Freshwater: His Reply Brief

Posted 24 October 2012 by Richard B. Hoppe

As those who follow the Freshwater affair know, John Freshwater appealed his termination as an 8th grade science teacher to the Ohio Supreme Court, filing a Memorandum in Support of Jurisdiction that induced the Court to accept his appeal, then a Merit Brief which laid out his argument for overturning the termination decision and which, not incidentally, made a different argument than that made in the Memorandum in Support; in effect, Freshwater pulled a bait and switch on the Court. The Board of Education filed a Memorandum in Response to Freshwater's Merit Brief, and Freshwater has now filed a reply. I'll describe some salient features of his reply below the fold. One preliminary remark: Freshwater's reply brief nowhere mentions his bait and switch--the change in Propositions of Law between his Memorandum in Support of Jurisdiction and his Merit Brief. The Board's Merit Brief called attention to that shift, but Freshwater's reply ignores it. The Board also moved to strike the Propositions of Law of Freshwater's Merit Brief that were not previously contained in the Memorandum in Support of Jurisdiction. No action has yet been taken by the Court on that motion. In his reply Freshwater makes several arguments. I'll summarize those that are most interest to me, and refer you to the document itself for more. The core claims of Freshwater's argument are encapsulated here:

The Board has gone beyond its legitimate curriculum choices and enforcement of duly-enacted policies to systematically eliminate a single line of inquiry-that which challenges evolution theory. Along the way it has also undertaken an unlawful effort to sterilize the classroom of any acknowledgement of religion, having identified religion as the putative basis for the academic theories that challenge its orthodoxy. Under these circumstances at least, the Court should apply the First Amendment as a shield to protect Freshwater from the Board's fervor to indoctrinate students in evolution and to banish competing ideas from the classroom. (p. 8-9)

Ugh. So much trash in so few words. Freshwater's first specific claim is that his case is unique, that prior jurisprudence associated with the creationism/evolution issue (e.g., McLean, Edwards v. Aguillard , and so on) and prior jurisprudence regarding the free speech rights (or lack thereof) of public school teachers is irrelevant.

Freshwater does not claim a generalized First Amendment right to free speech in the classroom or to determine classroom curriculum. Rather, he seeks a modicum of protection pursuant to academic freedom and free speech principles under the First Amendment where his teaching methods and speech were consistent with Board policy but singled out for viewpoint based censorship. This is a case of first impression, and no known precedent provides a useful framework for its analysis. (p. 1)

And a bit later:

Freshwater claims only that First Amendment free speech and academic freedom principles protect him from termination flowing from viewpoint-based censorship where he has complied with all Board policies and all clear directives from his superiors. The analysis applied in Evans-Marshall and other "teacher speech" cases do not, therefore, provide a useful framework for this case. (p. 3)

In a John Scalzi novel, The Android's Dream, a case is won by appealing to the judge's vanity by claiming that the case enables the judge to make new law. I see hints of that tactic here. Freshwater's argument revolves around the notion of "viewpoint discrimination," and depends on the premise, unstated until later in the brief, that what Freshwater was teaching by way of intelligent design and creation science was purely secular and is only coincidentally consistent with three world religions:

On this record, where Freshwater did nothing more than facilitate discussion and consideration of elements of the alternative theories to evolution (which happen to be consistent with several major world religions) as part of a secular examination of the weaknesses of evolution theory, it defies logic to argue that he violated Policy 2270. (p. 10-11; italics original)

The Board's action, on this argument, discriminates against what the brief holds to be nothing more than alternative secular scientific views--intelligent design and creation science--which are only tangentially related to religion:

In this application, however, the Board itself violated the Policy by expressing intolerance for any idea that is tangentially related to religion and disposing of the idea and the one who expresses it as inherently inappropriate for the classroom.

In other words, the Board illegitimately fired Freshwater just because he taught legitimate secular scientific alternatives to evolution that happen to be distantly related to (some sects of) Judaism, Christianity, and Islam, and that's impermissible viewpoint discrimination. The First Amendment's Free Speech clause, or a subset thereof, 'academic freedom,' should be construed to protect Freshwater's (science classroom) speech in this respect. This argument ignores both the judicial record concerning creationism and intelligent design, and expert testimony given during the administrative hearing on Freshwater's termination, where Patricia Princehouse analyzed handouts and a video used by Freshwater, and traced the history of creationism up through intelligent design. Freshwater's argument requires accepting the false proposition that creation science and/or intelligent design are secular scientific alternatives to evolutionary theory. I am reminded of plaintiff Fred Callahan's testimony in Kitzmiller:

We're said to be intolerant of other views. Well, what am I supposed to tolerate? A small encroachment on my First Amendment rights? Well, I'm not going to. I think this is clear what these people have done. And it outrages me.

Me, too. Though I have to confess: I practice viewpoint discrimination. I discriminate against the views that the earth is flat, that the sun goes 'round the earth, and that Celine Dion is a good singer. :) There's a fair amount of text that argues that the narrow protection Freshwater claims to seek is not covered in preceding cases. I'm not qualified to evaluate that argument, but it seems to be fishy on the face of it. The brief argues that Kitzmiller is not applicable here because it addressed a curricular requirement of a Board of Education, while Freshwater's case involves a teacher:

The U.S. Supreme Court's precedents addressing laws mandating certain treatments of origins of life theories are useful in understanding its perspective on academic freedom, but do not provide a useful framework for analyzing this case, where no general Board mandate is at issue. Kitzmiller v. Dover, a federal district court opinion relied upon heavily by the Board, is inapposite for both factual and analytical reasons; it involved a challenge to a school district policy that compelled teachers to make statements about intelligent design. 400 F.Supp.2d 707 (M.D. Pa. 2005). McLean v. Arkansas Board of Education is likewise unhelpful for the same reason. 529 F. Supp. 1255 (E.D. Ark. 1982). The Board has never officially prohibited classroom discussion of intelligent design, and Freshwater has not challenged its mandate of evolution curriculum. (p. 5-6)

