Update: On October 6, 2014, the Supreme Court of the United States declined without opinion ( p.10, first case), to hear Freshwater’s appeal of the decision of the Supreme Court of Ohio to uphold his termination as a middle school science teacher.
On November 19, 2013, the Supreme Court of Ohio issued a merit decision in Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 2013-Ohio-5000. The case was argued February 27, 2013. In a 4-3 decision written by Chief Justice O’Connor, the Court upheld Freshwater’s termination as an eighth grade science teacher at the Mt. Vernon Middle School.
There seem to be two John Freshwaters in this decision–the pigheaded zealot in the majority decision and the saintly courageous persecuted man of principle in the dissent. Freshwater was fired by the Mt. Vernon City School District. (The Board). He says he was fired for exercising his right to academic freedom in violation of his First Amendment Rights. Specifically, he claims he was fired for encouraging students to think critically about evolution, and for including creationist theories in the science curriculum. The Board says he was fired for failure to adhere to the established science curriculum, for repeatedly interjecting his Christian religious beliefs into his teaching plans, for disobeying orders to remove religious displays from his classroom, and for insubordination.
This is inevitably a very long post. Due process takes time.
Freshwater’s Teaching Record
Freshwater was hired by the Board in 1987 to teach 8th grade science. The Board had a policy forbidding the teaching of religious thought in the curriculum. From 1994 until 2002, Freshwater repeatedly received positive teaching evaluations, and there is no question that his students always did exceptionally well on the state standardized achievement tests. But during this same period Freshwater was told on several occasions not to distribute materials about creationism and intelligent design.
Despite these admonitions, in 2003 Freshwater submitted a proposal to the Board entitled “Objective Origins Science Policy,” asking the Board to add a policy statement to the science curriculum allowing teachers to “critically evaluate ”evolution. The Board rejected this proposal, consistent with a subsequent decision from the State Board of Education to strike similar language from its statewide science benchmarks.
Freshwater persisted nonetheless. In 2006, the Board received a complaint from a parent of one of his students about a handout on critically evaluating evolution. A subsequent investigation showed that this handout appeared to be taken in whole or in part from several intelligent design websites. The then school superintendent again directed Freshwater to stop distributing such materials.
The Tesla Coil Incident
In December of 2007, Freshwater was doing a science experiment in his classroom using a Tesla coil. Stephen and Jenifer Dennis, parents of one of Freshwater’s students complained to the acting superintendent that during this experiment, Freshwater had made the sign of the cross on their son’s arm with the coil. Freshwater admitted the incident, but denied that the mark was in the shape of a cross. The school principal then both met with and sent a letter to Freshwater telling him not to use this coil on students and to secure it when it wasn’t being used. But the parents filed suit in federal court against the district because of the incident.
Mr. and Mrs. Dennis made a number of other complaints to the superintendent about Freshwater. Those pertinent to this appeal are that Freshwater, who was also the advisor to the Fellowship of Christian Athletes (FCA) was directly participating in its affairs rather than just being an advisor. Also, he kept religious materials in the classroom, including a personal Bible and several others on his desk, a Ten Commandments Poster, and a poster of President George Bush and his cabinet in prayer. He continued to teach his personal religious beliefs in science class. He gave extra credit for work about intelligent design.
In response to these complaints and more written warnings from the principal, Freshwater checked out two religious books– Jesus of Nazareth and the Oxford Bible— from the school library and displayed them on a lab table. He refused to remove his personal Bible from his desk. He refused to remove the poster of President Bush in prayer with other government officials.
Investigation of the Dennis Complaints
The Board hired an independent consulting firm to investigate the allegations. The firm found that Freshwater’s teaching of evolution was inconsistent with the curriculum and with state standards, that Freshwater taught his religious beliefs in the classroom, and that he was insubordinate in failing to remove the religious materials from his classroom after his principal had ordered him to do so.
