On November 19, 2013, in a 4-3 decision, the Supreme Court of Ohio upheld the firing of 8th grade science teacher John Freshwater for “insubordination in refusing to remove religious displays in his classroom after being told to do so, and for continuing to inject his personal religious beliefs into his plan and pattern of instruction, thereby exceeding the bounds of the school district’s bylaws and policies, even after being forbidden to do so.”
When the case was argued, Professor Ronna Greff Schneider, my colleague at the University of Cincinnati College of Law who teaches First Amendment law, did this analysis of the various ways the Court could approach the issues in the case.
When the Freshwater decision was released, Professor Schneider promised a thorough analysis, which follows in this guest post.
Professor Schneider’s Guest Post
Termination on Statutory Grounds
In correctly upholding the termination of 8th grade science teacher John Freshwater, the Supreme Court of Ohio, in Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 2013-Ohio-5000, with one critical exception, effectively avoided deciding some potentially contentious constitutional issues involving the public school classroom and curriculum under the Establishment, Free Exercise and Free Speech Clauses of the federal constitution. Instead, the Court decided the case for the most part by determining the meaning of “insubordination” under R.C. 3319.16.
The Constitutional Analysis: Freshwater’s Personal Bible
The Court’s only constitutional analysis involved determining the constitutionality of the presence of a teacher’s personal Bible on his classroom desk. The Court noted that teachers in the district considered their desks to be personal space. The constitutional analysis actually involved questions under two provisions of the First Amendment – whether the Free Exercise Clause provides a right for a teacher to so display a personal Bible in the classroom and whether the Establishment Clause is violated by such a display, justifying a restriction of any Free Exercise right. Without much discussion, the Court concluded that Freshwater had a Free Exercise right to keep his personal Bible on his classroom desk. The Court stated that the school district’s efforts to deny Freshwater the right to keep this personal Bible on the desk could be justified only if its presence would constitute an Establishment Clause violation. The Court held that the district’s order that Freshwater remove his personal Bible from his desk was an infringement of his “free-exercise rights without justification” as the presence of this Bible did not constitute an Establishment Clause violation. While the lower courts are somewhat mixed on this issue, I think that the analytical framework used by the Court to reach this conclusion as to the Establishment Clause was wrong.
In determining that the Bible’s presence did not constitute an Establishment Clause violation, the Court emphasized the inconspicuous presence of the Bible and the fact that “the record supports that he did not use the Bible while teaching.” However, what the record also supports, according to the painstaking detail in Chief Justice O’Connor’s opinion, is that other aspects of Freshwater’s classroom behavior were quite religious in nature and anything but inconspicuous. In my opinion, the Court should have viewed the placement of the Bible in light of this other religious classroom behavior. When examined in this more complete context, the Bible’s presence takes on a much greater significance concerning the state’s role – as carried out by Freshwater as its representative in the classroom – regarding religion in Freshwater’s classroom. The Court’s analysis erroneously ignored the critical importance of the broader context in determining whether the Establishment Clause had been violated by prohibiting the teacher from displaying his personal Bible on his desk in the classroom. The Court should not have viewed the presence of the Bible in isolation from Freshwater’s other actions. The Court recognized the importance of the physical context relative to the placement of Freshwater’s Bible, but apparently did not recognize the significance of the broader context relative to the content of Freshwater’s classroom teaching matter. While the majority correctly stated that “mere fear of an Establishment Clause violation will not justify burdening First Amendment protections,” it wrongly concluded that the presence of Freshwater’s personal Bible on his desk was no more than a baseless fear of an Establishment Clause violation.
The Broader Context
When viewed in this broader context, the Bible should be seen as a kind of confirmation of religious statements made by or distributed by Freshwater in his public school classroom and a reinforcement of those classroom religious teachings. The Court’s failure or refusal to consider the Bible’s presence in light of Freshwater’s other actions concerning the curriculum and classroom décor is, in my opinion, a fatal flaw in the Court’s constitutional analysis.
