[UPDATED] Freshwater: Appeal denied

Recall that John Freshwater appealed the Knox County Common Pleas Court’s affirmation of the Board of Education’s termination of his teaching contract. (See also here.)

While it is not yet posted It is now posted to the Ohio 5th District Court of Appeal’s Opinions page. I received a copy of the Court’s decision that was filed just this morning and is signed by the three-judge panel that considered the appeal. It denies Freshwater’s appeal in its entirety, affirming the decision of the Knox County Court of Common Pleas that the Board of Education’s termination of Freshwater was justified. One quotation to give the flavor:

(32) During the proceedings [the administrative hearing] appellant [Freshwater] was represented by a competent attorney, he was permitted to fully explain his actions, he presented witnesses on his behalf, and he had a full opportunity to challenge the Board’s key witnesses. R.C. 3319.16 does not contain any requirement that a teacher be afforded an opportunity to refute the contents of a referee’s report in the period between the filing of the report and its acceptance or rejection by the board of education, nor does it provide for an additional hearing before the board if the teacher does not like the results of the hearing before the referee.

Given what I saw in the administrative hearing, I might take issue with the “competent attorney” phrase, but let that be.

The Appeals Court ruled that

For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas, Knox County, is affirmed. Costs to appellant.

The Appeals Court did not address several of the questions Freshwater’s appeal raised. For example, it did not address Freshwater’s claim that he was just “… informing students of various alternative theories without regard to those theories’ religious or anti-religious implications.” The appeals court did not mention Freshwater’s claim that his termination violated his right to free speech and what his appeal called “the subsidiary right of academic freedom.” The Appeals Court confined its ruling to the question of whether the Court of Common Pleas “abused its discretion” in affirming the Board’s decision, and rejected Freshwater’s appeal on that basis.

The next step, should Freshwater and the Rutherford Institute take it, is an appeal to the Ohio State Supreme Court. I cannot predict whether that will happen. My intuition is that the Rutherford Institute would like to find a case invoking academic freedom, free speech, and free exercise on the part of a public school teacher that could make its way to the U.S. Supreme Court, but while IANAL, I suspect that Freshwater’s case is way too weak for them to risk it on that case.