Freshwater: Appeal to the Ohio Supreme Court

Posted 13 April 2012 by Richard B. Hoppe

Recall that John Freshwater, former middle school science teacher in the Mt. Vernon (Ohio) City Schools, appealed his termination to the Knox County Court of Common Pleas, which denied his appeal. He then appealed to the Ohio 5th District Court of Appeals, which also denied the appeal. Now he is appealing to the Ohio Supreme Court. Today he filed a Memorandum in Support of Jurisdiction (MIS) with that court. The MIS is filed by R. Kelly Hamilton, Freshwater's personal attorney, who is identified as "Affiliate Attorney with The Rutherford Institute". The appeal document is up on NCSE's site. I have not done a detailed comparison of Freshwater's (really, Rutherford's) appeals court brief with the Supreme Court appeal, but a fast reading suggests they make essentially the same arguments. In the Supreme Court document, which is essentially a condensed version (14 vs. 33 pages) of the brief submitted to the Ohio 5th District Court of Appeals, Freshwater once again makes the academic freedom and free speech arguments that were raised in his 5th District brief, as well as raising the "religious hostility" argument he made in that appeal. Both documents refer to "competing academic theories," echoing the appeals brief's claim that Freshwater only taught "alternative theories," never mentioning the intelligent design and creationist materials he used. His behavior in that regard is called "neutrality toward religion." The MIS says that

The fact that one competing theory on the formation of the universe and the beginning of life is consistent with the teachings of multiple major world religions simply does not justify interference with students' and teachers' academic freedom. ... Additionally, the Board's action manifests a clear and distinct hostility toward the major world religions whose teachings are consistent with the alternative theories discussed in Freshwater's classes. (pp. 5-6)

As with the appeals court brief, the appeal to the Supreme Court does not actually get around to mentioning just what "alternative theories" Freshwater taught. In sworn testimony in the administrative hearing Freshwater denied teaching creationism. In an interview with faux-historian David Barton, Freshwater claimed to have taught "robust" evolution, teaching the evidence for and against. Now he says he taught "alternative theories." One wonders what they were. Lysenkoism? Lamarckism? Mutationism? What? The appeal claims that "Moreover, the academic freedom concern expressed here is of heightened importance because it involves the banishment of academic theories from the classroom based solely on the fact that they are consistent with certain religious traditions." That is the core of the Rutherford Institute's approach in this case, and represents an instance of the broader ID strategy to reverse the causal arrow between creationism and religion. It seeks to make the former the prime mover, not the latter. By very carefully not naming the "alternative theories" Freshwater supposedly taught, the Rutherford Institute is once again trying to slide creationism into public school curricula without actually naming it. It's just coincidence that religion-based creationism is consistent with those alternative academic theories. Nothing to see here, folks. Move along.

53 Comments

Flint · 13 April 2012

As has been noted by editorialists across the land, the US Supreme Court currently has four Republicans and four Democrats, both in terms of the party of the President who nominated them, and in terms of their voting record on the Court. For some years no, nearly every important case before the Court has found all eight of these justices voting strictly along party lines. In terms of party loyalty, the current US Supreme Court is more strictly partisan than Congress!

So the question here becomes, what is the political composition of the Ohio Supreme Court? Do they have enough Republicans to decide to take the case? Do they vote along party lines on their legal cases as, uh, religiously as the US Supreme Court?

Flint · 13 April 2012

As a footnote here, Judge Roy Moore was recently re-elected as Chief Justice of the Alabama Supreme Court, a job he lost a few years back for defying the US Supreme Court, the US Constitution, and even the Alabama constitution, because he insisted (in so many words) that his bible interpretations overrule the law he swore to uphold.

(And yes, he has to beat a Democrat in November, if any bother to run against him. In Alabama, that's a rubber stamp election.)

So if the Ohio case were instead raised in Alabama, Freshwater would have a very good chance of winning. As no, no realistic chance of losing!

Richard B. Hoppe · 13 April 2012

Six of the seven justices on the Ohio Supreme Court are Republicans. I know nothing of their politics, in the sense of how they would grade out on a Warren Burger to Antonin Scalia scale.

anonatheist · 13 April 2012

I KNEW IT! If six of the seven justices on the OH Supreme court are in fact Republicans, he can start celebrating now. Ohio will become as big a laughing stock as Kentucky. Maybe Ken Ham will open a branch of the Creation Museum in Mount Vernon in honor of John Freshwater.

Richard B. Hoppe · 13 April 2012

anonatheist said: I KNEW IT! If six of the seven justices on the OH Supreme court are in fact Republicans, he can start celebrating now. Ohio will become as big a laughing stock as Kentucky. Maybe Ken Ham will open a branch of the Creation Museum in Mount Vernon in honor of John Freshwater.

I think that's premature hysteria. I'd actually be a bit surprised if the Court even accepts the appeal. BTW, Case page on the Supreme Court site, with both docs so far submitted.

Flint · 13 April 2012

Legally, they would be foolish to accept the appeal for several reasons, from bad law to bad policy to bad precedent. But clearly for some people, religious conviction rolls right over such irrelevancies.

Just Bob · 13 April 2012

Remember, Judge Jones was a Republican.

Henry J · 13 April 2012

It’s just coincidence that religion-based creationism is consistent with those alternative academic theories. Nothing to see here, folks. Move along.

These are not the droids you're looking for. May the farce be with you.

TomS · 14 April 2012

banishment of academic theories from the classroom based solely on the fact that they are consistent with certain religious traditions

It would seem difficult to establish that anything was done solely because of consistency with religious traditions. After all, there are many things which are consistent with religious traditions. It is consistent with certain religious traditions that there is day and night, yet I would find it implausible that mention of day and night is therefore banned from the classroom. There must be something which distinguishes between the unmentioned banned theories and the recognition of there being day and night, something other than this supposedly "sole" reason.

cmb · 14 April 2012

Since the Federal Court has already kicked the case back to the local level, does Freshwater have any further recourse if he loses at the Ohio State Supreme Court? Does Freshwater get another shot at the Federal Court system?

Frank J · 14 April 2012

Just Bob said: Remember, Judge Jones was a Republican.

And a Christian, And appointed by GWB, who later, in so many words, hinted that he thought Judge Jones made the right decision. Of course none of that means anything to radical authoritarians who are conservative in name only.