The Board Issues Intent to Fire Freshwater
The investigating firm issued its report June 19, 2008. The next day, the Board unanimously passed a resolution of intent to consider terminating Freshwater’s teaching contract on four grounds: 1) the Tesla coil incident, (2) his failure to adhere to established curriculum, (3) his role as facilitator, monitor, and supervisor of the FCA, and (4) his disobedience of orders.
Tons of Due Process Begins
As was his statutory right, Freshwater requested a public hearing. This hearing, conducted by a Referee, involved 38 different days of witness testimony spread out over almost 21 months, included more than 80 witnesses and hundreds of exhibits, and ultimately resulted in over 6,000 pages of transcript. When all was said and done, the Referee found that the Tesla coil incident was sensationalized out of proportion, that Freshwater did indeed inject his personal religious beliefs into his teaching, contrary to Board policies, that Freshwater failed to follow the appropriate guidelines as advisor to the Fellowship of Christian Athletes, and repeatedly disobeyed orders of his superiors about removing religious materials from his classroom.The Referee’s ultimate conclusion was the Board had good and just cause under R.C. 3319.16 to fire Freshwater. And it did.
The School Board Fires Freshwater
On January 10, 2011, the Board, by a vote of 4-1, fired Freshwater for good and just cause, to wit, failure to adhere to the established curriculum and disobedience of orders (grounds two and four of the charges).
After a termination, the scope of review gets narrower. Freshwater appealed his dismissal to the Knox County Court of Common Pleas. The trial judge found that there was clear and convincing evidence to support Freshwater’s termination for good and just cause. The Fifth District Court of Appeals found no abuse of discretion in that decision, and affirmed it.
Ok—we finally made it to the Supreme Court of Ohio. The merits of this appeal begin at page twenty four of the sixty-eight page opinion.
R.C. 3319.16 (A teacher’s contract may not be terminated except for good and just cause).
The Lead Opinion
Why am I saying lead opinion instead of majority opinion? Read on.
With one exception detailed below, the lead opinion ducked the Constitutional issues raised in the case, and decided it on purely statutory grounds. The Chief, joined by Justices Lanzinger, French and O’Neill, found that the record overwhelmingly supported the finding that Freshwater was insubordinate in refusing to remove religious displays from his classroom after being repeatedly told to do so, and for continuing to inject his personal religious beliefs in his teaching, even after being forbidden to do so. Thus, the lead opinion found that Freshwater was appropriately terminated for good and just cause pursuant to R.C. 3319.16.
Terminating a Teacher
The procedure for terminating a teacher’s contract are set forth in R.C. 3319.16, which the majority details. The proper procedure was followed in this case, and the judicial review was wholly appropriate.
Insubordination as Good and Just Cause for Termination
The Court adopted this definition of insubordination: a willful “disobedience of, or refusal to obey, a reasonable and valid rule, regulation, or order issued by the school board or by an administrative superior,” and found insubordination to be a valid reason to find good and just cause for termination. The majority found that Freshwater willfully disobeyed orders in the following particulars: failing to remove (1) his personal Bible, (2) Jesus of Nazareth and the Oxford Bible, and (3) the poster of government officials praying.
But this next part gets a little tricky. The Court found that disobedience alone will not establish insubordination unless the administration’s orders were reasonable and valid. The Court had no trouble with the orders to remove the two library books and the poster. But Freshwater’s personal Bible was a different story to three of the four justices who signed on to the lead opinion.
Freshwater’s Personal Bible
Chief Justice O’Connor and Justices French and O’Neill found that the principal’s order to Freshwater to remove his personal Bible from his desk was a violation of his Free Exercise rights under the First Amendment, and thus his disobedience of that order could not be considered insubordination or form part of the reason for firing him. The Court found that the Board’s reason for demanding the removal—to avoid an Establishment Clause violation—was an incorrect reason. The justices found that Freshwater did not use his Bible while teaching, its presence on his desk posed no threat to the Establishment Clause, and the district was not endorsing Christianity by allowing Freshwater to keep his Bible on his desk.
