[Cite as Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 137 Ohio St.3d 469, 2013-

Ohio-5000.] 

FRESHWATER, APPELLANT, v. MOUNT VERNON CITY SCHOOL DISTRICT BOARD 

OF EDUCATION, APPELLEE. 

[Cite as Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., 

137 Ohio St.3d 469, 2013-Ohio-5000.] 

R.C. 3319.16 proceeding for termination of public school teacher’s contract—

Good and just cause—Insubordination defined as a willful disobedience 

of, or refusal to obey, a reasonable and valid rule, regulation, or order 

issued by a school board or by an administrative superior. 

(No. 2012-0613—Submitted February 27, 2013—Decided November 19, 2013.) 

APPEAL from the Court of Appeals for Knox County, No. 2011-CA-000023, 

2012-Ohio-889. 

____________________ 

SYLLABUS OF THE COURT

In a proceeding under R.C. 3319.16 for the termination of a public school 

teacher’s contract, “good and just cause” includes insubordination 

consisting of a willful disobedience of, or refusal to obey, a reasonable and 

valid rule, regulation, or order issued by a school board or by an 

administrative superior. 

____________________ 

O’CONNOR, C.J. 

{¶ 1} In this appeal, we determine whether the evidence supports the 

stated reasons for terminating the employment of a public school teacher, 

appellant, John Freshwater, for introducing religion into his eighth-grade science 

classes and for insubordination. More specifically, we must address whether the 

evidence was sufficient to demonstrate that appellee, Mount Vernon City School 

District Board of Education (“the board” or “the district”), terminated Freshwater 
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for insubordination in refusing to remove religious displays in his classroom after 

being told to do so, and for continuing to inject his personal religious beliefs into 

his plan and pattern of instruction, thereby exceeding the bounds of the school 

district’s bylaws and policies, even after being forbidden to do so. 

{¶ 2} After detailed review of the voluminous record in this case, we hold 

that the court of appeals did not err in affirming the termination. 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. 

We affirm the judgment of the court of appeals because there was ample evidence 

of insubordination to justify the termination decision. 

RELEVANT BACKGROUND

{¶ 3} Mount Vernon School Board asserts that despite the district’s 

instructions to cease doing so, Freshwater unequivocally injected his own 

Christian faith into his classroom as early as 1994 and continued to do so right up 

until he was relieved of his teaching duties. The board also asserts that after it 

denied Freshwater’s 2003 teaching proposal to critically evaluate evolution, 

Freshwater surreptitiously supplemented his eighth-grade science curriculum with 

religious handouts, showed videos on creationism and intelligent design, 

displayed religious materials in his classroom, and made various statements in 

class referring to the Bible. 

{¶ 4} Freshwater, on the other hand, argues that the board violated his 

right to academic freedom pursuant to the First Amendment to the United States 

Constitution when it terminated him based on the content or viewpoint of his 

curriculum-related academic discussions with students and his use of 

supplemental academic materials. 
January Term, 2013 

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{¶ 5} We agree with the board and find that there is ample support for 

Freshwater’s termination based upon insubordination. We resolve this case solely 

as a teacher-employment-termination case governed by R.C. 3319.16, which sets 

forth standards and procedures for termination of teaching contracts by boards of 

education. We need not address the various constitutional issues raised by 

Freshwater, because we resolve this appeal on an other-than-constitutional 

ground. See, e.g., State ex rel. Essig v. Blackwell, 103 Ohio St.3d 481, 2004-

Ohio-5586, 817 N.E.2d 5, ¶ 34, citing State ex rel. DeBrosse v. Cool, 87 Ohio 

St.3d 1, 7, 716 N.E.2d 1114 (1999) (“Courts decide constitutional issues only 

when absolutely necessary”). 

Early Conduct

{¶ 6} The legal battle in this case began largely in 2007, when a student 

and his parents alleged that Freshwater used a Tesla coil1

 in class to make a mark 

on the student’s arm. But the antecedents of this case go back to 1994, when 

district administrators first instructed Freshwater not to distribute materials 

informing his students about a religious seminar. And district officials advised 

and counseled Freshwater multiple times about similar behavior in the 15 years 

that followed, directing him not to incorporate religious documents based upon 

creationism or intelligent design into his classroom instruction and to remove 

displays of religious materials from the classroom. 

{¶ 7} The voluminous record here establishes, by clear and convincing 

evidence, that Freshwater has been insubordinate in the course of his employment 

with the district. For purposes of this appeal, however, we are specifically 

concerned with the occurrences of 2007 forward. 

 

1. A Tesla coil, named after inventor Nikola Tesla, is “an air-core transformer for high-frequency 

alternating or oscillating electrical currents.” Webster’s Third New International Dictionary 2361 

(1986). When the hand-held Tesla coil (also called a high-frequency generator) used for 

classroom demonstrations involved in this case is properly adjusted and its electrode is held near a 

metal object, a spark jumps from the coil to the metal. 
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{¶ 8} Thus, we find it necessary to review in detail the evidence presented 

in the hearing conducted by a referee considering whether termination was 

warranted and summarized in the referee’s report issued after the hearing. 

Background to the Referee’s Report and the Evidence at the Hearing

{¶ 9} After the hearing, which involved 38 different days of witness 

testimony spread out over almost 21 months, included more than 80 witnesses and 

hundreds of exhibits, and ultimately resulted in over 6,000 pages of transcript, the 

referee issued a report on January 7, 2011. In his report, the referee set forth the 

facts, including an overview of Freshwater’s sometimes contentious teaching 

record. 

{¶ 10} The referee addressed the four grounds asserted by the board in 

considering Freshwater’s termination: (1) the Tesla-coil incident, (2) his failure 

to adhere to established curriculum, (3) his role as administration-appointed 

facilitator, monitor, and supervisor of the student group Fellowship of Christian 

Athletes (“FCA”), and (4) his disobedience of orders. 

{¶ 11} The referee ultimately concluded in his report that grounds two and 

four were valid bases to support Freshwater’s termination. 

Freshwater’s teaching record and evaluations contain references to his 

incorporation of creationism and intelligent design in his classroom instruction 

{¶ 12} In 1987, the board hired Freshwater as an eighth-grade science 

teacher. In addition to his teaching duties, Freshwater served as the 

administration-appointed facilitator, monitor, and supervisor of the FCA for more 

than 15 years. 

{¶ 13} 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.” 
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{¶ 14} William Oxenford, a seventh-grade science teacher at Mount 

Vernon Middle School, also served as an academic-achievement coach. In the 

latter capacity, Oxenford was responsible for coordinating the implementation of 

strategies that would assist students in passing the achievement test. He 

confirmed that Freshwater’s students had the highest performance level on 

achievements tests of the students taught by the three eighth-grade science 

teachers. Similarly, Kerri Mahan, a teacher at Mount Vernon Middle School who 

also served on the “data team” for improving standardized-test performance, 

testified that Freshwater’s students “showed proficiency and achievement” on 

those tests. 

{¶ 15} During his employment with the district, Freshwater received at 

least 20 performance evaluations. Almost all were positive. In fact, Freshwater 

had never been disciplined before the precipitating events. But Freshwater’s 

teaching career certainly was not without controversy. 

{¶ 16} Freshwater’s evaluations and communications from his superiors 

repeatedly directed him to cease distributing documents that presented students 

with information about intelligent design and creationism. Freshwater was 

admonished a number of times to abide by the board’s policy forbidding the 

teaching of religious thought in the curriculum. 

{¶ 17} The first of these incidents occurred on September 19, 1994, when 

Freshwater received a memorandum from Jeff Kuntz, then the principal at Mount 

Vernon Middle School, regarding Freshwater’s distribution to students of a 

handout entitled “Answers In Genesis” giving information about an upcoming 

seminar. The handout discussed in the memorandum described a “free meeting 

* * * for students * * * [to] learn the evidence that supports creation—and denies 

evolution.” (Emphasis sic.) The handout also stated that the seminar would 

“reveal why it is vital to believe in Genesis as it is written * * * [and] declare that 
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many of the important issues in our troubled society (the breakdown of the family, 

abortion, lawlessness, etc.) are related to evolution!” 

{¶ 18} In the memorandum, Kuntz instructed Freshwater to “please refrain 

from distributing materials not supported by your adopted course of study to 

students. Your classroom is not an appropriate format for disseminating 

information on religious seminars to students. In addition, please withdraw any 

extra credit you awarded to students who attended the ‘Answers In Genesis’ 

seminar.” 

{¶ 19} The record contains limited information of any occurrences for a 

number of years that followed, with no additional counseling or intervention 

regarding Freshwater documented until January 21, 2003. That day, Freshwater 

received a mostly positive evaluation from Kuntz, who noted specifically that 

“Mr. Freshwater utilizes a good variety of methods and materials in his 

classroom.” But Kuntz also noted, under the section of the evaluation marked 

“Growth/Improvement Areas,” that Freshwater should “[c]ontinue to adhere to 

board policy and guidelines 2270 with respect to Religion In The Curriculum (see 

attached).” Kuntz attached the board’s policy and guidelines to Freshwater’s 

evaluation and later testified that he did so because of “two different situations” 

that had occurred in the fall of 2002. 

{¶ 20} The first situation Kuntz referred to evidently arose when some 

teachers from the high school, in particular one science teacher, spoke to Kuntz 

about her concern that she was having to “reteach” evolution to students in her 

high-school classes. That teacher believed that Freshwater was contributing to 

that problem. 

{¶ 21} The second incident Kuntz referred to arose from a complaint from 

a parent concerning a handout that Freshwater had distributed. Notably, however, 

at the hearing, Kuntz could not “exactly” recall the handout or its content. 
January Term, 2013 

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{¶ 22} Although the record does not reveal whether these complaints had 

merit, Kuntz decided to act because two complaints had been voiced within a 

reasonably short period of time and he felt that he could not ignore them. 