John · 14 April 2012

Frank J said:
Just Bob said: Remember, Judge Jones was a Republican.
And a Christian, And appointed by GWB, who later, in so many words, hinted that he thought Judge Jones made the right decision. Of course none of that means anything to radical authoritarians who are conservative in name only.

His recommendation to the Federal bench by then Senator Rick Santorum was the only legally useful act ever done by that delusional former Republican presidential candidate. So sayeth this science-trained Conservative Republican.

W. H. Heydt · 14 April 2012

cmb said: Since the Federal Court has already kicked the case back to the local level, does Freshwater have any further recourse if he loses at the Ohio State Supreme Court? Does Freshwater get another shot at the Federal Court system?

To the best of my knowledge (IANAL), anyone can appeal a state supreme court decision to the US Supreme Court, but the USSC is extraordinarily unlikely to take the appeal unless it raises a US Constitutional issue. --W. H. Heydt Old Used Programmer

Richard B. Hoppe · 14 April 2012

W. H. Heydt said: To the best of my knowledge (IANAL), anyone can appeal a state supreme court decision to the US Supreme Court, but the USSC is extraordinarily unlikely to take the appeal unless it raises a US Constitutional issue. --W. H. Heydt Old Used Programmer

Nor am I a lawyer, but Freshwater's (really, Rutherford's) briefs in both the Ohio Court of Appeals and the Ohio Supreme Court purport to raise U.S. Constitutional issues. They're making both a freedom of speech argument claiming that 'academic freedom' is a subset of freedom of speech and the Board violated his freedom of speech, and an Establishment Clause claim, arguing that Freshwater's termination is an instance of hostility to religion.

cepetit.myopenid.com · 14 April 2012

W. H. Heydt said:
cmb said: Since the Federal Court has already kicked the case back to the local level, does Freshwater have any further recourse if he loses at the Ohio State Supreme Court? Does Freshwater get another shot at the Federal Court system?
To the best of my knowledge (IANAL), anyone can appeal a state supreme court decision to the US Supreme Court, but the USSC is extraordinarily unlikely to take the appeal unless it raises a US Constitutional issue. --W. H. Heydt Old Used Programmer

This is not quite correct, but it's close. The appeal on a federal issue from a state supreme court (or intermediate court of appeals, or even trial court, if the state court refuses to hear the case) would be to the U.S. Supreme Court. (No, one doesn't file a case in federal district court or one of the circuit courts of appeals; that violates the Rooker-Feldman doctrine, and you really don't want to know the details.) There is no appeal from a state supreme court on a purely state ground, though; the state supreme court is the final arbiter of what a state's law says so long as there is no potential conflict with federal law. In the Freshwater matter, that means that every aspect of the case that legitimately relates back to the US First Amendment (and the Fourteenth Amendment's Due Process and Equal Protection clauses) will be potentially "live" after a decision by the Ohio Supreme Court, and could be taken up on appeal to the U.S. Supreme Court. Anything that does not relate to that will not be live on further appeal, because the U.S. Supreme Court would not have jurisdiction to hear it (see Art. III, § 2). Freshwater's position is that virtually everything violated his First Amendment rights, and so that's what he'll claim... but that's a losing argument. For example, the question of whether the state had the right to discipline him for a battery upon a student on sufficient evidence (the, forgive the pun, "hot cross wrist") is a question purely of state law, and will not be live before the U.S. Supreme Court. There were adequate findings below to support under the laws of the state of Ohio that (a) Freshwater committed an intentional battery, (b) an intentional battery upon a student is grounds for teacher discipline, and (c) the particular discipline imposed was within the sound discretion of the disciplinary authority (the district). Ultimately, what that means is that even if the U.S. Supreme Court were to accept the matter, it could not offer Freshwater his job back, because there is an independent state ground for firing him... which means that the U.S. Supreme Court wouldn't accept the case in the first place. Yes, I know this is convoluted. It's almost as convoluted as managing an array in COBOL.

Karen S. · 14 April 2012

Yes, I know this is convoluted. It’s almost as convoluted as managing an array in COBOL.

Wow! I remember COBOL. It goes way back, just like creationism. (But it never reappeared under another name.)

phhht · 14 April 2012

Karen S. said:
Yes, I know this is convoluted. It’s almost as convoluted as managing an array in COBOL.
Wow! I remember COBOL. It goes way back, just like creationism. (But it never reappeared under another name.)

I understand that COBOL is still in commercial use. It's the cockroach of programming languages.

W. H. Heydt · 14 April 2012

cepetit.myopenid.com said: The appeal on a federal issue from a state supreme court... Yes, I know this is convoluted. It's almost as convoluted as managing an array in COBOL.

Thanks for the details. Nice to know that I was at least close (must come from years of reading Groklaw). As for managing arrays in COBOL...that's quite easy. The complexity in COBOL is mostly in effective use of the REDEFINES feature. What got people in trouble with COBOL was misuse of ALTER GOTO (said misues are probably a major force behind other high-level languages bar to using self-modifying code, even though such features are very common in assembly languages). --W. H. Heydt Old Used Programmer

Frank J · 14 April 2012

[Judge Jones'] recommendation to the Federal bench by then Senator Rick Santorum...
— John

I forgot about that. And that's yet another reason I'm getting just as annoyed with our side as I am with the scam artists. GWB may have been clueless, and said no more than I would have in the late 90s, after 30 years of accepting evolution, yet was branded a "creationist" before anyone even bothered to ask him whether he accepted evolution (he later admitted that he had no problem with it). But Santorum was in on the scam by 2000. While he too once dropped a vague hint that he did not agree with ID/creationism, yet defended their right to peddle it at taxpayer expense, he later parroted the "micro/macro" nonsense to evade a softball question. But to my knowledge, no one who has interviwed him has ever bothered to ask him the hard questions - his conclusion on the age of life, common descent, whether 99+% of biologists are conspiring and/or bullied into protecting a "theory in crisis," etc. I constantly get the "why bother," but my answer is that there's at worst nothing to lose by asking. And a lot to gain, at least in the long run, by finally getting the public to notice the "debate" on our terms, not on those of the pseudoscience peddlers.