In the absence of Freshwater’s overtly religious behavior in the classroom, allowing teachers like Freshwater to have personal religious items in the classroom could be viewed, as the Court did, as “convey[ing] a message of accommodation, not endorsement.” I find such a conclusion most easily acceptable with regard to personal attire of a religious nature, including religious jewelry, as such attire is easily identifiable as very personal choice unrelated to curriculum. See Nichol v. ARIN Intermediate Unite 28, 268 F.. Supp.2d 536, 554 (W.D. Pa. 2003). I find the concept of accommodation more difficult with regard to the presence of a teacher’s personal religious text in the classroom when the teacher has sought to infuse his or her religious beliefs into the curriculum, based at least in part on the content of that text. However, regardless of whether a valid distinction can be made between personal attire and the presence of a religious text for purposes of Free Exercise accommodation, the full classroom context should be considered in determining the existence of an Establishment Clause violation.
Despite efforts to define desk space as personal space, the desk remained in the classroom, was viewable by students, even if at times covered by other material, and most importantly belonged to a teacher who an independent investigator found to have engaged in religious activity in the classroom. This was a teacher who had been instructed by superiors to remove religious material from his classroom, including but not limited to the Bible in question, and to refrain from his distribution of materials to students about creationism and intelligent design or that were considered by the school to be scientifically inappropriate instructional material that was critical of evolution. A school investigation of complaints against the teacher regarding religious subject matter in the classroom found that despite school admonitions, Freshwater taught his religious beliefs in the classroom. The investigation report included, among other things, evidence that Freshwater had told students that “ ‘science is wrong because the Bible states that homosexuality is a sin.’”
At the very least, this classroom behavior provides a context that must be considered as part of the Establishment Clause analysis. Such classroom behavior by Freshwater transforms the Free Exercise need for any religious “accommodation” for his right to display his personal Bible on his desk into an unconstitutional “endorsement” of religion – just the opposite of the conclusion reached by the Court. In light of the religious nature of some of Freshwater’s teaching, the Court should have concluded that a reasonable person would have perceived that Freshwater was endorsing religion with the presence of his Bible in violation of the Establishment Clause. The existence of an Establishment Clause violation, by the Court’s own analysis, would have justified an infringement of the Free Exercise right that Freshwater claimed with regard to permitting the placement of his personal Bible on his desk.
The Third Circuit engaged in similar analysis when it decided that a coach violated the Establishment Clause in bowing his head and bending his knee during a prayer session led by his students in light of his prior conduct directly leading the students in prayer and other religious activities which he had stopped pursuant to school district orders. In the absence of such prior conduct, the coach’s behavior may have just been viewed as simply showing respect as his students engaged in prayer rather than violating the Establishment Clause. See Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 178 (3d Cir. 2008).
The United States Supreme Court has looked to prior conduct and to the totality of the surrounding circumstances as part of the context to evaluate whether current conduct violates the Establishment Clause. See, e.g., Santa Fe Independent School District v. Doe, 530 U.S. 290, 305-306 (2000). Cf. Bishop v. Aronov, 926 F.2d 1066, 1077-1078 (11th Cir. 1991) (although declining to reach the Establishment Clause issue, court did consider a broad context when it held that university did not violate university professor’s rights under either the Free Exercise or Free Speech Clauses by prohibiting him from making classroom comments regarding his religious beliefs and holding a voluntary “optional class” directly before finals to discuss his Christian perspective on academic subject matter).
The Supreme Court of Ohio cited cases allowing employees to wear religious jewelry and cases in which a teacher or administrator was constitutionally allowed to possess a Bible or other personal religious effects in a classroom or school office even though the school employee had otherwise engaged in religious activity with or conveyed religious ideas to students. See Nichol v. Intermediate Unite 28, 268 F. Supp.2d 536, 554 (W.D. Pa. 2003)(striking down policy prohibiting elementary school employees from wearing religious jewelry); Nichols v. Caroline Cty. Bd. Of Edn., D. Md. No. JFM-02-3523, 2004 WL 350337 at *12 (Feb. 23, 2004), fn. 15(in rejecting terminated teacher’s retaliation claim in violation of the First Amendment, court cited fact that school allowed teacher who had improperly given religious assignments to students the right to keep Bible and religious publications on table behind his desk); and Warnock v. Archer, 380 F.3d 1076, 1082 (8th Cir. 2004)(“personal religious effects of … [the superintendent, including a framed quote from the Scriptures and a Bible] are constitutionally protected under the free speech and free exercise clauses”). Such reasoning, particularly in the latter type of cases, allows the court to analyze any Establishment Clause violation only as it pertains to the precise behavior at issue with regard to the Free Exercise claim – here the Bible – rather than in conjunction with any other activity involving the students. However, as indicated above, other courts have taken a somewhat different position by considering the broader context, at least when the teacher or coach had otherwise also improperly been involved with religious activity or curriculum with students. Additionally, a couple of the cases cited by the Supreme Court of Ohio did not even involve the actions of a teacher in the special environment of the public school classroom, or at least certainly not a teacher, who like Freshwater, had injected religion into the curriculum contrary to orders from superiors. See Hudson v. Palmer, 468 U.S. 517, 547 fn 13 (1984) (destruction by prison officials of property seized from the cell of prison inmate); Brown v. Polk Cty., Iowa, 61 F.3d 650, 659 (8th Cir. 1995) (claims of non-school county employee); Draper v. Logan Ctu. Pub. Library, 403 F. Supp.2d 608, 621 (W.D. Ky. 2005) (claims of terminated employee of county’s public library).
