Court: OK to fire teacher for 'religious materials'

The Ohio Supreme Court ruled a school district justifiably dismissed a science teacher on grounds of insubordination who kept a Bible on his desk and taught his religious beliefs in class, but the majority in the 4-3 opinion was scolded by a dissenting justice for evading the constitutional issues presented by the case.

The majority opinion by Chief Justice Maureen O'Connor concluded the court didn't need to reach the constitutional issue of whether teacher John Freshwater of Mount Vernon Middle School in Mount Vernon, Ohio, who had taught for 24 years, "impermissibly imposed his religious beliefs in his classroom” because “there was ample evidence of insubordination to justify the termination decision.”

But in a scathing dissent, Justice Paul E. Pfeifer said the court "accepted jurisdiction in this case presumably to speak to the important issues of the Establishment Clause, academic freedom, and how schools may approach educating children about the scientific theories of evolution, which may directly clash with religious teachings of creation to which many children have been exposed at home and at church."

"Instead this court sidesteps all of the difficult issues presented in the case leaving the resolution of all these heady matters in the hands of a lone referee," Pfeifer wrote.

Freshwater, who consistently received good evaluations, was sued in 2007 when a student and his parents alleged he used a Tesla coil in class to make a mark on the student’s arm that appeared to be in the shape of a Christian cross.

He was suspended in 2008 by school officials and dismissed in 2011.

A district report in June 2008 found Freshwater taught creationism or intelligent design and handed out religious materials in class, against the orders of his superiors. The case focused on Freshwater's practice of keeping a Bible on his desk, his decision to check out a Bible and another religious book from the school's library, and a poster his critics said was religious.

The school board also accused Freshwater of improperly injecting religion into the classroom by giving students "reason to doubt the accuracy and/or veracity of scientists, science textbooks and/or science in general."

When the board moved to fire him, he requested a public hearing, which was conducted by a referee. After extensive testimony and collection of evidence over two years, the referee recommended Freshwater be fired, and the board agreed in a 4-1 vote in 2011. After his appeals were denied by a county court and the 5th District Court of Appeals, he took the case to the state Supreme Court.

Even before the state high court received the case, the Ohio Department of Education rescinded a "letter of admonishment" it had issued to Freshwater for encouraging students to think critically about the origin of life.

The Rutherford Institute asked the high court to hear the case because Freshwater contended the district violated his academic freedom rights and those of his science students.

Reviewing options

According to the Rutherford Institute, attorneys are reviewing their options following the Ohio court ruling.

The majority opinion affirmed Freshwater's right to keep a personal Bible on his classroom desk. But it ruled that his decision to check out a Bible from the library and place it in his room and to put up a poster featuring President Bush and Colin Powell in prayer was insubordinate.

Freshwater's attorneys had argued that the school should not be permitted to terminate a teacher's employment as a means of censoring a particular academic viewpoint.

One of the legal team's options, they said, is a motion to ask the Ohio Supreme Court to reconsider its opinion in order to focus on the constitutional issues at the heart of the case, particularly as they relate to academic freedom in the classroom.

"School officials should stop talking about the need for young people to learn about the Constitution and start putting those principles into practice by creating a robust environment in the classroom where free speech can flourish and thrive," stated John W. Whitehead, president of the Rutherford Institute.

"It's our hope that the Ohio Supreme Court will send a strong message to the nation's schools that the First Amendment protects both teachers and students, no matter how controversial or politically incorrect the topic under discussion."

The majority argued Freshwater's First Amendment rights "did not protect the display of these items, because they were not a part of his exercise of his religion."

The district, therefore, had a right to tell him to remove the items, the court said, and failing to do so was insubordinate.

Justice Pfeifer was appalled.

"The only holding of consequence by this court today echoes what John Freshwater told a gathering of supporters in Mount Vernon's town square on April 16, 2008," he wrote.

Freshwater said that because the Bible is "personal and private property and the source of personal inner strength in my own life, the removal of it from my desk would be nothing short of infringement on my own deeply held personal religious beliefs, granted by God and guaranteed under the Free Exercise Clause of the First Amendment."

The justice said the court has determined that Freshwater was right.

With the insubordination claim gutted, he said, the lead opinion should have moved on to consider the constitutional issues remaining in the case.

"Instead, the majority walks away from the opportunity to provide helpful guidance to every school board in Ohio and to the thousands of great teachers who could benefit from knowing more about the extent of and limit to their academic freedom," Pfeifer wrote.

"The lead opinion cobbles together the piddling other claims of supposed insubordination, and, sitting as Supreme School Board, the majority declares the matter closed. In a case bounding with arrogance and cowardice, the lead opinion fits right in."

He notes that the issue of Freshwater's Bible was raised by Stephen and Jenifer Dennis, parents of Zach Davis, who accepted hundreds of thousands of dollars in insurance settlements after going to court to protest that issue and others.

He writes that the Bible on the desk was the main concern throughout.

"Now that theory is gone, and less than a fig leaf remains. … Now that Freshwater has won on the most important dispute, the myth must be created that the presence of the other items constituted insubordination."

The objectionable poster, for example, came from the school.

"A trifle," Pfeifer wrote.

"What work rule or order did Freshwater violate by checking out books from the library? Was there a work rule in effect that a teacher could not borrow books from the school library and keep them in his work area? Does the lead opinion really mean to say that books of a religious nature are acceptable in the library but not acceptable to be checked out from the library? Or is it only practicing Christians who cannot borrow such books from the library?"

The justice pointed out that the court already has ruled on what grounds should be present for the removal of a teacher. Prior cases, he noted, dealt with "an arrest for drunken driving and ... failure to alert her superior," "telling jokes of a sexual nature to certain of her middle-school students" and "masturbating in a school parking lot during a school event."

He said that neither the Bush-Powell poster nor the library books had a serious effect on the school system.

"At worst, they were de minimis violations of an unwritten, ad hoc rule," he wrote.

"This court has set a very low bar for what constitutes 'good and just cause,'" he continued. "Now we have a case on the books setting forth that good and just cause means very little cause at all."

Pfeifer noted that the referee who was hired to conduct hearings on the dispute, attorney R. Lee Shepherd, concluded that none of the grounds individually was enough to cause Freshwater's ouster.

Shepherd said it required the "multiple incidents" and the "numerous and various bases/grounds." He concluded Freshwater "repeatedly violated the Establishment Clause" by failing to "employ objectivity."

"This conclusion of constitutional significance has gone unexamined by every reviewing court," Pfeifer noted.

Instead, he said, the majority noted how large the file was, with "6,000 pages of transcript."

"With a record that large, how could a … referee be wrong about the Establishment Clause?"

Pfeifer said Freshwater "will be deemed today's loser by superficial press accounts," but he is "not today's big loser, because he fought to prove that he actually followed the rules, that he taught well, and that over a lifetime of dedication to the students in his classrooms he made a positive contribution to their lives."

"That proof is uncontroverted. In that most important measure of public education, John Freshwater is a winner and his final departure is a loss to the Mount Vernon schools."

Justice Terrence O'Donnell, who was joined by Sharon Kennedy, also disagreed with the majority.

"This record neither demonstrates that Freshwater defied direct orders from school administrators, nor reflects that he taught creationism or intelligent design, nor shows that he strayed from the established curriculum on evolution," they wrote. "The claim of insubordination is not proven by clear and convincing evidence."