Freshwater brings suit against Board of Education

Sorry to go off topic with the first post but there's a big article on the front page of today's Courier Journal (Louisville) http://www.courier-journal.com/article/20090610/NEWS01/906100383&referrer=FRONTPAGECAROUSEL
for anyone who's interested. I've been posting in the comment section and am comfortably holding my own. It's been interesting though! Thanks.

The Kitzmiller trial cost the Dover Area School Board $1 million. The direct cost of the Freshwater affair to the Mt. Vernon School District to date is now on the close order of $300K, with a lot more yet to come. Before this is all over just the legal costs may well approach the total cost of the Kitzmiller case. The central lesson for Boards and administrations like those in Mt. Vernon is that benign neglect is not a financially prudent policy. In testimony before the Ohio State Board of Education in 2003 I coined the phrase “Dover Trap” to describe the hole local districts could find themselves in when they fail to properly manage teachers and administrators who do not understand the secular nature of public education. Mt. Vernon is well and truly caught in a Dover Trap.

waynef said: Sorry to go off topic with the first post but there's a big article on the front page of today's Courier Journal (Louisville) http://www.courier-journal.com/article/20090610/NEWS01/906100383&referrer=FRONTPAGECAROUSEL for anyone who's interested. I've been posting in the comment section and am comfortably holding my own. It's been interesting though! Thanks.

Chip Poirot said: I agree in principle with what you are saying. Let me see if I can illuminate some of this mess a little more. Firstly, my understanding is that the teacher, Freshwater, is a tenured teacher and also that the teachers in the school district are represented by the OEA (Ohio Education Association). Standards of dismissal for tenured K-12 teachers in Ohio are defined by statute, and the threshold is pretty high. I have not seen the contract for this school district so i don't know what it does and does not say.

This could have and should have been a pretty simple, straightforward matter for school officials years ago.

Freshwater could have been given written warnings to halt his misconduct (inappropriate use of the Tesla Coil), and/or a record of a written directive to cease using the Tesla Coil to burn students should have been given. Step 1 in progressive discipline: document and warn.

The other issues-such as not teaching the required curriculum also could have been dealt with similarly.

I realize some may slam me for this-but I'm not sure his display of the Bible per se was misconduct. Notably, Freshwater was apparently advised by his OEA Rep that if ordered to remove his Bible he should do and then grieve.

However, my sense is that if the school district had followed appropriate steps and crossed its i's and dotted its t's, it could have at least corrected the conduct and improved Freshwater's teaching performance. And then if and when those steps failed, the new misconduct would have made the school district's case extremely strong.

Some may be tempted to blame the OEA, teacher tenure and other similar features of K-12 education. That isn't the problem. The problem lies with district officials refusing to read the contract and not wanting to deal with something difficult until it blows up in their face.

I still think that the school district is likely to prevail-but as you point out, it will cost a lot, lot more money than it needed to.

Using the Tesla coil in the manner Freshwater did was apparently routine in middle school classes, though using it to ‘draw’ crosses on students’ arms was Freshwater’s innovation.

If you read the investigator’s report, the family’s federal lawsuit, and the Board’s termination resolution you will not see an issue with the Bible on his desk. That’s a smokescreen thrown up by his fundamentalist supporters.

One note on this: Freshwater is not a member of the bargaining unit: He opted out. After the Board voted to terminate him he attempted to join the bargaining unit to get access to its legal resources but was refused.

Since you have the bird's eye view on this, can you clarify a little more on some of the following: As I recall (which admittedly could be a bad memory), the primary issue was the harm done to the student. Have other teachers been using the Tesla coil to "burn" students? As I recall the initial report, what set this off was the persistence and severity of the burn.

OK-I guess I misunderstood or misremembered. I thought I recalled in some of the testimony an extended discussion about his having the Bible on his desk and being asked not to display it. So who brought that issue up in the hearing and why?

