Freshwater: His Ohio Supreme Court Merit Brief filed

John Freshwater’s attorney, R. Kelly Hamilton, has filed a Merit Brief, the document that presents his arguments for the Ohio Supreme Court to overturn the decision of the Mt. Vernon, Ohio, Board of Education to terminate Freshwater’s employment as a middle school science teacher. In the brief, Hamilton–really, the Rutherford Institute–attempts to re-interpret two key decisions of the Supreme Court of the United States bearing on the teaching of creation science–_Epperson v. Arkansas_ and Edwards v. Aguillard–while wholly ignoring Kitzmiller v. Dover, which firmly established the equivalence of intelligent design with creation science. However, the brief itself lumps them together, treating creationism and intelligent design as near-identical siblings, in one place even referring to “creation science/intelligent design” (p. 12). The brief also says

However genuine it may be, the Board’s apparent belief that creationism and/or intelligent design theories have no scientific value cannot be accepted. The theories suggest that the physical universe and life within it appeared suddenly and have not changed substantially since appearing. (p. 17)

Shades of “Of Pandas and People,” which used the same word-for-word definition for creationism and intelligent design in successive versions spanning the 1987 Edwards decision.

The Merit Brief assumes as a foundational premise (without visible support except for a citation from Justice Scalia’s dissent in Edwards v. Aguillard) that intelligent design and creation science are actually legitimate alternative scientific theories, the mysterious “competing academic theories” cited in Freshwater’s appeal to the 5th District Court of Appeals and in his Memorandum in Support of Jurisdiction to the Supreme Court. Their religious implications are merely by-products, not central pillars. In fact, the Brief argues that teaching only evolution is tantamout to government endorsement of a religious view, secular humanism, and that therefore creation science and intelligent design should be taught alongside evolution! This has got to give the Disco ‘Tute boys a migraine.

The Rutherford Institute, using the Freshwater case as a vehicle and Freshwater’s attorney as a sock puppet, is attempting to induce the Ohio Supreme Court to endorse intelligent design and creation science as legitimate parts of public school science curricula. Accepting the arguments in Freshwater’s Merit Brief requires that we accept that teaching intelligent design and creationism is permitted–even desirable–in public schools. In the brief, filed by Hamilton on August 24, 2012, a main argument is that teaching intelligent design and creation science in public school science classes is not only Constitutionally permitted, it is damned near required by the desirability of “unbiased instruction” in science.

I’ll hit a few of the high spots below the fold, but the whole document, which runs 24 pages, is worth reading. There’s a 56-page Appendix that can be skipped, except, perhaps, for an extract from the District’s guidelines for handling controversial issues in the classroom:

A. When a controversial issue is not part of an approved course of study, its use must be approved by the Principal. (p. A52)

While it discussses the controversial issue policy, somehow the Merit Brief never quite gets around to mentioning that particular requirement, the first in the list of guidelines.

The Propositions of Law claimed to be at issue

As foreshadowed in his appeal to the Ohio 5th District Court of Appeals (which was denied) and his Memorandum in Support of Jurisdiction (full docs here) which persuaded the Supreme Court to accept his appeal, Freshwater invokes three “Propositions of Law” that he claims are grounds for reversal of the BOE’s decision. In the Merit Brief they are:

I. Proposition of Law I - The termination of a public school teacher’s employment based on the content or viewpoint of his curriculum-related academic discussions with students and use of supplemental academic materials violates the teacher’s and students’ First Amendment rights to academic freedom.
A. Freshwater’s teaching methods were good practices and were in accordance with the Board’s
policies
B. Freshwater’s termination based on the Board’s stated reasons is a form of government censorship
and a violation of the rights of academic freedom enjoyed by Freshwater and his students

II. Proposition of Law II - The termination of a public school teacher’s employment based on the fact that his academic discussions with students and supplemental academic materials include ideas that are consistent with multiple major world religions manifests hostility toward religion in violation of the Establishment Clause

III. Proposition of Law III- The termination of a public school teacher’s employment based on the presence of religious texts in the classroom and the display of patriotic posters violates the teacher’s and students’ First Amendment rights to academic freedom and manifests hostility toward religion in violation of the Establishment Clause
A. Freshwater’s classroom was in compliance with Board policy
B. Freshwater’s termination based on the Board’s stated reasons is a form of government censorship
and a violation of the rights of academic freedom enjoyed by Freshwater and his students
C. The First Amendment’s Establishment Clause does not justify, and in fact forbids, the Board’s actions

It’s not clear to me why Hamilton included Proposition III, since the Supreme Court accepted the appeal on the basis of I and II.

