Freshwater: Board's Supreme Court Memorandum in Response

Posted 12 May 2012 by Richard B. Hoppe

As I posted earlier, in April John Freshwater filed a Notice of Appeal and a Memorandum in Support of Jurisdiction with the Ohio Supreme Court, asking that the Court consider an appeal of his termination. Now the Board's attorneys have filed a Memorandum in Response. Basically, the Board argues that the case as decided by the 5th District Court of Appeals is a narrow one, a "run of the mill termination case," concerned solely with whether the Knox County Court of Common Pleas abused its discretion in denying Freshwater's appeal of his termination. The Court of Appeals ruled that there was no abuse of discretion. The Memorandum in Response argues that Freshwater's appeal to the Supreme Court is no more than a ploy to convince the Supreme Court that it should "take another look at the facts"--in effect, to rehear the case. It argues that Freshwater is attempting to "transform this case into one about academic freedom and free speech," but no substantial constitutional question is raised by it. It says that Freshwater's invocation of academic freedom and free speech in his MIS is a "... desperate attempt to make this case appear as a matter of public or great general interest ... [and] ... has no basis in reality" (p. 11). The Memorandum in Response argues that had Freshwater been allowed to continue his behavior in the classroom, the Board of Education, in its failure to control Freshwater's behavior, would itself have been exposed to the risk of violating the Establishment Clause and resulting litigation. The next step is for the Supreme Court to decide whether it will hear the case or let the Appeals Court ruling stand. I have no idea how long that will take, but I'll try to find out what typical delays are.

21 Comments

Jedidiah · 12 May 2012

Truly, when compared to the past Literal Creationism cases, the Freshwater case seems rather inconsequential in its application to these issues.

Flint · 12 May 2012

Considering Freshwater's career prospects, this is sounding more and more like grist for a book, with the underlying theme of Christian Persecution by the Atheist Minority, or some such. If it's well written, emphasizes certain misinterpretations, omits relevant facts, maintains an appropriately loose relationshp with reality, and gets marketed in the right churches, it should be substantially successful.

One of those "based on a true story, and everything BUT the names have been changed, in order to protect the guilty" sorts of things. Might make entertaining reading.

DS · 13 May 2012

… has no basis in reality”

These are words that Freshwater should get used to hearing. MAybe some day he will get the message.

Gary_Hurd · 13 May 2012

I think this is nearly over, once and for all.

ahcuah · 13 May 2012

Usual delay is 3-4 months.

It is highly unlikely they will take this case.

Leszek · 13 May 2012

I don't think so Gary.

The actual 'incident' may be over but future versions of expelled and Gish gallops will cite this incident for years to come. The guys name may be forgotten, or confused with the whats-his-name from JPL or otherwise mangled beyond the already mangled version Freshwater spouts but cited none the less.

Having a big list of names means you can say 'OK' this ONE was over hyped but what about the other 300 examples of xtian persecution? They can't ALL be exaggerated? Can they?

Well that's my guess anyway.

Doc Bill · 13 May 2012

The idea of Freshwater writing a book is so laughable that LOL doesn't do it justice, nor does LMAO or ROTFL! The guy can't stitch two words together. Even with a ghostwriter the story is weak tea. However, that said, I would gladly "man up" to the challenge! Of course, I'd use poetic license to hype up the story. Gone would be the wimpy Tesla coil and in would be a red hot, glowing Branding Iron for Christ! The school board would be zombies and Freshwater would dispatch them all with his Powerpoint slides.

Yes, it would be grand!

Flint · 13 May 2012

Ah yes, but the question isn't whether it's a good book, the question is whether the target audience WANTS to believe whatever it says. Whether or not the Tesla coil is mentioned depends on how it can be spun. If they decide to spin it as an initiation to get Jesus into their hearts (or at least on their forearms), that might work. Otherwise, well, Team Freshwater seems to be strategically disappearing the branding incident anyway, in favor of atheistic censorship of God's Truth.

John_S · 13 May 2012

The Memorandum in Response argues that Freshwater’s appeal to the Supreme Court is no more than a ploy to convince the Supreme Court that it should “take another look at the facts”–in effect, to rehear the case.

As I said months ago - he's invoking the old "daddy said no, so ask mommy" defense.

harold · 14 May 2012

My guess is, he won't ever sell any significant number of books if he ultimately loses.

Post-modern fundamentalist Christians don't like or want to be martyrs. Martyrs are an element of "old economy" Christianity, in which empathy with those who suffer sometimes played a role.

Fundamentalists whine and squeal that they are persecuted in the most absurd, egocentric, and narcissistic way, but that's not patient, humble willingness to suffer for the faith, it's the exact opposite. Not only do they refuse to sacrifice for the faith, they demand privileges.

They don't like losers, they fantasize about dominating others. Expelled wasn't much of a hit. Other public school evolution denialists who failed aren't selling books. Kansas school board, Dover school board, defendants from Edwards, etc, do you see them on the lecture circuit?

The way to be a professional, money-making creationist fraud is to get a degree, either a diploma mill divinity degree, or, if you want to do it the hard way, an actual law, graduate, or professional degree, and then (or during your degree, if you can swing it) begin attacking evolution in any venue you can - student newspapers, youtube, editorials submitted to local papers at first, perhaps. Keep the politics consistent, and eventually, you'll be noticed by the Wingnut Welfare system and get a do-nothing six figure job at a "think tank", fundamentalist college, or the like.

Money-making creationists are seldom in court except as either "expert witnesses", or in tax fraud cases.