And then I have a very, very minor quibble: Like I said-very minor: member of a bargaining unit means that you are an employee covered by the contract regardless of your membership in the Union. Obviously, you can probably check the contract easier than I can, but the contract should define "bargaining unit" and usually would at least include all teaching staff and define whether or not department chairs and/or librarians are members of the bargaining unit. The only way you can opt out of the bargaining unit is to take a post in the district that is not covered by the contract (e.g. become a principal).Legally, the OEA has the legal obligation to defend teachers regardless of whether or not they are members of the OEA0-that is why we fought so hard on "fair share" (requiring non-members to pay about 90% of dues). Fair share is negotiated rather than mandated, so your district may not have fair share. So Freshwater would not have been eligible for the legal advice provisions of the OEA member benefits. However, his OEA Rep would still have an obligation to represent him. On the other hand, depending on the situation, a Union can look at a case and simply say "we don't want to fight this one".

My favorite line:

"The museum shows how God discredits science."

Priceless.

Look, the sooner these charlatans learn that there will be a price to pay for their duplicity, the sooner they will stop trying to force their nonsensical beliefs on others at tax payer expense. This is a lesson the Freshwater and the school board are currently learning. I'm sure he considers this a success, since the school dsitrict now has even less money to spend on science education. So much for loving science.

RBH-

Thanks a lot for clarifying those issues. That explains a lot I had not fully understood.

And your point is even more clear now. The school district really, really screwed up on this one.

Who is paying for Freshwater's legal costs? He is adding up a very large bill.

Gary Hurd said: Who is paying for Freshwater's legal costs? He is adding up a very large bill.

Gary Hurd said: Who is paying for Freshwater's legal costs? He is adding up a very large bill.

Gary Hurd -

Who is paying his legal bills?

What a good question.

The amount of money available for "wingnut welfare" seems fairly inexhaustible.

Freshwater could just drop all legal actions, resign right now, and get a job teaching in a religious school, or possibly even as a fellow at the Discovery Institute.

IANAL, but this seems early and cuckoo.

Usually in these cases, the courts including the feds, won't hear a case until all other designated avenues are done.

The administrative hearing is ongoing and has not been concluded. Until then, there are no grounds to sue in federal court. He can't say that the administrative hearing ruled against him because they haven't ruled yet.

Really, this looks like a desperation move. Like he knows he has lost. Throw a bowl of spaghetti against the wall and see if any of it sticks.

Anyone who knows more about legal procedures, feel free to add something.

The lawsuit, filed in US District Court for the Southern District of Ohio, cites free speech and equal protection violations under the US Constitution. Violations of Ohio Public Policy, religious harassment, retaliation, conspiracy, defamation, and breach of contract are also addressed in the claim filed Tuesday.

raven said: IANAL, but this seems early and cuckoo. Usually in these cases, the courts including the feds, won't hear a case until all other designated avenues are done. The administrative hearing is ongoing and has not been concluded. Until then, there are no grounds to sue in federal court. He can't say that the administrative hearing ruled against him because they haven't ruled yet. Really, this looks like a desperation move. Like he knows he has lost. Throw a bowl of spaghetti against the wall and see if any of it sticks. Anyone who knows more about legal procedures, feel free to add something.

As I understand it (based mostly on hearsay), the suit was initiated when two members of the BOE refused to testify in the hearing. Freshwater’s contention (or that of R. Kelly Hamilton, his attorney) is that refusal cripples Freshwater’s ability to put on a complete defense in the administrative hearing. Hence his only alternative now is a federal suit. Or something like that.

Richard:

I've downloaded the complaint and hope to be able to OCR it sometime tomorrow. One interesting thing is that he alleges that the Board had a policy allowing religious and moral references in "instructional and resource materials approved for use in the District's schools" to be employed by teachers as long as they are "neutral" in their approach to them. He is also apparently claiming that teaching creationism and giving additional credit for a project involving Expelled fits under the curriculum's requirement of explaining the importance of reproducibility and reduction of bias in science.