Therefore, Kuntz attached the board policy and guidelines on religion in the 

curriculum because he felt it was a “very appropriate” way to make a statement to 

Freshwater that was relevant to the concerns raised in the complaints. 

{¶ 23} The record establishes two patterns in Freshwater’s teaching career 

from 1994 through 2002—he repeatedly received positive evaluations of his 

teaching, and he repeatedly was advised not to distribute materials about 

creationism and intelligent design to students. 

Freshwater’s proposal to “critically examine” evolution 

{¶ 24} Despite receiving prior instructions not to provide students with 

religious information, Freshwater submitted a proposal to the board in 2003 

entitled “Objective Origins Science Policy.” In that proposal, Freshwater 

requested that the board “[a]dd a policy statement to the MVCS [Mount Vernon 

City Schools] science curricula that allows teachers/students to critically examine 

the evidence both for and against evolution.” More specifically, Freshwater 

asserted that one problem with teaching evolution was that “the Mount Vernon 

City Schools do not offer a place in the curricula to scientifically and critically 

examine this theory” and that “there is confusion among some MVCS science 

teachers over whether they are even allowed to encourage critical scientific 

thinking on evolution, even though it is considered excellent scientific reasoning 

to do so with any other controversial science theories (such as the particle versus 

wave theories on light).” 

{¶ 25} The board rejected Freshwater’s proposal. Its rejection was 

consistent with the State Board of Education’s subsequent decision to strike 

language similar to Freshwater’s proposal from the state of Ohio’s Academic 

Content Standards for K-12 science. When first adopted, those standards required 
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schools to teach students to critically evaluate evolution, which is primarily taught 

in the eighth and tenth grades in Ohio’s public schools. Specifically, part of the 

relevant benchmark for grades nine and ten then provided, “Describe how 

scientists continue to investigate and critically analyze aspects of evolutionary 

theory. (The intent of this benchmark does not mandate the teaching or testing of 

intelligent design.)” The accompanying achievement indicator for grade ten 

tracked this language. But on February 14, 2006, the State Board of Education 

modified the above-mentioned benchmark and indicator to remove the foregoing 

language from its standards. Thus, the state no longer required or encouraged 

schools to teach students to critically evaluate evolution. 

{¶ 26} But neither the board’s denial of his proposal nor the State Board 

of Education’s decision dissuaded Freshwater from teaching as if his proposal had 

been adopted. 

{¶ 27} On April 7, 2006, Paul Souhrada, a parent of one of Freshwater’s 

students, submitted a complaint form to the district. In it, Souhrada alleged that 

on April 4, 2006, Freshwater distributed a handout to his son’s class entitled 

“Darwin’s Theory of Evolution—The Premise and the Problem.” Although 

Freshwater apparently collected the handouts at the end of class, Souhrada’s son 

kept his and gave it to his father. Souhrada checked the source of the information 

contained in the handout. In his complaint, he wrote that the handout came from 

“All About God Ministries” and stated, “I don’t believe that is a proper source for 

science material, especially in light of the state school board’s decision in 

February to strike language regarding the critical evaluation of evolution from the 

state guidelines.” 

{¶ 28} Six weeks later, on May 26, 2006, Charles Adkins, a science 

teacher at Mount Vernon Middle School, and Richard Cunningham, the sciencedepartment chairperson at Mount Vernon High School, wrote an e-mail to Weston 

and the district’s superintendent at the time, R. Jeff Maley, in response to Maley’s 
January Term, 2013 

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request that the school district review the handout mentioned in Souhrada’s 

complaint. Adkins and Cunningham stated that they had investigated the possible 

sources of the handout and examined the associated media related to the topic and 

had determined that the handout, as well as the original source of the material, had 

not passed the test of scientific peer review and acceptance by the scientific 

establishment. Neither of them was able to attribute this handout to a particular 

author, but they opined that the handout appeared in part or in its entirety on 

several intelligent-design websites. 

{¶ 29} After reviewing the complaint and researching the handout, Adkins 

and Cunningham met with Weston and Freshwater so that Freshwater could 

provide background information regarding the handout’s alignment with the Ohio 

content standards, benchmarks, and indicators. Adkins and Cunningham wrote in 

the e-mail to Maley that Freshwater’s “explanation [did] not match the direction 

or the tone of the article.” They also concluded that the “handout is inappropriate 

as an instructional resource for the grade level content benchmarks and 

indicators.” 

{¶ 30} On June 8, 2006, Maley directed Freshwater, in writing, to cease 

use of the handout and similar materials. Maley wrote, 

After review, I have determined the material in question 

cannot be attributed to a particular author or source. The material 

has not passed the test of scientific review and acceptance of the 

established scientific community. I am directing you to delete the 

material from your supplemental resources. Also, in the future 

please refrain from using materials that the source or author cannot 

be readily identified. 
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Maley subsequently emphasized that his main concern with the material was that 

it did not have a source and that the failure to provide sources was “bad practice.” 

{¶ 31} Despite this warning and the prior incidents in which Freshwater 

had been warned not to distribute religious materials, there is no indication in the 

record suggesting that the district took adverse action against Freshwater for his 

practice of failing to cite sources in supplemental materials or his prior 

transgressions. But the following school year, new allegations arose that raised 

serious questions about Freshwater’s compliance with the directives of 

Superintendent Maley and his continued status with the district. 

The allegations 

{¶ 32} On December 7, 2007, Stephen and Jenifer Dennis met with 

Stephen Short, then the interim superintendent for the district. Their son was one 

of Freshwater’s eighth-grade science students and a participant in the FCA. The 

Dennises complained that on the day before, December 6, 2007, Freshwater used 

a Tesla coil to make a mark on their son’s arm that appeared to be in the shape of 

a cross. 

{¶ 33} On December 10, 2007, Short met with William White, Mount 

Vernon Middle School principal, to investigate and determine what had taken 

place in Freshwater’s classroom. Later that same day, White met with Freshwater 

to discuss the incident. Freshwater admitted to White that he had used the Tesla 

coil on students during class and that he had used it to put an “X” on the 

Dennises’ son’s arm. But he also testified that he did not see that he had made 

any significant lasting mark on the student, let alone a mark in the shape of a 

cross. 

{¶ 34} On January 22, 2008, White wrote a letter to Freshwater as a 

follow-up to their conversation on December 10. White stated that “the 

electrostatic machine(s) should not be used for purposes of shocking students” 

and “the machine(s) should be removed from the classroom or locked up so that 
January Term, 2013 

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the students do not have access to” them. White testified that after sending the 

letter to Freshwater, he never heard a single word or further complaint from the 

Dennises about the mark on their son’s arm until the Dennises filed suit against 

the board in April 2008. 

{¶ 35} But in the intervening period, White heard several other concerns 

about Freshwater from the Dennises. For example, the Dennises complained 

about the manner in which Freshwater advised the FCA. They alleged that 

Freshwater was operating in an improper leadership role by directly participating 

in the organization’s affairs rather than simply monitoring it. Direct faculty 

participation in the organization was a violation of the FCA’s rules, which require 

that FCA clubs must be voluntary, student-initiated, and student-led. 

{¶ 36} The district was also aware that Freshwater allegedly was not 

enforcing the required permission-slip policy for FCA events, was contacting 

speakers himself rather than having the students do so, and allegedly had 

conducted a healing session for a speaker who appeared at an FCA event who had 

been ill. 

{¶ 37} The Dennises also complained that Freshwater had religious 

materials in the classroom. 

{¶ 38} On April 7, 2008, White met with Freshwater about these issues. 

White then instructed Freshwater, in clear and unequivocal writing, that 

Freshwater could not display religious materials in his classroom: 

With regard to religious materials in your classroom, it has been 

brought to my attention that you have a bible out on your desk and 

that the “collage” on your classroom window includes the 10 

commandments. While you certainly may read your bible on your 

own, duty free time [i.e. during lunch], it cannot be sitting out on 

your desk when students are in the classroom and when you are 
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supposed to be engaged in your responsibilities as a teacher. As 

for the 10 commandments, that part of your collage must be taken 

down and replaced with something that is not religious in nature. 

As a public school teacher, you cannot engage in any activity that 

promotes or denigrates a particular religion or religious beliefs 

while on board property, during any school activity or while you 

are “on duty” as a teacher. Unless a particular discussion about 

religion or religious decorations or symbols is part of a Board 

approved curriculum, you may not engage in religious discussions 

with students while at school or keep religious materials displayed 

in the classroom. 

{¶ 39} On April 11, 2008, White once again met with Freshwater 

regarding the need to remove overtly religious icons and materials from display in 

his classroom. 

{¶ 40} And on April 14, 2008, White yet again gave written instructions 

“to follow up” on his prior meetings, conversations, and writings with Freshwater 

regarding religious items in Freshwater’s classroom. White’s letter directed that 

“all religious items need to be removed from your classroom by the end of the day 

on Wednesday, April 16, 2008. Bibles and other religious DVD’s, videos, etc. 

should also be placed out of sight and access of the students by this date.” 

Freshwater signed the letter as acknowledgment of his receipt. 

{¶ 41} But evidently, Freshwater was far from compliant. Despite having 

been directed repeatedly to remove the Bible and other religious items from his 

classroom, Freshwater proceeded to the school’s library, where he checked out 

two books, Jesus of Nazareth and the Oxford Bible. He then displayed them on a 

lab table in his classroom rather than keeping them from his students’ sight. 
January Term, 2013 

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{¶ 42} And on April 16, 2008, the date by which he had been ordered to 

remove religious material from his classroom, Freshwater submitted a written 

statement refusing to remove the Bible from his classroom.2

 

{¶ 43} As these events were unfolding, the Dennises’ attorney was 

formulating a letter to Short regarding what the Dennises believed to be “several 

instances of violations of the Establishment Clause of the First Amendment.” The 

letter, dated April 14, 2008, set forth eight alleged violations in bulletpoint 

fashion, including the Tesla-coil incident and regarding Freshwater’s behavior 

during FCA activities. As to one violation, the Dennises alleged that the Ten 

Commandments were displayed in Freshwater’s classroom and several Bibles 

were also kept in the classroom as a display to his students, not for his personal 

use. The Dennises averred, “This display represents an ostensible and 

predominant purpose of advancing religion and violates that central Establishment 

Clause value of official religious neutrality.” This allegation was supported by 

citing McCreary Cty., Kentucky v. Am. Civ. Liberties Union of Kentucky, 545 U.S. 

