Freshwater: No clear indication?

Posted 13 July 2012 by Richard B. Hoppe

One of the claims in John Freshwater's appeal to the Ohio Supreme Court is that he was "...not provided any clear indication as to the kinds of materials or teaching methods which are unacceptable...". That is, no one told poor John what he couldn't teach by way of alternatives. I spend a little time looking for evidence that he was in fact given guidance with respect to material inappropriate for use in his 8th grade science classroom. It turns out that there's a fair amount of evidence that on a number of occasions Freshwater was specifically instructed that creationist and intelligent design material was not appropriate. I'll mention a few salient occasions here that took me less than 30 minutes to find. Note that they're from sworn testimony in the administrative hearing, the basis for the original resolution to terminate Freshwater's employment as a middle school science teacher. First, of course, there's Freshwater's 2002-2003 proposal that the Mt. Vernon district adopt the Intelligent Design Network's Objective Origins Science Policy, and to add "critically analyze evolution" language to the district's science curriculum. In support of his proposal Freshwater offered Jonathan Wells' Survival of the Fakest, originally published in that distinguished science journal The American Spectator (actually a conservative commentary rag). He also distributed Wells' Ten questions to ask your biology teacher about evolution, and among those who spoke to the BOE in support of his proposal was young earth creationist Georgia Purdom, then an assistant professor at Mt. Vernon Nazarene University, now a full-time employee of Answers in Genesis. Freshwater's proposal was rejected by the District's Science Curriculum Committee and then by the Board of Education. That looks like a clear indication to me. But that ain't all. In a post on testimony in the administrative hearing I described several later attempts to get Freshwater to fly right. According to Director of Teaching and Learning Linda Weston's testimony, Superintendent Jeff Maley told her that he had middle school assistant principal Tim Keib intervene with Freshwater concerning the latter's use of material not consistent with the curriculum, and that Keib told Maley he could take care of it. But Keibs intervention didn't take--Freshwater continued to use inappropriate materials. When complaints subsequently arose that Freshwater still used inappropriate handouts, Freshwater had a meeting with Superintendent Jeff Maley, Weston, Science Department Chairman Richard Cunningham, and Charles Adkins, who is a Mt. Vernon middle school science teacher, former Assistant Director of Science Instruction K-12 at the Ohio Department of Education, and a consultant on the development of the state science model curriculum. My summary of it

Subsequently there was a meeting with Freshwater, Maley, Cunningham, Adkins, and Weston in which Freshwater was issued firm instructions to cease. Later in cross examination she was more specific, after having Maley's letter to Freshwater following the meeting offered in evidence. She said that Freshwater was instructed not to teach ID (e.g., the handouts); was questioned about the source(s) and couldn't provide any and was told not to use unsourced material; the Board's 2003 decision of Freshwater's proposal was reiterated; and Freshwater was instructed that he should stick to the curriculum and standards. This was the letter to which Freshwater responded with a letter and lesson plan in which the terms "irreducible complexity," "specified complexity," and "peppered moths" were used (see here).

A bit more about that meeting is here. Again, it sure looks like a "clear indication" to me. Finally, Weston testified that the district subsequently held a voluntary workshop on the teaching of evolution to which Freshwater was invited. Freshwater did not attend. I recently received independent confirmation of that from another district science teacher. There was a chance for Freshwater to learn what was appropriate, but he failed to take advantage of it. Freshwater's claim to the Ohio Supreme Court that he was "...not provided any clear indication as to the kinds of materials or teaching methods which are unacceptable..." is ludicrous. Over several years there were repeated efforts, described in testimony and materials entered into evidence in the administrative hearing, to get across to him what he was and was not supposed to teach. Further, in declining to attend the workshop on teaching evolution, Freshwater actively avoided learning what was appropriate. One thing I don't know, and perhaps some of our readers with legal backgrounds can help me. How much lying is permitted in documents submitted to the Ohio Supreme Court?

34 Comments

ksplawn · 13 July 2012

God to Freshwater: I sent you two boats and a helicopter!

Doc Bill · 13 July 2012

How much lying is permitted in documents submitted to the Ohio Supreme Court?

As much as you can get away with!

Paul Burnett · 13 July 2012

Doc Bill said: How much lying is permitted in documents submitted to the Ohio Supreme Court? As much as you can get away with!

