Motion for Reconsideration Denied in Freshwater Case.

Update: On October 6, 2014, the Supreme Court of the United States declined without opinion ( p.10, first case), to hear John Freshwater’s appeal of the decision of the Supreme Court of Ohio to uphold his termination as a middle school science teacher.

S.Ct.Prac.R. 18.02 allows for the filing of a motion for reconsideration of a merit decision. This rule authorizes the Court to “correct decisions which, upon reflection, are deemed to have been made in error.” State ex rel. Shemo v. City of Mayfield Heights, 2002-Ohio-4905 ¶ 5.

There have been a couple of significant recent examples of reconsideration granted by the Ohio high court.  One was in Acordia of Ohio LLC v. Fischel, ­2012-Ohio-2297, reconsideration granted, 2012-Ohio-4648. Another was in  State v. Hood, 2012-Ohio-5559, reconsideration granted, 2012-Ohio-6208. In both those cases the Court admitted to having misconstrued points of law.

For the most part, though, such motions are rarely granted.  The rule expressly states “a motion for reconsideration shall not constitute a re-argument of the case.” And most motions for reconsideration are just exactly that.

John Freshwater, the eighth grade science teacher at the Mt. Vernon Middle School whose termination was upheld November 19, 2013 by the Supreme Court of Ohio in a 4-3 vote, (Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 2013-Ohio-5000) has already had a public hearing involving  38 different days of witness testimony spread out over almost 21 months, with more than 80 witnesses, hundreds of exhibits, a transcript of over 6000 pages, and an unsuccessful appeal to the Knox County Court of Common Pleas, the Fifth District Court of Appeals, and the Supreme Court of Ohio.  He lost in every one of these.  But he filed a motion for reconsideration in the Supreme Court, which was denied on January 22, 2014 by the same 4-3 vote as in the merit decision.  He apparently still doesn’t think the Court gets it.

Freshwater’s  Arguments for Reconsideration

Freshwater argues throughout his motion that the effect of the Court’s ruling, which he claims is full of factual errors, is to forever lower the standards for terminating teachers under R.C. 3319.16. Whereas he claims before this, teachers could only be fired for serious, immoral conduct, now, he argues, teachers can be fired simply for not understanding or following unclear administrative orders, or “because their personal belief systems offend the wrong people.”  He also asks the Court to decide the constitutional questions it avoided in its merit decision.

The short version of Freshwater’s argument is that he always tried to do everything he was told, but was bewildered by the many directives and orders he was given, and bombarded by unclear and sometimes unconstitutional orders.  The Court found otherwise, except for the order to remove his personal Bible.

Freshwater rehashes two of the grounds for the finding of insubordination against him—the refusal to remove the two library books from the lab table in his science class and the Bush poster from his classroom. Rehash is the operative word here.

Here’s an example of Freshwater’s re-spin about the library books. Taking them out was “an attempt to procure materials that he assumed would be beyond the administration’s reproach in order to mitigate the effects of an order that interfered with his constitutionally protected religious freedom.”  As for the poster, well, he didn’t remove it because he didn’t think the administration objected to it.  And it was widely viewed as patriotic rather than religious. And other teachers had it in their classrooms, too. The thing, is though, that we heard all this before, and the majority didn’t buy it.

School Board’s Response

In opposition, the School Board’s position is that Freshwater is doing nothing but re-arguing his case, which is improper in a motion for reconsideration. The Board responded that in filing this motion, Freshwater “ fails to present any new arguments, explanations, or theories. Again and again he tells this Court he did not understand the directions, did not intend to disobey, and was not insubordinate. But the Court has heard this all before – in Freshwater’s merit and reply briefs. ”

Where Freshwater characterizes the placing of the two library books on the lab table as quietly maintaining a source of comfort and personal inspiration, the Board describes it as “a flagrant thumbing of his nose” at the authorities.

The Board also argues that insubordination is not a novel ground for disciplining a teacher and can indeed be a basis for termination for good and just cause under Ohio law.

Disposition of Motion

In denying the motion for reconsideration, Chief Justice O’Connor, and Justices French, O’Neill, and Lanzinger wrote nothing. That is the norm with such motions.  But Justice O’Donnell did write a few paragraphs for the three dissenters.   This dissent was also a re-hash, with one exception.

Justice O’Donnell again chides the majority for ignoring the Constitutional questions in the case, and for ignoring Freshwater’s defenses. He does not believe insubordination was proven in the case. To O’Donnell, the evidence in the record does show that Freshwater did remove many religious items from his classroom when told to do so.  He notes that no other teachers had to remove the Bush poster from their classrooms. And he accepts Freshwater’s position that the two library books were for his personal inspiration.

Freshwater’s Personal Bible

In the merit decision in the Freshwater case, 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. Justice Lanzinger did not join this part of the lead opinion, but Justice Pfeifer expressly stated in his solo dissent that he did.  Justice O’Donnell wrote the other dissent in the merit decision, for himself and Justices Pfeifer and Kennedy. While it was certainly implicit in that dissent that the dissenters clearly thought the order to Freshwater to remove his personal Bible from his desk was an improper one, O’Donnell never expressly said that or joined O’Connor, French and O’Neill on that point, as Pfeifer did. (¶ 104 of Pfeifer’s dissent- “The central piece of the insubordination claim against Freshwater—that he refused to remove his Bible from his desk—has been determined by this court (by the three members of the court that concur in the lead opinion and by at least one other justice, myself) to be an invalid cause for discipline.”)

Justice O’Donnell has cleaned that up in the reconsideration dissent, noting, “notably, six members of this court have upheld Freshwater’s constitutional right to have his Bible in his classroom.” (emphasis added.)

Concluding Observations   

Having sat on an intermediate appeals court for six years, I think it is fair to say that most motions for reconsideration present nothing new, but rather try just one more bite at the apple.  The motion in this particular case seemed to me like nothing more than a re-hash.  Right call by the majority, I’d say.


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