For additional information on the issues raised in this case, read this In Sharper Focus Guest Post

On February 27, 2013, the Supreme Court  heard oral argument in the case of Freshwater v. Mount Vernon City School District Board of Education, 2012-0613. The case involves the firing of a public school science teacher. He says he was fired for exercising his right to academic freedom in violation of his First Amendment Rights. Specifically, he claims he was fired for encouraging students to think critically about evolution, and for including creationist theories in the science curriculum. The Board says he was fired for failure to adhere to the established science curriculum, for repeatedly interjecting his religious beliefs into his teaching plans, for disobeying orders to remove religious displays from his classroom, and for insubordination.  Freshwater’s termination was upheld by the trial court and by the Fifth District Court of Appeals. Read a detailed account of the lengthy background of this case here.

Freshwater’s Argument

Freshwater was represented by a lawyer from the Rutherford Institute, an organization that bills itself as dedicated to the defense of civil liberties and human rights. There is much information about the Institute available on the internet.

Freshwater’s counsel conceded that school boards have broad discretion to control their curricula, but argued they cannot use their authority to suppress a particular set of ideas. The Board sets a floor for what teachers must teach, and a ceiling for what teachers may teach, but in between there must be a window of academic freedom that stops schools from making ad hoc termination decisions in an effort to suppress particular ideas. The Board has a required standard science curriculum for the eighth grade, a controversial issues policy, and a policy on religion.  Freshwater violated none of these. Only two times in twenty-one years was Freshwater told not to use a handout or supplement, once because of failure to identify a source, and once because it did not comply with the curriculum.  Freshwater fully complied with every clear, lawful directive that was given to him. He did keep his personal Bible on his desk, as did a number of other teachers, but he never used the Bible in his classroom in any way. Freshwater was also the faculty advisor for the Fellowship of Christian Athletes, a school approved activity, so some of the displays in his classroom were related to that role.

According to the referee’s report and the board’s resolution, Freshwater presented evidence for and against evolution, and the evidence against evolution was based upon the Christian doctrine of creationism. Simply stated, the Board’s policy boils down to the proposition that merely offering students evidence of the gaps or flaws in evolutionary theory is equal to religious indoctrination, and that is wrong and improper. The legal issue in this case is whether a school board can terminate a teacher who has complied with policy, solely in an effort to censor one particular viewpoint or an idea.

The Court should find that Freshwater’s termination was not for good and just cause.  He should be reinstated, with back pay, and other damages to be determined. The Court should write a rule that where a teacher teaches the curriculum, and complies with board policies, he may not be terminated in an ad hoc manner in an effort to suppress a particular set of ideas.

The School Board’s Argument

Freshwater was properly terminated according to Ohio law, for insubordination, for not following policies when asked to do so, for violating the Religion in the Classroom Policy, for injecting his personal religious beliefs into the classroom, and for participating in, rather than for simply monitoring, the student organization for which he was the sponsor. The Controversial Topics policy did not apply because evolution is not considered a controversial topic, so Freshwater had no right to treat it as such. It is also a violation of the Establishment Clause to teach evolution from a Christian perspective. Nor do teachers have academic freedom to do that in an eighth grade science class. Freshwater is not a private citizen here; as a Board employee he is a government actor, with permissible restrictions on his speech.

 What Was On Their Minds

A lot, apparently, because this argument went well over an hour, with the Chief making no attempt to limit the time of either party. This was definitely a high profile case.

Academic Freedom

Do all teachers have this, including those at the elementary school level, asked Justice Lanzinger? Are there any restrictions on First Amendment rights on a public school junior high school teacher? Justice French also asked if middle school teachers had any window of academic freedom? Any in eighth grade science class?

School Board Policies

Exactly which ones did Freshwater violate, asked Justice O’Donnell? Exactly why was he fired? What was stated in the letter of termination? Is there evidence in the record that Freshwater did in fact comply with the board policies and present the board’s approved curriculum?

Which policy violations did the Board feel warranted termination, asked Justice Lanzinger? Did Freshwater just proceed to do what he had asked to do, after being turned down? Was he ever actually accused of teaching creationism as science?

Didn’t the Board have a policy which says you can comment on your beliefs as long as you say these are my personal beliefs, asked Justice Pfeifer?

Religious Items in Freshwater’s Classroom

This looks like a very religious classroom, commented Justice O’Neill. Was Freshwater’s motive for displaying the Ten Commandments at issue here, or just the fact of their existence in a state-sponsored classroom?