Red Right Hand · 14 April 2012

W. H. Heydt said:
cepetit.myopenid.com said: The appeal on a federal issue from a state supreme court... Yes, I know this is convoluted. It's almost as convoluted as managing an array in COBOL.
****** What got people in trouble with COBOL was misuse of ALTER GOTO... ******* --W. H. Heydt Old Used Programmer

The HORROR! The HORROR! - ~~Mr. Kurtz~~ E.W.Dijkstra

Red Right Hand · 14 April 2012

Frank J said:
[Judge Jones'] recommendation to the Federal bench by then Senator Rick Santorum...
— John
I forgot about that. And that's yet another reason I'm getting just as annoyed with our side as I am with the scam artists. GWB may have been clueless, and said no more than I would have in the late 90s, after 30 years of accepting evolution, yet was branded a "creationist" before anyone even bothered to ask him whether he accepted evolution (he later admitted that he had no problem with it). But Santorum was in on the scam by 2000. While he too once dropped a vague hint that he did not agree with ID/creationism, yet defended their right to peddle it at taxpayer expense, he later parroted the "micro/macro" nonsense to evade a softball question. But to my knowledge, no one who has interviwed him has ever bothered to ask him the hard questions - his conclusion on the age of life, common descent, whether 99+% of biologists are conspiring and/or bullied into protecting a "theory in crisis," etc. I constantly get the "why bother," but my answer is that there's at worst nothing to lose by asking. And a lot to gain, at least in the long run, by finally getting the public to notice the "debate" on our terms, not on those of the pseudoscience peddlers.

One the problems a lot of us had with GWB at the time was his public statements in support of ID. As I recall, they occurred at the same time, and echoed, Santorum's efforts to help shoehorn ID into education via the "Santorum Amendment".

Paul Burnett · 14 April 2012

Red Right Hand said: One the problems a lot of us had with GWB at the time was his public statements in support of ID. As I recall, they occurred at the same time, and echoed, Santorum's efforts to help shoehorn ID into education via the "Santorum Amendment".

Wednesday, August 3, 2005 - President Bush invigorated proponents of teaching alternatives to evolution in public schools with remarks saying that schoolchildren should be taught about "intelligent design," a view of creation that challenges established scientific thinking and promotes the idea that an unseen force is behind the development of humanity. Although he said that curriculum decisions should be made by school districts rather than the federal government, Bush told Texas newspaper reporters in a group interview at the White House on Monday that he believes that intelligent design should be taught alongside evolution as competing theories. "Both sides ought to be properly taught . . . so people can understand what the debate is about," he said, according to an official transcript of the session. Bush added: "Part of education is to expose people to different schools of thought. . . . You're asking me whether or not people ought to be exposed to different ideas, and the answer is yes." - http://www.washingtonpost.com/wp-dyn/content/article/2005/08/02/AR2005080201686.html

Paul Burnett · 14 April 2012

Frank J said: But to my knowledge, no one who has interviwed him has ever bothered to ask him the hard questions - his conclusion on the age of life, common descent, whether 99+% of biologists are conspiring and/or bullied into protecting a "theory in crisis," etc. I constantly get the "why bother," but my answer is that there's at worst nothing to lose by asking. And a lot to gain, at least in the long run, by finally getting the public to notice the "debate" on our terms, not on those of the pseudoscience peddlers.

Agreed. How do we get Santorum - and for that matter Romney and even Gingrich - to answer? How old is the earth, are humans related to other species, is evolution the cornerstone of biology? Let's formulate a half-dozen questions and get them into play somehow.

Rolf · 15 April 2012

Karen S. said:
Yes, I know this is convoluted. It’s almost as convoluted as managing an array in COBOL.
Wow! I remember COBOL. It goes way back, just like creationism. (But it never reappeared under another name.)

I don't know if it ever got off the ground but wasn't ADA supposed to be to programing what ID is to creationism? Maybe somewhat strained as metaphors goes but the best I could come up with, just wanted to have ADA on the table...

harold · 15 April 2012

Frank J -

GWB may have been clueless, and said no more than I would have in the late 90s, after 30 years of accepting evolution, yet was branded a “creationist” before anyone even bothered to ask him whether he accepted evolution (he later admitted that he had no problem with it).

I don't care what your underlying political beliefs are, but let's be honest about where politicians actually stand. I'll almost certainly be voting for someone I deeply disagree with on many issues, the current president, but I admit what those disagreements are. George W. Bush stated publicly that "the jury is still out" on evolution and that ID/creationism should be taught along with evolution in public schools. It doesn't matter what he privately believes. Todd Wood seems to privately believe in creationism, but doesn't want to violate my rights by teaching sectarian dogma as science in public schools, at taxpayer expense. Freshwater is a creationist who takes the opposite stance. I'm sure George W. Bush is indeed privately a lot less religious than Todd Wood, but GWB indicated support for teaching of sectarian creationist religious dogma in taxpayer funded public schools. That counts as "having a problem". http://www.nytimes.com/2005/08/03/politics/03bush.html http://www.slate.com/articles/news_and_politics/chatterbox/2000/10/george_w_bush_the_last_relativist.html

Frank J · 15 April 2012

Agreed. How do we get Santorum - and for that matter Romney and even Gingrich - to answer? How old is the earth, are humans related to other species, is evolution the cornerstone of biology? Let’s formulate a half-dozen questions and get them into play somehow.
— Paul Burnett

It's not easy via letters and email, because as you know, politicians rarely have time to read them, let alone answer even the questions that they think can win them votes. But IMO it must be done. There's a critical mass beyond which they know they can't ignore them. I mentioned "interview" above because that's the best way to force them to either answer or demonstrate evasion. Unfortunately interviers usually ask the wrong questions, such as the breathtakingly inane "do you 'believe in' evolution?" When Rick Perry was asked one of the rare better questions (regarding the age of the earth - I would prefer age of life) he evaded it on camera. Like Santorum, and unlike GWB, Perry is in on the scam (courtesy of Don "big tent" McLeroy). What no one to my knowledge picked up on was that, he could at least have said that "scientists know that answer better than I do" but did not, thus reinforcing the common misconception that scientists are mistaken or worse. The evasion does not mean that he thinks the scientists are wrong, only that he's aware that he needs the votes of YECs, OECs and "evolutionists." Yet many people, pro- and anti-evolution alike, probably gleefully reacted with "Perry's a YEC!" My guess is that he's not, but that is in no way a compliment. So please everyone, keep asking, even if you're repeatedly ignored. Give it time to catch on. And educate the interviwers too. Make sure they ask the hard questions. Remember that these politicians - including Democrats - are all over the map regarding evolution. Some, like GWB and John McCain, accept it but nevertheless fall for the "fairness" nonsense. Some may be Biblical literalists, and some are in on the scam. And most have not given 5 minutes' thought to it beyond the common, misleading sound bites.

