Freshwater: Board's Brief in Response filed with SCOTUS

Posted 6 June 2014 by Richard B. Hoppe

The Mt. Vernon, Ohio, Board of Education has filed its Brief in Opposition to Freshwater's petition for a writ of certiori with the Supreme Court of the U.S. (SCOTUS). Recall that Freshwater asked SCOTUS to overturn his firing on the ground that it violated his First Amendment rights, and that prohibiting his teaching the "scientific strengths and weaknesse of biological evolution" also violates the First Amendment. I haven't found an online version of the Brief in Rersponse yet (the Court's docket is here, so I'll make a few remarks on what I found most interesting. More below the fold The Board's response focuses on two main issues, Freshwater's insubordination and his exposure of the Board to legal risk by teaching creationism. It also argues that Freshwater's petition rests on disputed factual grounds rather than any Consititutional issue, and those factual grounds were hashed out in multiple lower venues--the administrative hearing, the county Court of Common Pleas, the state Court of Appeals, and the Ohio Supreme Court, and at each level were found to support Freshwater's termination. It claims that Freshwater's academic freedom argument is invalid. Finally, it argues, SCOTUS does not actually have jurisdiction. Freshwater's argument rests on claims of disputed facts, not on any Constitutional issue, and is thus not in the purview of SCOTUS. That he is displeased with the various lower courts' factual findings is not a valid reason for SCOTUS review:

Freshwater's factual dispute is precisely the type this Court rejects on appeal; his fact-bound arguments cannot convert a state-law holding into a constitutional controversy.

On the academic freedom issue Freshwater also claimed as a basis for SCOTUS review, the Board argues that

1. Academic freedom applies to institutions of higher learning, not to primary or secondary schools 2. Academic freedom applies to institutions, not individual employees 3. Academic freedom does not entitle teachers to expose their employers to legal risk.

I'm a little perplexed by the second of those claims. I read the Brief and understood all the words, but the reasoning puzzles me a bit. I'll work on that. The Brief argues

This Court's jurisprudence, as well as that of the circuit courts, has long established that employees have no First Amendment right to disregard orders. Math teachers are not academically free to teach history, science teachers are not academically free to teach Genesis, and the Constitution does not sanction employee disobedience.

I was delighted to see that the Brief in Response caught Freshwater's multiple stories about teaching creationism:

Aside from this hodgepodge, Freshwater's claims present a teacher whose story changes with every new appeal. At first Freshwater categorically denied questioning evolution or teaching creationism. Resp. App. B at 4a ("John Freshwater categorically denies that he taught either Creationism or Intelligent Design by declaring 'Absolutely not' "). Now he tells this Court he engaged "the naturally inquisitive minds of students," allowed them to "think critically" about biological evolution, and simply taught his subject more thoroughly than the Board preferred.

On the legal risk issue, the Brief says

Ohio law permits school districts to fire teachers for good and just cause, including insubordination. Because Freshwater's religious instruction exposed the school board to credible legal risk, his supervisor directed him to remove all religious displays from the classroom. Freshwater defied this order - even adding new theology texts to his collection - and the District fired him.

and

Public school districts have the right to set curricula and teaching methodology, as well as to reduce legal risk. Exposing his employer to a possible Establishment Clause violation, Freshwater undermined evolution, and taught creationism to his eighth-grade class.

I'm not a lawyer, but I'd be amazed if four SCOTUS justices voted to accept Freshwater's petition.

26 Comments

Mike Elzinga · 6 June 2014

I’m not a lawyer, but I’d be amazed if four SCOTUS justices voted to accept Freshwater’s petition.

Given the makeup of this court and its recent history, I wouldn’t be surprised if four of them would take this up just to make trouble. I suspect that Scalia, in particular, would love to reverse Edward vs. Aguillard.

harold · 6 June 2014

Mike Elzinga said:
I’m not a lawyer, but I’d be amazed if four SCOTUS justices voted to accept Freshwater’s petition.
Given the makeup of this court and its recent history, I wouldn’t be surprised if four of them would take this up just to make trouble. I suspect that Scalia, in particular, would love to reverse Edward vs. Aguillard.