844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). 

{¶ 44} The Dennises also claimed that Freshwater teaches his personal 

beliefs, from the Bible, in his eighth-grade science class. According to the 

Dennises, students were taught the meaning of Easter and Good Friday in their 

science class. The Dennises further asserted that whenever Freshwater disagrees, 

based upon his own religious beliefs, with teaching material, he advises the 

students that although he is forced to teach from the textbooks, the teachings are 

wrong or not proven according to the Bible. 

{¶ 45} In their letter, the Dennises requested three remedies: (1) the 

immediate removal of the Bibles and the Ten Commandments display, (2) 

 

2.. By that date, Freshwater had removed the Ten Commandments from the collage in his 

classroom, but he refused to remove a poster depicting a Biblical verse above a photograph of 

former President George W. Bush and former Secretary of State Colin Powell in prayer with other 

government officials. 
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Freshwater’s removal from both the classroom and his leadership role in the FCA 

as well as the commencement of an investigation regarding his violation of the 

laws of this country and the policies of the district, and (3) an agreement by the 

district to correct the concerns they raised and to follow the law. 

{¶ 46} Counsel for the Dennises sent a follow-up letter on April 21, 2008, 

alleging a ninth violation by Freshwater. That letter alleged that since the date of 

the April 14, 2008 letter, Freshwater had continued to teach religion in his 

classroom, including the assignment of extra-credit work regarding intelligent 

design. Counsel wrote that it was obvious that Freshwater had not ceased his 

religious teachings and that the district nevertheless continued to allow 

Freshwater to teach eighth-grade science. 

Investigation by H.R. On Call, Inc. 

{¶ 47} In response to the Dennises’ claims, the district engaged an 

independent investigator, H.R. On Call, Inc. (“HROC”),3

 to investigate the 

allegations. Beginning on April 23, 2008, and continuing through the end of the 

school year, a monitor sat in Freshwater’s classroom and took notes of classroom 

observations and of statements made in class. HROC investigated the Dennises’ 

nine concerns, along with the complaint from April 2006 regarding the handout 

on Darwin that Freshwater had used in class, by interviewing the Dennises’ child, 

former and current students, and 18 teachers and administrators, including 

Weston. 

{¶ 48} In its summary of findings, HROC found that Freshwater’s 

teaching of evolution was not consistent with the district’s curriculum and state 

standards. Specifically, HROC found that Freshwater taught creationism or 

intelligent design and the unreliability of carbon dating as reasons to support 

opposing evolution and that he discussed the meaning of Easter and Good Friday 

 

3. According to the testimony of HROC’s owner at the hearing, HROC is “a human resources 

consulting firm that provides a full range of human resource services to clients.” 
January Term, 2013 

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with his students. Moreover, HROC found that Freshwater distributed materials 

from religious sources challenging evolution and then collected the materials back 

from the students in spite of specific directives not to teach religion, creationism, 

or intelligent design. In addition, HROC recounted evidence that Freshwater had 

told students that “science is wrong because the Bible states that homosexuality is 

a sin.” HROC concluded that Freshwater taught his religious beliefs in his 

classes. 

{¶ 49} HROC also found that Freshwater gave an extra-credit assignment 

for students to view the movie Expelled, which is about intelligent design. 

{¶ 50} HROC’s report included a finding that Freshwater was 

insubordinate by failing to remove all religious materials from his classroom as 

ordered by his superior, Principal White. 

{¶ 51} HROC issued its 15-page report on June 19, 2008. 

Board resolutions

{¶ 52} On June 20, 2008, the board unanimously passed a resolution titled 

“Intent to Consider the Termination of the Teaching Contract of John 

Freshwater.”4

{¶ 53} The board resolution set forth four grounds for Freshwater’s 

termination: (1) the Tesla-coil incident, (2) his failure to adhere to established 

curriculum, (3) his role as facilitator, monitor, and supervisor of the FCA, and (4) 

his disobedience of orders. 

 

 

4. On July 7, 2008, the board unanimously passed an amendment to the June 20, 2008 resolution, 

to change erroneous mentions of “American Content Standards” in the initial resolution to 

“Academic Content Standards” wherever that term appeared. 
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Referee’s Report 

{¶ 54} On June 30, 2008, Freshwater requested a public hearing pursuant 

to R.C. 3319.16. That request was honored, and the protracted hearing ensued. In 

his subsequent report and findings, the referee addressed the four specified 

grounds for Freshwater’s termination as set forth above in the board’s resolution. 

Ground One: Tesla-coil incident 

{¶ 55} The referee found that the Tesla-coil incident “became the focus of 

the curious * * * and print media” due to the sensational and provocative nature 

of the allegation. He also found that once sworn testimony was presented 

regarding the incident, it became obvious that “speculation and imagination had 

pushed reality aside.” He found that the Tesla-coil issue was at an end as soon as 

White instructed Freshwater to stop using it. Freshwater did in fact stop using the 

Tesla coil for any purpose thereafter. Thus, the referee found that the Tesla-coil 

incident did not seem to be a proper subject for the amended resolution. 

Ground Two: Freshwater’s failure to adhere to established curriculum 

{¶ 56} The referee found that Freshwater injected his personal religious 

beliefs into his plan and pattern of instruction of his students. According to the 

referee, in so doing Freshwater exceeded the bounds of all pertinent board 

policies and bylaws, including “Religion in the Curriculum,” “Controversial 

Issues,” “Religious/Patriotic Ceremonies and Observances,” “Religious 

Expression in the District,” and “Academic Freedom of Teachers.” The referee 

found that Freshwater instructed his students to examine evidence both for and 

against evolution, as if his proposed policy for doing so had been adopted by the 

board, and that Freshwater presented evidence against evolution by passing out 

and collecting handouts and showing videos. The evidence against evolution was 

based upon the Christian religious principles of creationism and intelligent design, 

running afoul of the board’s policies entitled “Religion in the Curriculum” and 

“Religious/Patriotic Ceremonies and Observances.” 
January Term, 2013 

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{¶ 57} The referee relied on testimony by Jim Stockdale, a retired teacher 

from the district. Stockdale testified that in the fall of 2006, he was a substitute 

special-education teacher and that he accompanied his students into Freshwater’s 

classroom and sat in one of the student desks in the back.5 

{¶ 58} Stockdale testified that Freshwater started the class on a new unit 

regarding the origin of the universe. According to Stockdale, Freshwater stated 

that “oftentimes scientists and information in textbooks are incorrect” and that as 

an example Freshwater stated that in an article in Time magazine, scientists had 

found a genetic link to homosexuality. But, Stockdale testified, Freshwater then 

told the students that the “scientists in the article were wrong because the Bible 

states that homosexuality is a sin, so anyone who chooses to be a homosexual is a 

sinner; and that, therefore, science can be wrong, scientists can be wrong.” Then, 

Freshwater concluded that the material in the textbook in that particular unit could 

be incorrect. 

{¶ 59} The referee concluded: 

[I]n one incident, witnessed by an experienced and seasoned 

educator, John Freshwater not only injected his subjective, biased, 

Christian religion based, non-scientific opinion into the instruction 

of eighth grade science students but also gave those students 

reason to doubt the accuracy and or veracity of scientists, science 

textbooks, and/or science in general. 

 

 

5. Freshwater disputes Stockdale’s testimony and argues that Stockdale was not present in his 

classroom in the fall of 2006 and therefore could not have witnessed the alleged statement. The 

referee, however, found Stockdale’s testimony credible and, in fact, called it “[p]erhaps the most 

egregious example” of Freshwater’s failure to adhere to established curriculum. Although 

Freshwater contests Stockdale’s testimony, we defer to the referee’s findings of fact. 
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Ground Three: Freshwater’s role as facilitator, monitor, and supervisor of FCA 

{¶ 60} Regarding ground three, the referee stated that although 

“Freshwater was provided a copy of the guidelines for the conduct of [FCA] on 

more than one occasion * * *, Freshwater did not follow the guidelines 

implicitly.” The referee concluded that there were several acts—Freshwater 

instituting a prayer, admitting to putting his hands up during a prayer, and praying 

for a guest speaker—that constituted violations of the FCA Handbook for Public 

Schools. However, the referee did not discuss these violations in later setting 

forth his conclusions regarding Freshwater’s termination. 

Ground Four: Freshwater’s disobedience of orders 

{¶ 61} Regarding ground four, which is dispositive for purposes of our 

opinion, the referee stated that school administrators were concerned about 

materials displayed in Freshwater’s classroom, including the “handwritten Bible 

verses, videos, posters, and a Living Bible.” The referee also found that White 

was assigned the task of implementing a plan of corrective action. The referee 

further stated: 

Beginning on April 7, 2008 [White] had several contacts with John 

Freshwater both in person and in writing. Principal White testified 

that “there were several meetings and several conversations in 

April.” He further testified that multiple contacts with John 

Freshwater became necessary “because the things that I had asked 

to happen on April 7th were not attended to.” Granted, there may 

have been some confusion about the instructions, orders, and 

directives which Mr. White gave John Freshwater. However, it is 

abundantly clear that what may have begun as confusion soon 

transformed into defiance. 
January Term, 2013 

19

 Between April 7th and April 16, 2008, Mr. White clarified 

and reiterated the directives. Finally, he was forced to set a 

deadline for compliance—April 16, 2008. Two days prior (April 

14, 2008), Mr. White and John Freshwater had a discussion about 

whether his disobedience would constitute insubordination. He 

(Freshwater) was told that it would be. Nevertheless, John 

Freshwater decided to comply only in part. * * * [Freshwater] also 

decided to add another element to the controversy. He checked out 

[two] religious texts from the school library and [testified that he 

positioned them on his lab table in his classroom]. John 

Freshwater’s explanation for this act included the phrases “it was a 

curiosity” and “it’s my inspiration.” These explanations seem 

questionable. The act appears to have been one of defiance, 

disregard, and resistance. 