Frank J · 15 April 2012

George W. Bush stated publicly that “the jury is still out” on evolution and that ID/creationism should be taught along with evolution in public schools.
— harold

Disclaimer: I'm mostly conservative, but not really a fan of GWB. Nevertheless I have to partially defend him on this one. People who parrot the "jury is still out” line I think are salvageable. Unlike those who go the "Expelled" route and insist that there's some "conspiracy" among scientists. And in fact in a later interview (just before or after he left office - it's on YouTube) he said that he had no problem with evolution. The timing of his oft-cited 2005 comment probably had a lot to do with forcing him to look at least a little beyond the misleading sound bites. Just a few months later he had to think about whether the judge he appointed made the right decision or not. From his later interview, the apparent answer is yes. He didn't react with "I should never have appointed that 'activist' judge," as someone like Don McLeroy would have. So GWB at least was less sure of the "fairness" nonsense, if not outright rejecting it. Again I have to put this in perspective of my own experience. In 1997, fully 30 years after accepting evolution (macro and all) and dismissing Genesis as an allegory, I still naively thought that it would be OK to compare them in a science class and "let students decide." And I had been a chemist for 20 years! As you probably know, to this day many scientists, even some biologists, make that mistake. It was only on learning how devious the tactics of the anti-evolution activists were that I did a quick 180 on the "fairness" nonsense. These politicians are not scientists, so they are easily misled by anti-science activists, who can get away with the despicable half-truth that "many 'dissenting' scientists agree with us." If we don't counter that at every turn - and our job is certainly harder than that of the anti-science activists because what we have to say is mostly counterintuitive to nonscientists - we have no reason to complain.

alicejohn · 15 April 2012

Back to the topic, I would appreciate it if someone would refresh my memory of the entire Freshwater affair. If I recall correctly, Freshwater was fired mostly for being insubordinate (among other things, refusing to stop teaching non-science stuff). However, if I understand the appeal process, the only thing Freshwater can appeal is the conduct of his hearing (ex, the referee made a precedural mistake that could have caused him to lose his case). To me, both of his appeals don't make sense because "first amendment" and "academic freedom" were not the focus of his original defense. He can not retry his case in appeal by bringing up new arguments. Am I correct?

If he somehow wins the appeal. what does that mean? I would think the best he can hope for is a new hearing. Then we get to follow the three ring circus all over again from the beginning.

DS · 15 April 2012

Paul Burnett said:
Frank J said: But to my knowledge, no one who has interviwed him has ever bothered to ask him the hard questions - his conclusion on the age of life, common descent, whether 99+% of biologists are conspiring and/or bullied into protecting a "theory in crisis," etc. I constantly get the "why bother," but my answer is that there's at worst nothing to lose by asking. And a lot to gain, at least in the long run, by finally getting the public to notice the "debate" on our terms, not on those of the pseudoscience peddlers.
Agreed. How do we get Santorum - and for that matter Romney and even Gingrich - to answer? How old is the earth, are humans related to other species, is evolution the cornerstone of biology? Let's formulate a half-dozen questions and get them into play somehow.

Well there are going to be a number of debates where questions are asked. Why can't someone just request that the moderators ask the questions to all of the candidates? Why can't this be part of the national debate? After all, there are a lot of people who will decide who to vote for based on their answers to these questions. This has been done before, I believe in the Republican primaries four years ago. Now it is obvious why a candidate might not want to answer, but unless the hard questions are asked, they won't even have to bother to evade them. When voting for a presidential candidate, or any other type of politician, it is important to determine where they stand on important issues such as science and education. Do they want to bend to religious fundamentalists and deny reality? Do they want to make it harder for young people to learn about reality? Are they committed to the kind of scientific investigation that has provided us with the modern society that we have all come to depend on, or are they willing to sell the entire society down the tubes just to pander to the ignorant who can be fooled into voting for them?

harold · 15 April 2012

Frank J. -

People who parrot the “jury is still out” line I think are salvageable.

This discussion is on topic, by the way, and the moderators have full power to place discussions that they judge to be not on topic on the BW at any time. It's important that I clarify again that I have a problem with people who violate my rights or mislead the public about science. As far as private beliefs, I'd greatly prefer that creationists come to their senses, but I strongly support their right to live and believe as they wish. I've personally salvaged multiple people who mistakenly thought that the "jury was still out". Behe is a huge help in that process, by the way. His arguments about the "designer" ~~magically~~ miraculously intervening for the benefit of malaria parasites of bacteria with flagella are remarkably good for bringing the sane to their senses. However, I doubt that GWB counts among the "salvageable". His comments did not express personal views, in my opinion, but rather, were a not very coded way of stating that he was politically on the side of creationism in schools. Once someone has decided that they support outright denial of scientific reality and violations of the first and most basic amendment of the Bill of Rights of the United States Constitution in the name of ideological consistency, that is a bigger problem. Again, I am sure that Todd Wood "believes in" creationism, and fairly sure that Bush probably doesn't, but Bush, not Wood, was the one who expressed solidarity with political creationism (which Wood, to his credit, more or less seems to oppose). This is important, and related to Freshwater, because to some degree, you do get what you vote for. There is one sitting SCOTUS justice who is already known to fully support creationism in public schools. His name is Antonin Scalia, and he wrote the dissent, that is, the losing argument that creationism should be allowed, in Edwards v. Aguillard. The only reason Freshwater has been stopped so far is that sufficient school authorities and judges are willing to respect the law. The law does stop working if those who must uphold it become lawless. The person I am planning to vote for in the presidential race does not, to put it very mildly indeed, have a strong record on constitutional rights, just a slightly better record than the only other realistic alternative. However, if the sitting president comes out with an endorsement of enforced creationist religious dogma in taxpayer funded public schools between now and the election, I'll vote for someone else.

