COLUMBUS — John Freshwater got another day in court Wednesday as his latest attempt to get reinstated as a Mount Vernon school teacher was presented in oral arguments before the Ohio Supreme Court.
In a session lasting about an hour, attorney Rita Dunaway of Charlottesville, Va., representing Freshwater, and David Smith of Cleveland, representing Mount Vernon City Schools, summarized the respective cases and answered questions from the justices.
The court did not issue a ruling. Chief Justice Maureen O’Connor simply said they would take the case under advisement and let the parties know when they reached a decision. There was no indication how long that might take.
Dunaway argued that Freshwater was a dedicated and capable teacher who was merely pointing out problems with evolutionary theory, not preaching creationism or intelligent design, and that he was not insubordinate. Smith painted him as crossing the line into pushing his views onto students and ignoring policies keeping religion separate from the science curriculum.
“The school board has broad discretion to control curricula,” Dunaway said in opening the session, “But the United States Supreme Court has made it clear that when a board uses its authority to suppress a particular set of ideas, the courts should step in.”
She said pointing out controversial issues in evolution was simply following the policy of encouraging discussion of controversial issues. She denied that Freshwater used instruction to advance religion.
She also argued that Freshwater complied with “all lawful directives” about removing religious material from his classroom.
The justices questioned the attorneys about a variety of subjects, including whether Freshwater’s actions raising questions about evolution was covered in the school policy manual, the actual reason for his firing, whether his 2003 request to include arguments for other theories of creation in the eighth-grade curriculum were an attempt to require teaching creationism, whether insubordination is sufficient cause for the board to terminate an employee, the limits of freedom of speech and academic freedom in a middle school setting and even whether Freshwater was overzealous in his role as sponsor of the Fellowship of Christian Athletes chapter at the school.
(Dunaway claimed many of the religious materials in the classroom were FCA material.)
More to the point may have been questions like the one from Justice William O’Neill asking Dunaway whether the board has the right to terminate a teacher for changing or ignoring the curriculum.
He also asked her, in noting that there are already 6,000 pages of testimony in the case, whether she was asking the court to “start all over.”
It is easy to read too much into the tone or subject of any one question. One question would sound critical of Dunaway’s or Smith’s arguments, the next from the same justice, would seem to offer support for the attorney’s arguments.
The only comment on the quality of anything in the case, came from Justice Paul Pfeifer, who described the referee’s report in the case as “superficial.”
Smith barely began his summation when he was interrupted by Pfeifer and quizzed about exactly when the board decided to fire Freshwater, pointing to a short time period between the investigator’s report and the board voting to terminate.
Smith seemed to lose his way briefly when questioned about limits to academic freedom or freedom of speech for teachers.
He described curriculum as “government speech,” or, speech the government has paid for.
He also explained that, although it was not the reason for Freshwater’s firing, it was the incident with the Tesla coil, in which a student’s arm was reportedly burned, that spurred the investigation of Freshwater.
He also said, in response to a question from Pfeifer about science teaching students to question things, that Freshwater had testified that he would teach creationism as a fact.
Near the end of the session, Justice O’Neill commented that this seemed to be a hybrid case: Constitutional as it relates to free speech and academic freedom, employment as it relates to the circumstances of Freshwater’s firing.
Mount Vernon Schools’ costs of the Supreme Court hearing are covered by the district’s insurance carrier, as were the costs of the other related court cases.
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