In fact, of course, the District Science Curriculum Committee and the Board of Education both rejected Freshwater's proposal to teach intelligent design in 2003. (I should also note that the Board has never officially prohibited classroom discussion--as legitimate competing academic theories--of phlogiston theory, N-Rays, astrology, alchemy, homeopathy, and the bad air theory of disease causation. Freshwater's reply ignores the salient findings of McLean, Edwards v. Aguillard, and Kitzmiller that are in fact directly relevant to Freshwater's behavior. Those findings are that creation science and its lineal descendant intelligent design are inherently religious notions; they are not secular scientific alternatives, as Freshwater's argument would have us believe. In all three cases, expert testimony, including that of Barbara Forrest in Kitzmiller, established that the teaching of both creation science and its intellectual offspring intelligent design (here in its Discovery Institute guise of "helping students to understand the strengths and weaknesses of aspects of evolution theory" (p. 10)) is in itself unconstitutional. The issue is not whether the Board did or did not require it, it is that Freshwater himself chose to introduce constitutionally impermissible material in his 8th grade science classes. As the Board argued in its merit brief, Freshwater's behavior, acting in his role as an agent of the Board, put the Board itself in legal jeopardy, and the Board has the right and obligation to ensure that it is protected from that jeopardy. Since Freshwater's behavior was persistent over the years, and since the Board, both itself in 2003 and via administrators subsequently, had given Freshwater clear indications of his problematic behavior, termination was the final step in the Board's effort to stop the unconstitutional behavior. There's more in the document. The last part of it is devoted to arguing that the Board's action in terminating Freshwater fails all three of the prongs of the Lemon test. Again, I'm not competent to evaluate that, though some of the claims of fact in the section are dubious. For example, the document says

Recall that Freshwater was not terminated for having a classroom "full of religious items" but rather for failing to understand the administration's alleged desire for him to remove a few items from his room that were permitted elsewhere in the school.

That ignores the fact, established in testimony in the administrative hearing, that subsequent to the instruction to remove the religious display from his room he added two religious books, "Jesus of Nazareth" and a Bible, to his lab table in the front of the room. I still see Freshwater's argument to the Ohio Supreme Court as being mainly an attempt to induce the Court to accept the premise that creation science and intelligent design are legitimate secular scientific theories, and that their congruence with sectarian religious views is purely incidental. If the Court accepts that premise the public schools are in (more) trouble, kids. That's all my commentary on the document. I commend it to readers' attention for more.

52 Comments

https://me.yahoo.com/a/JxVN0eQFqtmgoY7wC1cZM44ET_iAanxHQmLgYgX_Zhn8#57cad · 24 October 2012

Rather, he seeks a modicum of protection pursuant to academic freedom and free speech principles under the First Amendment where his teaching methods and speech were consistent with Board policy but singled out for viewpoint based censorship.

Oh no, censorship of state-sponsored BS. In fact, not even just the striking of just any state-sponsored BS, disallowing state-sponsored religious BS. When creationists are willing pay for Hindu creationist myths to be taught instead of science and its methods in the science classroom, I'll finally believe that they're sincere about "viewpoint discrimination," or whatever term they're bandying about at the time. Still authoritarians wanting religious views taught as if it were science, but at least trying to be consistent. Glen Davidson

eric · 24 October 2012

In a John Scalzi novel, The Android’s Dream, a case is won by appealing to the judge’s vanity by claiming that the case enables the judge to make new law. I see hints of that tactic here.

I forsee a big problem. First you need to find a judge who would actually think, "hey, this Freshwater case is so solid that its the one I want to hang my history/reputation as a jurist on."

Piotr Gąsiorowski · 25 October 2012

...the alternative theories to evolution (which happen to be consistent with several major world religions)...

Is he being auto-ironic, or has the verb "to happen" acquired a new meaning?

robert van bakel · 25 October 2012

'alternative theories to evolution "which happen to be consistant with several major world religions"'. Isn't this the proverbial 'smoking...'? He uses as justification for Freshies teachings, the fact that several religions like them!? Isn't that the whole point; 'we don't care if religions like them, actually the fact that 'several' religions do like these teachings is the salient reason as to why we have a problem; you berk!

Dave Luckett · 25 October 2012

Piotr Gąsiorowski said:
...the alternative theories to evolution (which happen to be consistent with several major world religions)...
Is he being auto-ironic, or has the verb "to happen" acquired a new meaning?

It's a weird English metaphorical usage. The verb "to happen" usually means "to occur, to take place". However it implies a spontaneous or chance event, rather than a designed or intended one. From this, to say that something "happens to be thus" is ironically to imply that the relationship is mere chance, when it is in fact not chance at all. In the example, the reply brief ironically intimates that Freshwater's enthusiasm for "alternative theories to evolution" has only a chance relationship to (his) religion. Being irony, this actually means the exact reverse: that Freshwater's advocacy for these "alternative theories" has nothing to do with their scientific merit, and everything to do his fundamentalist Christianity.

Piotr Gąsiorowski · 25 October 2012

In the example, the reply brief ironically intimates that Freshwater's enthusiasm for "alternative theories to evolution" has only a chance relationship to (his) religion. Being irony, this actually means the exact reverse: that Freshwater's advocacy for these "alternative theories" has nothing to do with their scientific merit, and everything to do his fundamentalist Christianity.

Dave, I know how to use to happen, whether literally ('occur by chance') or ironically ('by chance, my ass!'). My point is that, coming from Freshwater's lawyer, this is a beautiful example of unintentional self-irony.

TomS · 25 October 2012

Do I get the right impression, that Freshwater is asking the court to rule whether anti-evolutionism is religious?

If the court wants to comply with that, wouldn't they have to send the case back to a lower court for hearings on that?

EJH · 25 October 2012

I agree with Tom. I haven't read the entire brief, but it sure seems like Freshwater's team is placing all its money on the Ohio Supreme Court going against precedent and ruling that ID is not religion -- it just happens to fit with the (gist of) Genesis. This more than anything has me thinking that Freshwater's lawyers think they see something in the OH high court justices. (The more sinister thought would be that they actually know something, but I'm not ready to go there.)

OgreMk5 · 25 October 2012

Not being a lawyer, judge, or even greatly familiar with the case, I'll just offer two thoughts.

1) To make this a First Amendment case, the judge would have to go against two well established precedents. The first is that public school teachers actually can't teach whatever they want (i.e. they don't have academic freedom). The second is that ID isn't religion. If either of those two points is true (and they both are), then Freshwater doesn't have anything in this case.