If you're Lying For Jesus(TM) you can lie all you want. "What harm would it do, if a man told a good strong lie for the sake of the good and for the Christian church...a lie out of necessity, a useful lie, a helpful lie, such lies would not be against God, he would accept them." - Martin Luther, 1540 - discussed at great length at http://message.snopes.com/showthread.php?t=40318

Chris Lawson · 13 July 2012

I was astonished by that application for appeal. It has so many blatant falsehoods in it that I stopped reading after 3 pages. I guess I shouldn't expect anything else from R. Kelly Hamilton. But it does make me incredibly suspicious of the motives of the Ohio Supreme Court judges who voted to hear this appeal. *Five* judges decided to take on this appeal despite its flagrant misrepresentation of previous hearings.

Joe Felsenstein · 13 July 2012

Chris Lawson said: I was astonished by that application for appeal. It has so many blatant falsehoods in it that I stopped reading after 3 pages. I guess I shouldn't expect anything else from R. Kelly Hamilton. But it does make me incredibly suspicious of the motives of the Ohio Supreme Court judges who voted to hear this appeal. *Five* judges decided to take on this appeal despite its flagrant misrepresentation of previous hearings.

Does the Ohio Supreme Court second-guess findings of fact (or guilt or innocence), or does it confine itself to procedural and constitutional issues? If the latter, then the very fact that they're taking the case is ominous and suggests that they think that there are possible procedural issues. They then might throw it out on a technicality -- or rule that the school board had no right to complain about Freshwater's teachings.

Chris Lawson · 13 July 2012

Joe, I would have thought that any appeal that comes in the form of "here are a thousand falsehoods, plus two procedural issues that have already been thoroughly debunked in the attached hearing summation" would be rejected outright. Of course, IANAL, but it makes me mighty suspicious of the judges' motives.

John Pieret · 13 July 2012

One thing I don’t know, and perhaps some of our readers with legal backgrounds can help me. How much lying is permitted in documents submitted to the Ohio Supreme Court?

None ... that can be demonstrated. The real problem here is that after so much testimony, the record is, no doubt, huge. You might be able to help by contacting the Board's attorneys. It's not guaranteed that they will find these references in such a record or that they have read your previous reports or this post. It is perfectly permissible for you, as an interested citizen to offer aid to the Board's attorneys.

Paul Burnett · 14 July 2012

John Pieret said: It is perfectly permissible for you, as an interested citizen to offer aid to the Board's attorneys.

Is that what a "friend of the court" is?

harold · 14 July 2012

Chris Lawson said: Joe, I would have thought that any appeal that comes in the form of "here are a thousand falsehoods, plus two procedural issues that have already been thoroughly debunked in the attached hearing summation" would be rejected outright. Of course, IANAL, but it makes me mighty suspicious of the judges' motives.

It makes me very worried, as well. Honestly, I think that fact that this thing has even been considered for review proves my point about what happens when parties that promote religious authoritarianism as part of their agenda are elected, whether the voters directly intended to support religious authoritarianism, or voted for them for some other reason. I can only guess, but I doubt, that if everything else was the same, but Freshwater's reason for persistently promoting pseudoscience in contravention of the law and instructions from superiors, was something other than Fox/Limbaugh/Tea Party style "conservative Christianity" being taught by a white guy with the appropriate kind of mustache, that the case would have been reviewed. Even the consideration of this case looks to me like an unfair bias in favor of typical stereotyped white male right wing "conservative Christians". Of course, that's just the subjective impression I get. I could provide strong statistical evidence for that bias in many US entities, but don't know enough about SCOTSO to be definitive. Although if they were more politically diverse, my argument would be discredited on its face, and they aren't.

harold · 14 July 2012

If this case ends up with Freshwater being reinstated to teach as he pleases, and especially if, as is likely to also happen if that happens, he is given a substantial financial reward, that will mean something.

That will mean that, at least in Ohio, if not yet in the rest of the US, citizens no longer have equal rights.

Rather, Freshwater and those who share his religious views will form an privileged elite, and everyone else will be a second class citizen. Residents of Ohio, whatever their own beliefs, will be forced to kowtow and genuflect to Freshwater and his fellow fundamentalist conservative Christians, conceding that precisely the dogma of conservative fundamentalist Protestant Christians shall have the favored privilege of being taught as science.

You will still be required to pay the same taxes to pay for public schools as everyone else, but it will be perfectly legal for Freshwater and those who share his religious, social, and political views to discriminate against your children in those public schools. You will be in the position, experienced by other Americans in the past, of being forced to pay taxes for an ostensibly public institution, the full free use of which, in reality, is less available to you than to privileged others, even though the tax laws apply equally to you.

