Freshwater: Appeals to the U.S. Supreme Court

John Freshwater, former middle school science teacher in Mt. Vernon, Ohio, has appealed to the U.S. Supreme Court for a writ of certiorari, asking the Court to review the decision of the Ohio Supreme Court that affirmed his termination. The appeal cites two grounds:

  1. Whether firing a public school teacher for checking out and possessing school library books as a form of passive protest violates the First Amendment.
  2. Whether firing a public school teacher for teaching the scientific strengths and weaknesses of biological evolution violates the First Amendment.

The application for cert is available from the Mount Vernon News site here.

More below the fold.

Two things in Freshwater’s application for cert immediately stand out to me. First, Freshwater has previously denied (at least implicitly) that checking out the two books–a version of the Bible and a book titled “Jesus of Nazareth”–was a protest. Testimony in the hearing established that Freshwater checked the two books out of the library after he had been instructed by Principal White to remove religious materials from his classroom. And according to the independent investigator’s report, when asked if the purpose of adding the books to his classroom was to “make a statement,” Freshwater was quoted as replying “Yes.” But he earlier claimed that perhaps he had checked the books out before he received those instructions, and that the due date in them was later because he could have renewed them over the phone. So at best his testimony concerning the two books is equivocal. But now he concedes that it was a protest. See here for his evasive testimony on that topic.

Second, he now claims that he was teaching the “strengths and weaknesses” of evolution. Over the years he has offered several different stories concerning what he taught. First, in the administrative hearing he testified that he never taught intelligent design or creationism. Then later he testified that he may have used creationist materials, but it was only to illustrate bias and lack of objectivity and how bias can lead to bad science. Finally, in a radio interview with David Barton’s Wallbuilders radio program, he said that he taught “robust evolution,” meaning that

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.

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.

And what was the “great evidence that goes against it”? Kent Hovind videos and handouts from sites like

Consider just the last two stories Freshwater told about creationism. First he says that he used creationist materials to illustrate bias and how it can lead to bad science. But then in the Barton interview, he says he taught the evidence against evolution, which was from creationist sources according to several lines of evidence. This is typical: Two mutually inconsistent stories to account for constitutionally forbidden behavior in a public school classroom. Students in his classroom told the independent investigators that Freshwater told them “…how it [evolution] can or can’t be true and got both sides of the story” and “Mr. Freshwater showed us both sides of the issue.” That doesn’t sound like he was illustrating bad science to me. See here for more on his multiple stories.

I’ll just mention one further point from the application for cert that strikes me. The application says

Freshwater had used handouts which pointed out that certain aspects of evolution have not yet been fully explained. For instance, one handout discussed Darwin’s theories in light of the lack of “transitional forms” in the fossil record (App. 128a).

But page 128a says nothing about transitional forms. It refers to Freshwater’s use of the “Woodpecker” and “Giraffe” handouts, which were lifted verbatim from a site called “All about Science,” which is associated with, and linked to, All About God. See here and here for more on those handouts.

What Freshwater taught with respect to science was summed up in testimony by a former student:

Millstone asked James what he concluded from Freshwater’s teaching. James replied with an anecdote. He said his sister had found a rock and was going to take it to a teacher to see if she could find out how old it is. James said he told his sister to not bother, “Science can’t be trusted. Science can’t teach us anything.”

In the end, the application for cert depends most heavily on the insubordination issue, and on the ‘two books’ claims. It attempts to make the case that

…public school teachers should not be fired for passive, inconspicuous possession of library books, regardless of the teacher’s motivation in possessing them.

The Board’s response to Freshwater’s request for cert is due May 29, 2014, though extensions can be requested. So it could be mid- or late summer before that comes through.