2) The second point is that the First Amendment doesnt' mean what these guys seem to think (or hope) that it means. Freshwater also doesn't seem to understand what his job actually was and who was responsible for making sure his job was done correctly. Of course, I've run into that a lot with the highly religious. It doesn't matter what the rules are, what the law says, etc because I know that God is right and I'm going to spread the word to my subordinates in spite of the law.

That a $4.50 will get you a cup of coffee.

apokryltaros · 25 October 2012

The Board has gone beyond its legitimate curriculum choices and enforcement of duly-enacted policies to systematically eliminate a single line of inquiry-that which challenges evolution theory. Along the way it has also undertaken an unlawful effort to sterilize the classroom of any acknowledgement of religion, having identified religion as the putative basis for the academic theories that challenge its orthodoxy. Under these circumstances at least, the Court should apply the First Amendment as a shield to protect Freshwater from the Board’s fervor to indoctrinate students in evolution and to banish competing ideas from the classroom. (p. 8-9)

So, wait, is Freshwater actually saying that he's upset/contesting the school board's decision that he was fired for prosletyzing Young Earth Creationism and not teaching science in a science classroom? Or, in other words, Freshwater doesn't want to be fired for having refused to do the job he was contractually obligated to do because he refused to do it For Jesus?

Charley Horse · 25 October 2012

Freshwater was hired to teach science.
Freshwater was allowed to teach from approved text books and other approved materials.
Freshwater knew that Genesis was not approved as a teaching aid.
Freshwater used Genesis to proselytize to his students instead of doing what he was paid to do.
Simply put, Freshwater was fired for not doing what he was paid to do.

All of the above was proven during the hearings and finally admitted to by the 'liar for Jesus' Freshwater.

So it makes no sense that this court would waste more taxpayer's money on this. Unless they
want to do exactly what Freshwater did...agree to do one thing and once on the payroll refuse to
do what they were being paid to do. Instead decide in Freshwater's favor based on their religious
beliefs or thinking they may not get reelected if they don't decide in Freshwater's favor.

https://me.yahoo.com/a/XRnHyQl8usUn8ykD1Rji0ZXHNe.9lqmg3Dm7ul96NW4vxpbU3c_GLu.k#d404b · 25 October 2012

apokryltaros said:
The Board has gone beyond its legitimate curriculum choices and enforcement of duly-enacted policies to systematically eliminate a single line of inquiry-that which challenges evolution theory. Along the way it has also undertaken an unlawful effort to sterilize the classroom of any acknowledgement of religion, having identified religion as the putative basis for the academic theories that challenge its orthodoxy. Under these circumstances at least, the Court should apply the First Amendment as a shield to protect Freshwater from the Board’s fervor to indoctrinate students in evolution and to banish competing ideas from the classroom. (p. 8-9)
So, wait, is Freshwater actually saying that he's upset/contesting the school board's decision that he was fired for prosletyzing Young Earth Creationism and not teaching science in a science classroom? Or, in other words, Freshwater doesn't want to be fired for having refused to do the job he was contractually obligated to do because he refused to do it For Jesus?

don't forget he was ALSO fired for: 1) child abuse- burning children w/ a 'tesla coil' (this alone is cause enough - also why isn't he in jail?) 2) insubordination - refusing to remove religious displays from his classroom 3) inappropriate behavior at the christian extra-curricular club I wonder if any of the above will come up if this ever goes to open hearings/trial? - as the above are all in the public record from the previous hearings/law suits also Freshwater BRAGGED about 2 (written, radio interviews, and video records exist) Jasonmitchell

johnpdeever · 25 October 2012

Richard, I just want to say that Celine Dion is one of the greatest singers ever to come along since Noah stepped off the ark.

Just Bob · 25 October 2012

johnpdeever said: Richard, I just want to say that Celine Dion is one of the greatest singers ever to come along since Noah stepped off the ark.

You're wrong, and going to Hell.

CJColucci · 25 October 2012

OgreMk5
I am a lawyer, and have been following the case, and you said approximately what I was going to say, through probably with less verbiage.
Even leaving aside the obvious lie that he was teaching secular alternative science, would he be allowed to teach the phlogiston theory (other than as a historical illustration) in chemistry class as an alternative theory of chemistry?

Kevin B · 25 October 2012

johnpdeever said: Richard, I just want to say that Celine Dion is one of the greatest singers ever to come along since Noah stepped off the ark.

This statement is invalid without knowledge of your stance on Biblical literalism. May I simply decline to believe that Noah existed unless you can produce his birth certificate? If it comes to that, can we start a campaign to get Freshwater to produce his birth certificate?

Richard B. Hoppe · 25 October 2012

don't forget he was ALSO fired for: 1) child abuse- burning children w/ a 'tesla coil' (this alone is cause enough - also why isn't he in jail?) Jasonmitchell

Actually, the Tesla coil incident, while it precipitated the inquiries that led to the termination of Freshwater's teaching contract, did not form part of the reasons for that termination. See here for the Board's resolution.

eric · 25 October 2012

CJColucci said: Even leaving aside the obvious lie that he was teaching secular alternative science, would he be allowed to teach the phlogiston theory (other than as a historical illustration) in chemistry class as an alternative theory of chemistry?

IANAL but AIUI.... Teaching phlogiston theory would not run up against the religious clause of the first amendment. We'd have to find tools other than that part of the constitution to fight against nonreligious, crappy science.

Apokryltaros: So, wait, is Freshwater actually saying that he’s upset/contesting the school board’s decision that he was fired for prosletyzing Young Earth Creationism and not teaching science in a science classroom?

He seems to be trying to invoke the speech clause of the first rather than the religious clause. So no, his invoking the first doesn't automatically imply that he sees the material as religious. As RBH points out, Freshwater is now claiming that the material he was teaching was never expressly forbidden. That he complied with all administrative teaching directives. His free speech case seems to based on the assertion that he followed the state's guidance on curriculum, and that he got unfairly fired for speaking things his boss didn't like while staying within the guidance. Hypothetically, I can see that. You don't want administrations firing teachers just because of their accent or teaching style or what have you. Freshwater's problem is that he didn't follow the guidance: the administration specifically considered his proposed lessons in 2003 and told him not to use them. AFAIK this was discussed in the original case so it should be part of the record. An objective judge should quickly be able to see that this key assertion ("I followed the guidance") on which Freshwater's claim rests is just factually wrong.