That's an absolute certainty. Scalia wrote the dissent in Edwards vs. Aguillard. Whether or not SCOTUS takes this case will tell us how it will go. If they decide not to hear it, game over. If they decide to hear it, that probably means that five of them went for pure ideology. If heard, Freshwater wins. Because a decision to take the case is a clear declaration that loyalty to ideology matters, and facts don't. I realize that the Ohio Supreme Court unexpectedly took it, spent an unusually long time coming to a decision, but finally chickened out and found against Freshwater, despite their obvious desire to find in favor of a "good conservative Christian man" for pure reasons of ideological pandering. The ideologues on SCOTUS don't back down or have second thoughts. We know in advance that four* of them will be in favor of hearing this. The risk here is far from zero. *A potential ace in the hole is that Roberts might find against Freshwater, not for good reasons, but to screw teachers and make promote easy firing.

anonatheist · 6 June 2014

Scalia is someone who has stated openly he believes in a literal devil for goodness sakes. Nothing he does will surprise me. I think if he wanted this case heard before the SCOTUS he'd probably get his way. After that it wouldn't surprise me one bit if it were 5/4 for Freshwater. Like others have said before, the SCOTUS has had some real crazy decisions lately, topping them all off with "Town of Greece v. Galloway" recently.

tomh · 7 June 2014

harold said: If they decide to hear it, that probably means that five of them went for pure ideology.

Only four justices are required to grant a writ of certiorari. The SC receives about 10k petitions a year and grants about 75-80. So the odds are long but not impossible.

cmb · 7 June 2014

Thanks for giving us this update and your analysis Dick.

After Citizens United, nothing this Supreme Court does will surprise me. Fingers crossed that reason and the law will trump ideology.

harold · 7 June 2014

cmb said: Thanks for giving us this update and your analysis Dick. After Citizens United, nothing this Supreme Court does will surprise me. Fingers crossed that reason and the law will trump ideology.

My hope is that convenience and priorities will trump ideology. I don't trust SCOTUS to use reason and law rather than ideology. I do hope that, if 80 out of 10K petitions are granted, that there are enough petitions that they consider more worthy of their time, that Freshwater is merely passed on.

Scott F · 7 June 2014

The problem I see with both FL and Scalia is that their principle position is one of anarchy: My personal interpretation of reality and of what laws mean and don't mean at any particular point in time trumps all others. Fortunately, FL is not in a position of authority to follow through on that anarchy. Unfortunately, Scalia is.

https://www.google.com/accounts/o8/id?id=AItOawlqcKShU3706gP4KRwM4hh7fHNDIfwAh34 · 7 June 2014

anonatheist said: Scalia is someone who has stated openly he believes in a literal devil for goodness sakes. Nothing he does will surprise me. I think if he wanted this case heard before the SCOTUS he'd probably get his way. After that it wouldn't surprise me one bit if it were 5/4 for Freshwater. Like others have said before, the SCOTUS has had some real crazy decisions lately, topping them all off with "Town of Greece v. Galloway" recently.

Often I fear that Scalia IS the literal devil he believes in. It would make sense that way -- he speaks from first-person knowledge.

TomS · 7 June 2014

IANAL, but "originalism" in interpreting the US Constitution strikes me as similar to "literalism" in interpreting the Bible. Including how it is used to verify one's preconceived idea, how it is silently ignored when inconvenient, and how the originators of the text did not believe in it.

Flint · 7 June 2014

As the law school professors who comment on cases have been saying for some years now, SCOTUS has become an entirely political body in matters like this, voting again and again along strict party lines with few exceptions. Roberts, it has been said, has on those exceptional occasions voted with the Democratic bloc and against the Republican bloc for this very reason -- his fear that the public will come to view SCOTUS as simply another political body, a sort of after-the-fact Senate. But in doing this, Roberts is being purely political anyway.

Nonetheless, as we see, one need not know anything about the law, or any of the facts of the case, or any of the relevant precedents, in order to predict with very high accuracy not only what the vote will be, but exactly which Justices will vote which way. So there is a high risk that if the case is accepted, the decision will be 5 Catholic Republicans for Freshwater, and 4 non-Catholic Democrats against. Decisions like this are hardly legal decisions.

SLC · 8 June 2014

Actually, Justice Sotomayor is, at least nominally, a Roman Catholic.

Flint said: As the law school professors who comment on cases have been saying for some years now, SCOTUS has become an entirely political body in matters like this, voting again and again along strict party lines with few exceptions. Roberts, it has been said, has on those exceptional occasions voted with the Democratic bloc and against the Republican bloc for this very reason -- his fear that the public will come to view SCOTUS as simply another political body, a sort of after-the-fact Senate. But in doing this, Roberts is being purely political anyway. Nonetheless, as we see, one need not know anything about the law, or any of the facts of the case, or any of the relevant precedents, in order to predict with very high accuracy not only what the vote will be, but exactly which Justices will vote which way. So there is a high risk that if the case is accepted, the decision will be 5 Catholic Republicans for Freshwater, and 4 non-Catholic Democrats against. Decisions like this are hardly legal decisions.

harold · 8 June 2014

Flint said: As the law school professors who comment on cases have been saying for some years now, SCOTUS has become an entirely political body in matters like this, voting again and again along strict party lines with few exceptions. Roberts, it has been said, has on those exceptional occasions voted with the Democratic bloc and against the Republican bloc for this very reason -- his fear that the public will come to view SCOTUS as simply another political body, a sort of after-the-fact Senate. But in doing this, Roberts is being purely political anyway. Nonetheless, as we see, one need not know anything about the law, or any of the facts of the case, or any of the relevant precedents, in order to predict with very high accuracy not only what the vote will be, but exactly which Justices will vote which way. So there is a high risk that if the case is accepted, the decision will be 5 Catholic Republicans for Freshwater, and 4 non-Catholic Democrats against. Decisions like this are hardly legal decisions.