 When Mr. White returned to John Freshwater’s classroom 

on April 16, 2008 to see if his directives had been followed, he 

discovered that they had not been. His testimony recounts his 

observations[:] “Almost everything had been removed, but there 

was still the Colin Powell poster * * * out of the school library he 

had checked out the Bible and had a book called Jesus of 

Nazareth.” John Freshwater admitted that he had not removed the 

Colin Powell poster. He explained * * * “with that poster, that’s a 

patriotic poster of our Commander and Chief” * * * “and I don’t 

recall being told to remove it.” 

(Ellipses sic; citations to transcript omitted.) 

 
SUPREME COURT OF OHIO

20

Referee’s conclusions 

{¶ 62} The referee concluded that pursuant to R.C. 3319.16, a teacher may 

be terminated for “good and just cause,” meaning that “the conduct of the teacher 

in question must constitute a ‘fairly serious matter,’ ” quoting Hale v. Lancaster 

Bd. of Edn., 13 Ohio St.2d 92, 99, 234 N.E.2d 583 (1968). The referee found that 

Freshwater’s conduct constituted a fairly serious matter and was therefore “a valid 

basis for his termination in accordance with ORC 3319.16.” Specifically, the 

referee stated: 

John Freshwater was given ample opportunity to alter or 

adjust his content and style of teaching so as to avoid running 

headlong into the Establishment Clause and the Policy/Bylaws of 

the Mount Vernon Board of Education. Instead, he persisted in his 

attempts to make eighth grade science what he thought it should 

be—an examination of accepted scientific curriculum with the 

discerning eye of Christian doctrine. John Freshwater ignored the 

concept of in loco parentis and, instead, used his classroom as a 

means of sowing the seeds of doubt and confusion in the minds of 

impressionable students as they searched for meaning in the 

subject of science. 

John Freshwater purposely used his classroom to advance 

his Christian religious views knowing full well or ignoring the fact 

that those views might conflict with the private beliefs of his 

students. John 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. Without question, the repeated violation of the 
January Term, 2013 

21

Constitution of The United States is a “fairly serious matter” and 

is, therefore, a valid basis for termination of John Freshwater’s 

contract(s). Further, he repeatedly acted in defiance of direct 

instructions and orders of the administrators—his superiors. These 

defiant acts are also a “fairly serious matter” and, therefore, a valid 

basis for termination of John Freshwater’s contract(s). 

{¶ 63} The referee’s final recommendation was that the board terminate 

Freshwater’s contract for good and just cause. 

Freshwater’s Termination 

{¶ 64} On January 10, 2011, the board, relying on the referee’s report, 

adopted it by a four-to-one vote and found that two main grounds (ground two, 

his failure to adhere to established curriculum, and ground four, his disobedience 

of orders) constituted good and just cause for the termination of Freshwater’s 

teaching contract. 

{¶ 65} As to ground two, the board found that Freshwater injected his 

personal religious beliefs into his plan and pattern of instructing his students. In 

doing so, the board found, “he exceeded the bounds of all the pertinent 

Bylaws/Policies of the Mount Vernon City School District.” 

{¶ 66} As to ground four, the board found that “Freshwater acted in 

defiance of direct instructions and orders of the administrators” by failing to 

comply with the directive to remove or discontinue the display of all religious 

articles in his classroom, including all posters of a religious nature and had 

“brought additional religious articles into his classroom, in a direct act of 

insubordination.” 

{¶ 67} The board determined that “each individual action independently 

constitutes ‘good and just cause’ for the termination of Mr. Freshwater’s teaching 
SUPREME COURT OF OHIO

22

contract(s), whether considered individually or jointly,” and it therefore 

terminated Freshwater’s employment contract with the school district. 

{¶ 68} On January 11, 2011, Barbara Donohue, treasurer of the school 

district, sent Freshwater a letter informing him of the board’s vote to terminate his 

contract at the board meeting. 

Procedural History 

{¶ 69} After his termination, Freshwater brought suit in the Knox County 

Common Pleas Court to appeal the board’s resolution terminating his contract and 

to request that the trial court conduct additional hearings. The trial court reviewed 

the referee’s report and the evidence and found that there was clear and 

convincing evidence to support the board’s termination of Freshwater’s 

employment “for good and just cause.” Thus, the trial court affirmed the board’s 

resolution. 

{¶ 70} Freshwater appealed to the Fifth District Court of Appeals. In his 

sole assignment of error, he argued that the trial court abused its discretion in 

finding that there was clear and convincing evidence to support the board’s 

termination of his employment contract for good and just cause, in affirming the 

board’s termination of his employment contract, and in ordering him to pay the 

costs of the appeal. 2012-Ohio-889 at ¶ 15. 

{¶ 71} The court of appeals affirmed. In doing so, the appellate court held 

that pursuant to Graziano v. Amherst Exempted Village Bd. of Edn., 32 Ohio St.3d 

289, 513 N.E.2d 282 (1987), it was compelled to affirm the trial court’s judgment 

unless it determined that the trial court abused its discretion. Id. at ¶ 21. In its 

analysis, the court of appeals held that it did not 

perceive an “unreasonable, arbitrary or unconscionable attitude,” 

nor one that is “not merely error of judgment, but [one of] 

perversity of will, passion, prejudice, partiality, or moral 
January Term, 2013 

23

delinquency.” To the contrary, the referee’s memorandum 

provides a well-reasoned and articulated basis for affirming the 

decision of the Board and for the trial court to accept the 

recommendation of the referee. 

Id. at ¶ 22. 

{¶ 72} The appellate court held that pursuant to Graziano, the “ ‘report 

and recommendation undertaken by the referee pursuant to R.C. 3319.16 must be 

considered and weighed by the board of education,’ ” and that “ ‘due deference 

must be accorded to the findings and recommendations of the referee * * * who is 

best able to observe the demeanor of the witnesses and weigh their credibility.’ ” 

(Emphasis added by the appellate court.) Id. at ¶ 23, quoting Graziano at 293. 

The appellate court then rejected Freshwater’s contentions that there was not 

sufficient evidence to sustain the board’s termination decision and that additional 

hearings were necessary. 

{¶ 73} The Fifth District next rejected Freshwater’s contention that “the 

conduct found did not rise to the level of good and just cause sufficient to 

terminate his contract.” Id. at ¶ 26. The appellate court stated that in Hale v. 

Lancaster Bd. of Edn., 13 Ohio St.2d at 99, 234 N.E.2d 583, “good and just 

cause” is defined as a “fairly serious matter,” and observed that the referee found 

that Freshwater’s “ ‘repeated violation of the Constitution of the United States’ ” 

and his repeated acts “ ‘in defiance of direct instructions and orders of the 

administrators—his superiors’ ”—both constituted a “fairly serious matter.” Id. at 

¶ 27, quoting the referee’s report. 

{¶ 74} The court of appeals noted that “a hearing spanning nearly two 

years was conducted, testimony from over 80 witnesses was received, a transcript 

of over 6,000 pages was produced, and approximately 350 exhibits were admitted 

into evidence.” Id. at ¶ 31. It further noted that Freshwater “was represented by a 
SUPREME COURT OF OHIO

24

competent attorney, he was permitted to fully explain his actions, he presented 

witnesses on his behalf, and he had a full opportunity to challenge the Board’s 

key witnesses.” Id. at ¶ 32. The Fifth District concluded that the trial court did 

not abuse its discretion by rejecting Freshwater’s requests for additional hearings 

and that the common pleas court’s decision to affirm the termination was not an 

abuse of discretion. Id. at ¶ 33-34. Therefore, the appellate court overruled 

Freshwater’s sole assignment of error. Id. at ¶ 36. 

{¶ 75} We accepted Freshwater’s discretionary appeal, 132 Ohio St.3d 

1461, 2012-Ohio-3054, 969 N.E.2d 1230, and now affirm. 

ANALYSIS

Standards for Termination of a Teacher’s Contract 

{¶ 76} Before a board of education can terminate a teacher’s contract, it 

must comply with R.C. 3319.16, which sets forth the procedures for terminating a 

contract: 

[T]he employing board shall furnish the teacher a written notice 

signed by its treasurer of its intention to consider the termination of 

the teacher’s contract with full specification of the grounds for 

such consideration. * * * [T]he teacher may file with the treasurer 

a written demand for a hearing before the board or before a referee 

* * *. The hearing shall be conducted by a referee appointed 

pursuant to section 3319.161 of the Revised Code * * * and shall 

be confined to the grounds given for the termination. * * * 

* * * After a hearing by a referee, the referee shall file a 

report within ten days after the termination of the hearing. * * * 

After consideration of the referee’s report, the board, by a majority 

vote, may accept or reject the referee’s recommendation on the 

termination of the teacher’s contract. After a hearing by the board, 
January Term, 2013 

25

the board, by majority vote, may enter its determination upon its 

minutes. Any order of termination of a contract shall state the 

grounds for termination. * * * 

 Any teacher affected by an order of termination of contract 

may appeal to the court of common pleas of the county in which 

the school is located within thirty days after receipt of notice of the 

entry of such order. * * * The court shall examine the transcript 

and record of the hearing and shall hold such additional hearings as 

it considers advisable, at which it may consider other evidence in 

addition to the transcript and record. 