Drop me a line at catshark101 AT yahoo DOT com and I'll email you the pdf once it's OCRed.

raven said: IANAL, but this seems early and cuckoo. Usually in these cases, the courts including the feds, won't hear a case until all other designated avenues are done. The administrative hearing is ongoing and has not been concluded. Until then, there are no grounds to sue in federal court. He can't say that the administrative hearing ruled against him because they haven't ruled yet. Really, this looks like a desperation move. Like he knows he has lost. Throw a bowl of spaghetti against the wall and see if any of it sticks. Anyone who knows more about legal procedures, feel free to add something.

In testimony before the Ohio State Board of Education in 2003 I coined the phrase “Dover Trap” to describe the hole local districts could find themselves in when they fail to properly manage teachers and administrators who do not understand the secular nature of public education. Mt. Vernon is well and truly caught in a Dover Trap.

The old case (with Freshwater counter-claim) is:

2:08-cv-00575-GLF-NMK Doe et al v. Mount Vernon City School District Board Of Education et al
Filed: 06/13/2008

The new case:
2:09-cv-00464-GLF-NMK Freshwater v. Mount Vernon City School District Board of Education et al
Filed: 06/09/2009

He claims violations of
First and Fourteenth amendments of the US constitution
USC Title 42 section 1983
USC Title 42 section 2000
Ohio Code 4112.02-4112.99
and others including "Res Judicata" which really means that Freshwater says he relied on what the previous board said to his detriment.

He wants a jury to:
1) Give back his job
2) Order the Mt. Vernon board to be trained on Equal Employment law
3) Get a half-million dollars in missed teacher's pay
4) Get another half-million dollars in punitive damages
5) Get the 10+ defendants to also pay his lawyers
6) Erase bad things from his personnel record
7) Prevent any retaliation
8) The usual boilerplate for all other just relief
9) Have the court continue to monitor for future violation of "his rights"

(6/10) It was noticed that the cases are fundamentally related, and therefore the same judge was assigned the newer case.

Paul Burnett said:

Gary Hurd said: Who is paying for Freshwater's legal costs? He is adding up a very large bill.

"Freshwater and Hamilton have declined to discuss Freshwater's legal costs. "Since he isn't teaching and has no steady income, Mr. John Freshwater has been taking up some jobs around the city of Mount Vernon," according to the Web site, http://www.supportfreshwater.com, which accepts donations for his defense. Freshwater has not been paid since April. He worked briefly as a substitute teacher, and, recently, selling apples, pears and Christmas trees grown on his property. The Freshwaters have received numerous "Christian handshakes," wrote Don Matolyak, Freshwater's pastor and spokesman, "where people walk up to them and shake their hand and put money in." - http://www.dispatch.com/live/content/local_news/stories/2009/01/05/freshwat.ART_ART_01-05-09_B6_6UCE40P.html "You can also help Mr. Freshwater with his legal costs by sending a check to: The Community Council for Free Expression c/o Trinity Assembly of God, 1051 Beech Street, Mount Vernon, Ohio 43050" - http://www.bibleonthedesk.com/

In testimony before the Ohio State Board of Education in 2003 I coined the phrase “Dover Trap” to describe the hole local districts could find themselves in when they fail to properly manage teachers and administrators who do not understand the secular nature of public education. Mt. Vernon is well and truly caught in a Dover Trap.

rpenner said: He wants a jury to: . . . 3) Get a half-million dollars in missed teacher's pay . . .

David Utidjian said: Richard, minor question: You said:

In testimony before the Ohio State Board of Education in 2003 I coined the phrase “Dover Trap” to describe the hole local districts could find themselves in when they fail to properly manage teachers and administrators who do not understand the secular nature of public education. Mt. Vernon is well and truly caught in a Dover Trap.

