient in and of itself.

However, the multiple incidents which gave rise to the numerous and various bases/grounds more than suffice in support of termination.

“Families entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family.  Students in such institutions are impressionable, and their attendance is involuntary.” Edwards v. Aguillard 482 U.S. 578 (1968) (at pg. 584)

John Freshwater was given ample opportunity to alter or adjust his content and style of teaching so as to avoid running headlong into the Establishment Clause and the Policy/Bylaws of the Mount Vernon Board of Education.  Instead, he persisted in his attempts to make eighth grade science what he thought it should be - an examination of accepted scientific curriculum with the discerning eye of Christian doctrine.  John Freshwater ignored the concept of in loco parentis and, instead, used his classroom as a means of sowing the seeds of doubt and confusion in the minds of impressionable students as they searched for meaning in the subject of science.

John Freshwater purposely used his classroom to advance his Christian religious views knowing full well or ignoring the fact that those views might conflict with the private beliefs of his students.  John Freshwater refused and/or failed to employ objectivity in his instruction of a variety of science subjects and, in so doing, endorsed a particular religious doctrine.  By this course of conduct John Freshwater repeatedly violated the Establishment Clause.  Without question, the repeated violation of the Constitution of The United States is a “fairly serious matter” and is, therefore, a valid basis for termination of John Freshwater’s contract(s).  Further, he repeatedly acted in defiance of direct instructions and orders of the administrators - his superiors.  These defiant acts are also a “fairly serious matter” and, therefore, a valid basis for termination of John Freshwater’s contract (s).  My recommendation to the Board of Education of the Mount Vernon City School District is that the Board terminate John Freshwater’s contract(s) for “good and just cause”.

NCSE will have the full document up in the next few days.