Not quite cynical enough. Roberts has a dual bias. He's a right wing Republican but sufficiently also so neutrally in favor of big money that he'll take the "liberal" side if big money interests are helped. Roberts is Tea Party when Big Business isn't involved, and but will side with Big Business over Tea Party, on the few, but existing, occasions when those conflict. (For example, Roberts could conceivably make a pro-gay rights ruling, because many big businesses know that anti-gay local legislation hurts talent recruitment.) The other three right wingers are just straight Tea Party/reality denial/Fox News/Limbaugh all the way. However, although business is obviously hurt when science education is compromised, I don't know if Roberts would be moved by a relationship that subtle.

SLC said: Actually, Justice Sotomayor is, at least nominally, a Roman Catholic.
Flint said: As the law school professors who comment on cases have been saying for some years now, SCOTUS has become an entirely political body in matters like this, voting again and again along strict party lines with few exceptions. Roberts, it has been said, has on those exceptional occasions voted with the Democratic bloc and against the Republican bloc for this very reason -- his fear that the public will come to view SCOTUS as simply another political body, a sort of after-the-fact Senate. But in doing this, Roberts is being purely political anyway. Nonetheless, as we see, one need not know anything about the law, or any of the facts of the case, or any of the relevant precedents, in order to predict with very high accuracy not only what the vote will be, but exactly which Justices will vote which way. So there is a high risk that if the case is accepted, the decision will be 5 Catholic Republicans for Freshwater, and 4 non-Catholic Democrats against. Decisions like this are hardly legal decisions.

They are 100% Catholic or Jewish, all nine. The Jewish members are all Reform, I believe, and at any rate are all on the "liberal" side. None of them, whether of Christian of Jewish, belong to a denomination that favors any sort of creationist interpretation. Irrelevant. Scalia, Thomas, Alito, and probably Roberts, will pander to the Religious Right. Scalia wrote the freaking dissent against Edwards v. Aguillard. His stated official position is that openly Fundamentalist YEC Creation Science should be taught in public schools.

Matt Young · 8 June 2014

All the justices are at least nominally Catholic, except for Justices Kagan, Breyer, and Ginsburg, who are Jewish. With Justice Sotomayor, they are probably the only Democrats. Whether they are liberals is a matter of opinion.

alicejohn · 8 June 2014

You always are taking a chance in court. However, if you feel another US Supreme Court case challenging the teaching of science in the classroom is inevitable, then this is the case I would want in front of the court. The Ohio Supreme Court had every intention of finding in favor of Freshwater, but his case is so weak and character so bizarre that they had no choice but to come down against him. I think the US Supreme Court will find itself in a similar situation.

I think the board was caught of guard with Freshwater's First Amendment argument in front of the Ohio court. I thought their submittals and presentation to the Ohio Supreme Court were very weak. The board's initial submittal to the US Supreme Court appears to be much stronger. In addition, given the seriousness of a US Supreme Court precedent, the board is going to have the very best expert help with their case if it goes forward.

Being pragmatic, if the advocates of science loses this case, then a loss in the US Supreme Court was going to happen anyway for reasons beyond their control. I'll take my chances with this case.

harold · 9 June 2014

Matt Young said: All the justices are at least nominally Catholic, except for Justices Kagan, Breyer, and Ginsburg, who are Jewish. With Justice Sotomayor, they are probably the only Democrats. Whether they are liberals is a matter of opinion.

By "liberal" I merely meant "not a member of the rigidly right wing bloc". I'm not entirely sure what SLC's point was, but I think it was that there is no justice who has any obvious cultural or religious reason to embrace Freshwater's evolution denial; none of them are evangelical Protestants from a Biblical literalist position. And none of them are from Muslim, Jewish*, or Hindu* traditions of science denial either (*these very much exist). If that was his point, I strongly concur. SCOTUS support for science denial in public schools, as voiced by Scalia in the past, is entirely political. Scalia's professed love of teaching sectarian science denial in public school science classes has nothing to do with his "faith" and everything to do with his political ideology.

eric · 9 June 2014

alicejohn said: You always are taking a chance in court. However, if you feel another US Supreme Court case challenging the teaching of science in the classroom is inevitable, then this is the case I would want in front of the court.

