Today the Ohio State Supreme Court issued its ruling in the case Freshwater v. Mt. Vernon City School Dist. Bd. of Edn. The case dealt with an eighth grade public school science teacher, John Freshwater, who was fired from his job in Mount Vernon, Ohio, in 2011 for a variety of reasons, including claims that he disobeyed direct orders to remove various religious items from his classroom (e.g., a Bible on his desk, and a poster on the wall depicting Colin Powell and George W. Bush praying), and also that he allegedly injected his personal religious beliefs into classroom instruction when discussing homosexuality or evolution. Included in the latter allegation was the claim that he had taught creationism and intelligent design, and encouraged his students to critique evolution.

The Court’s ruling upholds Freshwater’s termination, but its reasoning has nothing to do with the teaching of evolution. The Court ducked out of ruling on the issue of academic freedom and evolution-education entirely.

Indeed, there were many other issues in the case. In fact, this case made headlines largely because of allegations that Freshwater had used a Tesla coil to burn a cross into the arm of a student. While that got a lot of media attention, it did not serve as grounds for his termination. As an independent HR referee hired by the school district found, “Once sworn testimony was presented regarding the incident, it became obvious that ‘speculation and imagination had pushed reality aside.'” Thus the “Tesla coil” incident didn’t provide sufficient cause to fire Freshwater. Another accusation was that Freshwater violated the Establishment Clause in his role advising Fellowship of Christian Athletes club at his school, although this too was not cited by the school board as a reason for terminating him. Freshwater sued the Mount Vernon school district in Ohio State Court in 2011, appealing and trying to get his job back.

If it isn’t already obvious, this is a complicated case which raised many different issues. It was anything but a clean and clear test of the constitutionality of teaching non-evolutionary viewpoints on origins in public schools, such as teaching intelligent design (ID) or simply critiquing neo-Darwinian theory. As a result, we have had virtually nothing to say about it, and have only tangentially followed its progress over the past few years.

Discovery Institute’s longstanding science education policy is that public schools should teach the pros and cons of Darwinian evolution, but NOT push ID into public school curricula. Nonetheless, we strongly affirm that ID is science and should be considered perfectly constitutional to teach in public schools. We oppose teaching creationism, however, which is different from ID in ways that are constitutionally important, and which many courts have found is a religious viewpoint and illegal to teach in public schools. In internal discussions, I have divided the issues raised by the Freshwater case into four general categories:

• (1) Relevant to our interests (“our” being Discovery Institute) and legally defensible (e.g., teaching ID or simply critiquing evolution)
• (2) Relevant and not legally defensible (e.g., teaching creationism)
• (3) Irrelevant to our interests and potentially legally defensible (e.g., keeping a personal Bible on his desk, or placing a poster of two top government officials praying on the classroom wall)
• (4) Irrelevant and not defensible (e.g., burning crosses into the arms of students)

While we would agree with any ruling that found that teaching creationism was unconstitutional, our main interest was in what the Court would find regarding allegations that Freshwater taught ID or that he merely encouraged students to critique evolution. But the Court’s majority basically avoided ruling on any issues related to categories (1) or (2), stating:

The trial court properly found that the record supports, by clear and convincing evidence, Freshwater’s termination for insubordination in failing to comply with orders to remove religious materials from his classroom. Accordingly, based on our resolution of this threshold issue, we need not reach the constitutional issue of whether Freshwater impermissibly imposed his religious beliefs in his classroom.

After noting that the U.S. Supreme Court declared it illegal to teach creationism in Edwards v. Aguillard, and that a federal trial court found intelligent design unconstitutional in Kitzmiller v. Dover, the Ohio Supreme Court again reiterated its refusal to decide whether Freshwater’s instruction related to origins and evolution were unconstitutional: “Here, we need not decide whether Freshwater acted with a permissible or impermissible intent because we hold that he was insubordinate, and his termination can be justified on that basis alone.”

For more details, you can read the full opinion, but the Court’s sole reasons for affirming the termination pertained to Freshwater’s alleged insubordination in refusing to remove the items covered in category (3). Even here, however, the Court found Freshwater was justified in keeping his personal Bible on his desk under the Free Exercise Clause. At the end of the day, the Court held that the only justifiable reasons for firing Freshwater were his disobedience of orders to remove an Oxford Bible, a book, Jesus of Nazareth, and the Powell/Bush poster from his classroom. As it turns out, the Oxford Bible and Jesus of Nazareth were checked out from the school’s library, and the poster was distributed by the school and displayed in other teachers’ rooms, who were not asked to remove it. Oh yes, and Freshwater maintains that he compliantly removed other posters when asked, but he was never asked to remove the Powell/Bush poster. No wonder it was such a close case, a narrow 4-3 ruling.