DS · 25 October 2012

Exactly. The facts in this case have already been determined. You don't get another trial based on the facts. The appeal is supposed to be about procedural issues. You don't get to argue if you are guilty or not any more, just if they caught you fair and square. Perhaps a lawyer can say it more eloquently, but why would the Supreme Court let him argue the facts in the case again? Are these guys just looking for an excuse to go to the US Supreme Court? They can't win if that's what they are after. Not at this point anyway.

https://me.yahoo.com/a/XRnHyQl8usUn8ykD1Rji0ZXHNe.9lqmg3Dm7ul96NW4vxpbU3c_GLu.k#d404b · 25 October 2012

Richard B. Hoppe said:
don't forget he was ALSO fired for: 1) child abuse- burning children w/ a 'tesla coil' (this alone is cause enough - also why isn't he in jail?) Jasonmitchell
Actually, the Tesla coil incident, while it precipitated the inquiries that led to the termination of Freshwater's teaching contract, did not form part of the reasons for that termination. See here for the Board's resolution.

I stand corrected - (but I still thinkl he belongs in jail)

cepetit.myopenid.com · 25 October 2012

Actually, there's other binding precedent, directly on point (and, naturally, ignored by Freshwater et al.), that directly refutes his "all the precedent is about official policy, not about individual implementation of policy" meme. And, ironically enough in a dispute concerned most directly with science in the classroom, it's about football. In Santa Fe Ind. Sch. Dist. v. Doe, 530 US 290 (2000), the Court noted:

In this case the District first argues that this principle is inapplicable to its October policy because the messages are private student speech, not public speech. It reminds us that "there is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect." We certainly agree with that distinction, but we are not persuaded that the pregame invocations should be regarded as "private speech." These invocations are authorized by a government policy and take place on government property at governmentsponsored school-related events. Of course, not every message delivered under such circumstances is the government's own. We have held, for example, that an individual's contribution to a government-created forum was not government speech. Although the District relies heavily on Rosenberger and similar cases involving such forums, it is clear that the pregame ceremony is not the type of forum discussed in those cases. The Santa Fe school officials simply do not "evince either 'by policy or by practice,' any intent to open the [pregame ceremony] to 'indiscriminate use,' . . . by the student body generally." Rather, the school allows only one student, the same student for the entire season, to give the invocation. The statement or invocation, moreover, is subject to particular regulations that confine the content and topic of the student's message. By comparison, in Perry we rejected a claim that the school had created a limited public forum in its school mail system despite the fact that it had allowed far more speakers to address a much broader range of topics than the policy at issue here. As we concluded in Perry, "selective access does not transform government property into a public forum." Granting only one student access to the stage at a time does not, of course, necessarily preclude a finding that a school has created a limited public forum. Here, however, Santa Fe's student election system ensures that only those messages deemed "appropriate" under the District's policy may be delivered. That is, the majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced.

Id. at 302-04 (internal citations and footnotes omitted). In this matter, this will require Freshwater to show how his contracted right to speak as a school employee is different from a permissive-policy-driven right to speak as the winner of a student election. Doe wasn't about the substance of the policy, either; if one reads the rest of the opinion, it becomes apparent that it was about parental and religious-leader pressure on the elected student speakers (and those doing the election), not about the message... even if the judges from the Supreme Court on down to the District Court were all too polite (or timid) to say so. Further, Freshwater is far more like -- and, in fact, incontrovertibly is -- a government employee speaking in a forum that isn't even a limited-purpose public forum than he is a student giving a purportedly "nonproselytizing, nonsectarian" prayer at the start of a football game. Even granting some resemblance to the latter, though, does not help Freshwater: In this instance, he can't even claim that he's the "minority candidate" whose views "will be effectively silenced"... because he's in the position of the student who won the election by virtue of having "won" a contract from the school board to teach in that classroom. The irony that the Supreme Court's rejection of prayer to start a football game represents a closer-to-a-hard-case circumstance than Freshwater's misuse of his status as a government employee in a science classroom is really disturbing food for thought. And, as a final aside, Freshwater's attorneys should really reconsider their ethical duty to bring adverse controlling authority to the Court's attention... because they didn't, in either the merits or the reply briefs. And I don't mean just Santa Fe, either.

EJH · 25 October 2012

Crap. None of this makes any sense to me. Could somebody please explain to me why our Ohio Supreme Court agreed to hear this case!?!?

The comments here are insightful and mind-numbing at the same time. (Except for the Celine Dion comments. Those are just mind-numbing.) If our justices aren't reading these posts, I hope the boards lawyers are. Maybe the Thumb could submit a transcript as an amicus brief against Freshwater.

harold · 25 October 2012

That a $4.50 will get you a cup of coffee.

That and a court packed with sociopathically cynical ideologues willing to say or do anything to pander to an obedient group of delusional supporters, in order to further their own power and harm those they resent, will get you an authoritarian theocracy. I hope it doesn't happen here. It's happened elsewhere, plenty of times. The US has a bimodal population of judges. There are those, like Judge Jones, who will respect rule of law and precedent regardless of transient political advantage. And then there are those, like Justice Scalia, who will say anything to permit any policy that fits their biases. Right now there's a bit of a race going on between politicians who are cynical and corrupt, but not quite cynical and corrupt enough to routinely appoint the bad kind of judges, versus politicians who are more cynical and corrupt, and will appoint the bad kind of judges. It's worth noting that George W. Bush appointed Judge Jones, but also worth noting that he probably didn't know anything about him and didn't expect anything to happen in deep rural Pennsylvania.

TomS · 26 October 2012

DS said: Exactly. The facts in this case have already been determined. You don't get another trial based on the facts. The appeal is supposed to be about procedural issues. You don't get to argue if you are guilty or not any more, just if they caught you fair and square. Perhaps a lawyer can say it more eloquently, but why would the Supreme Court let him argue the facts in the case again? Are these guys just looking for an excuse to go to the US Supreme Court? They can't win if that's what they are after. Not at this point anyway.