If you are referring to Kitzmiller v. Dover, that didn't take place until 2004-2005, one to two years after you coined the phrase "Dover Trap." Did I parse the above sentences incorrectly? -DU-

mountvernon1805 said: The lawsuit states the reason for not waiting until the hearing is over: "Plaintiff Freshwater has certain causes of action that have an approaching statute of limitations. "In order to advance, protect and secure those claims Plaintiff Freshwater had to timely file this action prior to the conclusion of the statutorily prescribed hearing provided pursuant to Ohio Revised Code §3319.16."

tsig wrote:

"I wonder if income taxes are being paid?"

Well, if this guy claims that his annual teaching income was $250,000 then it should be easy to confirm with his W2 forms. If the two don't match, he either lied about his income in his suit or did not pay income tax on the entire amount. That could get him a conviction for tax evasion. Of course, if he didn't report all of his contributions that might be a violation of tax law as well. I wonder if he applied for charity status?

If he is serious about the federal lawsuit this could drag on for a few more years. The courts aren't known for speed. It will also cost the school district a lot more money. Anyone's guess but it could go over $1 million.

Freshwater probably is getting legal help from one of the many xian foundations and firms that pick up these sorts of cases.

Thanks for your continued provision of information re: Freshwater. I would have long ago abandoned interest. Salud a todos.

DS said: tsig wrote: "I wonder if income taxes are being paid?" Well, if this guy claims that his annual teaching income was $250,000 then it should be easy to confirm with his W2 forms. If the two don't match, he either lied about his income in his suit or did not pay income tax on the entire amount. That could get him a conviction for tax evasion. Of course, if he didn't report all of his contributions that might be a violation of tax law as well. I wonder if he applied for charity status?

Wow. It looks like Freshwater believes that he is the second coming. I give Freshwater little credibility, since it seems he refuse to recognize "separation of Church and state." Freshwater wants the law to work form him, and him only.

I wouldn't say Mt. Vernon is caught in a 'Dover trap'--if they hadn't tried to fire Freshwater everything would still be copacetic. And anyway, they're not firing him for being a religious kook, they're firing him for physically harming students. I may be wrong, but I assume that if Freshwater is fired then he won't get his full (any?) pension, which is real money, and provides a real incentive for him to keep fighting--and he must be pretty close to retirement.

The practical lesson is never use the formal system to fire Ohio school teachers who aren't convicted felons. This little exercise is probably going to cost the school district more than a million dollars in money and lost time. They should have placed Freshwater on administrative leave and then explained (off the record, of course) that he would spend all his years until retirement counting old textbooks at the district warehouse--over and over and over.

If Freshwater hadn't branded the kid, he'd be looking forward to another year of religious indoctrination in a secular classroom.

Terry said: If Freshwater hadn't branded the kid, he'd be looking forward to another year of religious indoctrination in a secular classroom.

My 2003 testimony was about the inclusion of ‘critical analysis of evolution’ in the new science standards that were up for adoption then.

— RBH

Kelly Hamilton, Freshwater's attorney, and his pastor Don Matolyak were on a Christian talk show yesterday. Interesting listening. I hear them fishing for a settlement, though that may just be me.

Hat tip to an anonymous PT reader.

RBH said: Again, there was rampant administrative bobbing and weaving for years, with what amounted to a 'Don't ask, don't tell' policy.

Terry said: If Freshwater hadn't branded the kid, he'd be looking forward to another year of religious indoctrination in a secular classroom.

Terry said: I may be wrong, but I assume that if Freshwater is fired then he won't get his full (any?) pension, which is real money, and provides a real incentive for him to keep fighting--and he must be pretty close to retirement.

The practical lesson is never use the formal system to fire Ohio school teachers who aren't convicted felons.

I just caught the tail end of another appearance on local talk radio by Pastor Don Matolyak and Kelly Hamilton. I heard the same message as in the program linked above -- fishing for a settlement. They're apparently using the filing of this suit to push for that in a sort of local publicity blitz.

Its screamingly obvious that the politicizing and polarizing isn’t working to improve science education, but according to many of the people concerned with the issue the solution is to increase the polarization! Insane.