Frank J · 15 April 2012

This is important, and related to Freshwater, because to some degree, you do get what you vote for. There is one sitting SCOTUS justice who is already known to fully support creationism in public schools. His name is Antonin Scalia, and he wrote the dissent, that is, the losing argument that creationism should be allowed, in Edwards v. Aguillard.
— harold

While GWB may have changed his mind after his 2005 comment, he also would have appointed another Scalia in a heartbeat, which is why I never voted for him, and would not even now. Unlike my "partial defense" of GWB, this is not at all a defense of Scalia. But to be fair, the only "creationism" that he defended was the phony "critical analysis" of evolution, which is the 2nd generation (after ID) replacement for "scientific" creationism. Make no mistake, to me teaching those misrepresentations of evolution is worse than teaching "evidences" for a young earth; at the latter might alert some students to where the real weaknesses lie. If anything, Scalia is partly responsible for the "evolution" of the scam, and probably still stands by the double standard ("question" evolution and give everything else a free pass), and is now aware that it is just that. This is especially relevant to Freshwater, because he is one of those who "didn't read the memo," which is why the DI, instead of defending him, pretends he doesn't exist.

harold · 15 April 2012

Make no mistake, to me teaching those misrepresentations of evolution is worse than teaching “evidences” for a young earth; at the latter might alert some students to where the real weaknesses lie.

Well, I do agree that if I differentiate between how wrong two things are, straight YEC is actually "better" than ID/creationism, in the sense that testable claims are better than logically incoherent BS. It's not clear at this point what the "ID" strategy achieved. In a sense, it achieved nothing or made creationists look worse to the general public. In another sense, it caused evolution denial to be recognized as an obsessive demand of the "base".

Richard B. Hoppe · 15 April 2012

An attorney friend has clarified one or two things for me. First, the MIS cited in the OP is Freshwater's argument that the Ohio Supreme Court should take up his appeal. If it does, then the actual appeal brief (and a response from the Board) will be filed.

Second, my attorney friend tells me that as he reads the Propositions of Law in the MIS, two of the three don't match up with the appeal that was taken to the 5th District Court of Appeals, and therefore may be rejected on that basis.

This is foreign territory for me, and I welcome elaborations, corrections, and (especially) lay-friendly explanations from those qualified.

Frank J · 16 April 2012

It’s not clear at this point what the “ID” strategy achieved. In a sense, it achieved nothing or made creationists look worse to the general public.
— harold

Ah, but only to the tiny minority of us that gives it more than 5 minutes thought. The poll #s are unchanged since before the ID scam, and one poll that includes "unsure" as an option shows a marked increase (with roughly equal reduction in both pro- and anti- evolution camps). More importantly, the ID scam keeps the focus - and the catchy sound bites - on evolution (the more evidence it has, the more that can ne taken out of contex to make it look "weak" to the 5-minute-crowd) and away from the total lack of evidence for any of the mutually contradictory pseudoscientific "alternatives." Cheap way to keep it on-topic: Ask a random stranger if he/she heard of Freshwater. Then ask if evolution is a fact or a theory.

Chris Lawson · 16 April 2012

Frank J said: When Rick Perry was asked one of the rare better questions (regarding the age of the earth - I would prefer age of life) he evaded it on camera. Like Santorum, and unlike GWB, Perry is in on the scam (courtesy of Don "big tent" McLeroy). What no one to my knowledge picked up on was that, he could at least have said that "scientists know that answer better than I do" but did not, thus reinforcing the common misconception that scientists are mistaken or worse. The evasion does not mean that he thinks the scientists are wrong, only that he's aware that he needs the votes of YECs, OECs and "evolutionists." Yet many people, pro- and anti-evolution alike, probably gleefully reacted with "Perry's a YEC!" My guess is that he's not, but that is in no way a compliment.

IMHO, if Perry evades questions that would clarify whether he is a YEC, then he is either a YEC tying to sucker non-YECs into voting for him, or he is a non-YEC trying to sucker YECs into voting for him. Either way, he fully deserves the political fallout from any misunderstanding of his personal views on evolution.

eric · 16 April 2012

Richard B. Hoppe said: Second, my attorney friend tells me that as he reads the Propositions of Law in the MIS, two of the three don't match up with the appeal that was taken to the 5th District Court of Appeals, and therefore may be rejected on that basis.

Thanks RBH. I'm nothing but a layman but rejection on legal technical grounds would also be my odds-on bet. All the caterwauling about the conservative nature of the Ohio supremes is (IMO) premature. Hamilton is just not a good lawyer. IIRC Hamilton just rehashed his original arguments when he went to the Appeals court, which is not what a lawyer is supposed to do. An appeals court is not a re-trial, their job is to only to determine whether the original court followed the law. This requires different arguments from what one uses in the original case; Hamilton didn't present any. Now it looks (at least to me) like Hamilton's doing the same thing all over again - basically resubmitting his case arguments when the Ohio Supremes deal exclusively with matters of law.

Richard B. Hoppe · 16 April 2012

Well, there are some new arguments in the appeals court brief and the MIS to the Supreme Court. Most notably, the emphasis now is on academic freedom and free speech arguments, and on Freshwater's (allegedly) teaching "alternative academic theories." That's consistent with the Discovery Institutes shift away from "critical analysis of evolution" and "teach the controversy." Legislation in several state legislatures (e.g., Louisiana and Tennessee) take that tack now. So if they can slip that argument past the Ohio Supreme Court they'll be in a position to argue for curricular changes to the Ohio State Board of Education. What's fascinating is that the 'academic freedom' argument in the Freshwater case arose well after the administrative hearing on his termination. I do not recall it being invoked at all during that hearing, though I'd have to re-read many of my posts to affirm that. Freshwater himself testified under oath that he did not teach creationism or intelligent design. I don't know what other "academic theories" the MIS might be referring to.

eric said: Now it looks (at least to me) like Hamilton's doing the same thing all over again - basically resubmitting his case arguments when the Ohio Supremes deal exclusively with matters of law.