The first thing I note is that the wording of the two Propositions on the basis of which the Ohio Supreme Court accepted the appeal (I and II) differ in the request for acceptance of the appeal (the Memorandum in Support of Jurisdiction–MiS) and the Merit Brief (MB). I don’t know what standard practice is in this sort of case, but I present the two versions side-by-side so commenters more expert in the law than I am can weigh in:

Proposition 1, MiS:

The termination of a public school teacher’s employment contract based on the teacher’s use of academic freedom where the school board has not provided any clear indication as to the kinds of materials or teaching methods which are unacceptable cannot be legally justified, as.it constitutes an impermissible violation of the rights of the teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment’s Establishment Clause.

Proposition 1, MB:

The termination of a public school teacher’s employment based on the content or viewpoint of his curriculum-related academic discussions with students and use of supplemental academic materials violates the teacher’s and students’ First Amendment rights to academic freedom.
A. Freshwater’s teaching methods were good practices and were in accordance with the Board’s
policies
B. Freshwater’s termination based on the Board’s stated reasons is a form of government censorship
and a violation of the rights of academic freedom enjoyed by Freshwater and his students

===================================================================

Proposition 2, MiS:

The termination of a public school teacher’s employment contract based on the mere presence of religious texts from the school’s library and/or the display of a patriotic poster cannot be legally justified, as it constitutes an impermissible violation of the rights of a teacher and his students to free speech and academic freedom under the First Amendment to the United States Constitution and a manifestation of hostility toward religion in violation of the First Amendment’s Establishment Clause.

Proposition 2, MB:

The termination of a public school teacher’s employment based on the fact that his academic discussions with students and supplemental academic materials include ideas that are consistent with multiple major world religions manifests hostility toward religion in violation of the Establishment Clause

I leave it to readers to determine for themselves if the two versions are making the same point(s). A component of Proposition I drops out of the MiS version–the ‘no clear indication’ language. (See here; maybe Hamilton read that post.)

The two versions of Proposition 2 seem to me to be quite different claims, and look to be open to a goal-post shift response. The Supreme Court accepted the appeal on the basis of the MiS version, but the MB version argues a quite different point. I have no idea if that’s relevant to the Court’s consideration of the appeal. And since the Court accepted the appeal on the basis of MiS Propositions I and II, I don’t know why the Merit Brief spends space on an argument for Proposition III. It may be a symptom of Hamilton’s ‘kitchen sink’ approach to writing briefs.

The Foundational Premise

The foundational premise of the Merit Brief, the premise that underpins its academic freedom arguments, is that intelligent design and creation science are legitimate academic theories competing with evolutionary theory. Throughout the brief that is assumed, but never established. For example,

“In light of the widely known, genuine intellectual debate that exists regarding the relative plausibility and weaknesses of evolution and intelligent design, providing students with “unbiased instruction” might well be said to require the juxtaposition of these two major theories, but a fortiori it cannot be said to forbid it. (p. 7; italics original)

And later:

While the case law on the issue of teaching evolution or creation science may appear, at first glance, to favor the Board’s position (that creation science/intelligent design may not be taught in public schools), the better view of the topically relevant cases is from a higher level of generality; the lesson to be gleaned is of a constitutional nature rather than a public policy concern, and the lesson is that the state may not censor ideas from the classroom. Indeed, this interpretation is the only way to harmonize the cases addressing evolution and creation science with the well-established First Amendment prohibition of governmental hostility toward religion and the Court’s explicit approval of including religious content in secular educational programs of public schools. See Epperson v. Arkansas, infra. If discussions of evolution may not be banned from a science classroom, then neither may discussions of creationism be banned. (p. 12)

This places evolutionary theory, intelligent design, and creation science on an equal footing: they are all scientific theories that just happen to have religious implications:

However genuine it may be, the Board’s apparent belief that creationism and/or intelligent design theories have no scientific value cannot be accepted. The theories suggest that the physical universe and life within it appeared suddenly and have not changed substantially since appearing. See Edwards v. Aguillard, 482 U.S. 578, 612 (Scalia, J., dissenting) (citing expert affidavits). According to experts, the concepts are strictly scientific and can be presented without religious reference. ld. (pp. 17-18)

Academic freedom and the First Amendment

Based on the foundational premise, the brief makes an audacious argument about academic freedom and the teaching of creationism and intelligent design alongside evolution, in essence skating right up to arguing that creation science and intelligent design should be required to be taught alongside evolution. Since creationism, intelligent design, and the theory of evolution are held to be equally scientific theories to explain the subject matter, the brief argues, to require that public school teachers present just one is a violation of the teachers’ and students’ academic freedom, which the brief holds to be a subset of the First Amendment’s freedom of speech right. Hence, Freshwater’s use of arguments and handouts from intelligent design and creation science is protected speech under the First Amendment. It gets more audacious, though. Re-interpreting Epperson and Edwards, the brief asserts

The all-important distinction, heretofore ignored in Freshwater’s case, is between a school board policy or state law mandating that a certain subject or viewpoint be taught or not taught, on the one hand, and an individual teacher’s exercise of academic freedom to discuss curriculum-related ideas and theories with students in the classroom, on the other. The former represents official indoctrination: an impediment to academic freedom that, under some circumstances, courts may find to violate the Establishment Clause. The latter, however, is a picture of academic freedom in action: a teacher striving to present students with a well-rounded education on topics within the curriculum. (p. 15, italics original)

Or put differently, a teacher striving to present students with whatever damned nonsense he pleases. Recall the glop that Freshwater used in his room–the giraffe handout he used in class, for example. I quote from the handout:

We all know that [ dead ] animals don’t evolve anything, even though evolution demands its creatures realize they need an improvement before that improvement begins to evolve.

If “academic freedom” can be construed to allow teaching that kind of pernicious bullshit then we are truly screwed. The brief goes on

Whatever its origins, creation science/intelligent design is a theory that continues to be believed and defended by numerous highly respected, internationally renowned scientists as well as countless laypersons. See Edwards, 482 U.S. at 622 (Scalia, J., dissenting) (citing witness testimony). Many scientists believe that the body of scientific evidence supporting creation science is stronger than that supporting evolution. Id. at 623 (Scalia, J., dissenting) (citing evidence). (pp 16-17, italics original)

Further, the brief argues that to teach just evolutionary theory in science classes is tantamount to endorsing a particular religious view, secular humanism. The brief even revives the old creationist reference to a footnote in a 1961 SCOTUS decision:

Not only does the Board’s censorship of creation science based solely on its consistency with major world religions demonstrate hostility toward religion, it also demonstrates a favoritism of the religion of “secular humanism.” See Torcaso v. Watkins, 367 U.S. 488, 495, n.11 (1961) (listing “Secular Humanism” as a religion along with Buddhism, Taoism, and Ethical Culture). Evolution is a central tenet of secular humanism. See Humanist Manifesto I, First, Second and Third(1933), available at www.americanhumanist.org (“Religious humanists regard the universe as self-existing and not created.” … “Humanism believes that man is a part of nature and that he has emerged as a result of a continuous process.”).

From that, the brief concludes that

The idea that evolution is a religiously-neutral theory is a myth. Just as the theory of creation or intelligent design depends on the unproven idea of an intelligent designer or creator, so the theory of evolution depends on the unexplained and unproven idea that inanimate materials suddenly became animated. The Board’s course of action is far more problematic under the First Amendment than a policy of academic freedom, whereby individual teachers and their students remain free to consider and discuss a variety of perspectives on topics in the school’s curriculum, free from state-mandated indoctrination in any.

The error here is obvious to those of us experienced in the ways of creationists: the theory of biological evolution is independent of any particular account of how life began–how “inanimate materials suddenly became animated.” Common descent, which is the fact of evolution, is indifferent to the question of how the first population of replicators came to be. But the issue is more serious. This argument would give free rein to individual teachers to determine the science curriculum. Not only would “state-mandated” requirements be toothless, local Boards of Education would be helpless to control their own science curricula.

Why is Freshwater the Rutherford Institute making that argument?