Freshwater's science-contradicting religious dogma will be taught to students, as science, whatever the beliefs or wishes of the family, at taxpayer expense.

Your beliefs, unless they are the same as his Republican-approved beliefs, will not.

But at least those tax cuts George W. Bush enacted made you a lot more prosperous. Oh, wait...

Richard B. Hoppe · 14 July 2012

John Pieret said: None ... that can be demonstrated. The real problem here is that after so much testimony, the record is, no doubt, huge. You might be able to help by contacting the Board's attorneys. It's not guaranteed that they will find these references in such a record or that they have read your previous reports or this post. It is perfectly permissible for you, as an interested citizen to offer aid to the Board's attorneys.

Thanks, John. I've done so, and am reviewing my posts to see where more relevant material might be.

Les Lane · 14 July 2012

Freshwater is highly resistant to "clear indication."

raven · 14 July 2012

Amicus curiaeFrom Wikipedia, the free encyclopedia (Redirected from Friend of the court brief) An amicus curiae (also spelled amicus curiæ; plural amici curiae) is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it. The information provided may be a legal opinion in the form of a brief (which is called an amicus brief when offered by an amicus curiae), a testimony that has not been solicited by any of the parties, or a learned treatise on a matter that bears on the case. The decision on whether to admit the information lies at the discretion of the court. The phrase amicus curiae is legal Latin and literally means "friend of the court".

The obligatory IANAL, but I can read Wikipedia. Seems like anyone can file a Friend of the Court brief, amicus curiae brief. Presumably including RBH who knows more about this case than almost anyone and even has some legal standing as a taxpayer in Ohio and the district. It is up to the court whether to accept such a amicus curiae. Like everyone, I'm astounded that the Ohio Supreme court would accept this case after the lengthy administration hearing and several layers of court review. Without any data whatsoever on the thinking of the Ohio Supreme court, it's too early to draw any conclusions on their motives. Right now it looks like pure lack of knowledge or pure christofascist politics.

SensuousCurmudgeon · 14 July 2012

Richard, I don't think filing a supreme court brief is for amateurs. What I'd suggest is contacting one of the lawyers on the case (their names are on the pleadings), tell them what you've been doing and how informed you are, and offer them the information. They'll know what to do with it.

Richard B. Hoppe · 14 July 2012

I have no intention of filing anything myself. I've been in touch with two attorneys, both of whom have been involved in the case and who I know from previous proceedings, and am in touch with two organizations who are considering filing amicus briefs.

SensuousCurmudgeon said: Richard, I don't think filing a supreme court brief is for amateurs. What I'd suggest is contacting one of the lawyers on the case (their names are on the pleadings), tell them what you've been doing and how informed you are, and offer them the information. They'll know what to do with it.

raven · 14 July 2012

Richard, I don’t think filing a supreme court brief is for amateurs. What I’d suggest is contacting one of the lawyers on the case (their names are on the pleadings), tell them what you’ve been doing and how informed you are, and offer them the information.

If the does end up being a rehearing of the facts from the beginning, probably a lot of interested organizations will be filing amicus curiae. An obvious one would be NCSE. And/or whoever filed ones at Dover.