Frank J · 17 April 2012

IMHO, if Perry evades questions that would clarify whether he is a YEC, then he is either a YEC tying to sucker non-YECs into voting for him, or he is a non-YEC trying to sucker YECs into voting for him. Either way, he fully deserves the political fallout from any misunderstanding of his personal views on evolution.
— Chris Lawson

I lean toward him being the latter because "true believers" of a young earth, whether of the Omphalos type (yeah there's no evidence but I believe it anyway) or the "scientific" type (I'm right about the evidence, and "Darwinists," OECs and IDers are wrong), don't usually evade the question. But as you say, he deserves political fallout either way.

apokryltaros · 17 April 2012

Richard B. Hoppe said: Well, there are some new arguments in the appeals court brief and the MIS to the Supreme Court. Most notably, the emphasis now is on academic freedom and free speech arguments, and on Freshwater's (allegedly) teaching "alternative academic theories." That's consistent with the Discovery Institutes shift away from "critical analysis of evolution" and "teach the controversy." Legislation in several state legislatures (e.g., Louisiana and Tennessee) take that tack now. So if they can slip that argument past the Ohio Supreme Court they'll be in a position to argue for curricular changes to the Ohio State Board of Education. What's fascinating is that the 'academic freedom' argument in the Freshwater case arose well after the administrative hearing on his termination. I do not recall it being invoked at all during that hearing, though I'd have to re-read many of my posts to affirm that. Freshwater himself testified under oath that he did not teach creationism or intelligent design. I don't know what other "academic theories" the MIS might be referring to.
eric said: Now it looks (at least to me) like Hamilton's doing the same thing all over again - basically resubmitting his case arguments when the Ohio Supremes deal exclusively with matters of law.

"Teaching of alternative theories"? That's rich. I wonder what "alternative theory" Freshwater was teaching when he was ~~preaching at~~ teaching his students that scientists can't be trusted because they say that gay people are gay due to biological reasons beyond their control, and not because gay people are gay because they made a deliberate decision to sin against God.

eric · 17 April 2012

Richard B. Hoppe said: Well, there are some new arguments in the appeals court brief and the MIS to the Supreme Court. Most notably, the emphasis now is on academic freedom and free speech arguments, and on Freshwater's (allegedly) teaching "alternative academic theories."

IANAL, but as I understand it, that's the wrong sort of new argument to pose. Its a new substantive argument as to why Freshwater shouldn't get fired. The Appeals and Supreme court response to that is likely to be "if that was your real argument, you should've brought it up in the original trial." AIUI the sorts of arguments lawyers are supposed to present at higher courts of appeal are: the judge excluded X testimony when he/she shouldn't have; one of the jury members had a conflict of interest they didn't reveal; my lawyer was incompetent so I should get a re-trial; the school's key witness has since recanted his testimony. And so on. I don't think Hamilton did, or is, presenting anything like that.

What's fascinating is that the 'academic freedom' argument in the Freshwater case arose well after the administrative hearing on his termination. I do not recall it being invoked at all during that hearing, though I'd have to re-read many of my posts to affirm that. Freshwater himself testified under oath that he did not teach creationism or intelligent design. I don't know what other "academic theories" the MIS might be referring to.

State supreme courts typically have three jurisdictions: they function as the highest appeal court. They hear cases when two lower appeals courts have disagreed. And, they may choose to hear cases if they think the matter involves some state or federal constitutional challenge. Hamilton's arguments don't really address any of these. If the Supremes are functioning in their 'court of last appeal' role, he's screwed because he's not making any legal process argument like the ones I described above. The second role doesn't apply - there's been no prior court disagreement. Third, AFAIK academic freedom is not an Ohio constitutional issue. Now, its certainly possible for the Ohio supreme court to decide they actively want to rule on this particular case, regardless of what their standard operating procedure is. They could just pick it for their own reasons. But I guess I don't see that as a realistic possibility. Is there any evidence from past behavior that leads us to believe the Ohio supremes like to reach down and grab cases to rule on, or that they have a particular interest in promoting creationism?

harold · 18 April 2012

Whether we eventually have science-denying religious indoctrination taught as science, in public schools, at taxpayer expense, is 100% dependent on the composition of SCOTUS going forward.

Freshwater may or may not make it that far. Speaking from the perspective of "all logical possibilities", not from a legal perspective, the best scenario here would be that Ohio either refuses to hear him or hears him and upholds other decisions, and the Rutherford Institute goes away. The worst possible scenario would be Ohio re-instating him. A second worse scenario would be Ohio upholding the prior decisions but SCOTUS accepting the case. As I said, I claim no legal expertise, but neither is it my observation that legal experts always correctly predict the outcome of politics-charged cases. Those are hypothetically possible logical outcomes.

This case may not get to SCOTUS but sooner or later, another case almost certainly will.

A lot has changed since 1987. One thing that has changed is that evolution denial has become a more obsessive pursuit of a more cult like ideological Tea Party/Fox News/Limbaugh right wing, which overall has adopted science denial much more strongly than in the 1980's.

One thing that has not changed is that Antonin Scalia, the "originalist" who wrote the dissent (the losing argument that creationism in schools as science is constitutional) in Edwards v. Aguillard is still on SCOTUS. One thing that has changed is that his power is much greater. He has three almost totally loyal minions - Thomas, Alito, and Roberts. It's safe to say that anything the ideological right wing/Republican party wants has got at least four votes. To put it another way, regardless of precedent or what is actually in the constitution, no court victory over a consensus right wing policy can ever be greater than 5-4 at the level of the current SCOTUS.

While the extreme right may or may not lose former Republican voters in many parts of the country, "Tea Party" candidates will dominate the states of the former CSA and some other regions for the foreseeable future.

Science denial is now an obsessive party of their agenda. Anti-evolution bills will be introduced in every "red state" legislature much more frequently than in the past. The language will be more vague and will focus on "academic freedom" type arguments. This will unequivocally continue until a case hits SCOTUS. When that happens, it will simply be a question of whether the right wing ideologues on the court have five votes. Period.

tomh · 18 April 2012

harold said: The language will be more vague and will focus on "academic freedom" type arguments.