I agree with Harold and cmb; Kennedy has swung much further right in recent decisions that I ever would have expected, which makes me 'gun shy' of putting any church-state separation case in front of the court. I would not want this or any other creationism case in front of the court, at least not at the present time.

Being pragmatic, if the advocates of science loses this case, then a loss in the US Supreme Court was going to happen anyway for reasons beyond their control. I'll take my chances with this case.

I think the best possible outcome is that they don't grant cert.

harold · 9 June 2014

eric said:
alicejohn said: You always are taking a chance in court. However, if you feel another US Supreme Court case challenging the teaching of science in the classroom is inevitable, then this is the case I would want in front of the court.
I agree with Harold and cmb; Kennedy has swung much further right in recent decisions that I ever would have expected, which makes me 'gun shy' of putting any church-state separation case in front of the court. I would not want this or any other creationism case in front of the court, at least not at the present time.
Being pragmatic, if the advocates of science loses this case, then a loss in the US Supreme Court was going to happen anyway for reasons beyond their control. I'll take my chances with this case.
I think the best possible outcome is that they don't grant cert.

I strongly agree on two grounds. 1) This court is particularly loaded with right wing ideologues and at least one of them, Scalia, is getting up there in years. While future appointments might be just as bad, it's also plausible that a moderate court with only Roberts, Alia, and maybe Thomas as a right wing bloc - without the dynamic leadership of Scalia - could emerge in the future. 2) Anyway, Freshwater has already lost in two courts, so just not granting cert leaves him as a loser. There's not upside to them accepting the case.

Richard B. Hoppe · 10 June 2014

Um, Freshwater has lost in three courts and in the administrative hearing. He lost in the county Court of Common Pleas, the state court of appeals, and twice in the state Supreme Court.

harold · 10 June 2014

Richard B. Hoppe said: Um, Freshwater has lost in three courts and in the administrative hearing. He lost in the county Court of Common Pleas, the state court of appeals, and twice in the state Supreme Court.

Thank you for reminding me. I had forgotten the middle one. At any rate, my point remains. It's best if SCOTUS just doesn't take this case.

SLC · 10 June 2014

Perhaps Harold should learn how to read. Flint that the the court consists of 5 Catholic Rethuglicans and 4 non-Catholic Democrats. I correctly pointed out that Sotomayor is, at least nominally, a Catholic Democrat.

harold said:
Matt Young said: All the justices are at least nominally Catholic, except for Justices Kagan, Breyer, and Ginsburg, who are Jewish. With Justice Sotomayor, they are probably the only Democrats. Whether they are liberals is a matter of opinion.
By "liberal" I merely meant "not a member of the rigidly right wing bloc". I'm not entirely sure what SLC's point was, but I think it was that there is no justice who has any obvious cultural or religious reason to embrace Freshwater's evolution denial; none of them are evangelical Protestants from a Biblical literalist position. And none of them are from Muslim, Jewish*, or Hindu* traditions of science denial either (*these very much exist). If that was his point, I strongly concur. SCOTUS support for science denial in public schools, as voiced by Scalia in the past, is entirely political. Scalia's professed love of teaching sectarian science denial in public school science classes has nothing to do with his "faith" and everything to do with his political ideology.

KlausH · 14 June 2014

SLC said: Perhaps Harold should learn how to read. Flint that the the court consists of 5 Catholic Rethuglicans and 4 non-Catholic Democrats. I correctly pointed out that Sotomayor is, at least nominally, a Catholic Democrat.
I have never understood people using terms like "Rethuglicans" when it is the Democrats who keep violating everyone's rights and illegally use federal government agencies to attack and harass political opponents,run massive smear campaigns, and refuse to enforce laws against people they consider allies. The only "thug" behavior I see on the Republican side is some conservative religious extremists acting on the local level.

Richard B. Hoppe · 14 June 2014

Folks, this is not a general politics board. Take it to the BW, please.

Just Bob · 16 June 2014

"Don't shoot! Don't shoot! Will this never end?"

[C-3PO Star Wars Episode IV]

prongs · 16 June 2014

"So much death. What can men do against such reckless hate?"

- King Théoden, The Lord of the Rings: The Two Towers (film), 2002

Henry J · 16 June 2014

Just Bob said: "Don't shoot! Don't shoot! Will this never end?" [C-3PO Star Wars Episode IV]

Unfortunately, the farce is still with us.

Just Bob · 17 June 2014

Henry J said:
Just Bob said: "Don't shoot! Don't shoot! Will this never end?" [C-3PO Star Wars Episode IV]
Unfortunately, the farce is still with us.

The farce is strong in this one.