This is a point that puzzled me. If Freshwater is going to argue in appeal about an issue that was not raised in the trial court, how can the appeal court decide? Wouldn't the judges have to have testimony about that issue in order to make an informed decision? AIUI, an appeals court, as distinguished from a trial court, does not hear new testimony about the issues in the case. So, if Freshwater is bringing up the issue of whether ID is religious, wouldn't that require testimony from expert witnesses?

W. H. Heydt · 26 October 2012

TomS said:
DS said: Exactly. The facts in this case have already been determined. You don't get another trial based on the facts. The appeal is supposed to be about procedural issues. You don't get to argue if you are guilty or not any more, just if they caught you fair and square. Perhaps a lawyer can say it more eloquently, but why would the Supreme Court let him argue the facts in the case again? Are these guys just looking for an excuse to go to the US Supreme Court? They can't win if that's what they are after. Not at this point anyway.
This is a point that puzzled me. If Freshwater is going to argue in appeal about an issue that was not raised in the trial court, how can the appeal court decide? Wouldn't the judges have to have testimony about that issue in order to make an informed decision? AIUI, an appeals court, as distinguished from a trial court, does not hear new testimony about the issues in the case. So, if Freshwater is bringing up the issue of whether ID is religious, wouldn't that require testimony from expert witnesses?

AIUI...if the appeals court determined that more factual work needed to be done, they'd remand the case back to a trial court.

Gary_Hurd · 26 October 2012

Thanks again RBH.

cepetit.myopenid.com · 26 October 2012

In American law -- and particularly in the state courts of most of the older states, specifically including Ohio -- there's a huge distinction between "judicial factfinding" and "legislative factfinding." With very rare exceptions not present in this matter (not even in the same county), courts of appeals will not engage in judicial factfinding. They will look at legislative factfinding, such as determining whether there was a rational basis (or whatever the standard of review is) for establishing a policy; a good recent example is the respective opinions striking down DOMA from the United States Courts of Appeal for the First and Second Circuits, in which they found that the law itself failed the appropriate level of review and was merely invidious, unconstitutional discrimination. But a court of appeals will not engage in new factfinding on application of policy to an individual. It might reinterpret the evidence that was in front of the trial court... but it won't call new witnesses of any kind, not even expert witnesses on an agreed record.

CJColucci · 26 October 2012

eric:

My question was rhetorical, and perhaps not clear. You are right that school authorities could decide to teach the phlogiston theory of chemistry without any constitutional obstacle, but when the school authorities decide not to teach the phlogiston theory, the teacher has no right to teach it himself. That is essentially Freshwater's problem even if one believed his story that that he was teaching secular, alternative science.

OgreMk5 · 26 October 2012

cepetit.myopenid.com said: In American law -- and particularly in the state courts of most of the older states, specifically including Ohio -- there's a huge distinction between "judicial factfinding" and "legislative factfinding." With very rare exceptions not present in this matter (not even in the same county), courts of appeals will not engage in judicial factfinding. They will look at legislative factfinding, such as determining whether there was a rational basis (or whatever the standard of review is) for establishing a policy; a good recent example is the respective opinions striking down DOMA from the United States Courts of Appeal for the First and Second Circuits, in which they found that the law itself failed the appropriate level of review and was merely invidious, unconstitutional discrimination. But a court of appeals will not engage in new factfinding on application of policy to an individual. It might reinterpret the evidence that was in front of the trial court... but it won't call new witnesses of any kind, not even expert witnesses on an agreed record.

Can/Will/Should the appeals court review prior decisions in making theirs? Basically, would the appeals court look at Kitzmiller and the various rulings that show a teacher doesn't have free speech when teaching?

Robin · 26 October 2012

Great work per usual Richard!

You know, I have to admit, I'm curious now how this suit would have played out if Freshwater had tried the argument per above from the get go. I really would have liked to see what the court's take on view point discrimination and alternatives to evolution would have been. While IANAL, I suspect that once the Ohio Supreme Court reads this and digests it along with the actual record of the case, they will have little choice but to say, "Yo Mr. F - this isn't what the lower courts ruled on so it's a bit difficult for us to rule on this as an "appeal" as it appears you aren't actually appealing anything. In fact, given our reading, you are offering a completely different case, but due to rules of appeal, we can't engage in a new trial or rule on factors that were not in evidence previously. Thus, we have no choice but to say "bah-bye"! Seriously. What other option could the OSC take give the rules of appeal?

eric · 26 October 2012

CJColucci said: when the school authorities decide not to teach the phlogiston theory, the teacher has no right to teach it himself. That is essentially Freshwater's problem even if one believed his story that that he was teaching secular, alternative science.

I mostly agree with you. I had several teachers who finished the curriculum early and taught additional material with the extra week or two, however, and obviously we want to allow that and not make it illegal. So the question is, how to separate the (science) teachers who finish the curriculum and go on to teach some initial organic chemistry from the ones who go on to teach phlogiston theory or other crappy science. You don't want to make an ironclad rule that only the curriculum may be taught. If you do that, you are essentially preventing additional learning. I think there are three good strategies one can use to allow the 'good extra-curricular teaching' while still ruling out the bad. Unfortunately, only one of them is going to apply to FReshwater because trying to apply the other two would run into ex post facto issues - if the rule wasn't in place before, you can't punish him for breaking it. The one strategy that applies is obviously: if the school tells you to stop teaching some extra-curricular material, you must stop. Freshwater's ID material was rejected. Not just unreviewed, but reviewed and actively rejected. Freshwater taught it anyway. The other two would be: if you plan to teach extra stuff, you have to run it by the administration first. And: if you plan to teach extra stuff, it must be part of the future curriculum (i.e., material from the next semester or next year), and so already approved for students.

Carl Drews · 26 October 2012

eric said:

The other two would be: [2] if you plan to teach extra stuff, you have to run it by the administration first. And: [3] if you plan to teach extra stuff, it must be part of the future curriculum (i.e., material from the next semester or next year), and so already approved for students.

I don't see the need for [3]. The teacher already has approval via [2]. And [3] would prevent a teacher from taking the spare week to teach about the Mars Curiosity rover, which would be really cool to learn about!

W. H. Heydt · 26 October 2012

Robin said: Great work per usual Richard!

Seconded.