RBH said: I just caught the tail end of another appearance on local talk radio by Pastor Don Matolyak and Kelly Hamilton. I heard the same message as in the program linked above -- fishing for a settlement. They're apparently using the filing of this suit to push for that in a sort of local publicity blitz.

Flint said: NOT protesting against creationist biology teachers preaching in class is the original "non-polarized" situation.

The solution HAS to be political

Flint said: What has caused the polarization is ...(2) the stone intransigent refusal of creationist teachers to stop preaching.

And therefore the more strenuously pro-science people fight against religious indoctrination in public school, the more the polarization.

Chip is precisely right.

I said this a couple of months ago, December-ish, but the defense appears to be making this very argument. It looks to me that administration botched it badly. As Chip detailed, there are procedures to terminating a tenured teacher, it isn't the impossible dream people think it is, you just have to follow the steps established by your individual state. The administrators in this case are, at best, shaky in their following of procedure. Part of that is due to the fact that at least one administrator appears to have agreed with Freshwater and also appears to have looked the other way or enabled his behavior. The other part is, I believe, related to the severity of the incident with the Tesla coil, or at least perceived severity.

It probably would have been a better move for them to transfer him to a non-teaching position, reprimand him and establish an improvement plan, and then, assuming he balked, or fought against it, begin termination proceedings. They have some documentation that he was counseled, but not much, it leaves it open to interpretation as to whether they followed the state guidelines/law.

I think he'll lose, but this is a hell of a lot closer, and more expensive, than it ever should have been.

I find the calling of the board members an interesting move. I would not be at all surprised to learn that two of the board members agree with Freshwater, or at least might be seen by Freshwater and his attorney to be friendly to his position. Calling two board members known to be hostile to his position to testify (thereby removing them from the final vote) was actually a nice move. Had they testified, it might have hurt him, but then the board vote might have been 2-1 in his favor. Now, filing federal charges appears to be, to me, an effort to gain a settlement. The district is looking at losing millions, the parents' suit, now Freshwater's, etc. Even if they win all of them, unlikely with the parent's suit, they are still looking at 2+ million in legal expenses if each goes to the appellate level. Unfortunately settling with Freshwater for 1/2 a mil, even though the district was right in firing him, etc., might actually start looking good.

RBH said: I should have added something about the financing of Freshwater's legal costs. Hamilton said "John Freshwater had to make a financial commitment for his legal fees. Essentially, I hold the paper on his property." That's very close to a direct quote, especially the "I hold the paper on his property."

dogematIB said: Chip is precisely right. I said this a couple of months ago, December-ish, but the defense appears to be making this very argument. It looks to me that administration botched it badly.

I find the calling of the board members an interesting move. I would not be at all surprised to learn that two of the board members agree with Freshwater, or at least might be seen by Freshwater and his attorney to be friendly to his position. Calling two board members known to be hostile to his position to testify (thereby removing them from the final vote) was actually a nice move.

Mike said:

RBH said: I should have added something about the financing of Freshwater's legal costs. Hamilton said "John Freshwater had to make a financial commitment for his legal fees. Essentially, I hold the paper on his property." That's very close to a direct quote, especially the "I hold the paper on his property."

Was there a question that prompted this? Is he implying that Freshwater isn't being bankrolled by religious extremists, or is he signalling that Freshwater needs contributions for his warchest?

Hamilton said “John Freshwater had to make a financial commitment for his legal fees.

fishing for a settlement. They’re apparently using the filing of this suit to push for that in a sort of local publicity blitz.

The solution is to not leave the field to the two poles: the extreme religious ideologs, and the extreme atheist ideologs. The grand majority of the country would not feel a need to equate religion and science if they weren’t being told that they had to.

Except that this isn’t what they think they’re doing. What they think they’re doing to pushing back against atheist indoctrination.

These are two separable topics: religious indoctrination and teaching religiously inspired pseudoscience.

We all know what the Dishonesty Institute does. They want martyrs but they aren’t going to pay for them.

— raven

raven said: Ouch. I'm surprised that none of the myriad of xian foundations picked it up.