It seems ironic that creationists have gone back to these type of arguments, since "academic freedom" was the basis of the appeal in Edwards. Brennan begins his opinion with, "Appellants defended on the ground that the purpose of the Act is to protect a legitimate secular interest, namely, academic freedom." "Academic freedom" is mentioned another twelve times in the opinion, never favorably. For instance, "The Act actually serves to diminish academic freedom." After going through pure ID, teach the controversy, and so on, they have come full circle back to academic freedom. You're absolutely right about the makeup of the Court in that Scalia has much more influence than 1987 when he could only muster one other vote. A single appointment by President Romney, replacing Ginsburg, could easily tip the balance.

Tenncrain · 18 April 2012

Do any legal minds have an idea when the Ohio Supreme Court might decide whether or not to take up the Freshwater case?

harold said: A lot has changed since 1987. One thing that has changed is that evolution denial has become a more obsessive pursuit of a more cult like ideological Tea Party/Fox News/Limbaugh right wing, which overall has adopted science denial much more strongly than in the 1980’s.

I was born during the period between the 1982 McLean vs Arkansas trial and the 1987 Edwards vs Aguillard decision, so I don't exactly have direct experience within this era. But it seems the 2005 Kitzmiller vs Dover trial got much more media attention than either of the other trials. Even if anti-evolutionism is no longer so much based on a young-earth and a world Flood, the passion alone of anti-evolutionism today indeed seems stronger. While it might be well argued that the 'creation science' of the 60s/70s/80s in effect attacked science in general, in their mind at least they seemed more against biological evolution. Sure, they sometimes openly opposed some physics (for showing radiometric decay rates of billions of years), opposed some geology (for the geological column, never mind the geological column was first constructed by pre-evolutionary creationists), but biological evolution seemed to be their main target. Now, anti-evolutionists like William Dembski even reject methodological naturalism used in science and want to change the basic definition of science to include the supernatural. Besides wanting to change the definition of science, there are now other attacks on science, like climate change denial.

harold said: One thing that has not changed is that Antonin Scalia, the “originalist” who wrote the dissent (the losing argument that creationism in schools as science is constitutional) in Edwards v. Aguillard is still on SCOTUS.

Hopefully, the present SCOTUS would be well influenced by the thorough and heavy decision that Judge John Jones handed down in the 2005 Dover trial (Jones is a Republican and a Lutheran). Of course, no guarantee the Kitzmiller decision will influence all the SCOTUS justices. Jones somewhat mirrored the decision by the late William Overton (the judge in 1982 Arkansas decision). Yet, even Overton's influence was still not enough to sway Scalia and the late William Rehnquist in 1987.

harold · 18 April 2012

A single appointment by President Romney, replacing Ginsburg, could easily tip the balance.

If Romney is elected, Ginsburg will be replaced by a right winger. That will have many implications. For the purposes of this particular discussion on this particular blog, it will guarantee that there will be a do-over of "Edwards", with either a 5-4 or 6-3 decision in favor of teaching anti-scientific narrow sectarian dogma as "science" at taxpayer expense (depending on how Kennedy goes).

Hopefully, the present SCOTUS would be well influenced by the thorough and heavy decision that Judge John Jones handed down in the 2005 Dover trial (Jones is a Republican and a Lutheran).

The four moderates would be. The marginally less extreme conservative, Kennedy, might be, and it would all depend on that, if a creationist case reached this SCOTUS. This is just my opinion, but I think that, with respect to the ideological right wing voting block, one would have to be a rather pitiful fool with a strong penchant for denial to even entertain such a thought. We know how Scalia will vote. The idea that Thomas, Alito, or Roberts would buck the party line on a major, controversial case is, in my opinion, a deluded fantasy. Don't like my opinion? Challenge me by presenting examples of Thomas, Alito, or Roberts doing what I say they don't. They all have at least seven years on the court now, so challenging me should be easy. And if it isn't, that tells you a great deal.

trnsplnt · 18 April 2012

" echoing the appeals brief’s claim that Freshwater only taught “alternative theories,” never mentioning the intelligent design and creationist materials "

I must not have been paying attention for awhile. Is this a new Discotute strategy? The same obfuscation is used in the Tennessee bill. I don't recall seeing this bald faced lie before that the "alternative theories" aren't ID or creationism. A chief sponsor of the bill was quite insistent on The Diane Rehm show that the "scientific alternative theories" weren't creationism while failing to identify what they were. They're denying any relationship to former failed attempts and conspicuously choosing not to provide another name that they can be pigeon holed with. The lie would be quickly apparent in court of course, but in politics and the lazy he said/she said media all they have to do is claim scientific legitimacy and sail through.

J. L. Brown · 18 April 2012

I hate 'big government', gun-control, unions, subsidies, tariffs, and isolationism; most of the rest of my political stances are moderate-libertarian. By most measures, that would put me in the conservative camp; but I vote on only a few issues. One such issue is space policy, the other is science policy -- and I greatly fear that when Harold says:

A single appointment by President Romney, replacing Ginsburg, could easily tip the balance.

and

This will unequivocally continue until a case hits SCOTUS. When that happens, it will simply be a question of whether the right wing ideologues on the court have five votes. Period.

that he has hit the nail squarely on the head. We are exactly one Supreme Court Justice away from lunacy; one ideologue away from a headlong charge to undo as much of the Enlightenment as possible. More than anything -- no matter how much I love Ron Paul's rabid & overly-radical anti-spending views; no matter how reasonable, competent, or likeable Mitt Romney may seem to be -- this shapes how I vote. I simply cannot sign on to support any Republican candidate this year; once elected, the GOP party machine will inevitably destroy everything I love about the US.

tomh · 18 April 2012

Tenncrain said: But it seems the 2005 Kitzmiller vs Dover trial got much more media attention than either of the other trials.

Well, you have to remember that Kitzmiller was an actual trial, one that lasted forty days, covered in detail on the Internet by blogs like this one. The transcripts were even posted daily, so one could follow it blow by blow. The other two were decisions, not trials, that made news for a few days, then they were law, and that was it. There was plenty of interest in both of them, but they were a different sort of animal than Kitzmiller was.

Hopefully, the present SCOTUS would be well influenced by the thorough and heavy decision that Judge John Jones handed down in the 2005 Dover trial

Wishful thinking, for sure. The liberal wing, while no doubt agreeing with Jones's decision, doesn't need any persuading to rule against creationism. The conservative wing will give exactly zero consideration to the opinion of a lowly District Court and do whatever they want.