Swimmy · 15 July 2012

I wouldn't worry much about the Ohio supreme court, for several reasons. 1) The judges didn't have time to review all of the facts of the appeal before accepting it. That's what these amicus curiae briefs are for. Courts frequently take on cases that they think have merit but turn out not to. 2) Even conservative judges have, in recent years, consistently ruled against the teaching of creationism in schools. In fact there hasn't been a high-court ruling in favor of creationism in decades and decades, to my knowledge. Since Epperson v. Arkansas courts have consistently ruled against sectarian teachings in public schools. 3) Ohio judges are elected, but in non-partisan elections (though they are nominated during partisan primaries). At least in terms of torts, non-partisan elected judges act much more like appointed judges. See "The Effect of Electoral Institutions on Tort Awards," Helland and Tabarrok 2002. They analyzed in-state vs. out-of-state torts, but combined with #2 I think there's good reason to believe this would lend to these judges acting relatively non-partisan. 4) Hoppe's posts seem to clearly indicate that Freshwater's appeal contains many demonstrable lies. Judges are like anybody else; they don't like being lied to. As the Dover trial showed us, judges sympathetic to the plaintiffs especially don't like it when the plaintiffs are unethical. It's insulting to them and to their beliefs. 5) IANAL, but despite Hoppe's commentary, it could be possible that there were some procedural issues in the lower courts that should be fixed. Were this true, it would be good to correct them, even if creationists would parade it as a victory. (I find it unlikely, of course.) 6) Supreme court judges don't have to find one way or the other. They can demand a retrial with the procedural issues corrected. I would suspect almost any retrial will rightly show that Freshwater taught creationist material against school orders and state law; there's nothing procedural about that finding, unless the Ohio court directly challenges the constitutionality of state law. 7) Courts frequently take on cases because of consequences rather than merit. Since this has been a sensationalist case, they might have decided to take it for that reason. 8) Even if the Ohio supreme court were trying to challenge the constitutionality of creationism bans in public school biology classes, they are constrained by the Supreme Court. While this has been a popular case in Ohio, the obvious constitutional jurisprudence is from Edwards vs. Aguillard, and it's unlikely for courts to challenge that ruling anytime soon. Should it go so far, the U.S. Supreme Court would almost undoubtedly overturn the Ohio court's incorrect decision. It's a waste of taxpayer money to take it that far, yes, but it would also be a Supreme Court case against ID style creationism and "academic freedom" objections to evolution. 9) And even if the Ohio supreme court wanted to challenge the constitutionality of creationism bans, this is a terrible case to do it with. The question in this case is whether state law can constrain what teachers tell their students--there are a LOT of court cases saying that it can and that teachers' First Amendment rights are not violated by these laws. Were the court to find any other way, they'd be opening the floodgates for teachers to say all kinds of things they don't like; even most conservatives would oppose that, I'd wager. If the Ohio court really wanted to get creationism into schools, they would be better off taking on a case regarding an Ohio state law that permitted creationist teaching in public schools. There are no such laws, to my knowledge. I'm personally not worried. I feel sorry for Freshwater; he's throwing away his money on a very faint hope.

Joe Felsenstein said:
Chris Lawson said: I was astonished by that application for appeal. It has so many blatant falsehoods in it that I stopped reading after 3 pages. I guess I shouldn't expect anything else from R. Kelly Hamilton. But it does make me incredibly suspicious of the motives of the Ohio Supreme Court judges who voted to hear this appeal. *Five* judges decided to take on this appeal despite its flagrant misrepresentation of previous hearings.
Does the Ohio Supreme Court second-guess findings of fact (or guilt or innocence), or does it confine itself to procedural and constitutional issues? If the latter, then the very fact that they're taking the case is ominous and suggests that they think that there are possible procedural issues. They then might throw it out on a technicality -- or rule that the school board had no right to complain about Freshwater's teachings.

harold · 15 July 2012

Swimmy -

7) Courts frequently take on cases because of consequences rather than merit. Since this has been a sensationalist case, they might have decided to take it for that reason.

The rest of your comment does not address the current issue, which is that the court took this case at all. I don't find this rationale convincing in the slightest. First of all, sensational cases, in the sense of media attention, are nevertheless very clearly decided all the time. Nobody took the Dover case to a higher court, because although it was at least as locally sensational as the Freshwater case, it was clearly decided in a way that didn't leave a lot of room for doubt. The standard should be that there is some sort of legal issue with the original decision - not whether or not the case attracted media attention, which is usually due to issues other than legal fine points. Second of all, this case is not all that sensational. The average American has no clue who Freshwater is. The average person in Ohio outside of the Mount Vernon area probably has no clue who Freshwater is. This case is well known among precisely two groups of people - science supporters and right wing religious authoritarians. However, I don't think the situation is hopeless. I think that Freshwater's history of grossly inconsistent testimony can be brought to the court's attention, and that this will make it very uncomfortable for them to find in his favor. I think they agreed to hear it because superficially, it looked like a way to help out a right wing Christian fundamentalist and set a precedent of forcing selective religion into public school science classes. I see no other convincing rationale whatsoever - the issue of creationism in school has been decided consistently for decades, and Freshwater's behavior has been very well documented. Simple media attention would not justify taking a case, and I don't think there has been all that much media attention - perhaps locally. It's very likely that cases that were more deserving, and obviously so, were not accepted to make room for this one. There's not clear non-political motive for taking the case, so I am forced to favor a political motive. However, I do think that the justices may have made the decision too glibly, and painted themselves into a corner. They may find it hard to find for Freshwater if any significant fraction of his previous issues comes out. Of course, they might say "Freshwater is loyal to our ideology and we determine that he can teach anything he wants as science and cannot be interfered with, no matter what the facts". Not quite in those words, of course, it it's a very real possibility.