This could be an exception, but the track record for using failed attempts at putting creationism into public school science classes as a springboard to making money as a creationist is terrible.

eric · 14 May 2012

As far as I can tell, he did the same thing/made the same mistake in his earlier appeal. I'm not surprised Hamilton did this. But I'm surprised the Rutherford Institute didn't offer, uh, 'constructive criticism' to help them prepare a better appeal to the Ohio Supremes. Ah well, there is no reason to wish for competency in one's legal opponents. :)

Al Denelsbeck · 14 May 2012

Flint said: Considering Freshwater's career prospects, this is sounding more and more like grist for a book,...

It would almost certainly have to be an e-book - that's the only way he could actually have the story change every time you come back to it...

Kevin B · 14 May 2012

Al Denelsbeck said:
Flint said: Considering Freshwater's career prospects, this is sounding more and more like grist for a book,...
It would almost certainly have to be an e-book - that's the only way he could actually have the story change every time you come back to it...

It could be one of those "Adventure books" where you get to choose which of a list of pages you go to next.

The judge has ordered your lawyer to hand over the records of time spent on your case. Unfortunately he hasn't kept the records up-to-date (even though it's an official obligation.) Does he: 1. Admit that he's in the wrong. (goto page 39) 2. Make up something. (goto page 92) 3. Put his laptop in the washing machine. (goto page 17)

Of course, all the possible routes will end up on the same page, with the judge ruling for the other side.

Richard B. Hoppe · 14 May 2012

eric said: As far as I can tell, he did the same thing/made the same mistake in his earlier appeal. I'm not surprised Hamilton did this. But I'm surprised the Rutherford Institute didn't offer, uh, 'constructive criticism' to help them prepare a better appeal to the Ohio Supremes. Ah well, there is no reason to wish for competency in one's legal opponents. :)

The Rutherford Institute got involved just after the Knox County Court of Common Pleas rejected Freshwater's appeal. Its influence is very clear in the brief filed with the 5th District Court of Appeals and in the Memorandum in Support of Jurisdiction filed with the Ohio Supreme Court. The summary brief Hamilton submitted to the referee of the administrative hearing wanders on for 166 pages, making one shaky argument after another, proposing conspiracy theories, denying charges, and generally embodying an incoherent mass of prose. In contrast, the documents submitted to the appeals court and Supreme Court are much more succinct and the prose style is clearly not Hamilton's. Further, the appeals court document and the MIS to the Supreme Court make two new arguments, not contained in Hamilton's hearing brief. First, they argue that Freshwater was only teaching "alternative academic theories," and second that he had the academic freedom, claimed to be a subset of freedom of speech, to do so. Neither of those arguments appear in Hamilton's hearing summary brief. In fact, in that summary brief and in sworn testimony by Freshwater in the hearing, it was denied that Freshwater taught creationism or intelligent design. So not only do the documents addressed to the appeals court and Supreme Court make a new claim, constructed in association with the Rutherford Institute, it is a claim that Freshwater specifically denied in an earlier hearing document and in his sworn testimony.

https://me.yahoo.com/a/wa_quONyj_etXgzF5RKlw5kh3SatY99p#b9ae9 · 14 May 2012

There was an earlier conspiracy theory put forth by Coach Dave, Freshwater's friend and advisor (until Coach got the gag order from Freshwater's attorney). During his embarrassing interview with Geraldo, Coach Dave claimed that in 2003 Freshwater appealed to the school admin. to allow him to teach the controversy. Freshwater "made the wrong people mad" and those people had been "waiting in the weeds" for five years for their chance to strike back at Freshwater according to Coach Dave.
http://www.youtube.com/watch?v=yn4USVRMAAc

Doc Bill · 14 May 2012

This "academic freedom" thing keeps coming up. I didn't think K-12 teachers had academic freedom. Sure, they have some leeway in how they present material, creatively, not creationistly, but not academic freedom as it pertains to college professors. But, K-12 teachers must present the standards, not their own stuff.

Comments from teachers and others?

eric · 15 May 2012

Doc Bill said: This "academic freedom" thing keeps coming up. I didn't think K-12 teachers had academic freedom. Sure, they have some leeway in how they present material, creatively, not creationistly, but not academic freedom as it pertains to college professors. But, K-12 teachers must present the standards, not their own stuff. Comments from teachers and others?

I'm an 'other,' but that sounds about right. My understanding is that 'academic freedom' is really about the freedom for professors to do research without ideological constraints. It applies to university teaching in a more limited fashion, and to secondary education even less or not at all. AFAIK, even universities will put constraints on what a professor can teach. A professor teaching Chem 101 would likely get in just as much trouble as a HS chemistry teacher for spending the entire semester watching Real Genius (to use an extreme example). They are expected to teach standard course materials in standard courses. A Uni professor may have more leeway than a HS teacher to spend an extra week or two on their pet subject, but if they want to go completely 'off book,' they are expected to do that with an elective class, not a core/standard one.

Richard B. Hoppe · 15 May 2012

Al wins the thread!

Al Denelsbeck said:
Flint said: Considering Freshwater's career prospects, this is sounding more and more like grist for a book,...
It would almost certainly have to be an e-book - that's the only way he could actually have the story change every time you come back to it...

Dave Luckett · 15 May 2012

Do not disparage ebooks. Ebooks might yet be the saving of what I refer to as "my career", and snigger.

Flint · 16 May 2012

It would almost certainly have to be an e-book - that's the only way he could actually have the story change every time you come back to it...

This is a good point. Maybe the lecture circuit, where (like Gish) he could sing a different hymn every week.

marion.delgado · 19 May 2012

If it had been me and not Richard in the courtroom all this time? I'd be coughing and saying HERE! and PRESENT! all the time by now. Probably whenever Freshwater or HAmilton said anything.