Right off hand, I see two possibilities. First, they anticipate losing in the Ohio Supreme Court and will appeal to SCOTUS. The case has the advantage of not having all the expert testimony on the record that Edwards and Kitzmiller did, and thus the record is more equivocal, which is a potential advantage for the appelant. As a result, SCOTUS might decide the case on a Scalia-like basis.

Second, they may believe that they actually have a valid case, and genuinely think they can persuade the Ohio SC of that. I know little about the individual members of the Ohio SC, and can’t even speculate on how they might respond to the argument.

Third (of two), John Whitehead, President of the Rutherford Institute, is occasionally a shit-stirrer just for the sake of stirring it, and this may be one of those occasions.

Which Freshwater version is the truth?

One of the fascinating aspects of this case is how Freshwater’s claims about his teaching of evolution, ID, and creationism have evolved over the last four years. I reviewed part of that history here. Initially Freshwater denied teaching creationism and/or intelligent design. On Day 3 of the hearing, called as a hostile witness by the Board, Freshwater testified that there are three categories: evolution, creationism, and intelligent design, and he taught only evolution. From the hearing transcript (October 28, 2008; Q is David Millstone, the Board’s attorney; A is Freshwater):

Page 376

25 Q Did you have an interview on Fox News with Larry

Page 377

1 Elder?

2 A. Yes.

3 Q. Where you appeared on television?

4 A. Yes.

5 Q. And during that interview, I believe you said–and

6 correct me if I’m wrong - or let me ask you this question:

7 Did you say there are three categories, evolution, ID, and

8 creationism?

9 A. I teach evolution. I do not teach ID or creationism.

10 Q. Did you say words to that effect?

11 A. I don’t recall. I don’t remember. I take it you’re

12 going to show the video.

13 Q. Happy to do that

14 (Board Exhibit 20 was played.)

15 MR MILLSTONE: I don’t think we need to hear his

16 comments.

17 MR HAMILTON: Any further comments by John

18 Freshwater?

19 MR MILLSTONE: No, that was the last comment by

20 John. I’m happy to play the rest of it if you like.

Page 378

1 BY MR.MILLSTONE:

2 Q. Now, Mr. Freshwater, again, in that video, you indicated

3 that there are three different areas, evolution, intelligent

4 design, and creationism, and you teach evolution, you don’t

5 teach intelligent design or creationism.

6 A. Yes.

7 Q. And has that been true throughout your career?

8 A. Yes.

But later in Freshwater’s testimony that day there’s this little nugget on p. 463:

12 Q. Did you ever indicate that dinosaurs and man walked the

13 earth at the same time to students?

14 A. Yes.

Board Exhibit 20 is this short video.

There’s not much wiggle room there. But then a year later, in December 2009, Freshwater began to equivocate:

In his testimony over the three days [Dec 8, 10, & 11, 2009] Freshwater attributed his use of creationist and ID materials [established in testimony subsequent to his earlier denial] to a legitimate effort to teach to a particular Academic Content Standard (p. 216) (LARGE pdf!):

Grade Eight
Ethical Practices
2. Explain why it is important to examine data objectively and not let bias affect observations.

Freshwater depended almost wholly on that standard to justify the use of the woodpecker handout, the giraffe handout, Wells’ “Survival of the Fakest” as a handout, and segments of Kent Hovind’s Lies in the Textbooks (Youtube video), among others, in class. Freshwater said he used them to illustrate how bias can lead to bad science and bad application of the scientific method. He said that the extra credit assignment to watch “Expelled: No Intelligence Allowed” fell under the same class, an illustration of bias in using science, and was therefore appropriate.

So he didn’t teach ID and/or creationism; he used their materials to illustrate (what he understood to be) bias in making observations. And still later, in late 2011 in an interview on revisionist “historian” David Barton’s radio show, Freshwater claimed that he taught “robust evolution.” From the interview:

At 9:20

RG (interviewer): So when you say you taught critical view of evolution, what does that mean?

JF (Freshwater): I teach what I … actually, I call it a robust evolution. I showed what was the evidence for evolution, I showed evidence that was opposed to evolution. I showed all sides.

RG: And let the kids decide?

JF: Yes. Let the kids decide. I stayed neutral on it, and let the kids make a decision on it.