harold · 15 July 2012

Swimmy said: I wouldn't worry much about the Ohio supreme court, for several reasons. 1) The judges didn't have time to review all of the facts of the appeal before accepting it. That's what these amicus curiae briefs are for. Courts frequently take on cases that they think have merit but turn out not to. 2) Even conservative judges have, in recent years, consistently ruled against the teaching of creationism in schools. In fact there hasn't been a high-court ruling in favor of creationism in decades and decades, to my knowledge. Since Epperson v. Arkansas courts have consistently ruled against sectarian teachings in public schools. 3) Ohio judges are elected, but in non-partisan elections (though they are nominated during partisan primaries). At least in terms of torts, non-partisan elected judges act much more like appointed judges. See "The Effect of Electoral Institutions on Tort Awards," Helland and Tabarrok 2002. They analyzed in-state vs. out-of-state torts, but combined with #2 I think there's good reason to believe this would lend to these judges acting relatively non-partisan. 4) Hoppe's posts seem to clearly indicate that Freshwater's appeal contains many demonstrable lies. Judges are like anybody else; they don't like being lied to. As the Dover trial showed us, judges sympathetic to the plaintiffs especially don't like it when the plaintiffs are unethical. It's insulting to them and to their beliefs. 5) IANAL, but despite Hoppe's commentary, it could be possible that there were some procedural issues in the lower courts that should be fixed. Were this true, it would be good to correct them, even if creationists would parade it as a victory. (I find it unlikely, of course.) 6) Supreme court judges don't have to find one way or the other. They can demand a retrial with the procedural issues corrected. I would suspect almost any retrial will rightly show that Freshwater taught creationist material against school orders and state law; there's nothing procedural about that finding, unless the Ohio court directly challenges the constitutionality of state law. 7) Courts frequently take on cases because of consequences rather than merit. Since this has been a sensationalist case, they might have decided to take it for that reason. 8) Even if the Ohio supreme court were trying to challenge the constitutionality of creationism bans in public school biology classes, they are constrained by the Supreme Court. While this has been a popular case in Ohio, the obvious constitutional jurisprudence is from Edwards vs. Aguillard, and it's unlikely for courts to challenge that ruling anytime soon. Should it go so far, the U.S. Supreme Court would almost undoubtedly overturn the Ohio court's incorrect decision. It's a waste of taxpayer money to take it that far, yes, but it would also be a Supreme Court case against ID style creationism and "academic freedom" objections to evolution. 9) And even if the Ohio supreme court wanted to challenge the constitutionality of creationism bans, this is a terrible case to do it with. The question in this case is whether state law can constrain what teachers tell their students--there are a LOT of court cases saying that it can and that teachers' First Amendment rights are not violated by these laws. Were the court to find any other way, they'd be opening the floodgates for teachers to say all kinds of things they don't like; even most conservatives would oppose that, I'd wager. If the Ohio court really wanted to get creationism into schools, they would be better off taking on a case regarding an Ohio state law that permitted creationist teaching in public schools. There are no such laws, to my knowledge. I'm personally not worried. I feel sorry for Freshwater; he's throwing away his money on a very faint hope.
Joe Felsenstein said:
Chris Lawson said: I was astonished by that application for appeal. It has so many blatant falsehoods in it that I stopped reading after 3 pages. I guess I shouldn't expect anything else from R. Kelly Hamilton. But it does make me incredibly suspicious of the motives of the Ohio Supreme Court judges who voted to hear this appeal. *Five* judges decided to take on this appeal despite its flagrant misrepresentation of previous hearings.
Does the Ohio Supreme Court second-guess findings of fact (or guilt or innocence), or does it confine itself to procedural and constitutional issues? If the latter, then the very fact that they're taking the case is ominous and suggests that they think that there are possible procedural issues. They then might throw it out on a technicality -- or rule that the school board had no right to complain about Freshwater's teachings.

I should add, most of your points are in essence reasons why the court shouldn't have taken the case. They weren't familiar with the details, the original decision was strongly in line with precedent, a decision for Freshwater would challenge former SCOTUS rulings. These are not arguments that they will decide the case correctly, they are arguments that the case should not have been accepted. Yet they did accept it, despite all of this. That may suggest that there is some unstated agenda at work.

Paul Burnett · 15 July 2012

Swimmy said: I feel sorry for Freshwater; he's throwing away his money on a very faint hope.