In fact, given our reading, you are offering a completely different case, but due to rules of appeal, we can't engage in a new trial or rule on factors that were not in evidence previously. Thus, we have no choice but to say "bah-bye"! Seriously. What other option could the OSC take give the rules of appeal?

As I understand it...they *could* tell the trial court to try again...sending it back for a retrial. I can *imagine* reasoning to do that, but I think it would take a real stretch for an actual court to do so under the circumstances. I suppose it would depend on a triumph of wishful thinking over both law and evidence at hand. They'd have to conclude that Freshwater got the trial he asked instead of the one he wanted (which is true, of course, he wanted one that would vindicate him) and they'd have to tell the trial court to handle matter from the beginning on the basis of what Freshwater is claiming *now* instead of what he claimed *then*. It seems like a real stretch for any sane court...but, well...politics, religion, wishful thinking, and who knows what else could come into the picture. Now as pure speculation... Could the Ohio State Supreme Court tailor their decision based on the outcome of the upcoming election? If Romeny wins (shudder...), could they make a decision against Freshwater in hopes that the USSC (with one eye looking over it's shoulder at a Romney administration) would accept an appeal and make a watershed decision affecting the whole country? Or would they turn him down in such a way that the USSC *wouldn't* accept an appeal regardless of who wins?

Chris Lawson · 26 October 2012

I am cynical enough to believe that the Ohio SC will find for Freshwater while ignoring his clearly inconsistent and false statements on the grounds that those are just "facts" and are not part of the role of the appeal court to judge.

Richard B. Hoppe · 27 October 2012

eric said: I think there are three good strategies one can use to allow the 'good extra-curricular teaching' while still ruling out the bad. Unfortunately, only one of them is going to apply to FReshwater because trying to apply the other two would run into ex post facto issues - if the rule wasn't in place before, you can't punish him for breaking it. The one strategy that applies is obviously: if the school tells you to stop teaching some extra-curricular material, you must stop. Freshwater's ID material was rejected. Not just unreviewed, but reviewed and actively rejected. Freshwater taught it anyway. The other two would be: if you plan to teach extra stuff, you have to run it by the administration first. And: if you plan to teach extra stuff, it must be part of the future curriculum (i.e., material from the next semester or next year), and so already approved for students.

Actually, Mt. Vernon's policy required prior approval of materials if a teacher proposed teaching beyond the curriculum in controversial areas. Freshwater failed to obtain permission to use the creationist handouts and videos, and that's pointed out in one or another of the Board's briefs. So your second suggestion is covered. Number 3 is problematic, I think.

cepetit.myopenid.com · 27 October 2012

cepetit.myopenid.com said: In American law -- and particularly in the state courts of most of the older states, specifically including Ohio -- there's a huge distinction between "judicial factfinding" and "legislative factfinding." With very rare exceptions not present in this matter (not even in the same county), courts of appeals will not engage in judicial factfinding. They will look at legislative factfinding, such as determining whether there was a rational basis (or whatever the standard of review is) for establishing a policy; a good recent example is the respective opinions striking down DOMA from the United States Courts of Appeal for the First and Second Circuits, in which they found that the law itself failed the appropriate level of review and was merely invidious, unconstitutional discrimination. But a court of appeals will not engage in new factfinding on application of policy to an individual. It might reinterpret the evidence that was in front of the trial court... but it won't call new witnesses of any kind, not even expert witnesses on an agreed record.

In order to explain why this is entirely the wrong question -- and that, therefore, any answer is misleading -- it's time for some review of concepts from an area that doesn't seem at issue. The sardonic resemblance to the foundations of the flat-earth beliefs are entirely intentional... although I'm

OgreMk5 said: [snip] Can/Will/Should the appeals court review prior decisions in making theirs? Basically, would the appeals court look at Kitzmiller and the various rulings that show a teacher doesn't have free speech when teaching?

Before trying to answer this question -- and any answer will be misleading -- we need to talk about trees. Think of the American court system as a vastly oversimplified tree. The roots are in the constitution (and under the ground where nobody really sees them); the trunk is the Supreme Court; the US Courts of Appeal and state supreme courts are the branches; the state intermediate courts of appeal are the twigs and the trial courts (federal and state) are the leaves. An individual leaf may, through an attenuated process, eventually provide some tasty sugars and cellulose to a different branch (one to which it is not directly connected), but it's extremely attenuated... because it has to travel up to the trunk, then across to another branch, to be a really strong connection to that other branch. Judge Jones is a trial-court judge in Pennsylvania; we're concerned with the Supreme Court of the State of Ohio here. However persuasive we find Kitzmiller -- even to the point of having its sugars tagged with radioactive dyes so we can follow them -- it does not bind the Supreme Court of Ohio. Leaving aside that "binding" goes the opposite direction, these aren't even on the same branch, so to become "binding" on another branch the Supreme Court would have to decree that it was.* The Supreme Court of Ohio may choose to accept Kitzmiller as providing useful analysis and factual findings on an issue that is not actually before it (read the statements of the issues!), or note that there are procedural reasons that it shouldn't, or ignore it entirely. Kitzmiller is at best "persuasive authority": It is another court's analysis of some issues that overlap with what is before the Supreme Court of Ohio. Sometimes that persuasion is stronger than others. This is the legal/tactical reason that Freshwater is so strongly trying to treat himself as an individual whose rights were harmed, instead of defending the substance of his teachings as a policy matter: In Kitzmiller, the subject was explicitly (and exclusively) the policy matters. In the warped little minds of some kinds of litigators, that means one can distinguish Kitzmiller away so that they don't have to admit that it represents a highly persuasive rejection of their underlying position. So the short answer is "they might look, they might not, and they don't have to; but if they do look, Kitzmiller is at most the equivalent of learning a teaching technique by visiting another teacher's classroom for a day, and applying that technique in this classroom still requires independent effort and adaptation to one's own set of leaves that are attached to one's own branch." And if that overextended mixture of metaphors doesn't disclose that I need more caffeine this morning, I don't know what will! * There's a special case when the same parties have resolved certain facts before in a final judgment. In this instance, none of the parties are the same as in Kitzmiller. The lawyers -- even though they are controlling things -- aren't the parties, and the past of the lawyers doesn't preordain their clients' positions.

cepetit.myopenid.com · 27 October 2012

Sorry about that glitch... something else got copied in, and this particular reply form doesn't making editing easy on a shaky table at a coffee shop!