{¶ 77} If a party to an R.C. 3319.16 proceeding, i.e., termination of a 

teacher’s contract, appeals to an appellate court, “[a]bsent an abuse of discretion 

on the part of the trial court, the court of appeals may not engage in what amounts 

to a substitution of judgment of the trial court.” Graziano, 32 Ohio St.3d at 294, 

513 N.E.2d 282. “The term ‘abuse of discretion’ has been defined as implying 

‘not merely error of judgment, but perversity of will, passion, prejudice, partiality, 

or moral delinquency.’ ” Id. (Douglas, J., concurring), quoting State ex rel. 

Shafer v. Ohio Turnpike Comm., 159 Ohio St. 581, 590-591, 113 N.E.2d 14 

(1953). 

{¶ 78} Here, the board had good and just cause to terminate Freshwater’s 

contract. The court of appeals held: “There was sufficient evidence to support 

both the referee and [the board’s] findings, and we do not determine issues 

involving credibility.” 2012-Ohio-889 at ¶ 24. The appellate court held that it 

did “not perceive an ‘unreasonable, arbitrary or unconscionable attitude,’ nor one 

that is ‘not merely error of judgment, but [one of] perversity of will, passion, 

prejudice, partiality, or moral delinquency.’ ” Id. at ¶ 22. 

{¶ 79} Upon careful review, we agree. 
SUPREME COURT OF OHIO

26

Display of Religious Materials 

{¶ 80} White’s letter to Freshwater made clear that Freshwater, as a public 

school teacher, could not “engage in any activity that promotes or denigrates a 

particular religion or religious beliefs while on board property, during any school 

activity,” or when he was teaching. The district simply stated what the law, and 

the First Amendment, commands. 

{¶ 81} Freshwater not only ignored the school district’s directive, he 

defied it. After he was directed to remove the items, Freshwater deliberately 

added to them, incorporating the Oxford Bible and Jesus of Nazareth into the 

classroom. He then refused to remove his personal Bible from his desk, and 

refused to remove a depiction of former President George W. Bush and Colin 

Powell and others in prayer from his wall. 

{¶ 82} Pursuant to R.C. 3319.16, a public school teacher’s contract may 

not be terminated except for good and just cause. When a teacher has been 

insubordinate, good and just cause exists for a board of education to terminate that 

teacher’s contract. In the context of teacher-contract-termination cases, the term 

“insubordination” has been defined to include a willful “disobedience of, or 

refusal to obey, a reasonable and valid rule, regulation, or order issued by the 

school board or by an administrative superior.” Annotation, What Constitutes 

“Insubordination” as Ground for Dismissal of Public School Teacher, 78 

A.L.R.3d 83, 87 (1977). 

{¶ 83} This is a succinct definition of the term “insubordination,” and we 

adopt it for our purposes here. We therefore hold that in a proceeding under R.C. 

3319.16 for the termination of a public school teacher’s contract, “good and just 

cause” includes insubordination consisting of a willful disobedience of, or refusal 

to obey, a reasonable and valid rule, regulation, or order issued by a school board 

or by an administrative superior. 
January Term, 2013 

27

{¶ 84} It is undisputed that Freshwater willfully disobeyed orders when he 

failed to remove (1) his personal Bible, (2) Jesus of Nazareth and the Oxford 

Bible, and (3) the poster of government officials praying. But disobedience alone 

will not establish insubordination under the definition we adopt above. We must 

also find that the orders themselves were reasonable and valid. If any order was 

either unreasonable or invalid, Freshwater’s disobedience of it would not be 

insubordinate. 

Freshwater’s personal Bible 

{¶ 85} We begin by considering Principal White’s order for Freshwater to 

remove his personal Bible from his desk. We conclude that this order was neither 

reasonable nor valid. The order infringed without justification upon conduct 

protected by the Free Exercise Clause of the First Amendment to the United 

States Constitution. The district’s proffered rationale for the order—that 

Freshwater’s display of his Bible on his desk violated the Establishment Clause—

was erroneous, because this Bible presented no such violation. 

{¶ 86} Teachers do not abandon their First Amendment rights when they 

enter their classrooms. Tinker v. Des Moines Indep. Community School Dist., 393 

U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (students and teachers do not 

“shed their constitutional rights to freedom of speech or expression at the 

schoolhouse gate”). Included in those First Amendment rights is the ability to 

freely exercise one’s religion. The protections of the Free Exercise Clause apply 

whenever the government “regulates or prohibits conduct because it is undertaken 

for religious reasons.” Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 

U.S. 520, 532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). 

{¶ 87} Freshwater’s conduct in keeping his personal Bible at his desk was 

plainly undertaken for religious reasons. And the district sought to regulate that 

conduct solely because the conduct was religiously motivated. Thus, when the 

district ordered Freshwater to put away his personal Bible, it infringed upon 
SUPREME COURT OF OHIO

28

religious conduct protected by the Free Exercise Clause, something Freshwater 

has asserted throughout this controversy. See Hudson v. Palmer, 468 U.S. 517, 

547, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), fn. 13 (Stevens, J., concurring in part 

and dissenting in part) (“possession of * * * personal property relating to religious 

observance, such as a Bible or a crucifix, is surely protected by the Free Exercise 

Clause”); Warnock v. Archer, 380 F.3d 1076, 1082 (8th Cir.2004) (personal 

religious effects in school superintendent’s office, including Bible, were protected 

by Free Exercise Clause). 

{¶ 88} Because the First Amendment protected Freshwater’s conduct, we 

must determine whether the school had a legitimate justification for prohibiting 

that conduct.6

 The district provided only one reason for why it ordered 

Freshwater to remove his personal Bible: it wanted to avoid an Establishment 

Clause violation. The district undeniably has an interest in avoiding 

Establishment Clause violations, and this interest may even justify infringement 

on teachers’ First Amendment rights. Widmar v. Vincent, 454 U.S. 263, 271, 102 

S.Ct. 269, 70 L.Ed.2d 440 (1981); Good News Club v. Milford Cent. School, 533 

U.S. 98, 112-113, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001). But the interest must 

be grounded in reality; the district’s mere fear of an Establishment Clause 

violation will not justify burdening First Amendment protections. See United 

States v. Natl. Treasury Emps. Union, 513 U.S. 454, 475, 115 S.Ct. 1003, 130 

L.Ed.2d 964 (1995), quoting Whitney v. California, 274 U.S. 357, 376, 47 S.Ct. 

641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring) (First Amendment 

restrictions “requir[e] a justification far stronger than mere speculation about 

serious harms. * * * ‘Men feared witches and burnt women’ ”). If the district was 

 

6. The relevant “conduct” here consists solely of Freshwater keeping his personal Bible on his 

desk. Numerous students testified that Freshwater never held up, read from, or opened his Bible 

during class. One student alleged that Freshwater once referred to his Bible during class, but 

HROC investigated this allegation and found no evidence to substantiate it. Many teachers, 

including Deborah Strouse, who monitored Freshwater’s classroom in 2008 when this controversy 

developed, similarly confirmed that Freshwater never used his personal Bible in class. 
January Term, 2013 

29

acting to avoid an Establishment Clause violation, there actually needed to be an 

Establishment Clause violation to avoid. Lamb’s Chapel v. Ctr. Moriches Union 

Free School Dist., 508 U.S. 384, 395, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993) 

(rejecting school district’s Establishment Clause defense because its “posited 

fears of an Establishment Clause violation are unfounded”); Brown v. Polk Cty., 

Iowa, 61 F.3d 650, 659 (8th Cir.1995) (baseless fear of Establishment Clause 

violation could not justify county’s order for public employee to remove Bible 

from his desk). 

{¶ 89} In this case, we must reject the district’s justification because the 

inconspicuous presence of Freshwater’s personal Bible posed no threat to the 

Establishment Clause and the record supports that he did not use the Bible while 

teaching. A public school violates the Establishment Clause if its actions could 

reasonably be perceived as an official endorsement of religion.7

 Cty. of Allegheny 

v. Am. Civ. Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 592-593, 

109 S.Ct. 3086, 106 L.Ed.2d 472 (1989); Santa Fe Indep. School Dist. v. Doe, 

530 U.S. 290, 305-308, 120 S.Ct. 2266, 147 L.Ed.2d 295 (2000); Rosenberger v. 

Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 841-842, 115 S.Ct. 2510, 

 

7. Traditionally, courts have tested for Establishment Clause violations using the test set forth in 

Lemon v. Kurtzman, 403 U.S. 602, 612-613, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) (government 

action violates the Establishment Clause if (1) it does not have a secular purpose, (2) its primary 

effect is to advance or inhibit religion, or (3) it creates an excessive entanglement between 

government and religion). In recent years, however, the Supreme Court has only intermittently 

used the Lemon test, and whether the test actually applies in any given scenario is difficult to 

discern. See, e.g., Utah Hwy. Patrol Assn. v. Am. Atheists, Inc., __ U.S. __, 132 S.Ct. 12, 14, 181 

L.Ed.2d 379 (2011) (Thomas, J., dissenting from the denial of certiorari) (“Our jurisprudence 

provides no principled basis by which a lower court could discern whether Lemon/endorsement, or 

some other test, should apply in Establishment Clause cases”). In its most recent cases dealing 

with the Establishment Clause in public schools, the Supreme Court has declined to apply Lemon, 

instead opting for the endorsement test. See Good News Club, 533 U.S. at 113, 115, 121 S.Ct. 

2093, 150 L.Ed.2d 151; Santa Fe Indep. School Dist. v. Doe, 530 U.S. 290, 308-309, 120 S.Ct. 

