Read the analysis of the oral argument here.  And, for additional information on the issues raised in this case, read this In Sharper Focus Guest Post.

On February 27, 2013, the Supreme Court of Ohio will hear oral argument in the case of Freshwater v. Mount Vernon City School District Board of Education, 2012-0613.  This is one of the blockbuster cases of the year, and it has attracted a lot of outside attention. The case involves the firing of a public school teacher for teaching creationism and intelligent design in his science class.

Case Background

John Freshwater was hired in 1987 by the Mount Vernon Board of Education to teach eighth grade science.  Beginning in 1994, Freshwater was asked by the Board to stop distributing pamphlets and brochures to students denying evolution and promoting the Christian teaching of intelligent design and creationism.  Each time Freshwater was asked to stop using inappropriate handouts, he would find another to use.  In 2003, Freshwater petitioned the Board to adopt a policy permitting teaching creationism and intelligent design in classrooms.  His request was denied.  Freshwater began to supplement his curriculum with religious handouts.

Freshwater’s classroom contained a number of religious items, including posters with religious quotes. Freshwater kept a Bible on his desk, as he claims other teachers employed by the district did, and would display it to the class when discussing his beliefs.  Freshwater was directed to remove the religious objects; instead, he added another Bible and religious book to his classroom.

Freshwater consistently made statements about the validity of evolution and regularly injected religious statements and teachings into his curriculum.  On at least three occasions, Freshwater was warned to cease his religious teaching methods.  In 2008, the parents of one of Freshwater’s students complained to the Board about an incident with a Tesla coil, which left an “x” (or what appeared to be a cross) on the student, in Freshwater’s classroom.  This incident prompted an investigation into Freshwater’s teaching.

The school board hired an independent referee to determine if Freshwater’s actions violated school policy, and if there were grounds to fire him for good and just cause pursuant to R.C. 3319.16. After a hearing that spanned 38 days over almost two years, with testimony of eighty witnesses and 350 exhibits, the referee recommended that Freshwater be terminated for violating school district policies prohibiting teachings that advanced a particular religion, and requiring teachers to follow the mandated curriculum, and alternatively, that he be terminated for insubordination. The findings show Freshwater failed to adhere to established curriculum and was determined to inject his religious beliefs into his teaching plans, contrary to the Board’s by-laws and policies. Further, Freshwater disobeyed orders from the Board to remove religious displays in his classroom.

The Board adopted the recommendation and terminated Freshwater.

Freshwater appealed the Board’s decision to the Knox County Court of Common Pleas.  The trial court found clear and convincing evidence to support the Board’s determination to terminate Freshwater for good and just cause.  Furthermore, the trial court refused to hold additional hearings.  Freshwater appealed.

The Fifth District Court of Appeals affirmed the trial court’s decision and held that the trial court did not abuse its discretion by refusing additional hearings, or in finding good and just cause to terminate Freshwater’s employment.  Freshwater appealed to the Supreme Court of Ohio.

Freshwater’s Argument

Freshwater argues was fired because of his viewpoint, in violation of his First Amendment right to academic freedom.  He argues that his teachings were within Board standards.  He sought to encourage critical thinking and to challenge and evaluate theories.  The Board allows the teaching of controversial issues so long as their use is related to instructional goals, does not indoctrinate students, and encourages open mindedness.  Board policy prohibits the advancement or restriction of any particular religion.  Freshwater was not violating this policy by discussing widely known origins of life to explore its scientific value.  Students should receive an unbiased education – which is exactly what Freshwater was attempting to do.  Freshwater’s termination was in contradiction to many Board policies.  Furthermore, Freshwater’s termination is a form of government censorship and violates rights to academic freedom.  The Board has undertaken official suppression of ideas, an action utterly repugnant to the First Amendment.  A state may not censor ideas from the classroom – government officials may not mandate or prohibit, for ideological reasons, the intellectual pursuit of a particular academic theory.  It is absurd to claim the First Amendment requires the Board to demand teachers to chisel ideas bearing a relationship to religion from their classroom.  The distinction lies in the Board mandating a certain topic be taught or not, which may violate the Establishment Clause, and an individual teacher’s exercise of academic freedom to discuss curriculum related ideas, a picture of academic freedom.

Additionally, Freshwater argues his termination violated the Establishment Clause because it shows hostility to major world religions.  The record is devoid of any evidence showing Freshwater’s academic teaching of creationism and intelligent design were used in a way to indoctrinate students.  The Board’s apparent belief that teaching these theories has no scientific value cannot be accepted.  Action of a government official does not violate the Establishment Clause simply because the action coincides with tenets of some religion.  Censoring science solely on its consistency with major world religions demonstrates hostility towards religion and shows favoritism towards the religion of “secular humanism.”