Richard B. Hoppe · 27 October 2012

Let me know how you want it to read and I'll edit it. rbh[DOT]third[AT]gmail[DOT]com.

Gary_Hurd · 27 October 2012

I have wondered, Dick, if you have ever been contacted by Freshwater, or his supporters?

SensuousCurmudgeon · 27 October 2012

cepetit.myopenid.com said: Judge Jones is a trial-court judge in Pennsylvania; we're concerned with the Supreme Court of the State of Ohio here. However persuasive we find Kitzmiller -- even to the point of having its sugars tagged with radioactive dyes so we can follow them -- it does not bind the Supreme Court of Ohio. [...] The Supreme Court of Ohio may choose to accept Kitzmiller as providing useful analysis and factual findings on an issue that is not actually before it (read the statements of the issues!), or note that there are procedural reasons that it shouldn't, or ignore it entirely. [...] So the short answer is "they might look, they might not, and they don't have to; but if they do look, Kitzmiller is at most the equivalent of learning a teaching technique by visiting another teacher's classroom for a day, and applying that technique in this classroom still requires independent effort and adaptation to one's own set of leaves that are attached to one's own branch." And if that overextended mixture of metaphors doesn't disclose that I need more caffeine this morning, I don't know what will!

The reason Kitzmiller has been so persuasive, albeit not legally binding beyond that Federal district in Pennsylvania, is because of the facts that were so well developed in that case -- i.e., the nature of science compared to creationism, and the history of the intelligent design movement as an outgrowth of creationism. Unless Freshwater literally re-opened those factual issues in his own case, and presented evidence to show that Kitzmiller got it all wrong, I suspect that the court isn't going to contradict facts which are fairly well settled. The court is also stuck with the law laid down by the US Supreme Court that creationism is religion and can't be taught in public schools. So in my humble opinion, regardless of what's in his brief, all that Freshwater can properly argue about is whether the record in this case shows that he violated his school board's rules, and whether those rules were appropriate and legally binding on him. Everything else is just table-pounding.

Richard B. Hoppe · 27 October 2012

Gary_Hurd said: I have wondered, Dick, if you have ever been contacted by Freshwater, or his supporters?

No one has contacted me in the sense of seeking me out to discuss the case. There were usually 16 or 18 of his supporters at the sessions of the administrative hearing, several of whom I've known for decades. We were mutually cordial, as we still are when I run into one or another of them around town. Freshwater and I would greet each other briefly if our paths crossed. But that's about it.

harold · 27 October 2012

SensuousCurmudgeon said:
cepetit.myopenid.com said: Judge Jones is a trial-court judge in Pennsylvania; we're concerned with the Supreme Court of the State of Ohio here. However persuasive we find Kitzmiller -- even to the point of having its sugars tagged with radioactive dyes so we can follow them -- it does not bind the Supreme Court of Ohio. [...] The Supreme Court of Ohio may choose to accept Kitzmiller as providing useful analysis and factual findings on an issue that is not actually before it (read the statements of the issues!), or note that there are procedural reasons that it shouldn't, or ignore it entirely. [...] So the short answer is "they might look, they might not, and they don't have to; but if they do look, Kitzmiller is at most the equivalent of learning a teaching technique by visiting another teacher's classroom for a day, and applying that technique in this classroom still requires independent effort and adaptation to one's own set of leaves that are attached to one's own branch." And if that overextended mixture of metaphors doesn't disclose that I need more caffeine this morning, I don't know what will!
The reason Kitzmiller has been so persuasive, albeit not legally binding beyond that Federal district in Pennsylvania, is because of the facts that were so well developed in that case -- i.e., the nature of science compared to creationism, and the history of the intelligent design movement as an outgrowth of creationism. Unless Freshwater literally re-opened those factual issues in his own case, and presented evidence to show that Kitzmiller got it all wrong, I suspect that the court isn't going to contradict facts which are fairly well settled. The court is also stuck with the law laid down by the US Supreme Court that creationism is religion and can't be taught in public schools. So in my humble opinion, regardless of what's in his brief, all that Freshwater can properly argue about is whether the record in this case shows that he violated his school board's rules, and whether those rules were appropriate and legally binding on him. Everything else is just table-pounding.

When two groups of mainly reasonable people have a disagreement, the truth often turns out to have elements of the positions advocated by both groups. (The key words here are "mainly reasonable"; when one group is completely wrong, biased, dishonest and unreasonable, this observation is not germane.) Whenever there has been a discussion of Freshwater and the Supreme Court (of Ohio), one usually reasonable group of people have confidently predicted his crushing defeat. "No-one will touch the case now, oh wait, the Rutherford Institute took it up, but the court won't hear it, oh, wait, they did agree to hear it, but they'll soon hurl it back in his face, oh, wait, they haven't yet, but he's certain to be upbraided eventually..." I am not a member of the above group, but rather, a group of different mainly reasonable people who have been prone to predict the exact opposite - that the court will do anything to find for Freshwater, either to pander to the right wing base and/or because they hold the same views as the right wing base and unethically use their position to advance them, whatever the law. Perhaps it will be something between those extremes. Some members of the Ohio Supreme Court will attempt to find for Freshwater by any means possible. If not even one of them makes a dissent from Edwards v. Aguillard type move, I will be astounded. On the other hand, maybe some members of the court will behave differently. It may be close, either way.

Chris Lawson · 28 October 2012

harold, I think you're right. In fact, I think we have to accept that we got lucky with Judge Jones in Kitzmiller. Even then, there was plenty of evidence that Jones was an outlier: the refusal of the DA to charge certain witnesses with perjury despite Jones's recommendation, the threats received by Jones requiring police protection, the fact that several Republicans openly accused him of being a traitor to the cause of those who appointed him...

OgreMk5 · 29 October 2012

Thank you for the explanation. That makes sense, but in a way it's pretty sad.