Is the only thing he left up the poster of President Bush and his cabinet with their heads bowed, asked Justice Pfeifer? Was that poster allowed to remain in other classrooms?

Didn’t other teachers have that poster in their classrooms, asked Chief Justice O’Connor? Wasn’t a lot of the material there because Freshwater was the advisor to the Fellowship of Christian Athletes? Wasn’t that a school sanctioned activity?

Didn’t other teachers also have Bibles in their classrooms, asked Justice Kennedy? (yep! She’s taken the plunge and has joined in the questioning.)

Is zealous advocacy about the organization’s mission by a school advisor in a school sanctioned activity grounds for termination, asked Justice O’Neill?

The Tesla Coil Incident

(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.)

What exactly happened with this, asked Justice O’Donnell? Did any other students experience this (answer from plaintiff’s counsel: no) Was any medical attention sought (no, and the incident played no part in Freshwater’s termination, said his lawyer. The Board’s lawyer agreed, but noted that this incident spurred the interest in an investigation, during which time the board asked that he not engage in any religious activities in his class).

Insubordination

Did Freshwater do everything he was told, and in a timely manner, asked Justice French?

Was the sum and substance of the insubordination keeping his personal Bible, the poster of the president and the cabinet, another Bible and a book about Jesus on his lab table, asked Justice Pfeifer? Was there anything in the record that suggested that he was teaching from any of this?

Why was Freshwater asked not to use his supplements, asked Justice Kennedy ?

When did the Board first decide to fire him, asked Justice Pfeifer? Don’t scientists question things every day?

Could Freshwater just say I’m teaching what the board has instructed me to teach, but this is just wrong, and I’m going to give you the real truth and correct view about creation, asked Chief Justice O’Connor?

Here was one of several key exchanges of the day:

Justice Lanzinger: (to Freshwater’s lawyer):

“My concern is was there not a request in 2003 by Freshwater to implement his teaching of creationism and Intelligent Design that was denied by the Board?”

Answer:

“That was not the 2003 proposal—the 2003 proposal was to incorporate not creationism or intelligent design, but rather the objective origins of life into the 8^th grade curriculum. At that time it was already a standard for the 10^th grade, so the school was already doing it.”

Justice Lanzinger

“So it appears that your client assumed he would need permission to do what he eventually ended up doing anyway?”

Answer:

“No—his proposal in 2003 was to make the objective origins policy a mandatory offering for all science classes in 8^th grade-I maintain that you cannot logically assume from the fact that the Board decided not to adopt that that the Board was actually prohibiting teachers from ever mentioning these ideas in class.”

8^th grade science versus 10^th grade science

Counsel for Freshwater maintained that under existing Board policy, the controversy between evolution and creationism and intelligent design was already part of the 10^th grade science curriculum.

Wasn’t the distinction about what is taught in the  8^th and 10^th grade solely the school board’s prerogative, asked Chief Justice O’Connor? Later, she asked the Board’s lawyer if the 10^th grade science curriculum did include the interplay of creationism and evolution, and he said he did not know. In her rebuttal, Freshwater’s counsel cited to a specific section of the record to show there was.

Doesn’t the Board have the right to determine what should be taught and when, asked Justice Lanzinger? Did Freshwater’s students ever have any trouble with science? (quite to the contrary, said his lawyer; they excelled on their achievement tests.)

Evolution is just a theory, isn’t it, asked Justice Pfeifer? Wouldn’t an eighth grader who goes to church with his or her family have questions about it to reconcile with what they learned at church?

Here’s another key exchange of the day:

Chief Justice O’Connor (to Freshwater’s lawyer):

“What I find interesting is board counsel says since evolution is not a controversial issue, any alternatives are not protected under the controversial issues policy because it isn’t a controversial issue—what you are saying is it is in fact dealt with as a controversial issue in the 10^th grade.”

Answer:

“I would go further and say the board’s own experts at the hearing testified that evolution is controversial –that there are debatable issues within evolution.”

The Chief:

“Is it controversial in the scientific community or in the social and religious community? And does that matter for the description for inclusion in the controversial issues policy?

Answer:

“It is controversial within both.”

The Referee’s Report

Justice Pfeifer was just merciless about it—picking it apart, commenting on how superficial it was, and how miraculously quickly the Board adopted it. Why no progressive discipline?  Why just jump to an immediate firing of a 21 year employee? And a very good one at that?