It exists SOLELY in the minds of those for whom an “atheist” is anyone who is not a biblical literalist, EVEN IF such people are devout Christians who can grasp the essence of allegorical moral fables.

— Flint

Indeed, one of their bitterest enemies is the “theistic evolutionist”, the most vile possible kind of “atheist”.

— Flint

Oops, make that "anyone who does not reject 'Darwinism'."

Flint said: The fundamentalist creationists DEFINE an extreme pole, and they have not budged an iota off of it, despite countless debates and scientific advances and incessent refutations and corrections, for many decades now.

The "opposite pole" is not "atheistic" in any way whatsoever. Instead, their goal is to get science properly taught to students in public school.

The "atheism" DOES NOT EXIST in the high school scientific curriculum. It exists SOLELY in the minds of those for whom an "atheist" is anyone who is not a biblical literalist,

These are two separable topics: religious indoctrination and teaching religiously inspired pseudoscience.

No, they are not. They are two semantically equivalent phrases.

For the masochists (and lawyers) in the crowd, Freshwater's filing is here (pdf).

No, there is indeed an opposite pole made up of individuals who are more concerned about making a case that science negates all religion than they are in quality science education.

The majority of scientists, educators, and the public are caught in the middle while the two poles conduct their culture war at the expense of public education.

Both extremes want to advance their cultural agendas, and aren’t truly concerned about science education.

Both extremes want to shut out from the debate the majority of scientists and educators who do not see the necessity of opposing science and religion

Which doesn’t mean that they can’t be examined separately. Religious “indoctrination” takes place all the time without biology ever being mentioned. You have a widely recognized category of religion, and a category of pseudoscience. The words are necessary to describe two different things.

If the majority could be persuaded of the reality that science education does not have any necessary outcome for a child’s religious belief the conflict would be much more manageable

The two extremes aren’t going to allow that. Therefore, the rest of us have to take control of the debate.

Umm -- gifts aren't taxable. If Bill Gates decided to give me a million dollars tomorrow (he won't), it wouldn't be taxable income to me. (He may have gift/inheritance taxes on it, but I won't have any tax consequences at all.) Similarly, if wingnuts give Freshwater $1,000,000 for his defense, that's not taxable income to him either, as long as he is not providing any goods or services in return. Just thought I'd clarify that a bit.

Flint said:

If the majority could be persuaded of the reality that science education does not have any necessary outcome for a child’s religious belief the conflict would be much more manageable

Perhaps we are not nearly as stupid as you seem to think. There are two camps - the good science camp, and the creationist doctrine camp. That's ALL there are.

Eric,

The problem is, at Flint pointed out, there is a big difference between Dawkins or PZ Myers in the classroom and their public statements, books, lectures on philosophy. The assumption seems to be that educators cannot separate their own personal beliefs from the subject they teach. That is pure nonsense which is why Freshwater has no business in a public school classroom.

dogmeatIB said: Eric, The problem is, at Flint pointed out, there is a big difference between Dawkins or PZ Myers in the classroom and their public statements, books, lectures on philosophy. The assumption seems to be that educators cannot separate their own personal beliefs from the subject they teach. That is pure nonsense which is why Freshwater has no business in a public school classroom.

The assumption seems to be that educators cannot separate their own personal beliefs from the subject they teach.

dogematIB said: I find the calling of the board members an interesting move. I would not be at all surprised to learn that two of the board members agree with Freshwater, or at least might be seen by Freshwater and his attorney to be friendly to his position. Calling two board members known to be hostile to his position to testify (thereby removing them from the final vote) was actually a nice move. Had they testified, it might have hurt him, but then the board vote might have been 2-1 in his favor.

Is there someplace where documents about this case are kept on line. I know PT has linked to the original investigator's report before. Can this be provided again? Is there a copy of the original student/parent complaint? And is it possible to get a copy of the Collective Bargaining Agreement?

I have a kind of morbid curiousity about cases like this.