He's already thrown away his money - lost the farm, so to speak. Now he's a Professional Martyr(TM) depending on charity from other fundagelical science denialists.

jjm · 15 July 2012

IANAL

I assume the judges sitting on the Ohio supreme court aren't stupid. It also appears that an appeal would almost certainly be lost in the Supreme court, so there is little chance of victory. So the Ohio supreme court maybe making a political statement, but it could be either way. They may have accepted the case to reaffirm the precedents already set and try and settle the matter broadly for a while. It's similar to what i posted quite a while back about why they let the hearings go so long, you give them as much rope as they ask for and they very effectively hang themselves. It's expensive, but it protects the decision and from my understanding it is a tactic used commonly by judges.

So by accepting a weak appeal, it gives the court a chance to quash it and send a message, the higher the court the bigger the message. So once again assuming the judges aren't stupid, if they are pro "teaching the controversy", they won't want a weak case going to the supreme court.

harold · 16 July 2012

jjm said: IANAL I assume the judges sitting on the Ohio supreme court aren't stupid. It also appears that an appeal would almost certainly be lost in the Supreme court, so there is little chance of victory. So the Ohio supreme court maybe making a political statement, but it could be either way. They may have accepted the case to reaffirm the precedents already set and try and settle the matter broadly for a while. It's similar to what i posted quite a while back about why they let the hearings go so long, you give them as much rope as they ask for and they very effectively hang themselves. It's expensive, but it protects the decision and from my understanding it is a tactic used commonly by judges. So by accepting a weak appeal, it gives the court a chance to quash it and send a message, the higher the court the bigger the message. So once again assuming the judges aren't stupid, if they are pro "teaching the controversy", they won't want a weak case going to the supreme court.

I hope you're right. I'm still worried. Your argument here is that conservative movement judges agreed to hear a weak conservative movement appeal, but because it's a weak appeal, they must have chosen it to buck their own conservative movement by really squashing a creationist, even though they could have squashed him just as effectively by not hearing his appeal. Sorry, does not compute for me. I do hope they find against Freshwater, but my most optimistic hope is essentially that they took it (possibly after informal communications from the Rutherford Institute) with the hopes of helping a fellow conservative, but will discover that they should have done more research, and that Freshwater's case is too weak to support. The alternate possibility is that they will say "We decide for the 'conservative' no matter what the facts, and now your only option is to go in front of Scalia, Thomas, Roberts, Alito, and Kennedy, and pray that at least one of them breaks party ranks". Kennedy does, albeit only occasionally. Roberts' recent health care decision should not be interpreted as breaking ranks. Obama used a Heritage Foundation idea, putting Roberts in the position of choosing between supporting the Heritage Foundation or opposing anything associated with Obama. He chose the Heritage Foundation. However, had Obama's policy not been originally associated with a right wing think tank, my subjective impression is that Roberts would undoubtedly have found against it, regardless of the facts. Sorry if I sound cynical. It's not traditional "conservatives" I'm cynical about, but rather, ideologues who will support "our side" under any circumstances.

SensuousCurmudgeon · 16 July 2012

There may be larger issues the state supreme court is thinking about -- like the freedom of school boards to fire teachers who are difficult to manage. If they can't fire this guy, then they can't fire anyone. If that's what they have in mind, the fact that this is a creationist teacher may be relatively insignificant. We'll just have to wait and see what they do with this thing.

Paul Burnett · 16 July 2012

SensuousCurmudgeon said: There may be larger issues the state supreme court is thinking about -- like the freedom of school boards to fire teachers who are difficult to manage. If they can't fire this guy, then they can't fire anyone.

Or they may be going along with the Christian Nationalist agenda to destroy the public school system, by making it more difficult for school boards to fire troublesome teachers. (As long as they're troublesome on the "right" side.)

harold · 16 July 2012

If they can’t fire this guy, then they can’t fire anyone

I feel that my comments on this thread may seem a bit negative, so I will try to make this my last one. I am not interested in the pointless exercise of trying to predict the outcome, but I will note that you, too, engage in the logic of suggesting that they took the case to achieve an objective that they could more easily have achieved by not taking the case. "I like that heavy chair in that corner, so I'll move it to the middle of the room, with the sole objective of demonstrating my opinion by moving it back to the original corner again". Does not compute. Unfortunately, the worst case scenario is far, far worse than even "can't fire anyone". If they find in favor of Freshwater, the better interpretation would be "can't fire right wing creationists, but others don't have the same privileged status". My interpretation of a finding in favor of Freshwater would be "right wing creationists can't be fired, but expect the same court to uphold arbitrary firings of teachers whom they don't like politically - and teachers may be disliked politically merely for not denying science". Again, my point here is not so much to try to predict what the outcome will be, which is a pointless exercise. Rather, it is to remind everyone of how high the stakes are, and how worrisome it is that Freshwater's appeal is being accepted at all. While anarchic permission for any teacher to do anything would be bad enough, that is NOT the motivation of the recent spate of creationist "academic freedom" bills and we all know that. What we are fighting here is an effort to designate one narrow sect as favored and privileged. That is what Freshwater wants. Freshwater is not fighting to allow all teachers with radical ideas equal access to the classroom. He is fighting for privileged status for his narrow interpretation of Fundamentalist Christianity. And it is a POLITICAL fight, because one major party, or at least a major support base of one major party, is on his side. Quite bluntly, people who support good science education need to stop voting for politicians who are in bed with anti-science activists.

