Freshwater: The big guns come out

The big guns are out in the Freshwater appeal to the Ohio Supreme Court. A slew of briefs–including the Board of Education’s merit brief and amicus briefs from the National Center for Science Education, the Dennis family, Americans United for Separation of Church and State with the Anti-Defamation League, and the American Humanist Association with the Secular Student Alliance, along with requests for permission for attorneys to appear representing several of those organizations–were filed yesterday with the Court.

It will take me a while to read all the material, but below the fold I’ll mention a few highlights from a fast first reading.

  1. The Board of Education’s merit brief argues its case to deny Freshwater’s appeal. It begins its Statement of Facts with the basic argument of the Board:

Freshwater is not a private citizen when teaching science in a public school classroom. Like it or not, Freshwater takes on the mantle of the Board, and his teaching becomes “government speech.” That speech may violate the Establishment Clause; when it does, and Freshwater refuses to stop the violation himself, the Board has every right to remove him from its classroom and cure the Constitutional violation. (p. 1)

Later, it asserts

Freshwater essentially urges the Court to analyze this case under a muddled notion of that which the First Amendment protects and proscribes. Under the First Amendment, “the Establishment Clause forbids ‘government speech’ which endorses religion, while the Free Speech and Free Exercise Clauses protect private speech endorsing religion.” (p. 11; citation omitted; italics original)

And a final quotation:

An objective observer would recognize that Freshwater’s decision to promote intelligent design and creationism in an eighth grade science class is an endorsement of religion. “The history of the ID movement and and the development of the strategy to weaken education of by focusing students on alleged gaps in the theorv of evolution is the historical and cultural background against which” Freshwater chose to teach students. Kitzmiller at 716. He referred students to the Answers in Genesis website and proposed a science education policy developed by the Intelligent Design Network. (Supp. 102-103, Employee Ex. 5). Both organizations are at the forefront of religious promotion in public schools, and Freshwater supported their cause while speaking as a government official, not a private citizen

There’s more, of course, but those are a few highlights.

  1. The Dennis family amicus brief argues that Freshwater is merely attempting to re-litigate an already lost case:

Just as he did during the 21-month-long administrative proceeding, the related federal court proceedings, and in the courts below, John Freshwater continues to spin a story comprised largely of falsehoods and distortions. Having failed to convince the Referee or any lower court that he was wrongly terminated from his teaching position at Mount Vernon Middle School, Freshwater seeks not to argue the Propositions of Law on which the Court accepted jurisdiction, but instead to re-litigate the facts of this case in the hope of persuading the Court that he should not have been relieved of his teaching duties. (p. 1)

  1. NCSE’s amicus brief outlines the history of creationist strategies to pollute (my word) the teaching of science in general and evolution in particular in the public schools. The brief ties Freshwater’s practices to that history, mainly using exhibits and testimony from the administrative hearing on his termination.

The NCSE submits this brief for two purposes. First, it seeks to demonstrate that the teaching materials and methods used by John Freshwater are inconsistent with well-accepted scientific principles and operate to undermine students’ understanding of science generally and evolution in particular. Second, it seeks to place Freshwater’s teaching materials and methods in their historical context to reveal their creationist nature. In sum, Freshwater’s pedagogy serves no legitimate educational purpose in a public school science class, is scientifically unsound, and serves only impermissibly to advance a sectarian purpose, namely, to teach creationism in its traditional version of “creation science” or its modem incarnation of intelligent design. (p. 6)

The NCSE brief includes as a Supplement the National Academy of Sciences’ Science, Evolution, and Creationism.

The brief concludes

Freshwater’s classroom instruction and teaching methods concerning evolution have no basis in science and serve no valid pedagogical purpose. They are reflective of third generation anti-evolution efforts intended to devalue the theory of evolution in order to promote religious beliefs. Given the importance of evolution as a fundamental, unifying, explanatory theory and its well-established place in science education, Freshwater’s teaching practices should not be tolerated. For all of the above reasons, the NCSE urges this court to uphold the decisions of the courts below. (p. 32)

  1. Americans United’s amicus brief (with the Anti-Defamation League) was co-authored by Richard Katskee, whom you will recall was part of the legal team that won the Kitzmiller decision in Pennsylvania. Its core argument is

The referee and the lower courts were plainly correct that appellant John Freshwater repeatedly violated the Establishment Clause and that the School District had the authority to terminate his employment to put a stop to his conduct. Simply put, public- school teachers do not have a constitutional right to impose their faith on their students. There can be no doubt that Freshwater was doing exactly that: He now frankly admits what everyone in the community knew all along-namely, that he was intentionally teaching creationism and otherwise incorporating his religious views into his classes. Although Freshwater may believe that he was benefitting the students, his actions were an affront to the religious freedom of the parents and students of the Mount Vernon City Schools. (p. 1)