The outcome of this case, of course, would not have changed, even had the Supreme Court of Ohio considered the broader classroom curricular context and concluded that Freshwater did not have any Free Exercise rights to keep his Bible on his desk. The Court held that the termination of Freshwater was supported by his other acts of insubordination, as construed by the statute. Nevertheless, the error regarding the constitutional analytical framework has potential implications for other cases that may rest solely on the constitutional issues involving the scope of both the Free Exercise Clause and the Establishment Clause inside the public school classroom.
Justice Lanzinger’s Concurrence
Justice Lanzinger’s opinion concurring in the syllabus and the judgment saw no distinction between a valid and reasonable order to remove religious material from the classroom as stated by the Court’s opinion and an order not to display a personal Bible in front of students in class. The order was a “valid attempt to avoid an Establishment Clause violation.” Justice Lanzinger also stated that the order did not violate Freshwater’s speech rights as it did not require the Bible to be removed from the classroom, only to be put out of the students’ sight during class time. “Freshwater disobeyed a reasonable order by incorporating the Bible by reference while teaching in his science classes and displaying the book on his desk while students were present.” To Justice Lanzinger, “this constituted part of his insubordination.”
Academic Freedom Issue
Justice O’Donnell’s reliance on the academic freedom argument in his dissent is in many ways the most interesting opinion and presents the strongest challenge to the Court’s opinion. Justice O’Donnell correctly cites to several Supreme Court and lower court opinions addressing academic freedom in the context of allowing teachers to raise alternative or additional content and viewpoints in the classroom setting, noting that the school district has a policy stating that “the consideration of controversial issues has a legitimate place in the instructional program of the schools.” The dissent also stated that “teachers in public schools have a First Amendment interest in choosing a particular pedagogical method for presenting the material the official curriculum to students.”
The dissent insisted that Freshwater’s references to religious beliefs were isolated random comments rather than any intent to teach religious beliefs. The dissent noted that Freshwater’s students performed the best of the school’s science teachers on the science portion of the Ohio Achievement Test. The dissent seemed to be reading a factual record dramatically different from the one reported in Chief Justice O’Connor’s opinion. Two potential limitations on academic freedom appear to be ignored in this dissent. First, lower federal courts are divided as to whether there is a constitutionally based academic freedom right in elementary or secondary schools. As noted in my previous post on this case, the Sixth Circuit Court of Appeals has held that there is no academic freedom in secondary education. Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch. Dist., 624 F.3d 332, 343-344 (6th Cir. 2010). Second, teachers engaged in teaching in the classroom may be viewed as public employees performing official duties and thus not protected by the First Amendment unless a jurisdiction recognizes an exception to this principle. See Garcetti v. Ceballos, 547 U.S. 410, 425 (2006)(“We need not … decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching”); Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 964 (9th Cir. 2011) (teacher’s First Amendment speech rights not violated when principal asked teacher to remove religious banners from his classroom as teacher spoke as an employee and not as a citizen).
I am a strong proponent of academic freedom and the value of teaching critical thinking. But while academic freedom enables the marketplace of ideas to flourish, it is not a protected principle that permits teachers, as classroom representatives of the state, to violate the Establishment Clause. See Kitzmiller, et al., v. Dover Area Sch. Dist., et al., 400 F.Supp.2d 707 (M.D. Pa. 2005) (striking down the teaching of intelligent design in public school curriculum and discussing Supreme Court’s rejection of academic freedom as a basis for mandated “balanced treatment” of creation-science and evolution- science curriculum in Edwards v. Aguilard, 482 U.S. 578 (1987).