Paul Burnett · 16 July 2012

harold said: Quite bluntly, people who support good science education need to stop voting for politicians who are in bed with anti-science activists.

Voting for the Rethuglicans - any Rethuglican - is a vote against science (just as it is a vote against women or a vote against the 99%). This will be even more obvious if Piyush "Bobby the Creationist" Jindal is the vice-presidential candidate.

Richard B. Hoppe · 16 July 2012

harold said: Swimmy - I don't find this rationale convincing in the slightest. First of all, sensational cases, in the sense of media attention, are nevertheless very clearly decided all the time. Nobody took the Dover case to a higher court, because although it was at least as locally sensational as the Freshwater case, it was clearly decided in a way that didn't leave a lot of room for doubt. The standard should be that there is some sort of legal issue with the original decision - not whether or not the case attracted media attention, which is usually due to issues other than legal fine points.

Harold, Kitzmiller wasn't appealed because the creationists on the Board of Education lost their bid for re-election, being replaced by members who supported the teaching of honest science. That occurred just before Judge Jones published his decision.

harold · 16 July 2012

Richard B. Hoppe said:
harold said: Swimmy - I don't find this rationale convincing in the slightest. First of all, sensational cases, in the sense of media attention, are nevertheless very clearly decided all the time. Nobody took the Dover case to a higher court, because although it was at least as locally sensational as the Freshwater case, it was clearly decided in a way that didn't leave a lot of room for doubt. The standard should be that there is some sort of legal issue with the original decision - not whether or not the case attracted media attention, which is usually due to issues other than legal fine points.
Harold, Kitzmiller wasn't appealed because the creationists on the Board of Education lost their bid for re-election, being replaced by members who supported the teaching of honest science. That occurred just before Judge Jones published his decision.

That's true, but would the highest court in Pennsylvania have agreed to hear an appeal...

Richard B. Hoppe · 16 July 2012

harold said: That's true, but would the highest court in Pennsylvania have agreed to hear an appeal...

[shrug] Who knows? Kitzmiller was already in the federal courts, not the state court system, so the next appeal level would have been the U.S. Court of Appeals for that district.

SLC · 16 July 2012

Bobby Jindal, BS degree in biology from Brown, Un. Of course, we know what graduate of Brown is a frequent commenter on this site so he should be going around with a bag over his head.

Paul Burnett said:
harold said: Quite bluntly, people who support good science education need to stop voting for politicians who are in bed with anti-science activists.
Voting for the Rethuglicans - any Rethuglican - is a vote against science (just as it is a vote against women or a vote against the 99%). This will be even more obvious if Piyush "Bobby the Creationist" Jindal is the vice-presidential candidate.

harold · 17 July 2012

Richard B. Hoppe said:
harold said: That's true, but would the highest court in Pennsylvania have agreed to hear an appeal...
[shrug] Who knows? Kitzmiller was already in the federal courts, not the state court system, so the next appeal level would have been the U.S. Court of Appeals for that district.

True, we can't know, and a valid and important detail that it was already in the federal system. Anyway, this forum was full of hopeful predictions that the Ohio supreme court wouldn't accept this case, but they did. Let's hope that they at least find against Freshwater. We all agree that it's possible, albeit with different levels of insistence.