Robin · 29 October 2012

W. H. Heydt said: As I understand it...they *could* tell the trial court to try again...sending it back for a retrial. I can *imagine* reasoning to do that, but I think it would take a real stretch for an actual court to do so under the circumstances. I suppose it would depend on a triumph of wishful thinking over both law and evidence at hand. They'd have to conclude that Freshwater got the trial he asked instead of the one he wanted (which is true, of course, he wanted one that would vindicate him) and they'd have to tell the trial court to handle matter from the beginning on the basis of what Freshwater is claiming *now* instead of what he claimed *then*. It seems like a real stretch for any sane court...but, well...politics, religion, wishful thinking, and who knows what else could come into the picture. Now as pure speculation... Could the Ohio State Supreme Court tailor their decision based on the outcome of the upcoming election? If Romeny wins (shudder...), could they make a decision against Freshwater in hopes that the USSC (with one eye looking over it's shoulder at a Romney administration) would accept an appeal and make a watershed decision affecting the whole country? Or would they turn him down in such a way that the USSC *wouldn't* accept an appeal regardless of who wins?

Wouldn't Freshwater and his lawyers then run into perjury issues? "Hey...I know we said this other stuff under oath, like that Freshwater didn't actually teach anything related to creationism/ID, but really he did, it's just that it was within the purvey of what the administration said was ok." Umm...how is that not admitting they fibbed? I really can't imagine that politics could do that much for this case. Maybe I'm naive.

harold · 30 October 2012

I really can’t imagine that politics could do that much for this case

As a final comment on this thread, I will note that this case exists because of politics. Creationism is political. That is the main reason I have a problem with it. Of course, I also oppose all science-denying nonsense, regardless of the behavior of advocates. However, if creationists merely privately believed in and expressed science denial, that would be one thing. But the whole point of this case, this thread, this blog, etc, is that ID/creationists attempt to use corrupt and authoritarian tactics to enforce selective teaching of their particular narrow, science-denying dogma, as "science", to captive audiences of impressionable children, regardless of family wishes, in a way that invariably isolates and excludes many students, at taxpayer expense. That is what Freshwater did, and what he is arguing he has the right to do. Some politicians pander to ID/creationist fundamentalist fanatics, and some authoritarian right wing billionaires fund their cause, and that is why his case is being heard at all. It is all politics, all the way down, and it is somewhat puzzling to me why otherwise exceptionally intelligent people have some kind of problem noting that screamingly obvious fact. I suppose the fact that denial is "not just a river in Egypt" has something to do with it.

Chris Lawson · 31 October 2012

Robin said:

Wouldn't Freshwater and his lawyers then run into perjury issues?

You'd think so, but let's remember that in Kitzmiller v. Dover, Judge Jones wrote in his summation that ""Witnesses either testified inconsistently, or lied outright under oath on several occasions. The inescapable truth is that both [Alan] Bonsell and [William] Buckingham lied at their January 3, 2005 depositions. ... Bonsell repeatedly failed to testify in a truthful manner. ... Defendants have unceasingly attempted in vain to distance themselves from their own actions and statements, which culminated in repetitious, untruthful testimony." And yet neither Bonsell nor Buckingham were charged with perjury. It's one thing to have a law against perjury. It's another to have a prosecutor willing to act upon it.

Tenncrain · 1 November 2012

A 2005 article (days after Judge Jones delivered his verdict in Kitzmiller v. Dover) in the York (PA) Dispatch mentioned that perjury is rare as it's difficult to make the charges stick. Even in cases like Alan Bonsell and William Buckingham clearly lying under oath. The article is still up, but behind a paywall.

Here's another article about perjury, this time involving baseball player Barry Bonds.

trnsplnt · 2 November 2012

Am I wrong to be concerned that the OSC hasn't already thrown out the case by now. Been some time since they received the merit brief. It was strange enough that they agreed to hear the case initially. It seems that this conservative Republican court wants to hear a case of "academic freedom" on anti-evolution teaching.

IANAL, but I've been given to understand that the OSC judges aren't bound by law in what they can, or can not, do in their court. They're free to make asses out of themselves, be overturned, impeached, voted out, etc.

DS · 2 November 2012

trnsplnt said: Am I wrong to be concerned that the OSC hasn't already thrown out the case by now. Been some time since they received the merit brief. It was strange enough that they agreed to hear the case initially. It seems that this conservative Republican court wants to hear a case of "academic freedom" on anti-evolution teaching. IANAL, but I've been given to understand that the OSC judges aren't bound by law in what they can, or can not, do in their court. They're free to make asses out of themselves, be overturned, impeached, voted out, etc.

I was thinking the same thing. If they are willing to accept a merit brief that is without merit, they are either too stupid to know they are being duped or too biased to care. Either way, the motivation of the charlatan should now be clear to even the most casual observer. Why waste any more of your time on a case that is so obviously a con job. But then again, there was plenty of evidence of that before they decided to hear the case.

harold · 3 November 2012

Tenncrain said: A 2005 article (days after Judge Jones delivered his verdict in Kitzmiller v. Dover) in the York (PA) Dispatch mentioned that perjury is rare as it's difficult to make the charges stick. Even in cases like Alan Bonsell and William Buckingham clearly lying under oath. The article is still up, but behind a paywall. Here's another article about perjury, this time involving baseball player Barry Bonds.

But the person asking for the perjury charges was a Judge Jones, a judge, who is perfectly aware that the "average" perjury conviction is difficult. I don't really understand the excuse-making. Does everyone believe that if Bosnell and Buckingham had shown the same degree of perjury, but were atheists, ethnic minorities, and/or Muslims on trial for growing marijuana at home, they would have been shown the same degree of leniency? In order to advance the claim that the system was unbiased, you must believe exactly the above. That perjury charges would not have been pursued against anyone who showed the same high degree of perjury, in the face of a judicial request for perjury charges, regardless of ethnic or religious identity, or nature of the trial. Unless you believe exactly that, you must logically conceded that it is at least possible that someone decided that, as authoritarian white right wingers who publicly proclaim to be "Christians", they are tacitly permitted to defy perjury law, whereas others would not be. I'm not saying that I know that such bias is in place, but I am saying that it is foolish to dismiss out of hand the possibility that it may be.

TomS · 7 November 2012

n Tuesday's elections, three of the Ohio Supreme Court judges were up for re-election. Two lost, one Democrat and one Republican, which means that the political alignment is unchanged, but I have no idea about whether this means anything about how they might rule on the Freshwater case.