What worries me about this suit is that as far as I can see, if a judge reads it as if the facts alleged are true (which isn't the same as saying they are), then I think Freshwater will at least get past summary judgement.

I'm surpised however that his lawyers really think or wish to argue that the motivation of the school district was about Freshwater's Bible. It seems to me that the motivation of the school district was to respond to a complaint by parents about an alleged injury in a classroom. Also, Freshwater alleges that he was treated differently from other teachers, but these other teachers seem to share his religious views (unless I misread something).

What I don't understand is why his lawyers haven't filed this as a second amendment case (violation of his substantive due process rights-e.g. the failure of the investigating firm to fully consider exculpatory evidence).

The one fact that I see that may give the school district trouble is that Freshwater was never officially reprimanded and had positive evaluations for 19 years.

Again, I want to stress that I'm not saying I think Freshwater will or should win.

But it may as I said before come down to another instance where a school district screwed up termination/discipline procedures.

Reader's of PT might find it interesting to compare this case with the Ward Churchill case. The Law students at Colorado University live blogged Ward Churchill's First Amendment suit against Colorado University: http://www.theracetothebottom.org/ward-churchill/

Though the issues in the cases are very different, the similarity lies in the allegation that the employee committed misconduct but was able to document that the employer was not motivated by the alleged misconduct but by improper motives and was also able to cast some degree of doubt on the allegations of misconduct in court.

For those who may not remember, Churchill fist came to light several years ago when he wrote in an essay about Post-911 words to the effect that the people who were killed in the Twin Towers were not "innocent victims" but "little Eichmans". The wording is inflammatory and in my view an inappropriate comparison. But Churchill's point was that the people in the Twin Towers were active participants in an unjust world economy. These words, published in an essay, caused a cry for Churchill to be fired. Colorado University, where Churchill is/was a tenured faculty member, investigated his remarks in an effort to fire him for his remarks. They determined they could not fire him for his remarks.

At that point, CU investigated Churchill for allegations of fraud and plagiarism in his research. The allegations were investigated by a faculty committee which agreed the allegations were true and recommended his dismissal. A second faculty committee agreed as did the President of the Universiity and the Board of CU then voted to revoke Churchill's tenure.

Churchill then sued claiming the University fired him because of his speech, not because of the misconduct and argued that the allegations of misconduct were also untrue. During the trial Churchill was able to persuade a jury that he had been fired for his speech and that there was at least some doubt as to whether or not he had committed the misconduct. In other words, Churchill won his case.

As of now, the University has moved to dismiss the case because they argue that the Board is a quasi judicial body under Colorado's Constitution and therefore may not be sued for their actions taken in that capacity.

Chip Poirot said: Is there someplace where documents about this case are kept on line. I know PT has linked to the original investigator's report before. Can this be provided again? Is there a copy of the original student/parent complaint? And is it possible to get a copy of the Collective Bargaining Agreement?

Despite the plain language and meaning of Ohio Revised Code §2151.421, “Reporting Child Abuse or Neglect”, Defendant Short [Superintendent] failed to report the alleged harm to the public children services or local law enforcement.

Lowell said: Okay, I've only skimmed Freshwater's federal complaint, but I have to say my favorite part so far is paragraph 100, where he alleges the following:

Despite the plain language and meaning of Ohio Revised Code §2151.421, “Reporting Child Abuse or Neglect”, Defendant Short [Superintendent] failed to report the alleged harm to the public children services or local law enforcement.

That takes serious balls. "I didn't do it, but if I did, you're the bad guy for not reporting me to the police." Just amazing. It's like something a five-year-old would say.

That argument was famously used by Nanki-poo. Successfully, too.

RBH said:

Lowell said: Okay, I've only skimmed Freshwater's federal complaint, but I have to say my favorite part so far is paragraph 100, where he alleges the following:

Despite the plain language and meaning of Ohio Revised Code §2151.421, “Reporting Child Abuse or Neglect”, Defendant Short [Superintendent] failed to report the alleged harm to the public children services or local law enforcement.