Finally, termination for displaying religious posters and books violates First Amendment rights to academic freedom and the Establishment Clause.  Termination, in part, for failure to remove a patriotic poster, given to Freshwater by the Board and displayed in other classrooms, the Bible, rented from the school’s library, and another religious book, also rented from the schools library, violates state law.  Displaying these items did not violate Board policy since they were displayed by other teachers.  Furthermore, suppression of these items, based on their content is forbidden by academic freedom.  The Board’s contention that Freshwater’s actions violated the Establishment Clause is not a justification for termination; rather, the Clause prohibits the Board’s actions.  By ordering Freshwater to remove benign items, particularly when they line up with his individual beliefs, it not establishing government neutrality but rather showing a hostility towards religion.

Board of Education’s Argument

The Board argues that Freshwater’s claim that his termination violated the First Amendment right to academic freedom is inaccurate.  Freshwater is not invoking a right to academic freedom, but rather a right to free speech. Because Freshwater’s speech was made pursuant to his employment as public school teacher, he was not speaking for himself as a private citizen, but rather as a public employee.  The Board has the obligation to assure that its speech, through its teachers, does not violate the Establishment Clause.  Furthermore, Freshwater did not have an academic freedom right to teach creation and intelligent design.  Jurisprudence upholding a right to academic freedom has only been applied in the context of higher education.   Freshwater is asking the Court to misapply this precedent and allow Freshwater to teach his religious beliefs to a captive audience of children, where attendance is mandatory.  Even if Freshwater had an academic freedom to teach the material, he is not excused from Board oversight.  Freshwater submitted a proposal to the Board for permission to teach creation and intelligent design and was denied the request.  Finally, Freshwater’s teaching was not in compliance with Board standards.  Controversial issues may only be taught with Board permission.  Freshwater sought approval and it was denied.  Teachers were directed to limit their discussion of religion to an age-appropriate, objective lesson.  Freshwater’s teaching was not in furtherance of an objective lesson about science and subjectively advocated his religious position. His decision to teach creationism and intelligent design was specifically contrary to the Academic Content Standard for science in grades six through eight. And it was contrary to a number of specific Board policies.

To accept Freshwater’s position that his termination manifested hostility towards religion in violation of the Establishment Clause is to ignore the fact that, as an employee of the Board, Freshwater himself violated the Clause.  The U.S. Supreme Court set out a three part test for determining whether government conduct violates the Clause: whether 1) the action has a secular purpose; 2) the actions primary effect neither advances nor inhibits religion; and 3) the action fosters excessive entanglement with religion.  Freshwater’s actions implicate all three prongs.  Creationism and intelligent design are not scientific theories, so there can be no secular purpose for attacking the scientific theory of evolution with unscientific religious beliefs.  Additionally, the Bible quotes and other religious displays in Freshwater’s classroom had no relationship to the science curriculum.  An objective observer would conclude that Freshwater’s teaching was an effort to endorse religion.  In fact, his teaching was effective, students went into the ninth grade disbelieving the validity of science and promoting a religious explanation for the origins of life.  Finally, Freshwater’s actions constituted government action created excessive entanglement with religion.  He was able to entangle the teachings of the Bible with scientific theories.  By terminating Freshwater, the Board upheld the Establishment Clause by attempting to regain a neutral, secular classroom.

Finally, the Board has a right and obligation to ensure that its speech, through its teachers, does not violate the Establishment Clause.  Freshwater was insubordinate for failing to comply with the Board’s orders to remain neutral.  The Board did not violate the First Amendment or the Establishment Clause by terminating Freshwater for failing to take down religious material.  In addition to the Bible and religious book rented for the school library and the poster given by the Board, Freshwater displayed a box of Bibles in the back of his classroom, multiple Bible verses on his cupboard doors, a large poster of an American President praying, four copies of the Ten Commandments, and other religious material.  He refused to take these items down, and out of spite, added to his collection.  The Board did not violate the Establishment Clause but rather upheld it by requiring a teacher, speaking as a government official, to cease promoting a religion.  Furthermore, as with his teaching, Freshwater did not have an academic freedom right to override a decision by the Board as to its curriculum.

Freshwater’s claim that his actions did not violate Board policy because other teachers were allowed to keep Bibles in the classroom is an Equal Protection argument – a proposition declined to be heard by this Court.

Freshwater’s  Proposed Propositions of Law

Proposition of Law I

The termination of a public school teacher’s employment based on the content or viewpoint of his curriculum-related academic discussions with students and use of supplemental academic materials violates the teacher’s and students’ First Amendment rights to academic freedom.

Proposition of Law II

The termination of a public school teacher’s employment based on the fact that his academic discussion 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.

Proposition of Law III

The termination of a public school teacher’s employment based on the presence of religious texts in the classroom and the display of patriotic posters violations the teacher’s and students’ First Amendment rights to academic freedom and manifests hostility toward religion in violation of the Establishment Clause.