Tenncrain · 18 April 2012

harold said: Don't like my opinion? Challenge me by presenting examples of Thomas, Alito, or Roberts doing what I say they don't. They all have at least seven years on the court now, so challenging me should be easy. And if it isn't, that tells you a great deal.

Indeed, one can also look *outside* the judicial lives of the justices. I understand Thomas and the late Jerry Falwell kept in close contact with each other (Thomas has done a few lectures at Falwell's Liberty University). Scalia was deeply and conservatively religious even in high school, and one of his sons is a minister IIRC; despite Scalia being Catholic, he goes against his church's general acceptance of evolution and against fellow Catholics like biologist Ken Miller. While we science advocates would love to be wrong, having at least 3 or 4 SCOTUS justices supporting Freshwater would look probable. Like any group, moderates can also pull surprises, so any of the nine could potentially support Freshwater. If anti-evolutionists had had deeper knowledge about Judge John Jones (for example, discovering Jones was a moderate Lutheran and not a more conservative Lutheran like Creation Research Society co-founder Walter Lammerts), perhaps anti-evolutionists would have had less bravado than they did before the Kitzmiller trial. Who knows, one could wonder if former Senator Rick Santorum might now wishes he had looked into Jones a little deeper before recommending Jones to the bench.

Richard B. Hoppe · 19 April 2012

This argument--the "alternative theories" claim--appears to come from the Rutherford Institute, not the Disco 'Tute, though it's consistent with the 'Tute's recent shift from "critical analysis of evolution" (and of a laundry list of other topics--anthropogenic global warming, cloning, etc.) to academic freedom arguments.

trnsplnt said: " echoing the appeals brief’s claim that Freshwater only taught “alternative theories,” never mentioning the intelligent design and creationist materials " I must not have been paying attention for awhile. Is this a new Discotute strategy? The same obfuscation is used in the Tennessee bill. I don't recall seeing this bald faced lie before that the "alternative theories" aren't ID or creationism. A chief sponsor of the bill was quite insistent on The Diane Rehm show that the "scientific alternative theories" weren't creationism while failing to identify what they were. They're denying any relationship to former failed attempts and conspicuously choosing not to provide another name that they can be pigeon holed with. The lie would be quickly apparent in court of course, but in politics and the lazy he said/she said media all they have to do is claim scientific legitimacy and sail through.

Tenncrain · 22 April 2012

Tenncrain said: Who knows, one could wonder if former Senator Rick Santorum might now wishes he had looked into Jones a little deeper before recommending Jones to the bench.

Did a search on Santorum. While I couldn't find any direct criticism by Santorum of Judge Jones's decision in the Kitzmiller trial, did come across this at the York PA paper as well as this here on PT. A politician (in this case, a now-former politician) flip-flopping, imagine that.

Tenncrain · 22 April 2012

tomh said:
Tenncrain said: But it seems the 2005 Kitzmiller vs Dover trial got much more media attention than either of the other trials.
Well, you have to remember that Kitzmiller was an actual trial, one that lasted forty days, covered in detail on the Internet by blogs like this one. The transcripts were even posted daily, so one could follow it blow by blow.

True, 1980s internet was only a shell of what it was in 2005 for Kitzmiller. Still, even the 1925 Scopes trial appeared to generate a lot more attention than McLean vs Arkansas and Edwards vs Aguillard.

The other two were decisions, not trials, that made news for a few days, then they were law, and that was it. There was plenty of interest in both of them, but they were a different sort of animal than Kitzmiller was.

IANAL (lawyer), so anyone feel free to correct. But McLean vs Arkansas was in a district court just like the Kitzmiller trial; as we know, creationists chose not to appeal McLean vs Arkansas (which was a creationist debacle). They focused instead on the Louisiana situation that would become Edwards vs Aguillard. While Edwards vs Aguillard was a decision by the SCOTUS, seems it evolved from multiple lower court cases, including a district court trial.

Jay · 28 April 2012

As an international graduate student in America, I am worrying about the scientific education of public school in US. We must keep in mind that "scientific" is not the same as "Rational" and most America Scientists have the assumptions of Naturalistic philosophy. do they really think that only scientific research can account for the ultimate reality? If we answer 'no', Why they do not allowed to teach a variety of alternative theories on the origins of universe and human beings? The most said things is that most universities and high schools are trying to remove the scholars and teachers who have the idea of Intelligent Design and Creationism like Freshwater. The funny thing in US public education is that while they emphasize the importance of intellectual tolerance, they refuse to listen what others argument over ID and Creationism, and even they fire that kind of people in the name of "religious". Expelled is not the best idea.

Mike Elzinga · 28 April 2012

Jay said: As an international graduate student in America, I am worrying about the scientific education of public school in US. We must keep in mind that "scientific" is not the same as "Rational" and most America Scientists have the assumptions of Naturalistic philosophy. do they really think that only scientific research can account for the ultimate reality? If we answer 'no', Why they do not allowed to teach a variety of alternative theories on the origins of universe and human beings? The most said things is that most universities and high schools are trying to remove the scholars and teachers who have the idea of Intelligent Design and Creationism like Freshwater. The funny thing in US public education is that while they emphasize the importance of intellectual tolerance, they refuse to listen what others argument over ID and Creationism, and even they fire that kind of people in the name of "religious". Expelled is not the best idea.

That is because the intelligent design/creationist movement is a sectarian political movement with a gut-busting objective to inject specific sectarian beliefs into the public school science curriculum. The people who started this movement wanted to get around the US Constitution by concocting a pseudoscience behind which they could hide their sectarian dogma. The US Constitution guarantees persons the freedom to worship how and whom they please; but that same Constitution forbids sectarians from using the institutions of government to impose their sectarian beliefs on others. However, the sectarians who have been pushing intelligent design/creationism are not thankful for their freedoms to worship as they please in their churches. They are fundamentalists who have demonized all others in society who do not hold their sectarian dogma, and they insist on imposing their beliefs on everyone else. There is a long and well-documented history of this movement. You can get access to the court cases at the website of the National Center for Science Education. This organization has been tracking sectarian activities of ID/creationists for a number of decades; and they are a central source for materials on the tactics and activities of ID/creationists since at least the 1980s.