Freshwater: The main briefs in the appeal

Update: The Dennis family’s amicus brief is now up on

The two main briefs in John Freshwater’s appeal of the Knox County Court of Common Pleas’ decision to uphold Freshwater’s termination by the Mt. Vernon Board of Education are now up on NCSE’s site. The two amicus briefs, from NCSE and the Dennis family, have not yet been accepted by the court. NCSE’s brief is on the site linked above; the Dennis’ brief is not yet available online, though I’ve read a copy.

I’ll briefly (!) summarize what I see as the core arguments of the briefs here, and go into more detail below the fold.

Freshwater’s appeal brief: Basically argues that (a) Freshwater only taught “alternative scientific theories”, (b) there are good pedagogical reasons to do so, and (c) he has free speech and academic freedom rights to do so. Also argues that the moves against Freshwater are motivated by religious animus, though it’s silent about specifically who feels that animus.

Board’s response brief: Argues that because student attendance is required and the public school has an interest in protecting itself against the consequences of illegal actions by teachers, Freshwater, as an agent and employee of the public school, does not have unfettered free speech or academic freedom rights. Also argues that the Common Pleas court did not abuse its discretion when it elected to not hold public hearings in view of the extensive record generated by the administrative hearing.

NCSE amicus brief: Puts Freshwater’s behavior in the context of the history of attempts to teach creationism in the public schools, and argues that his teaching was both pedagogically and scientifically unsound.

Dennis family brief: Reviews Freshwater’s impermissible injection of religion into his teaching, and disputes his de-emphasis of the Tesla coil incident, pointing out the inconsistencies in Freshwater’s stories about the incident.

The case is not yet scheduled for oral arguments. I’m told that Freshwater requested an expedited hearing, which I understand means that there will be no back-and-forth, no rebuttals and rejoinders, in the paperwork. What’s there now is what the appeals court will use to make its decision.

Some remarks and elaborations below the fold

Freshwater’s brief claims that teaching about “alternative scientific theories” is pedagogically appropriate and he has free speech and academic freedom rights to do so. As I wrote earlier,

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 [public] middle school science classroom.

Of course, Freshwater did not in fact teach about “alternative scientific theories,” and no evidence was ever introduced to suggest that he did. His handouts, videos, and remarks were from creationist web sites, and were not evidence in support of “alternative scientific theories” but rather embodied the traditional creationist “two models” approach pioneered by the Institute for Creation Research and now most strongly advocated by Answers in Genesis. Knock down evolution and creationism wins by default.

Freshwater’s brief argues that he is permitted to teach about alternative scientific theories in public schools, and the brief claims that’s all Freshwater did. This is a new claim in the Freshwater saga: previously in both public statements and sworn testimony Freshwater has denied teaching creationism or intelligent design. (See also here for a summary of an interview of Freshwater on Fox News; the original clip is apparently no longer available on the web.) So like Freshwater’s mutually contradictory stories about whether he used the Tesla coil to make an “X” on Zach Dennis’ arm or no mark at all (summarized here), Freshwater’s story has…erm…evolved. Apparently he (or more likely, his Rutherford Institute handlers) have implicitly conceded that they cannot rebut the testimony and evidence about Freshwater’s use of creationist handouts and videos and are now attempting to alter the interpretation of that behavior.

This new Freshwater claim made its first appearance to my knowledge in a recent radio interview Freshwater did with David Barton, the notorious quote faker, where Freshwater claimed that he taught “robust evolution.” By that, Freshwater explained, he meant that

I showed what was the evidence for evolution, I showed evidence that was opposed to evolution. I showed all sides. … You need to study it all, especially in a public school. You need to see all the evidence. And there’s some great evidence for, and there’s some great evidence that goes against it. And I think the kids need to see all evidence rather than indoctrinating them only on one side or the other.

He taught the evidence for evolution? One wonders how much comparative genomics and molecular genetics Freshwater, with his Associate’s degree in Wildlife and Recreation and his Bachelor’s degree in education, taught in his 8th grade class. Did he mention the phylogenetics of pseudogenes or that of endogenous retroviruses? I’m fully aware that undergraduate degrees are not the sole determinant of one’s knowledge, but Freshwater has given us no evidence at all that he actually knows much about the evidence for evolution or that he’s competent to assess what “great evidence” is.

Freshwater further argued in his appeals court brief that he has a First Amendment free speech right to teach those alternative theories. This is again a new claim for Freshwater, and reflects the current generation of creationist tactics in state legislatures (see here for an early (1999) account of that tactic, and here for the Disco ‘Tute’s “Free Speech on Evolution Campaign.”)

Board’s response brief

As noted above, Freshwater’s brief claims that he was only teaching “alternative scientific theories.” That, of course, is knee-deep horse manure: Freshwater used a range of creationist materials in an attempt to cast doubt on various scientific findings and science’s strongly corroborated theories–common descent, evolution by natural selection, the reliability of physics in radiometric dating, the reliability of geology in its finding of an old earth, and so on. Further, he argued that he had both the free speech right and the academic freedom to do so.

The Board’s brief rebuts both the free speech and academic freedom claims, citing case law to show that the courts, including the Supreme Court, have consistently ruled that when public school teachers are operating in their role as teachers they do not have the right to teach any damn fool notion they please. The Board’s brief argues that the school has a clear interest in what speech teachers utter in their classrooms, and that the Board can regulate that speech so as to not bring the Board into legal jeopardy. The brief argues that “The Board’s decision [to terminate Freshwater] was appropriately affirmed by the trial court because it has a right to control its own speech. The Board exercised control of its speech by preventing [Freshwater] from continuing to improperly teach religion in class.” The argument is that a teacher is an agent of the Board, and that improper behavior–_e.g._ impermissible speech–by a teacher exposes the Board to legal jeopardy. It therefore has the right to govern that speech. Freshwater’s injection of creationism into his class was “…made pursuant to his duties as an employee,” and was not made in his capacity as a private individual, which would be protected speech. The Board “…took legitimate and appropriate steps to ensure that one of its teachers did not distort its teaching of science to impressionable eight graders by endorsing Christian religious beliefs” (p. 13).

Further, the Board’s brief argues that the Court of Common Pleas did not abuse its discretion when it denied Freshwater’s request for a public hearing in that court, arguing that the extensive administrative hearing record (38 days of hearings, more than 80 witnesses generating 6,344 pages of transcript, and 350 exhibits) was sufficient basis for the Common Pleas judge to choose not to hold additional hearings and make his decision on the basis of his review of that record.

NCSE’s amicus brief puts Freshwater’s approach into the context of the history of attempts to attack the teaching of evolution. NCSE’s brief reviews the history of creationist attempts to subvert the teaching of science, and identifies Freshwater’s approach as being in the “third generation” of such attempts, the two-prong ‘teach the controversy and push intelligent design’ generation. The entire brief is well worth reading for its succinct review of the history of the issue.

Dennis family’s amicus brief reviews the evidence bearing on Freshwater’s injection of religion into his classroom and his teaching of science, and argues that the minimization of the Tesla coil incident in his appeals brief is inappropriate. It also points out the inconsistencies in Freshwater’s sworn statements about that incident, which are similar to his inconsistency in his statements about whether he taught creationism, sometimes denying it (e.g. in sworn testimony in the administrative hearing) and sometimes affirming it (e.g., in his radio interview on Nov 30, 2011). As noted above, the same sort of inconsistencies are found in his varying claims about whether he taught creationism and intelligent design.