Freshwater: The Rutherford Appeals Court Brief

As I noted in October, 2011, John Freshwater’s termination by the Mt. Vernon City Schools was appealed to the Knox County Court of Common Pleas. That court denied Freshwater’s request for additional hearings and ruled that “…there is clear and convincing evidence to support the Board of Education’s termination of Freshwater’s contract(s) for good and just cause,…”.

Subsequently, the Rutherford Institute announced that it would support Freshwater’s appeal of the Common Pleas Court’s decision to the Ohio 5th District Court of Appeals. Now the brief supporting that appeal is available on NCSE’s site.

The brief purports to be from R. Kelly Hamilton, Freshwater’s lawyer, “in conjunction with The Rutherford Institute.” Having read way too much of Hamilton’s prose over the last three years, I’d say that Rutherford Institute staff wrote the brief and Hamilton’s main contribution was to sign it.

More below the fold

The brief makes four basic arguments.

Teaching “alternative theories” is OK

The first argument of the brief is that teaching about alternative scientific theories is justifiable and appropriate, and that’s all Freshwater did. The brief argues that “The fact that one competing theory on the formation of the universe and the beginning of life is consistent with the teachings of multiple major world religions simply does not transform good teaching practice into a violation of the First Amendment’s Establishment Clause” (p. 10). It argues that for Freshwater to “simply [inform] students of various alternative theories without regard to those theories’ religious or anti-religious implications” (p. 10) was an appropriate pedagogical practice in a public school science class. Consistent with Freshwater’s claim that he taught “robust evolution,” this argument translates to ‘Creationism is a valid scientific alternative to evolution, and therefore it’s OK to teach it in the public schools.”

Throughout this argument, the brief refers to multiple “theories”–it refers to “popular alternative theories” (p. v); “various alternative theories” (p. 10); “competing theories” (twice on p. 10); “alternative theories” (p. 12, p. 14); “alternative origins of life theories” (p. 14); and “widely-accepted theories on the origins of life” (referred to as consistent with “the views of multiple world religions” on p. 14). All the references are attempts to represent Freshwater’s presentation of creationist materials as “a permissible and valuable pedagogical exercise” (p. 15) in a middle school science classroom.

But of course Freshwater didn’t teach “various alternative theories.” As the record in the administrative hearing and his public statements show, Freshwater presented various creationist critiques of evolution, period. This argument on the part of the Rutherford Institute is a disingenuous attempt to bamboozle the appeals court into sanctioning a long-discredited creationist tactic: ‘teach the evidence against evolution,’ which Freshwater thinks is “great evidence”.

Freshwater had a free speech right to teach “alternative theories”

The second main argument of the brief is that the termination violated Freshwater’s First Amendment right to free speech, calling academic freedom a subsidiary right of that Constitutional protection. The brief goes on to argue as though academic freedom for a middle school teacher is tantamount to the right to teach whatever damn fool notion the teacher might wish to introduce in class. The brief says, “While these concepts have been expounded in a variety of factual contexts, the High Court has extrapolated from them a specific, First Amendment-based right to academic freedom that applies in the public school context.” The brief goes on to say “The official suppression of ideas is precisely what the Board has undertaken in this case, and its action is thus utterly repugnant to the First Amendment and the Board’s own policies,…”. A flat earther could make exactly the same argument.

At base, the Rutherford brief re-argues part of Rodney LeVake’s failed argument, and it should fail here for the same reasons. LeVake,like Freshwater, argued that requiring him to teach evolution and to eschew teaching so-called evidence against evolution was unconstitutional, violating both his free speech and free exercise rights under the First Amendment. LeVake’s suit was dismissed by the federal district court in a summary judgment which was upheld by the federal appeals court, and his appeal to the Supreme Court was declined by that court. Both the free speech and free exercise arguments for teaching creationism in public schools have been rejected by federal appeals courts. Freshwater is essentially arguing that he has a free speech right to teach whatever glop he wishes if he only calls it an “alternative scientific theory.”


The brief argues that Freshwater was not insubordinate in refusing to remove all religious articles displayed in his classroom. It reclassifies the poster depicting George W. Bush and Colin Powell praying as a “patriotic” display, and argues that the Bible and “Jesus of Nazareth” book that Freshwater brought into his room and placed on his lab table after he was instructed to remove religious materials were merely a couple of library books that happened to be in his room.

The brief claims that it is “nonsensical for the Board to terminate a teacher’s employment based on the presence of school library books in his classroom” when Freshwater displayed a second Bible and a book titled “Jesus of Nazareth in his classroom. But by collapsing the chronology of the appearance of those two books–Freshwater brought them into his room after he was instructed to remove religious materials–the brief misrepresents Freshwater’s defiance. It ignores testimony that Freshwater knew that refusing to remove religious materials would be considered to be insubordination, according to Principal William White’s testimony cited in the Referee’s recommendation (pdf).

Religious animus the motivation for termination

The brief ends its argument by alleging that Freshwater’s termination was the result of religious animus against him, that “each and every cited basis for the decision was connected to the religious faith for which Freshwater had become infamous as a result of the rumors and speculation that stemmed from the sensationalized Tesla coil incident.” In fact, Freshwater has claimed in public statements that he has been targeted for removal ever since his 2003 proposal to adopt the Intelligent Design network’s “Objective Origins” policy (see, e.g., this Thumb post. The link in the post is now dead, and I don’t recall where the interview was–possibly Bob Burney’s radio program.) Somewhere in this rural, conservative, and heavily churched (59 identifiable churches) school district, with a Nazarene University, the district headquarters of the 7th Day Adventist Church, and two parochial schools, somewhere there’s a cabal of anti-Freshwater activists sufficiently powerful to infuence two different school boards (2003 and 2011) strongly enough to get John Freshwater fired. Sure, and if you buy that I’ve got a bridge for sale, cheap.

There’s another explanation for the fact that the various bases for termination were related to Freshwater’s religious beliefs: He was incapable of operating in a public school science classroom without allowing those sectarian beliefs to influence the content he taught. He found it impossible to teach science as it is, but rather imported into his classroom a range of anti-science and anti-evolution materials having their origin in clearly fundamentalist Christian dogma.

I recommend the Board’s termination resolution for the complete story on why Freshwater’s teaching contract was terminated and for comparison to the Rutherford Institute’s highly selective and cherry-picking misrepresentations.