2266, 147 L.Ed.2d 295 (2000); Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 

819, 841-842, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Even if we were to apply Lemon in this 

case, we would find no Establishment Clause violation. Simply allowing a teacher to keep his 

personal Bible on his desk would not have a religious purpose, would not advance religion, and 

would not excessively entangle government with religion. 
SUPREME COURT OF OHIO

30

132 L.Ed.2d 700 (1995). Endorsement occurs when the government “ ‘convey[s] 

or attempt[s] to convey a message that religion or a particular religious belief is 

favored or preferred.’ ” (Emphasis sic.) Cty. of Allegheny at 593, quoting 

Wallace v. Jaffree, 472 U.S. 38, 70, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985) 

(O’Connor, J., concurring in judgment). Endorsement connotes “ ‘promotion’ or 

‘favoritism.’ ” Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 764, 

115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). 

{¶ 90} The district does not convey a message that it endorses or promotes 

Christianity by simply allowing Freshwater to keep a personal Bible on his desk. 

Bd. of Edn. of Westside Community Schools v. Mergens, 496 U.S. 226, 250, 110 

S.Ct. 2356, 110 L.Ed.2d 191 (1990) (“schools do not endorse everything they fail 

to censor”); see also Helland v. S. Bend Community School Corp., 93 F.3d 327,

331 (7th Cir.1996) (in Establishment Clause challenge, school’s concern was with 

teacher reading Bible aloud to students, not with teacher merely carrying Bible 

with him). “Merely employing an individual * * * who unobtrusively displays 

[his] religious adherence is not tantamount to government endorsement of that 

religion * * *.” Nichol v. ARIN Intermediate Unit 28, 268 F.Supp.2d 536, 554 

(W.D.Pa.2003) (policy prohibiting elementary school teachers and employees 

from wearing religious jewelry deemed offensive to Free Exercise Clause); see 

also Draper v. Logan Cty. Pub. Library, 403 F.Supp.2d 608, 621 (W.D.Ky.2005) 

(permitting public library employee to have “unobtrusive displays of religious 

adherence * * * could not be interpreted by a reasonable observer as 

governmental endorsement of religion”). Allowing teachers to have personal 

religious items conveys a message of accommodation, not endorsement. See 

Nichols v. Caroline Cty. Bd. of Edn., D.Md. No. JFM-02-3523, 2004 WL 350337, 

at *12 (Feb. 23, 2004), fn. 15 (allowing teacher to keep personal Bible by his desk 

was an accommodation of teacher’s religious expression). 
January Term, 2013 

31

{¶ 91} The scene of Freshwater’s classroom and the particular physical 

setting of his Bible—key factors to our endorsement inquiry—further demonstrate 

the impossibility of any perceived state endorsement of religion. See Cty. of 

Allegheny, 492 U.S. at 595, 109 S.Ct. 3086, 106 L.Ed.2d 472 (highlighting 

importance of context and physical setting in endorsement test). Freshwater kept 

his Bible at his desk. Teachers at Mount Vernon considered their desks to be 

personal space. The desk area was off-limits to students, and teachers often kept 

private items there. Freshwater had even posted a large “KEEP OUT” sign on the 

side of his desk. The personal nature of the space makes it unlikely that a 

reasonable observer would perceive official state endorsement of private items 

placed there. 

{¶ 92} In addition to being on a personal workspace, rather than in a 

public, student-accessible area, Freshwater’s Bible was inconspicuous. It lay flat 

on his desk, amongst electronics, texts, office supplies, and other papers. 

Oftentimes, the Bible was buried under other materials. Teachers testified that 

there was “stuff all over his desk, so you couldn’t hardly see [the Bible]” and that 

it was “hard to find on his messy desk.” Many students never even noticed the 

Bible or only realized it was in the classroom after it became a highlight of this 

controversy. HROC concluded that the Bible was not on display; it was neither 

prominently staged nor placed in a way that would draw any particular attention 

to it. Other witnesses testified that Freshwater himself never drew any attention 

to the Bible. Given this unobtrusive, obscured, personal setting, no reasonable 

observer would assume that the state intended to promote or endorse Freshwater’s 

Bible. See, e.g., ARIN Intermediate, 268 F.Supp.2d at 554 (“unobtrusiv[e] 

displays [of] religious adherence” by school employees do not imply government 

endorsement of religion and do not violate Establishment Clause). 

{¶ 93} Finally, we consider that the district has the power to correct any 

misperceptions it anticipates. As the Supreme Court has stated, a school district’s 
SUPREME COURT OF OHIO

32

“fear of a mistaken inference of endorsement is largely self-imposed, because the 

school itself has control over any impressions it gives its students.” Westside 

Community Schools, 496 U.S. at 251, 110 S.Ct. 2356, 110 L.Ed.2d 191. If the 

school does not want people to think that it promotes Freshwater’s beliefs, it can 

tell them so. Id.; see also Capitol Square, 515 U.S. at 769, 115 S.Ct. 2440, 132 

L.Ed.2d 650 (“If Ohio is concerned about misperceptions, nothing prevents it 

from requiring all private displays * * * to be identified as such”). 

{¶ 94} The Free Exercise Clause protected Freshwater’s conduct as to his 

personal Bible. When the district asked Freshwater to remove his Bible from his 

desk, it was not asking him to cease a meaningless activity. It was demanding 

that he give up his constitutionally guaranteed rights. The government can 

encroach upon constitutional rights, but it must have a legitimate reason for doing 

so. Here, the district’s reason was not legitimate. The district feared an 

Establishment Clause violation where none existed. Unsubstantiated fear alone 

cannot justify flouting the First Amendment. 

{¶ 95} We therefore conclude that the district’s order for Freshwater to 

remove his personal Bible from his desk was neither reasonable nor valid; the 

order infringed on Freshwater’s free-exercise rights without justification. 

Because this particular order was invalid, Freshwater’s disobedience of the order 

cannot be considered insubordination or grounds for his termination. 

The remaining orders 

{¶ 96} Freshwater’s refusal to remove the other items from his 

classroom—the Oxford Bible, Jesus of Nazareth, and the George W. Bush/Colin 

Powell poster—presents a much simpler issue. Freshwater’s First Amendment 

rights did not protect the display of these items, because they were not a part of 

his exercise of his religion. Freshwater admitted that he checked out the 

additional books only in order to make a point once this controversy began. Thus, 

the district would not run afoul of the Free Exercise Clause by ordering 
January Term, 2013 

33

Freshwater to remove these materials; the orders were both reasonable and valid. 

Freshwater’s willful disobedience of these direct orders demonstrates blatant 

insubordination. That insubordination is established by clear and convincing 

evidence, and the record fully supports the board’s decision to terminate him on 

these grounds. 

Teaching of Creationism and Intelligent Design 

Alongside Evolution Generally Disfavored 

{¶ 97} We recognize that this case is driven by a far more powerful debate 

over the teaching of creationism and intelligent design alongside evolution. See, 

e.g., McLean v. Arkansas Bd. of Edn., 529 F.Supp. 1255 (E.D.Ark.1982). Federal 

courts consistently hold that the teaching of evolution in public schools should not 

be prohibited, Epperson v. Arkansas, 393 U.S. 97, 106-107, 89 S.Ct. 266, 21 

L.Ed.2d 228 (1968), and have struck as unconstitutional policies and statutes that 

require public school teachers to devote equal time to teaching both evolution and 

the Biblical view of creation. See, e.g., Daniel v. Waters, 515 F.2d 485 (6th 

Cir.1975). The United States Supreme Court and at least one other federal court 

have held that teaching theories of creationism and intelligent design in public 

schools violates the Establishment Clause because they convey “supernatural 

causation of the natural world” and therefore are inherently religious concepts. 

Kitzmiller v. Dover Area School Dist., 400 F.Supp.2d 707, 736 (M.D.Pa.2005); 

Edwards v. Aguillard, 482 U.S. 578, 591-592, 107 S.Ct. 2573, 96 L.Ed.2d 510 

(1987). However, the Supreme Court holds that teaching creationism is not 

prohibited in public schools as long as it is done “with the clear secular intent of 

enhancing the effectiveness of science instruction.” Edwards at 594. 

{¶ 98} The Supreme Court also cautions that the courts must be “vigilant 

in monitoring compliance with the Establishment Clause in elementary and 

secondary schools” because 
SUPREME COURT OF OHIO

34

[f]amilies entrust public schools with the education of their 

children, but condition their trust on the understanding that the 

classroom will not purposely be used to advance religious views 

that may conflict with the private beliefs of the student and his or 

her family. Students in such institutions are impressionable and 

their attendance is involuntary. 

Id. at 583-584, citing Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383, 105 

S.Ct. 3216, 87 L.Ed.2d 267 (1985). 

{¶ 99} 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. Freshwater is fully 

entitled to an ardent faith in Jesus Christ and to interpret Biblical passages 

according to his faith. But he was not entitled to ignore direct, lawful edicts of his 

superiors while in the workplace. 

CONCLUSION

{¶ 100} For the reasons set forth in this opinion, we affirm the judgment 

of the court of appeals that upheld Freshwater’s termination. 

Judgment affirmed. 

FRENCH and O’NEILL, JJ., concur. 

 LANZINGER, J., concurs in syllabus and judgment. 

 PFEIFER, O’DONNELL, and KENNEDY, JJ., dissent. 

____________________ 

LANZINGER, J., concurring in syllabus and judgment. 

{¶ 101} With respect to this case involving science students in a public 

middle school, I would hold that the school district’s order that John Freshwater 

put away his personal Bible while students were present was a reasonable and 

valid attempt to avoid an Establishment Clause violation. That order did not 
January Term, 2013 

35

infringe on Freshwater’s free speech rights, for he was not required to remove the 

Bible from the classroom—merely putting the book into a desk drawer during 

class time would have sufficed. The lead opinion states that an order to remove 

religious materials is valid and reasonable but that an order that a personal Bible 

not be displayed while students are present is not. I do not see the distinction. In 

my view, Freshwater disobeyed a reasonable order by incorporating the Bible by 

reference while teaching in his science classes and displaying the book on his 

desk while students were present. I would hold that this constituted part of his 

insubordination. 

