Freshwater: Board's Brief in Response filed with SCOTUS

The Mt. Vernon, Ohio, Board of Education has filed its Brief in Opposition to Freshwater’s petition for a writ of certiori with the Supreme Court of the U.S. (SCOTUS). Recall that Freshwater asked SCOTUS to overturn his firing on the ground that it violated his First Amendment rights, and that prohibiting his teaching the “scientific strengths and weaknesse of biological evolution” also violates the First Amendment. I haven’t found an online version of the Brief in Rersponse yet (the Court’s docket is here, so I’ll make a few remarks on what I found most interesting.

More below the fold

The Board’s response focuses on two main issues, Freshwater’s insubordination and his exposure of the Board to legal risk by teaching creationism. It also argues that Freshwater’s petition rests on disputed factual grounds rather than any Consititutional issue, and those factual grounds were hashed out in multiple lower venues–the administrative hearing, the county Court of Common Pleas, the state Court of Appeals, and the Ohio Supreme Court, and at each level were found to support Freshwater’s termination. It claims that Freshwater’s academic freedom argument is invalid. Finally, it argues, SCOTUS does not actually have jurisdiction. Freshwater’s argument rests on claims of disputed facts, not on any Constitutional issue, and is thus not in the purview of SCOTUS. That he is displeased with the various lower courts’ factual findings is not a valid reason for SCOTUS review:

Freshwater’s factual dispute is precisely the type this Court rejects on appeal; his fact-bound arguments cannot convert a state-law holding into a constitutional controversy.

On the academic freedom issue Freshwater also claimed as a basis for SCOTUS review, the Board argues that

  1. Academic freedom applies to institutions of higher learning, not to primary or secondary schools

  2. Academic freedom applies to institutions, not individual employees

  3. Academic freedom does not entitle teachers to expose their employers to legal risk.

I’m a little perplexed by the second of those claims. I read the Brief and understood all the words, but the reasoning puzzles me a bit. I’ll work on that.

The Brief argues

This Court’s jurisprudence, as well as that of the circuit courts, has long established that employees have no First Amendment right to disregard orders. Math teachers are not academically free to teach history, science teachers are not academically free to teach Genesis, and the Constitution does not sanction employee disobedience.

I was delighted to see that the Brief in Response caught Freshwater’s multiple stories about teaching creationism:

Aside from this hodgepodge, Freshwater’s claims present a teacher whose story changes with every new appeal. At first Freshwater categorically denied questioning evolution or teaching creationism. Resp. App. B at 4a (“John Freshwater categorically denies that he taught either Creationism or Intelligent Design by declaring ‘Absolutely not’ “). Now he tells this Court he engaged “the naturally inquisitive minds of students,” allowed them to “think critically” about biological evolution, and simply taught his subject more thoroughly than the Board preferred.

On the legal risk issue, the Brief says

Ohio law permits school districts to fire teachers for good and just cause, including insubordination. Because Freshwater’s religious instruction exposed the school board to credible legal risk, his supervisor directed him to remove all religious displays from the classroom. Freshwater defied this order - even adding new theology texts to his collection - and the District fired him.


Public school districts have the right to set curricula and teaching methodology, as well as to reduce legal risk. Exposing his employer to a possible Establishment Clause violation, Freshwater undermined evolution, and taught creationism to his eighth-grade class.

I’m not a lawyer, but I’d be amazed if four SCOTUS justices voted to accept Freshwater’s petition.