O.K. Here’s the problem. Justice Lanzinger did not agree with any of this. She would find the Board’s order for Freshwater to remove his personal Bible from his desk when students were present to be a valid and reasonable one, and would find his failure to do so was part of his insubordination. So that would mean there was no majority on that point. BUT Justice Pfeifer, one of the dissenters, also agreed that the order to remove Freshwater’s personal Bible was unreasonable. So four justices do agree on that point. (professor’s note: the dissent from the denial of reconsideration in the case suggests six, rather than four, of the seven justices agree on this point, although Justices O’Donnell and Kennedy did not expressly say that in the original decision). But the reason that doesn’t make this a majority position is that the Chief and Justices French and O’Neill (joined on this point by Justice Lanzinger) agreed there was ample other grounds of insubordination to warrant the firing. Justice Pfeifer did not.
Following this so far?
The Remaining Orders Against Freshwater
For the majority on this point (O’Connor, Lanzinger, French, and O’Neill) the rest was easy—all four agreed Freshwater’s refusal to remove the two library books (the Oxford Bible and Jesus of Nazareth) and the Bush poster from his classroom after being given a valid and reasonable order to do so (in contrast to the order about his personal Bible) was willfully disobedient, and demonstrated “blatant insubordination.” So, even with the disagreement about his disobedience over the removal of his personal Bible, four justices found the record fully supported the decision to terminate Freshwater for insubordination. That is the majority holding in this case.
What About Teaching Creationism and Intelligent Design as Science?
Because a majority of the justices found that Freshwater’s termination could be justified solely on the basis of insubordination, it ducked this entire issue.
Justice Pfeifer’s Dissent
Although Justice Pfeifer joined Justice O’Donnell’s dissent, as did Justice Kennedy, no one joined his. It was an usually biting and sarcastic dissent from a justice I have longed admired, (from whom I totally part company in this case) but who usually writes his dissents with a gentler hand.
To Pfeifer, once the failure to remove Freshwater’s personal Bible was eliminated as a legitimate basis for a claim of insubordination, there was really nothing left of the case except “piddling other claims of supposed insubordination, ” namely checking two books out of the school library and leaving up a religious poster. He described the poster as “a trifle;” checking the books out of the library totally appropriate. He described these things as “at worst, de minimus violations of an unwritten, ad hoc rule. ” He commented that once keeping the Bible on his desk is removed from the equation, “less than a fig leaf remains.”
Pfeifer characterized this entire matter as “the sorry saga of John Freshwater, excellent junior-high science teacher, terminated as a result of an extreme overreaction of the parents of a decent student, followed by even less informed and measured responses by Mount Vernon school administrators and the school board.”
Pfeifer chastised the majority for ducking “the important issues of the Establishment Clause, academic freedom, and how schools may approach educating children about the scientific theories of evolution, which may directly clash with religious teachings of creation to which many children have been exposed at home and at church.” And he further chastises the majority for not rebutting any points raised in Justice O’Donnell’s dissent.
Justice O’Donnell’s Dissent
Justice O’Donnell sees the core issues in this case as the free speech rights of public school teachers and the academic freedom to choose the way to implement the required curriculum. He sees Freshwater as a man unfairly singled out because of his willingness to challenge his science students to think critically about evolution and to discuss creationism and intelligent design in doing so.
Justice O’Donnell’s Take on Insubordination
Like Justice Pfeifer, O’Donnell does not think that Freshwater was insubordinate for failing to remove the items he was told to remove from his classroom. In his view Freshwater did remove what he was appropriately told to remove. As far as O’Donnell is concerned, Freshwater did not have to remove his personal Bible, and had the same First Amendment right to keep the other two books that he got out of the library in his classroom for his personal use. As for the Bush poster, O’Donnell makes much of the point that it was the school that distributed it, other teachers kept it on display in their classrooms without incident, and that it was generally viewed as patriotic, rather than religious, in nature. His final take on this point- “The conclusion that Freshwater was insubordinate for failing to remove these items is not supported by the evidence, which demonstrates that the school board singled him out to avoid defending itself against a threatened lawsuit,” and this was not a valid reason to terminate his contract.
