Freshwater: The bait and switch laid out

Freshwater aficionados will recall that I pointed to differences between Freshwater’s request to the Ohio Supreme Court to hear his case (his Memorandum in Support of Jurisdiction–MiS) and the subsequent Merit Brief (MB) in which he actually argued his case. The Court accepted his appeal on the basis of two Propositions of Law (I and II) described in the MiS, but in the actual argument of the Merit Brief those two Propositions changed into two quite different propositions. Now the Mt. Vernon Board of Education has filed a motion to strike the two Propositions–in effect, to strike the whole basis for the acceptance Freshwater’s appeal–because of that bait and switch.

More below the fold.

In my earlier post I wrote

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:

The Board’s motion to strike the Merit Brief’s versions of Freshwater’s Propositions I and II, filed last Friday, says

Nowhere in either proposition of law accepted for review is there an argument that the Board terminated appellant’s employment contract based on the “content or viewpoint” of his religious discussions with students and his use of supplemental religious materials in class. Likewise, neither proposition of law accepted for review contains an argument that Freshwater’s termination was a form of “government censorship.” Rather, the Proposition of Law I accepted for review contains an argument about whether the Board provided Freshwater with a “clear indication as to the kinds of materials or teaching methods which are unacceptable.” The legal analysis required to resolve that issue is unrelated to the legal analysis required to determine whether the Board committed viewpoint or content discrimination and government censorship. Plus, none of the arguments in Appellant’s Merit Brief even address the accepted issue of whether Appellant was provided a clear indication of which materials and teaching methods were inappropriate. Therefore, Appellant’s Merit Brief Proposition of Law I is neither proper in form nor substance and was not accepted by this Court for review. Consequently, it must be struck.

The motion to strike says of Proposition II

Appellant’s Merit Brief Proposition of Law II should be struck for the same reasons. … This proposition of law is nowhere to be found in Appellant’s Memorandum in Support of Jurisdiction. A comparison of this proposition with those accepted for review shows that Appellant’s current arguments are a completely different approach to the appeal than that which was accepted for review. Nowhere in Appellant’s Memorandum in Support of Jurisdiction does Freshwater indicate to this Court he wanted to argue that his religious “academic discussions” and religious “supplemental academic materials” were appropriate.

So the bait and switch is clearly laid out in the motion to strike.

It’s also of interest that the motion to strike picked up my description of the evolution of Freshwater’s claims regarding the teaching of creationism and intelligent design. As I have noted several times (see here for an example), Freshwater claimed under oath in the administrative hearing that he did not teach creationism or intelligent design. But by the time we get to the Merit Brief filed with the Ohio Supreme Court, he claims that his teaching of creationism and intelligent design is appropriate. The motion to strike says

Freshwater has never made the argument that his teaching of intelligent design and creationism was acceptable as scientific theories. Indeed, Freshwater’s argument in this regard has evolved over time. Freshwater adamantly denied teaching intelligent design and creationism during the administrative hearing. (Tr. 376, ln. 14 (“I do not teach intelligent design”); Tr. 377, ln. 9(“I teach evolution. I do not teach ID or creationism”); see Bd. Exs. 19-20). Freshwater then claimed in his Complaint that he taught “about some commonly held beliefs of at least three of the world’s major religions.” (Compl. at 4 59). Then, at the Court of Appeals, Freshwater argued that he simply sought to “encourage his students to differentiate between facts and theories, and to identify and discuss instances where textbook statements were subject to intellectual and scientific debate.” (Appellant’s Appellate Br., at 9). He also claimed that he simply facilitated “classroom discussion concerning popular alternative theories to the Big Bang theory….” (Id. at v). Yet, in his Merit Brief, Freshwater argues that he did teach creationism and intelligent design since they are permitted concepts (“creation science”). (Appellant’s Merit Br., at 16-18). Thus, Merit Brief Proposition of Law II asks this court to review an issue not raised by Appellant in the lower courts or administrative hearing.

It’s nice to be noticed, even if implicitly. :)

It’s clear that Freshwater’s case has been turned into a vehicle for Hamilton to play out his First Amendment fantasies and the Rutherford Institute to push its ‘viewpoint discrimination’ view of the Constitutional prohibition on teaching creationism in public schools. Freshwater himself is no longer visible in the case; he’s just a pawn now. I have no idea how the Court will rule on the motion to strike. Best case: The Court tosses the appeal, declining to hear it based on the bait and switch that Freshwater’s lawyers pulled.