The brief asserts

In his opening brief to this Court, Freshwater now finally admits what the overwhelming evidence in the termination proceeding showed and the referee specifically found: He sought to “round out the mandated discussion of evolution” with his own “discussion of the theory of creationism or intelligent design.” Br. 14. He supplied his students with creationist materials, including “handouts,” “motion pictures,” and “videos,” which he described as providing “evidence against evolution.” Referee’s Report at 4-5. He developed a “shortcut method of citing passages in printed materials that could be questioned,” involving a signal word to identify the information in the students’ textbooks that should be disbelieved. Id at 5. He awarded extra credit for going to see a creationist film. Bd. Ex. 6, att. 7. He had students debate creationism and evolution in class (Tr. 1330), and offered creationism as an altemative to evolution (Tr. 1002). Simply put, he “persisted in his attempts to make eighth grade science what he thought it should be-an examination of accepted scientific curriculum with the discerning eye of Christian doctrine.” Referee’s Report at 12. (p. 4)

The brief traces the legal history of atttempts to eliminate or undermine the teaching of evolution. It implicitly notes part of Freshwater’s bait and switch of the Supreme Court, saying that

Freshwater no longer contends, as he did in his Memorandum in Support of Jurisdiction, that he merely “sought to encourage his students … to identify and discuss instances where textbook statements were subject to intellectual and scientific debate.” Mem. Supp. Jur. 5. He now concedes, and indeed proudly proclaims, that he is teaching creationism and its alter-egos, creation science and intelligent design. Br. 12, 16-17. That concession eliminates any possible doubt that his unauthorized additions to the curriculum were intended to, and did, advance religion. (p. 14)

Unfortunately in my view, the brief doesn’t mention that in the administrative hearing Freshwater denied under oath what he now finally admits to the Supreme Court. That is, it is plain that he lied, either in the administrative hearing or in his appeal to the Ohio Supreme Court.

  1. American Humanist Association and Secular Student Alliance. This amicus brief is directed mainly at the issue of religious neutrality in public schools. It argues that Freshwater’s behavior promoted Christian theism in science classes, and the Board of Education was justified in terminating him.

It is well-settled law that it is the “right of those authorities charged by state law with curriculum development to require the obedience of subordinate employees, including the classroom teacher,” and that teachers do not have a First Amendment right to engage in “uncontrolled expression at variance with established curricular content.” Webster v. New Lenox Sch. Dist. No. 122, 917 F. 2d 1004, 1005-07 (7’ Cir. 1990) (rejecting claim of teacher that he had a First Amendment right to inject creationist ideas into his class discussions and that doing so served the “purpose of developing an open mind” in students).

The brief picks up a theme that also appears in the Board’s merit brief:

Federal courts have made clear that governmental actors, including public school teachers, do not have a personal First Amendment right to cause their state employer to violate the Establishment Clause by engaging in speech promoting religion while acting in an official capacity, as a teacher does in the classroom. When on the job, a teacher represents the state, and his or her speech rights are accordingly restricted by the Establishment Clause’s prohibition of state promotion of religion. (p. 4; italics original)


It is precisely the difference between these two spheres, governmental and private, that makes the difference in the speech rights of a government employee in a given circumstance. A governmental employee retains all of his First Amendment rights in his private life but must surrender some of them when he is on the job because in that role he speaks for the state as its representative.

The brief also analyzes Freshwater’s argument that prohibiting the teaching of creationism is evidence of hostility toward religion. The brief points out that

Appellant cites Epperson for the proposition that “government may not be hostile to any religion.” This is an accurate quotation. See Epperson at 103-04. Appellant then effectively asserts that enforcing the Establishment Clause amounts to unconstitutional hostility to religion. This is an absurdity. “No misperception could be more antithetical to the values embodied in the Establishment Clause. A secular state, it must be remembered, is not the same as an atheistic or antireligious state. A secular state establishes neither atheism nor religion as its official creed.” Allegheny at 610 (rejecting the argument that requiring that our government remain secular embodies “a ‘latent hostility’ or ‘callous indifference’ toward religion,” stating that “nothing could be further from the truth, and the accusations could be said to be as offensive as they are absurd.”) Worse, if courts were to adopt Appellant’s rationale, concluding that failing to favor religion is in fact to instead to express hostility to it, it “would totally eviscerate the establishment clause.” Smith v. Bd. of School Com’rs. of Mobile Co., 827 F. 2d 684, 692 (11th Cir. 1987) (quoting Grove v. Mead School Dist. No. 354, 753 F. 2d 1528 (9th Cir. 1985) (Canby, J., concurring), cert. denied, 474 U.S. 826 (1985)). (p. 14-15)