To Justice O’Donnell, “Freshwater was unfairly singled out and unfairly terminated for his willingness to challenge students in his science classes to think critically about theory and to permit them to discuss intelligent design and to debate creationism in connection with the presentation of the prescribed curriculum on evolution.”
Teachers don’t have to follow a script when teaching required courses. Freshwater had the discretion to supplement his lessons with supplemental material he thought effective. That is part of academic freedom. Academic freedom extends to the teaching of controversial topics. The Mt. Vernon School Board policies allow teachers to address controversial issues to help students learn to think critically. Teaching students how to think critically serves a secular, not a religious purpose. And Freshwater was an excellent science teacher, as evidenced by how well his students have done on the statewide tests.
Justice O’Donnell’s take on this huge record is that it showed Freshwater never taught creationism or intelligent design as an alternative to evolution. He clearly understood and respected the line between faith and science. He did not inject his personal religious views into the classroom. To O’Donnell the school board misinterpreted Freshwater’s effort to challenge students to think critically about evolution as impermissibly inserting his personal religious beliefs into the required course work, and patched together a series of separate isolated incidents to justify his termination on this basis.
Bottom line—O’Donnell believes the Board violated Freshwater’s First Amendment rights in this case.
In a proceeding under R.C. 3319.16 for the termination of a public school teacher’s contract, “good and just cause” includes insubordination consisting of a willful disobedience of, or refusal to obey, a reasonable and valid rule, regulation, or order issued by a school board or by an administrative superior.
I outright confess I am a strict separationist when it comes to church and state. I’m with Justice Lanzinger on this one. I think all the grounds for terminating Freshwater were valid, including his refusal to follow the directive to take his personal Bible off his desk. I think Freshwater pushed and pushed and pushed, and never heard what the authorities were telling him because he didn’t want to. To me the dissent downplays a persistent pattern and practice of refusing to follow the established curriculum.
I obviously believe in academic freedom—I am, after all, an academic. But what flies in college is far less clear in secondary public education. Justice O’Donnell’s dissent not only downplays this very significant point, it completely ignores the recent decision from the U.S. Court of Appeals for the Sixth Circuit in Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332, 343-344 (6th Cir. 2010), which held that a public high school teacher did not have a First Amendment right to select books and methods of instruction for use in the classroom without interference from the school board.
While federal appeals court decisions do not bind state supreme courts, they are generally regarded as persuasive authority, especially on interpretation of federal law, and the Sixth Circuit covers Ohio. In the Evans case, the Sixth Circuit, in an opinion written by Bush-appointee Judge Jeff Sutton, held the right to free speech protected by the First Amendment does not extend to the in-class curricular speech of teachers in primary and secondary schools made pursuant to their official duties. In the decision, Judge Sutton specifically notes that, “the concept of “academic freedom,” moreover, does not readily apply to in-class curricular speech at the high school level.”
And teachers do have to follow the established curriculum. In Ohio, it is contrary to now clearly established policy to teach creationism and intelligent design as science. For a time, there was a “Critical Analysis of Evolution” lesson plan and a corresponding indicator in the state science standards. But on Feb 14, 2006, the Ohio Board of Education voted to remove this lesson plan and corresponding indicator. There is an excellent historical overview of this on the American Institute of Biological Sciences Website here.
So, I agree there was good and just cause to terminate Freshwater’s contract. And when a case can be decided on non constitutional grounds, courts are supposed to do that. Still, on the one constitutional issue that was discussed, the fact that four justices think the school board was wrong in ordering Freshwater to remove his personal Bible from the top of his desk is very concerning. And in the opinion of my colleague Ronna Greff Schneider, who is an expert on First Amendment religion issues, the four of them are wrong about this. I take her analysis over theirs. You can read her guest post on this here.