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A final defeat for Freshwater

In a 4-3 decision issued on November 19, 2013, the Supreme Court of Ohio upheld the termination of John Freshwater. In its decision, the court wrote (PDF):

After detailed review of the voluminous record in this case, we hold that the court of appeals did not err in affirming the termination. The trial court properly found that the record supports, by clear and convincing evidence, Freshwater's termination for insubordination in failing to comply with orders to remove religious materials from his classroom. Accordingly, based on our resolution of this threshold issue, we need not reach the constitutional issue of whether Freshwater impermissibly imposed his religious beliefs in his classroom. We affirm the judgment of the court of appeals because there was ample evidence of insubordination to justify the termination decision.

The decision presumably brings the long and complicated controversy over Freshwater's inappropriate religious behavior in the classroom to a final conclusion.

In a section headed "Teaching of Creationism and Intelligent Design Alongside Evolution Generally Disfavored," the court commented, "We recognize that this case is driven by a far more powerful debate over the teaching of creationism and intelligent design alongside evolution." After briefly reviewing the relevant case law, including Edwards v. Aguillard and Kitzmiller v. Dover, and implying that Freshwater's use of antievolution methods and materials might have been permissible, the court added, "Here, we need not decide whether Freshwater acted with a permissible or impermissible intent because we hold that he was insubordinate, and his termination can be justified on that basis alone."

The three dissenters in the court in effect endorsed Freshwater's claims on appeal, writing that the case was not about his insubordination but about his being "singled out by the Mount Vernon City School District Board of Education because of his willingness to challenge students in his science classes to think critically about evolutionary theory and to permit them to discuss intelligent design and to debate creationism in connection with the presentation of the prescribed curriculum on evolution." Their dissent also credited Freshwater's claim, "I do not teach ID or creationism," discounting the ample evidence in the record to the contrary.

The case began in 2008, when a local family accused Freshwater, a Mount Vernon, Ohio, middle school science teacher, of engaging in inappropriate religious activity and sued Freshwater and the district. Based on the results of an independent investigation, the Mount Vernon City School Board voted to begin proceedings to terminate his employment. After thorough administrative hearings that proceeded over two years and involved more than eighty witnesses, the presiding referee issued his recommendation that the board terminate Freshwater's employment with the district, and the board voted to do so in January 2011. (The family’s lawsuit against Freshwater was settled in the meantime.)

Freshwater challenged his termination in the Knox County Court of Common Pleas in February 2011. When the challenge was unsuccessful, he then appealed the decision to Ohio's Fifth District Court of Appeals in December 2011. NCSE filed a friend-of-the-court brief (PDF) with the appellate court, arguing that Freshwater's materials and methods concerning evolution "have no basis in science and serve no pedagogical purpose." In March 2012, the Fifth District Court of Appeals upheld the lower court's rejection of Freshwater's challenge. Freshwater then appealed to the Ohio Supreme Court in April 2012, and when his appeal was accepted, NCSE filed a friend-of-the-court brief (PDF) again.

Documents relevant to Freshwater's termination and the subsequent court case are available on NCSE's website. Extensive blog coverage of the Freshwater saga, including Richard B. Hoppe's day-by-day account of Freshwater's termination hearing, is available at The Panda's Thumb blog; search for "Freshwater". Hoppe contributed "Dover Comes to Ohio" (PDF) — a detailed account from a local observer of the whole fracas, from the precipitating incident to Freshwater's appeal — to Reports of the National Center for Science Education 32:1. And Rob Boston reviewed the case in the November 2012 issue of Americans United for Separation of Church and State's magazine Church & State.