That Ever Pesky Standard of Review

Several justices asked what it was in this case.  The Board’s lawyer said unequivocally that it was abuse of discretion, but Freshwater’s lawyer said the standard was akin to de novo review because the facts involved are “constitutional facts.”

One final key exchange of the day:

Justice Lanzinger: (to Freshwater’s lawyer)

“Do we owe the board no deference?”

Answer:  (Prof’s note- I thought this was one of her only over-steps)

“Where censorship and erroneous conclusions of law such as providing evidence of gaps in evolution equals religious indoctrination, that is the type of anti-religious hysteria that warrants complete de novo review.”

Six thousand pages of testimony, and you are telling us to start anew, asked Justice O’Neill?

How It Looks from the Bleachers

To Professor Bettman

When student contributor Katlin Rust first read through this case, she told me it seemed like the parties were in two different universes. And that’s how it seemed listening to the arguments. Freshwater’s lawyer made him seem like an embattled saint (small s, no religious connotation intended.) The Board’s lawyer made him seem like a stubborn, obstructionist zealot who would try and find a way around every directive sent to him clearly cautioning him to leave his personal religious views out of his classroom.  The parties so totally disagreed about exactly which Board policies were violated and with what evidence, that I suspect the outcome will depend on the record.

My impression is that the Court began with considerable skepticism for Freshwater’s position, especially from Justice Lanzinger and Chief Justice O’Connor, but grew increasingly mesmerized by the excellent argument and style of Freshwater’s lawyer from the Rutherford Institute.  She managed to make this case both about the First Amendment and not, at the same time—just a 21 year veteran teacher, doing what many others did with religious paraphernalia, and trying to teach kids how to think critically and ask questions, by pointing out some gaps in the “theory of evolution,” getting hosed by a hostile referee and school board. She was also very effective with the record, knowing the policies with a particularity that the Board’s lawyer did not. Finally, she downplayed the significance of what Freshwater wanted to or tried to teach as science that isn’t part of the mandated 8^th grade science curriculum.

While I am by no means an expert in this field, and have asked my law school colleague, Professor Ronna Greff Schneider, who is, to write a post explaining various aspects of the law pertinent to this case, it’s my impression that secondary school teachers have far less claim to any kind of academic freedom than we in universities do, and that the speech of public school teachers can be more restricted because of the special environment of the public schools.  Also, in recent years, the authority of school boards has been re-affirmed in a number of areas.

I agree with those who thought that the Board’s lawyer did a poor job. The justices seemed quite unfamiliar with a number of federal cases that give strong support to his position, but he did an inadequate job of educating them about these. He let Freshwater’s lawyer frame the issues, and never gained the upper hand in presenting his argument, even though all of lower court decisions in this case went in his favor.  He seemed to feel as if his position was obvious, but it didn’t come across that way.

One thing is clear to me—neither creationism nor intelligent design is science. I don’t think an eighth grade public school science teacher has the right to incorporate that view into his science class.   I can’t tell the extent to which the Court is going to make this case about First Amendment protections, or back away from the First Amendment issues and make a due process ruling, finding that the evidence didn’t support Freshwater’s termination.  It did seem that by the end of the day, the odds were on Freshwater’s side. Justice Pfeifer clearly has a strong personal gripe against the referee’s work in the case.  Justice O’Neill told Freshwater’s lawyer during her rebuttal that he had bought pretty much all of what she said.  And even the skeptics seemed to backtrack as the argument progressed. If the record does demonstrate that Freshwater was injecting his personal religious beliefs or teaching creationism as science in science classes, I hope some of their original skepticism returns.

To Student Contributor Katlin Rust

From the beginning, Freshwater has proved to be one of the most provocative and watched cases during this session.  And the oral argument sure rose to the case’s reputation.  Initially, it appeared the Court was not taking to Freshwater’s argument of academic freedom and wrongful claims of insubordination.  But, as argument progressed, Ms. Dunaway (Freshwater’s lawyer from the Rutherford Institute) artfully drew the justices to see the situation in Freshwater’s light.  Ms. Dunaway not only effectively presented her “window of freedom” theory, she also knew the board policies and case record from start to finish.  I’m not sure I can call which party is going to walk away winning this case.  To me, it looks like that decision depends on which standard of review the Court adopts in reviewing the record and a deep and intensive look at the facts.