Ducking the Evolution-Education Issue: “Arrogance and Cowardice”
In any case, this narrow, 4-3 ruling includes all kinds of amusing jabs flung between the justices, with various dissenting justices basically complaining that the majority chickened out by refusing to rule on the issues related to academic freedom and evolution instruction. Justice Pfeifer bitingly writes, in dissent, “In a case bounding with arrogance and cowardice, the lead opinion fits right in.” He continues, amusingly writing:

[The referee] concluded that “Freshwater refused and/or failed to employ objectivity in his instruction of a variety of science subjects and, in so doing, endorsed a particular religious doctrine. By this course of conduct John Freshwater repeatedly violated the Establishment Clause.” This conclusion of constitutional significance has gone unexamined by every reviewing court. … This court accepted jurisdiction in this case presumably to speak to the important issues of the Establishment Clause, academic freedom, and how schools may approach educating children about the scientific theories of evolution, which may directly clash with religious teachings of creation to which many children have been exposed at home and at church. Instead this court sidesteps all of the difficult issues presented in the case leaving the resolution of all these heady matters in the hands of a lone referee. Ironically, the lead opinion in this case proves the existence of God. Apparently, he’s an R.C. 3319.16 referee from Shelby.

But we have seen similar cowardice in past cases, such as Bishop v. Aronov, 926 F.2d 1066 (11th Cir. 1991), where a federal appellate court refused to decide whether a faculty member at the University of Alabama had established religion by critiquing evolution and referencing a “creative force behind human physiology,” and instead just rubber-stamped the university’s gag order on the professor, essentially giving the administrators unchecked power to censor. Likewise, in the Caldwell v. Caldwell lawsuit, a federal district court judge issued a tortured ruling to dismiss a lawsuit because she didn’t want to face the specter of finding that a government-funded website developed by the Darwin Lobby might have established religion by promoting evolution-friendly theology to public school students. Such rulings make it easy for courts to dodge tricky issues, but they betray the judiciary’s responsibility to provide guidance for both school administrators and faculty about just what is, and isn’t, constitutionally permissible to state in a public school. I’m surprised dissenting justices didn’t cite the following timeless principles:

• “It is emphatically the province and duty of the judicial department to say what the law is.” (Marbury v. Madison, 5 U.S. 137, 177 (1803).)
• “Courts cannot, of course, abdicate their constitutional responsibility to delineate and protect fundamental liberties.” (Pell v. Procunier, 417 U.S. 817, 827 (1974).)

So why exactly did the Ohio Supreme Court in this case avoid dealing with the issue of the constitutionality of critiquing evolution, basically abdicating its constitutional responsibility to delineate and protect fundamental liberties? Here’s my reading: It’s simple. Perhaps they didn’t like the liberties they’d be forced to protect.

Courts sometimes don’t want to rule on controversial legal questions, especially when doing so might force them to rule in favor of viewpoints they find distasteful, like the rights of teachers to teach scientific critique of evolution. As a result, you see narrow, hair-splitting, fact-intensive rulings like this one which do everything they can to settle the case on other issues, and avoid any explicit finding that it might be legal to critique Darwin.

The ruling thus did not assess the constitutionality or legality of teaching about the scientific controversy over neo-Darwinian theory. That legal question was already basically settled with an essential “yes” in the 1987 U.S. Supreme Court Case Edwards v. Aguillard, where the Court stated it is legal to teach scientific critiques of evolution, stating: “We do not imply that a legislature could never require that scientific critiques of prevailing scientific theories be taught.”

But the mess in this case is also the result of a lack of clear legislative guidance to school boards and administrators on how teachers may objectively teach in the normal course of curricular instruction on scientific controversies. This is why academic freedom bills are so important: they protect teachers’ rights to not get fired for teaching the controversy over evolution. If Freshwater lived in a state with an academic freedom law (like Louisiana or Tennessee), he would have more rights (at least regarding teaching students about critiques of Darwinism). But since he was fired for a bunch of stuff that has nothing to do with teaching the controversy, such a law probably would not have changed the outcome of this particular case.

Three Dissenting Justices Endorse Teaching the Controversy Over Darwinian Theory
Though we’re given no guidance by the majority ruling as to whether anything taught by Freshwater actually constituted an establishment of religion, three dissenting members of the Court — Justice Terrence O’Donnell, Justice Sharon Kennedy, and Justice Paul Pfeifer — did attempt to tackle this issue in detail. They joined a dissenting opinion written by Justice O’Donnell, which entirely affirmed the rights of public school teachers to teach students about scientific critiques of evolutionary theory:

[P]resenting alternative views on scientific theories as a means of challenging students to think critically is not tantamount to promoting religion in the classroom, a fact that the Supreme Court recognized in Edwards v. Aguillard, 482 U.S. 578, 594, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987), when it stated that “teaching a variety of scientific theories about the origins of humankind to schoolchildren might be validly done with the clear secular intent of enhancing the effectiveness of science instruction.”