{¶ 102} Because I disagree with the lead opinion’s discussion of this 

point, I join the syllabus and concur in judgment only. 

____________________ 

PFEIFER, J., dissenting. 

I 

{¶ 103} To the end, John Freshwater has been a teacher. For more than 

five years, he has argued that the school board had no right to require him to 

remove his Bible from his desk. Five years of hearings and appeals have passed, 

over $900,000 in legal fees reportedly were expended by the school board on the 

hearing alone in its quest to fire its best eighth-grade science teacher, and the only 

holding of consequence by this court today echoes what John Freshwater told a 

gathering of supporters in Mount Vernon’s town square on April 16, 2008: 

Because the Bible is * * * personal and private property and the 

source of personal inner strength in my own life, the removal of it 

from my desk would be nothing short of infringement on my own 

deeply held personal religious beliefs, granted by God and 

guaranteed under the Free Exercise Clause of the First Amendment 

in the United States Constitution. 
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36

{¶ 104} This court has determined today that Freshwater was right. The 

central piece of the insubordination claim against Freshwater—that he refused to 

remove his Bible from his desk—has been determined by this court (by the three 

members of the court that concur in the lead opinion and by at least one other 

justice, myself) to be an invalid cause for discipline. 

{¶ 105} What next? With the insubordination claim gutted, the lead 

opinion should have moved on to consider the constitutional issues remaining in 

the case. Instead, the majority walks away from the opportunity to provide 

helpful guidance to every school board in Ohio and to the thousands of great 

teachers who could benefit from knowing more about the extent of and limits on 

their academic freedom. Justice O’Donnell’s well-reasoned dissent addresses the 

issue, but goes unrebutted. In short, the majority shrinks from the chance to be a 

Supreme Court. The lead opinion cobbles together the piddling other claims of 

supposed insubordination, and, sitting as Supreme School Board, the majority 

declares the matter closed. In a case bounding with arrogance and cowardice, the 

lead opinion fits right in. 

The Desk Bible Was the Center of the Insubordination Claim 

{¶ 106} Since Freshwater became aware of possible discipline, the 

presence of the Bible on his desk was a bone of contention. The April 7, 2008 

letter from Principal William White to Freshwater was to follow up with 

Freshwater regarding concerns about Freshwater’s role with the Fellowship of 

Christian Athletes (“FCA”) and about “religious materials in [his] classroom.” 

The letter mentioned only the Bible on his desk and the Ten Commandments on 

Freshwater’s classroom window as potentially offensive: 

 With regard to religious materials in your classroom, it has 

been brought to my attention that you have a bible out on your 
January Term, 2013 

37

desk and that the “collage” on your classroom window includes the 

10 commandments. While you certainly may read your bible on 

your own, duty free time [i.e. during lunch], it cannot be sitting out 

on your desk when students are in the classroom and when you are 

supposed to be engaged in your responsibilities as a teacher. As 

for the 10 commandments, that part of your collage must be taken 

down and replaced with something that is not religious in nature. 

{¶ 107} A letter from White to Freshwater on April 14—before 

Freshwater had checked out books from the library—memorializes an April 11 

conversation between White and Freshwater regarding religious items in 

Freshwater’s classroom: 

 As per our conversation, all religious items need to be 

removed from your classroom by the end of the day on 

Wednesday, April 16, 2008. Bibles and other religious DVD’s, 

videos, etc. should be placed out of sight and access of students by 

this date. 

{¶ 108} In the letter from their attorneys dated April 14, 2008, Stephen 

and Jenifer Dennis, the parents of Zach Dennis, the now adult who was the 

eighth-grade student at the heart of this case, outlined their own bill of particulars 

stating why Freshwater’s career must end: 

 The Ten Commandments are displayed in Mr. Freshwater’s 

classroom. Several Bibles are also kept in Mr. Freshwater’s 

classroom and are there as a display to his students, not for his 

personal use. This display represents an ostensible and 
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38

predominant purpose of advancing religion and violates the central 

Establishment Clause virtue of official religious neutrality. 

{¶ 109} In a letter from their attorney to Superintendent Stephen Short 

dated April 21, 2008, the hypervigilant Dennises apparently were satisfied that the 

religious-display issue had been cleared up, and moved on to other matters: 

“While we appreciate Mt. Vernon’s efforts to have Mr. Freshwater remove 

religious materials from his classroom, it is obvious that Mr. Freshwater has not 

ceased his religious teachings.” 

{¶ 110} On April 16, 2008, Freshwater and White came to a crystal clear 

understanding: If Freshwater did not remove his personal Bible from his desk in 

his classroom, he would be considered insubordinate. That conclusion was 

specific and undeniable. Only one thing was necessary for Freshwater to be 

found insubordinate—that his personal Bible remain on his desk. Freshwater 

could not abide any directive to remove it. He so fervently believed his rectitude 

that he went public, literally entering the public square to air his grievance. 

{¶ 111} In a story in the April 18, 2008 Mansfield News Journal entered 

into evidence by Freshwater, Mount Vernon School Board president Ian Watson 

spoke about insubordination, mentioning only Freshwater’s Bible: 

“If he doesn’t remove the Bible from his desktop, at some 

point, and I don’t know that point yet because we haven’t 

progressed that far, but some claim of insubordination could be 

made,” Watson said. “There would be penalties involved, which 

would vary depending on the level of insubordination.” 
January Term, 2013 

39

Kinton, Mount Vernon School Officials Hope to Resolve Bible Standoff Quickly, 

Mansfield News Journal (April 18, 2008). The same article later recounted 

additional details: 

Watson said the Bible on Freshwater’s desk became an 

issue when one family brought it to Short’s attention. 

“The parents expressed concern on what allegedly 

occurred. Most recently, I spoke to the family at the first of this 

month,” Watson said. “We would like to see the Bible removed so 

that we can be responsive to parents, and we would like to reach a 

common ground with Mr. Freshwater that everyone can be OK 

with, but I don’t know if that will happen.” 

{¶ 112} Over and over again, the Ten Commandments and Freshwater’s 

personal Bible were the focus of the complaints against Freshwater. There is no 

dispute that the Ten Commandments were quickly removed from his classroom. 

The Bible remained the sticking point. 

Other Evidence of Insubordination 

{¶ 113} The issue of Freshwater’s desktop Bible deserves the attention the 

lead opinion gives it. The presence of that Bible on his desk was at the very 

center of the insubordination claim against Freshwater. Now that theory is gone, 

and less than a fig leaf remains. The lead opinion spends many paragraphs 

explaining the invalidity of the central reason given for Freshwater’s dismissal, 

his refusal to remove his Bible from his desk. An unofficial majority of the court 

agrees with that aspect of the holding, as I consider myself a member of that 

unofficial majority. But the lead opinion spends just one scant, conclusory 

paragraph outlining why Freshwater’s career had to end. Now that Freshwater 
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40

has won on the most important dispute, the myth must be created that the 

presence of the other items constituted insubordination. 

Bush/Powell Poster 

{¶ 114} Was there a valid work rule in effect regarding the Bush/Powell 

poster? The majority cannot be bothered to say whether there was or whether it 

was willfully disobeyed. Certainly, if there were a rule about the Bush/Powell 

poster, it did not apply to everyone. As Justice O’Donnell relates in his dissenting 

opinion, at ¶ 147, the poster was distributed by the school and was displayed in 

other teachers’ rooms. The picture of the poster in evidence shows that the 

biblical quote at the top of the poster is largely obscured by other items on 

Freshwater’s bulletin board. There is no evidence that Freshwater left the 

Powell/Bush poster up because of its religious nature. He claimed that it was a 

patriotic poster that appealed to him because he had two children in the military. 

The president of the school board, Watson, testified that “in and of itself,” the 

poster was not a religious display. And on April 16, the poster was 

inconsequential—Freshwater was told he would be insubordinate for failing to 

remove his Bible. The poster was then what it is today: a trifle. 

Library Books 

{¶ 115} What work rule or order did Freshwater violate by checking out 

books from the library? Was there a work rule in effect that a teacher could not 

borrow books from the school library and keep them in his work area? Does the 

lead opinion really mean to say that books of a religious nature are acceptable in 

the library but not acceptable to be checked out from the library? Or is it only 

practicing Christians who cannot borrow such books from the library? 

Freshwater is not accused of reading to his class from the books or assigning the 

books to his students. They were school property and could have been removed 

at any time. There is no documented complaint about the books and no specific 

order that they be removed. 
January Term, 2013 

41

{¶ 116} Whether Freshwater checked them out of the library to make a 

point or to provide himself comfort is irrelevant. There was no work rule or order 

that he could not have them in his classroom. If he did check them out to make a 

point, the point was valid: religious materials were present in the school and if 

they were not forced upon children, possessing them was acceptable. If the 

placement of the library books, the Oxford Bible and Jesus of Nazareth, was 

designed to demonstrate defiance, should Freshwater be fired for indicating his 

resistance to a policy that this court has declared illegal? 

A Fairly Serious Matter 

{¶ 117} In interpreting the “other good and just cause” clause of the 

version of R.C. 3319.16 at issue here, this court has made clear that firings 

implicating that phrase must involve conduct on a par with that justifying 

termination for other reasons under the statute: 

In construing the words, “other good and just cause,” we 

note that they are used with the words “gross inefficiency or 

immorality” and “willful and persistent violations” of board 

regulations. In our opinion, this indicates a legislative intention 

that the “other good and just cause” be a fairly serious matter. 

Hale v. Lancaster Bd. of Edn., 13 Ohio St.2d 92, 98-99, 234 N.E.2d 583 (1968). 