Amicus Briefs in Support of the Board of Education

Brief of Amici Curiae Stephen and Jennifer Dennis in Support of Appellee

Stephen and Jennifer Dennis, parents of a student in Freshwater’s science class during the 2007-2008 academic year and the student involved in the Tesla coil incident, filed an amicus brief to provide a complete and accurate account of the facts that led to the impartial referee’s report and Freshwater’s ultimate termination.  The Dennis’ offer the first-hand knowledge of their son to counter Freshwater’s assertion that the patriotic poster provided by the Board and the books rented from the library were the only religious materials in his classroom.

The Dennis’ argue that Freshwater’s teaching methods were not in pursuance of fostering critical thinking but rather were aimed to impose his religious views on his students.  Freshwater improperly displayed numerous religious items in his classroom.  Freshwater’s inappropriate use of Tesla coils evidence his reckless disregard for students’ wellbeing and highlights his fanatical religious crusade.  Furthermore, he abused his position as faculty advisor to a religious student group to share his religious worldview.

The Dennis’ Proposed Proposition of Law:

A public school teacher’s termination does not violate the First Amendment of the U.S. Constitution when there have been factual finding that the teacher either taught religion in the public school classroom, displayed religious materials on his classroom wall, led rather than monitored a student religious group, and used a high-voltage electrical device to burn crosses onto the arms of his students.

Brief of Amici Curiae of the American Humanist Association and the Secular Student Alliance in Support of Appellee

The American Humanist Association is an organization that advocates for the rights and viewpoints of humanists – a progressive philosophy of life that, in the absences of theism, affirms the responsibility to lead ethical lives that aspire to the greater good of humanity.  The Secular Student Alliance is a network of atheist, agnostic, humanist and skeptical groups on high school and college campuses.  Its purpose it to organize, unite, educate and serve student groups that promote the ideas of scientific and critical inquiry.  The amicus asserts that this case addresses core humanist concerns regarding the state’s responsibility to provide a secular education and avoid the promotion of religion.

The amicus argues that Freshwater violated the Establishment Clause by promoting his religious beliefs in a public classroom and prominently displaying religious articles.  Even if his actions do not violate the Establishment Clause, a school may, in the interest of remaining religiously neutral do more than that strictly required by the Clause to ensure a completely secular institution.  By maintaining a secular curriculum, the Board was not being “hostile” towards religion in violation of the Clause.  Furthermore, teaching evolution does not amount to promoting a religion of secular humanism as advanced by Freshwater.

Additionally, a school has the power to set a secular curriculum and ensure it is followed.  The only limitation on schools to set curriculum is the Establishment Clauses prohibition that it not promote religion.  Teachers do not maintain a right to defy the school’s curriculum determination and inject their own ideas into the classroom.  Furthermore, students do not have a First Amendment right to receive creationist and intelligent design instruction.

Brief of Amici Curiae Americans United for Separation of Church and State and Anti-Defamation League in Support of Appellee

Americans United for the Separation of Church and State and Anti-Defamation League are civil-rights and religious-liberty organizations that routinely defend religious freedom by advocating First Amendment rights in federal and state courts.

The amici argue that the school district has a constitutional obligation to stop Freshwater’s violations of the Establishment Clause.  Religious instruction does not belong in public schools; creationism is religious instruction that infringes on religious freedoms and interferes with students’ education.  The school district has both the authority and the obligation to halt Freshwater’s repeated violations.  Even if Freshwater’s actions are not constitutionally prohibited, he still had no right to subvert the school district curriculum or refuse to obey the Board.  Freshwater has no First Amendment right to undermine the prescribed curriculum, nor did he have the right to ignore the orders of the Board.

The Amici’s Proposed Proposition of Law:

A public school district’s termination of a teacher’s employment does not infringe the teacher’s First Amendment rights when the teacher (i) repeatedly violated the Establishment Clause by incorporating religious teachings into the curriculum and by keeping religious displays in the classroom, and (ii) repeatedly attempted to subvert the officially prescribed curriculum, and (iii) injured hundreds of students over many years.

Brief of Amicus Curiae National Center for Science Education in Support of Appellee

The National Center for Science Education is a non-profit organization that provides information and resources to schools and parents working to maintain a scientifically based curriculum in public schools.

The amicus argues that evolution is universally accepted by scientists and Freshwater’s alternatives are religious beliefs, not science.  Freshwater’s classroom was not designed to provide an environment of critical thinking but, rather, his instruction was designed to undermine the science that contradicts creationism.  Freshwater’s pedagogy represents the latest effort, in a long tradition, of opposition to evolution.  His teaching is consistent with the “third generation” of opposition tactics designed to undermine evolution while promoting a theory of intelligent design.  Finally, Freshwater’s pedagogy had a real and deleterious impact on his students’ understanding of science.

 The National Center’s Proposed  Proposition of Law:

Teaching materials and methods that advance creationism and undermine students’ understanding of the scientific theory of evolution serve no valid pedagogical or scientific purpose and, as a result, the termination of a public school science teacher for teaching creationism was proper.

Student Contributor: Katlin Rust