jjm · 18 July 2012

harold said: I hope you're right. I'm still worried. Your argument here is that conservative movement judges agreed to hear a weak conservative movement appeal, but because it's a weak appeal, they must have chosen it to buck their own conservative movement by really squashing a creationist, even though they could have squashed him just as effectively by not hearing his appeal. Sorry, does not compute for me. I do hope they find against Freshwater, but my most optimistic hope is essentially that they took it (possibly after informal communications from the Rutherford Institute) with the hopes of helping a fellow conservative, but will discover that they should have done more research, and that Freshwater's case is too weak to support. The alternate possibility is that they will say "We decide for the 'conservative' no matter what the facts, and now your only option is to go in front of Scalia, Thomas, Roberts, Alito, and Kennedy, and pray that at least one of them breaks party ranks". Kennedy does, albeit only occasionally. Roberts' recent health care decision should not be interpreted as breaking ranks. Obama used a Heritage Foundation idea, putting Roberts in the position of choosing between supporting the Heritage Foundation or opposing anything associated with Obama. He chose the Heritage Foundation. However, had Obama's policy not been originally associated with a right wing think tank, my subjective impression is that Roberts would undoubtedly have found against it, regardless of the facts. Sorry if I sound cynical. It's not traditional "conservatives" I'm cynical about, but rather, ideologues who will support "our side" under any circumstances.

Like i said, I'm an optimist! it all hangs on how smart the judges are. Option 1) they took the appeal to support their conservative friends. They either uphold the appeal in which case it ends up in the supreme court and they get a bigger loss. They reject the appeal and are worse of than if they had refused to hear the appeal in the first place. Option 2) they took it to be political. same problem as option 1, but they can blame the supreme court, but have still hung out the creationist. Option 3) they took it to send a message. Maybe they understand that if this type of thing ever gets through it will cause all sorts of problems as people have identified here. Option 4) they took the appeal to give them a chance to write a judgement that shows the creationist a way they might get it through in the future. i don't think this is very likely as there are much easier ways to do it. Option 5) they see a genuine technical issue in the case. In which case it most likely goes back to the start, but from first appearances, that does'nt look like the stated reasons. Any other ideas? By hearing the appeal they have put themselves in a bit of a corner if they wish to support the creationists. So if they aren't stupid, why would they take the appeal? Remember Judge Jones was a conservative. It could be the moderate conservatives taking a chance to slow down the right wing conservatives who make them look bad or a genuine technical issue.

harold · 18 July 2012

jjim -

I hope you are right.

I think you overlooked a couple of possibilities...

6) they took the appeal to support their conservative friends. They uphold the appeal in which case it ends up in the supreme court and Scalia, who wrote the pro-creationism dissent in Edwards v. Aguillard, joined by Thomas, Alito, and Roberts, persuades Kennedy to join him, and a finding is made in favor of Freshwater.

7) Justice Ginsburg suffers an exacerbation of her ongoing health problems, and is forced to step down, just as Romney is elected. A new right wing justice is quickly appointed. By the time the case gets to SCOTUS, Scalia, Thomas, Alito, Roberts, and New Right Wing Guy all find in favor of Freshwater, with Kennedy relevant only as a potential sixth vote, to really pound home the message.

8) They find in favor of Freshwater in Ohio, and, through the influence of Scalia and other ideological conservatives, SCOTUS rejects it.

I'm not making predictions. I'm not the one who confidently predicted that the Ohio Supreme Court wouldn't accept this thing, some others did but I did not. These are obvious logical possibilities. I hope they don't occur. I hope this thing dies at the level of Ohio. I hope if it doesn't it goes to SCOTUS and dies there. But anyone who thinks any of that is guaranteed is wrong. Because nothing is guaranteed, except that it would have been better if they refused to hear it, but they decided to hear it.

This is not a good time for denial and blithe assumptions of good behavior from those who have behaved badly in the past. Stakes are high.

Unlike RBH, I don't have much to offer here from a pragmatic point of view. About all I can do is sign petitions and support pro-science organizations, as far as this individual case goes. But I do think we should all be realistic.

This really is my final comment. If some want to continue to post confident assertions that a bad outcome is impossible, so be it. If we don't get a bad outcome, we'll never know if it was a priori impossible, or just didn't happen. I believe that acknowledging that a bad outcome could occur and both fighting against it, and being ready to fight if it happens, is preferable to insistence that no bad outcome is possible. But that's just me.

jjm · 18 July 2012

harold said: This really is my final comment. If some want to continue to post confident assertions that a bad outcome is impossible, so be it. If we don't get a bad outcome, we'll never know if it was a priori impossible, or just didn't happen. I believe that acknowledging that a bad outcome could occur and both fighting against it, and being ready to fight if it happens, is preferable to insistence that no bad outcome is possible. But that's just me.

Just to be clear, i'm definitely don't think a bad outcome is impossible. Options 1,2,6,7 and 8 would all be bad. But they all pose significant problems for them as well. At the moment they are only arguing with science, if Freshwater is upheld, they will have to argue with science and every other religious and philosophical view point. We'll just have to wait and see what happens.