That takes serious balls. "I didn't do it, but if I did, you're the bad guy for not reporting me to the police." Just amazing. It's like something a five-year-old would say.

The line of argument being taken here is that there must not have been an injury, since the administration didn't report it. Hamilton's questioning in this regard in the hearing has been to that point: 'Hey, you people claim a kid was injured, but no one reported it to Children's Services in spite of a statutory requirement to report it, so there actually must not have been any injury.'

Lowell,

RBH is right and strange as it may seem, they will actually raise this argument in open court.

It's pretty standard "gotcha" kind of arguments for a legal proceeding of any kind.

The school claims Freshwater harmed the kid and that that was the primary motivation to fire him (combined with insubordination). Freshwater then claims there was no injury, or if there was any "injury" then it was inconsequential.

The school claims there was an imjury and Freshwater's attorney comes back with "well if it was so serious, why didn't you report it?" The lack of a report becomes evidence of there not being an injury.

This is not as spurious as it sounds. It actually comes up a lot in harassment and abuse cases. Credibility of a complainant is enhanced when this person reports it to the police-if it really was a serious matter.

That's not to say the argument can't be overcome-but it is a valid argument.

During my one experience as a juror in a criminal case it really did seem like the prosecutor and the defense attorney were sometimes at the level of "I'm rubber your glue". But those arguments actually did matter to the members of the jury.

Chip Poirot said: Lowell, RBH is right and strange as it may seem, they will actually raise this argument in open court. It's pretty standard "gotcha" kind of arguments for a legal proceeding of any kind. The school claims Freshwater harmed the kid and that that was the primary motivation to fire him (combined with insubordination). Freshwater then claims there was no injury, or if there was any "injury" then it was inconsequential. The school claims there was an imjury and Freshwater's attorney comes back with "well if it was so serious, why didn't you report it?" The lack of a report becomes evidence of there not being an injury. This is not as spurious as it sounds. It actually comes up a lot in harassment and abuse cases. Credibility of a complainant is enhanced when this person reports it to the police-if it really was a serious matter. That's not to say the argument can't be overcome-but it is a valid argument. During my one experience as a juror in a criminal case it really did seem like the prosecutor and the defense attorney were sometimes at the level of "I'm rubber your glue". But those arguments actually did matter to the members of the jury.

Lowell wrote: ...(2) that the defendants’ failure to report is part of the “gross incompetence and malicious intent” that makes them liable for Freshwater’s damages. The second argument (Count 14 of the complaint) is the one that (I would think) Hamilton would be ashamed to bring up in court.

Is there someplace where documents about this case are kept on line

The line of argument being taken here is that there must not have been an injury, since the administration didn’t report it. Hamilton’s questioning in this regard in the hearing has been to that point: ‘Hey, you people claim a kid was injured, but no one reported it to Children’s Services in spite of a statutory requirement to report it, so there actually must not have been any injury.’

raven said: The school district should offer them a token settlement and Freshwater should take it. The main goal here should be to keep this guy away from normal kids. Let him do his religious indoctrination in xian private schools.

Technically speaking, in the United States, it’s illegal to brand crosses into the arms of children even in private, religious schools.

Mike said: ... the obvious short term incentive is to avoid all controversy. That has produced the dominant reality across the US of "teach the controversy" compromises...

raven said: [SNIP] It is starting to look like the school district's "See no evil, hear no evil" policy of doing nothing until bodies start piling up is backfiring on them.

The school district should offer them a token settlement and Freshwater should take it. The main goal here should be to keep this guy away from normal kids. Let him do his religious indoctrination in xian private schools.

Then one day, when he was old, he walked along the road past the great estate that had once been his. As he walked, he stumbled among the stones on the road. His feet were bare, and the stones cut them and bruised them. He stopped near the wall to rest his sore feet. And then he recalled the words of the villager who had said long ago, " Why do you throw stones from 'not yours' to 'yours'?"

And as always thanks for these updates Richard Hoppe, I never miss them.