Writing jointly for Justice Kennedy, Justice O’Donnell even found that Freshwater’s approach yielded tangible improvements in student learning:

The record includes testimony from several teachers and reveals that Freshwater began the school year by teaching his students the scientific method and encouraging them to think critically and to distinguish between scientific hypothesis and established fact. Teaching students these critical analytic skills serves a secular purpose, not a religious one, and notably, the school district curriculum recognized that it is beneficial for science students to learn how to critically analyze aspects of scientific theory, including the theory of evolution. At the time Freshwater taught science, the Academic Content Standard for Grade 6-8 science required students to be able to “[e]xplain why it is important to examine data objectively and not let bias affect observations.” According to prior standards for life sciences, by the time students completed tenth grade, they should have understood “how scientists continue to investigate and critically analyze aspects of evolutionary theory.”

Also, the Mount Vernon City School District Bylaws and Policies allowed teachers to address controversial issues that arose while teaching the curriculum, and an administrative guideline for that policy directed teachers to “help students use a critical thinking process * * * to examine different sides of an issue.” Evolution is a controversial topic, as Freshwater’s fellow eighth grade science teacher, Elle Button, recognized when she testified that students in her class “would question greatly the validity of the theory of evolution.” Freshwater permitted his students to raise these questions and also to debate among themselves evolution, intelligent design, and creationism, but he did not participate in those debates. Notably, special education teacher Kerri Mahan, who observed these debates in Freshwater’s classroom, testified that the students led the debates and that Freshwater stepped in only when necessary to maintain decorum.

Further, the evidence vindicates Freshwater’s teaching methods because it demonstrates that his students learned evolutionary theory as mandated by the official curriculum. Notably, among the building’s three eighth grade science teachers for the 2007-2008 academic year — the last year Freshwater taught at Mount Vernon Middle School– only Freshwater exceeded the state goal of 75 percent of his students passing the science portion of the Ohio Achievement Test. Even more striking is the fact that 89 percent of his students passed the life science section, which assessed, among other topics, students’ knowledge of evolutionary theory. In contrast, the students of the other two eighth grade science teachers achieved passage rates of 76 and 67 percent on this section.

Thus, not only is it constitutional to encourage students to critique evolution, but this case shows how allowing students to critically analyze evolutionary theory engages their interests and allows students to better understand the material, as evidenced by Freshwater’s students’ superior passing rate on the life sciences section of the Ohio Achievement Test. Indeed, even the majority recognized:

Freshwater’s students at Mount Vernon Middle School often performed at or above the state’s standards and requirements in achievement testing. Dr. Lynda Weston, former director of teaching and learning for the district, testified that Freshwater’s students’ science scores on state standardized tests were “the highest of the three eighth grade science teachers.”

In his dissent, Justice O’Donnell elaborates:

Deborah Strouse, the school district’s achievement coordinator, explained that this passage rate shows that Freshwater “did teach the indicators” contained in the Academic Content Standards. Similarly, Mahan, who also served as the school achievement coach for education, agreed that the Ohio Achievement Test is “a good indicator of what the kids are actually learning” because the test is based on the standards. Mahan also suggested that Freshwater’s approach to teaching critical thinking skills in science may have benefited his students on the Ohio Achievement Test because the test assesses “abstract thinking, synthesis, [and] evaluation.”

If Freshwater had actually taught creationism, that clearly would have been illegal. And while there is debate over what exactly Freshwater taught, Justices O’Donnell and Kennedy strongly affirm that simply teaching students to critically evaluate evolution is entirely appropriate and constitutional:

[T]eaching students to question and rethink accepted scientific theories is essential to their understanding of the scientific method, the key concept his science students learned in eighth grade. As the United States Supreme Court recognized in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), “arguably, there are no certainties in science,” and ” ‘scientists do not assert that they know what is immutably “true” — they are committed to searching for new, temporary, theories to explain, as best they can, phenomena.’ ” Id., quoting Brief for Nicolaas Bloembergen et al. as Amici Curiae at 9. Thus, there is nothing unscientific in Freshwater challenging students to critically evaluate and question the underlying premises of any scientific theory, including evolution. (emphasis added)

I don’t know what exactly John Freshwater taught, and I don’t know for sure whether he deserved to be fired. But Darwin lobbyists should be very concerned that the only justices in this case with the courage to address the legality of critically analyzing evolution found that it is entirely legal and pedagogically appropriate for a teacher “to critique the theory of evolution to foster their critical thinking skills and to develop their analytical abilities” and that this in fact explains why the teacher in question “excelled in teaching evolutionary theory as part of the science curriculum.”

Given this clear and persuasive reasoning, and given that the Ohio Supreme Court’s majority refused to even touch the legality of Freshwater’s evolution-instruction — even though it was a central issue raised in the case — I suspect the majority might have feared having to produce an outcome they didn’t want: finding that it is in fact legal and beneficial to let students critique Darwinian evolution in public schools.

Photo: Ohio Supreme Court/Wikipedia.