RG: So what’s wrong with that? Why, why are they afraid to look at all the evidence? I mean, what’s wrong with saying ‘Look, you know, here’s the positives, I mean here’s the things that point to evolution, but here’s the problems, here’s the questions, how does this .. how does this …’. What’s wrong with letting kids look at all that and try to decide on their own?

JF: That’s exactly what I say: What is wrong with it? But obviously in America I do believe that evolution is sacred. And it’s evolution theory, it’s not evolution fact, it’s evolution theory. I’ll be quite honest with you, Rick, let me show you something real quickly. This past spring of 2011, May of 2011, they brought in two attorneys from another state, and it was mandatory, all teachers and administrators go to it, and they required, what they told, they did a Powerpoint presentation to all the teachers and administrators, and they came back and said, in this Powerpoint they said that…uh, let me see, I’ve got it written down here…they said this: “Evolution must be taught as a scientific fact.” And this was mandatory for all teachers to be there. “Evolution must be taught as a scientific fact. More precisely, evolution must be taught as the dominant paradigm for research in biological science.” And bullet point 3 was, “Creationism may not be taught as a science under any circumstance.”

So that was what was told to Mt. Vernon City Schools, which when I moved here was considered the Bible Belt of Ohio. And they … it’s mandatory that you must teach evolution as a fact. And that goes against academia. In academia they don’t declare evolution as a fact, they declare it as a theory.

RG: Yeah, it’s amazing to me that we’re so lopsided, we’re so one-sided. And I’m no scientist, I mean you tell me when you lay all the facts out there, the actual evidence, you don’t have any more for one theory than the other. You have to study all of them.

JF: Absolutely. 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.

“Teach the evidence for and against evolution,” of course, is common creationist code for ‘teach crappy creationist critiques of evolution.’

Finally, the Merit Brief mounts a spirited defense of the teaching of intelligent design and/or creation science in public school science classrooms, as I described above. That is a tacit admission that Freshwater in fact taught them both, contrary to his sworn testimony. What the arc of evidence and testimony over the last four years tells us is that Freshwater’s position is ‘I didn’t teach creationism or intelligent design, and even if I did, it’s OK.’ Testimony and exhibits in the administrative hearing strongly suggest that he did teach them. Among the indications in evidence and testimony are:

– A 2006 lesson plan prepared by Freshwater included the terms “specified complexity” and “irreducible complexity,” both core concepts from intelligent design, though he later testified he doesn’t know what those terms mean.

– He used Jonathan Wells’ “Survival of the Fakest” as a handout in class and gave extra credit for attending a showing of “Expelled: No Intelligence Allowed.”

– The source of at least one of his handouts was a Biblical creationist site.

– He used a Kent Hovind video in class, calling Hovind “a renowned scientist.”

– He told a class that carbon dating is unreliable, that the earth may be only a few thousand years old, and that dinosaurs may have lived at the same time as humans.

– Finally, and most damning in my view, one of his students summarized what he learned from Freshwater by saying “Science can’t be trusted. Science can’t teach us anything.”

Conclusion

There’s more in the Merit Brief, and the Supplement to the brief is not yet scanned and up on the Court’s website. Given Hamilton’s propensity to throw everything he can against the wall to see what sticks, I hesitate to speculate what might be in the Supplement. But the argument I described is enough to show that this is a potentially dangerous suit for those of us who defend honest science. If the Ohio Supreme Court accepts the brief’s arguments about creationism, intelligent design, and academic freedom in public school science classes, there are no limits on what any given Ohio science teacher can present. A local Board of Education will be helpless to govern the science curriculum. The pseudoscientific nonsense of creationism and intelligent design will spread further in Ohio classrooms and beyond, and generations of students will be even less well prepared to live in a science-dominated world. Ohio will have nothing on Louisiana in that respect.

Bill Nye, the Science Guy, said this recently:

“And I say to the grownups, if you want to deny evolution and live in your world that’s completely inconsistent with everything we observe in the universe, that’s fine,” he says. “But don’t make your kids do it because we need them. We need scientifically literate voters and taxpayers for the future.”

It’s still a struggle, folks. That candle does gutter, its pool of light still trembles, the darkness still gathers at the edge of the abyss, and demons of ignorance and superstition dance in the shadows. We all have to do what we can to hold back the Endarkenment.