Mount Vernon board, Dennis family file briefs

MOUNT VERNON — Attorneys for the Mount Vernon Board of Education on Oct. 4 filed a Merit Brief with the Ohio Supreme Court in response to John Freshwater’s Merit Brief, and Stephen and Jenifer Dennis have filed an amicus brief with the court supporting the school board, also filed on Oct. 4.

Freshwater, former middle school science teacher at Mount Vernon Middle School, is again appealing his Jan. 2011, contract termination by the school board. He appealed to the local court, and, in October 2011, the Knox County Court of Common Pleas upheld Board’s decision to fire Freshwater.

Freshwater next appealed to the Fifth District Court of Appeals which also upheld the board’s actions.

On April 13, 2012, Freshwater first filed with Ohio Supreme Court and, on September 24, 2012, the board filed a motion to strike portions of Freshwater’s Merit Brief that were not accepted by the Supreme Court for review, were not raised in previous proceedings and not introduced into evidence.

The school board’s Merit Brief submits as fact that Freshwater improperly promoted religion in the board’s middle school science classroom for years. It mentions several related handouts, videos and web sites, displays of religious material and Freshwater’s in-class statements and conduct which the board said do promote religion.

The brief also references the amicus brief filed by the National Center for Science Education, including its explanation of scientific standards as related to religious doctrine, including intelligent design theory and creationism in addition to listing relevant board policies and administrative guidelines. It refutes Freshwater’s interpretation of those policies and guidelines.

Responding to Freshwater’s claims that the board violated his First Amendment academic freedom rights, the brief cites various court cases and concludes the board did not violate the First Amendment because Freshwater did not have Academic Freedom in his eighth-grade science classroom.

“The concept of academic freedom has not been extended beyond the post-secondary setting or to permit the propagation of one’s faith to a captive audience of middle school students,” it states. “In his merit brief, Freshwater admits he taught creationism and intelligent design in the classroom, but incorrectly claims he had the right to teach these topics. There can be no secular purpose for attacking the scientific theory of evolution with unscientific religious beliefs.”

With regard to Freshwater’s allegation his free speech rights were violated, the board counters with “Freshwater is not a private citizen when teaching science in a public school classroom. Like it or not, Freshwater takes on the mantle of the Board, and his teaching becomes ‘government speech.’ That speech may violate the Establishment Clause; when it does, and Freshwater refuses to stop the violation himself, the Board has every right to remove him from its classroom and cure the Constitutional violation.

“The Board’s approved curriculum requires its teachers to teach science and request permission to utilize other materials. ... Freshwater chose to teach and promote religious content in his class. Nowhere does board’s policy suggest that Freshwater had a right to teach whatever he pleased, particularly in a science classroom where he was mandated to present scientific data, not religious doctrine. ... Freshwater, in fact, acknowledged science uses the scientific method and, conversely, creationism is based on faith alone.”

Freshwater’s Merit Brief second proposition of law states: “The termination of a public school teacher’s employment based on the fact that his academic discussions with students and supplemental academic materials include ideas that are consistent with multiple major world religions manifests hostility toward religion in violation of the Establishment Clause.”

The board’s brief contends that it was Freshwater himself who violated the Establishment Clause [Congress shall make no laws respecting an establishment of religion]. “An objective observer would recognize that Freshwater’s decision to promote intelligent design and creationism in an eighth grade science class is an endorsement of religion.”

The board’s brief states, “The Board’s requirement for its science teachers not to teach unscientific religious beliefs and firing Freshwater for failing to meet the requirement does not violate the Establishment Clause.

“The Board’s conduct was not hostile to religion any more than the First Amendment itself is hostile to religion. Freshwater’s speech, whether through his own words in the classroom or by expression through the materials he chose to display there, was the school’s speech, and the Board was obligated by, not limited by, the Establishment Clause to correct it.

“Freshwater had no right to endorse religion in the Board’s eighth-grade science classroom, and had the Board permitted him to continue, it would have been shirking its responsibility under the Establishment Clause. For this reason, and all the foregoing law and argument, this Court should affirm the lower court decisions and uphold the Board’s decision to terminate Freshwater’s employment contract.”

The brief filed by the Dennises’ attorney echoes many of the opinions in the school board’s brief and bluntly states, “Just as he did during the 21-month-long administrative proceeding, the related federal court proceedings, and in the courts below, John Freshwater continues to spin a story comprised largely of falsehoods and distortions.”

The brief continues, in part:

•“Freshwater omits nearly all evidence of his unconstitutional conduct in his brief, and he distorts the scant evidence he does include in an effort to downplay its impropriety.”

•“Contrary to Freshwater’s claim that he ‘cannot fairly be said to have advanced or inhibited any particular religion’ in his public school science classroom ... the record is, in fact, replete with examples of Freshwater expressing his religious views and endorsing his religion during class time.”

•“In addition to direct biblical references, Freshwater unabashedly expressed his religious preferences in class-time discussions with students.”

•“Equally improper was Freshwater’s effort to introduce his religious views into the classroom by sending students to the "Answers in Genesis" website (www.answersingenesis.org) in conjunction with research on dinosaurs.”

The brief also raises concerns regarding Freshwater’s conduct as an advisor to the Fellowship of Christian Athletes, his improper use of what is called a Tesla coil in class and religious displays.

The brief concludes: “Given the overwhelming evidence of Freshwater teaching religion, displaying religious items in a public school, branding students with religious symbols, and repeatedly crossing the line as an FCA monitor, Freshwater cannot credibly argue that the lower courts erred in concluding that the School Board had good and just cause for terminating him. Accordingly, the lower court did not abuse its discretion in upholding the School Board’s decision to remove Freshwater from his teaching position.”