{¶ 118} Is the presence of this poster and a couple of library books in his 

classroom a serious matter on a par with “gross inefficiency or immorality” or 

“willful and persistent violations” of board regulations? Is this enough to end a 

career of over 20 years? 

{¶ 119} Freshwater’s activities do not sink to the level of other school 

employees terminated pursuant to R.C. 3319.16. Should Freshwater join the likes 

of the assistant superintendent in Kitchen v. Bd. of Edn. of Fairfield City School 
SUPREME COURT OF OHIO

42

Dist., 12th Dist. Butler No. CA2006-09-234, 2007-Ohio-2846, who was fired 

because of an arrest for drunken driving and her failure to alert her superior about 

it; the teacher in Oleske v. Hilliard City School Dist. Bd. of Edn., 146 Ohio 

App.3d 57, 764 N.E.2d 1110 (10th Dist.2001), who was dismissed for telling 

jokes of a sexual nature to certain of her middle-school students and mocking 

another teacher in vulgar terms; and the high school teacher in Elsass v. St. Marys 

City School Dist. Bd. of Edn., 3d Dist. Auglaize No. 2-10-30, 2011-Ohio-1870, 

who was terminated for masturbating in a school parking lot during a school 

event? 

{¶ 120} The court in Bertolini v. Whitehall City School Dist. Bd. of Edn., 

139 Ohio App.3d 595, 744 N.E.2d 1245 (10th Dist.2000), reviewed the types of 

cases meriting R.C. 3316.19 termination: 

A review of cases in which the appellate court affirmed a school 

board’s decision to terminate a school employee shows that the 

teacher’s behavior had or could have had a serious effect on the 

school system. For example, many of the cases involved 

inappropriate sexual relations between faculty and students. Other 

cases involved instances in which a teacher had been convicted of 

a serious criminal offense. Some of the cases involved direct 

refusals by teachers to follow board guidelines. In other cases, the 

actions of a teacher could have caused serious harm to a student. 

(Footnotes omitted.) Id. at 608. 

{¶ 121} Bertolini discussed, in particular, cases involving direct refusals 

by teachers to follow board guidelines: 
January Term, 2013 

43

In Buie [v. Chippewa Local School Dist. Bd. of Edn., 9th Dist. 

Wayne No. 2924, 1995 WL 542217 (Sept. 13, 1995)], the teacher 

resisted making any changes suggested by the school principal 

over a two-year period to alleviate excessive noise and disorder in 

his classroom. In Wynne v. S. Point Local School Dist. Bd. of Edn. 

(July 23, 1992), [4th Dist.] Lawrence App. No. 91CA15, 

unreported, 1992 WL 174720, a teacher failed to report to work at 

the expiration of her leave of absence after having been absent 

from work for twenty months. In Swinderman v. Dover City 

School Dist. Bd. of Edn. (Apr. 20, 1992), [5th Dist.] Tuscarawas 

App. No. 91AP110092, unreported, 1992 WL 91655 * * *, a 

teacher lied about time taken for sick leave following a trip during 

Christmas break to Arizona with a student. In Thomas v. 

Columbus Pub. Schools (Feb. 12, 1991), [10th Dist.] Franklin App. 

No. 90AP-649, unreported, 1991 WL 19301, the teacher refused to 

follow a program established by the board and refused to cooperate 

to the point that the teacher threw a consultant out of his 

classroom. 

Id. at fn. 4. 

{¶ 122} The remaining instances of so-called insubordination in this case 

involve no program or official policy of the board of education. Neither the 

Bush/Powell poster nor the library books had a serious effect on the school 

system. At worst, they were de minimis violations of an unwritten, ad hoc rule. 

{¶ 123} This court’s decision will have far-reaching consequences. In its 

effort to be rid of Freshwater’s case without too much heavy lifting, this court has 

set a very low bar for what constitutes “good and just cause.” Precedent from this 

court regarding R.C. 3319.16 is fairly limited, but now we have a case on the 
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44

books setting forth that good and just cause means very little cause at all. 

Teachers throughout the state should feel much less secure in their employment 

today. 

II 

{¶ 124} This case illustrates the importance of leadership and the power of 

hysteria. This case should be a cautionary tale for other school boards, a case 

study of what not to do. For at least a month before the situation exploded, the 

Dennises had been complaining about Freshwater, often to the school-board 

president, Watson, who was a personal acquaintance of Stephen Dennis. Based 

on those complaints, Freshwater was admonished by a letter dated April 7, 2008, 

to abide by rules regarding his participation in FCA events and to remove 

religious displays in his classroom. The situation cried out for leadership by the 

superintendent, a school-board member, or a prominent community member to 

bring the sides together and work together toward some understanding. Indeed, a 

meeting was arranged between the Dennises and Freshwater. The Dennises, 

however, wished to remain anonymous so that if they canceled the meeting, 

Freshwater would not know who had lodged complaints against him. According 

to the Dennises, this was done to protect their son from retaliation. Near the time 

of the meeting, White revealed to Freshwater the name of the complainant, which 

upset the Dennises. They canceled the meeting because, according to Mr. Dennis, 

Freshwater was going to have representation at the meeting and the Dennises 

were not. Soon enough, the Dennises obtained representation. Within a week, 

their counsel was demanding Freshwater’s removal from the classroom. Fire him 

or face a lawsuit, the Dennises said. Bullies are not relegated to playgrounds. 

{¶ 125} On April 16, Freshwater made his appearance on the square in Mt. 

Vernon. The Board of Education responded with a press release announcing 

many of the claims that the Dennises had raised against Freshwater. And then the 

headlines started. One headline, accompanied by an article on page A1 of the 
January Term, 2013 

45

Columbus Dispatch on April 23, 2008, proclaimed: “DISPUTE WITH MOUNT 

VERNON TEACHER; Religious ‘healing,’ branding charged.” The circus came 

to Mount Vernon. 

{¶ 126} Hurriedly, an investigation was started. Counsel was retained by 

the school. Counsel then retained a “mom and pop” human-resources 

investigation firm, which used a tiny rear-view mirror to review a man’s 20-year 

career. Hired to find evidence to fire Freshwater, the investigator did just that. 

Based on the report (the board’s lawyer reviewed earlier drafts), the board 

announced its intention to fire Freshwater. 

{¶ 127} Meanwhile, the Dennises, deciding that the end of Freshwater’s 

career was insufficient, filed suit in federal court. That Tesla-coil mark on poor 

Zach’s arm—the one Freshwater claimed was an X and they claimed was a 

cross—started looking an awful lot like a dollar sign. Eventually, the suit against 

Freshwater would be settled for $475,000, which included $300,000 for the 

Dennis parents, $25,000 for their lawyer, and a $150,000 annuity that will end up 

paying Zach around $217,000 by the time he is 30. The suit against the school 

district settled for less: in that case, each parent received $1, Zach $5,500, and 

their lawyers $115,500. Money was a wonderful salve for Zach’s injured arm, 

which, after all, had suffered a mark on it that disappeared in three weeks. It had 

kept him from sleeping for a few minutes the night it happened. But now, all is 

well. His mother, Jenifer, was quoted in a magazine article, Boston, Insidious 

Design: At the Ohio Supreme Court, a Teacher Claims an “Academic Freedom” 

Right to Push Creationism in Public School, Church & State (Nov. 2012) 4, 

available at https://www.au.org/church-state/november-2012-church-state/ 

featured/insidious-design (accessed Nov. 4, 2013), in 2012: 

“Although Mount Vernon has many positive attributes and 

we still spend time there,” Jenifer Dennis said, “we are extremely 
SUPREME COURT OF OHIO

46

fortunate to have found a warm and welcoming community in an 

adjacent county that we’ve now become a part of. It is a 

community that is accepting of all ideas, thoughts and people from 

all walks of life and our family is now a part of it, so we haven't 

thought about moving back to Mount Vernon.” 

{¶ 128} How special. 

{¶ 129} R. Lee Shepherd was hired to conduct the hearing Freshwater 

demanded; Freshwater had preferred that the board hear it directly, but that 

request was denied. And so Shepherd conducted the hearing sporadically for two 

years, taking evidence. On January 7, 2011, he announced his findings. He 

concluded that none of the grounds individually was enough to cause 

Freshwater’s ouster: “It is not herein determined whether any one of the 

bases/grounds for consideration of termination would be sufficient in and of itself. 

However, the multiple incidents which give rise to the numerous and various 

bases/grounds more than suffice in support of termination.” 

{¶ 130} Despite relying on only one ground for Freshwater’s termination, 

the lead opinion does not suffer from Shepherd’s finding that only a combination 

of grounds could lead to his termination, because the school board’s resolution 

slickly states that each action, whether individually or jointly, constituted good 

and just cause for termination. 

{¶ 131} Shepherd 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.” 

{¶ 132} This conclusion of constitutional significance has gone 

unexamined by every reviewing court. Each reviewing court has instead 

remarked how very, very large the record is. Judge Eyster’s two-page rubber 
January Term, 2013 

47

stamp of the termination noted that “[t]he referee presided over thirty-eight (38) 

days of witness testimony from over eighty (80) witnesses generating six 

thousand three hundred forty four (6,344) pages of transcript. The Referee also 

admitted approximately three hundred fifty (350) exhibits into evidence.” What 

followed in the trial court’s entry was exactly zero (0) analysis of the referee’s 

report upon which the board based its termination resolution. 

{¶ 133} The appellate court stated that “[a] review of the record shows 

that a hearing spanning nearly two years was conducted, testimony from over 80 

witnesses was received, a transcript of over 6,000 pages was produced, and 

approximately 350 exhibits were admitted into evidence.” 2012-Ohio-889 at 

¶ 31. The appellate court found merely that the trial court had not abused its 

discretion in affirming the board. Id. at ¶ 34. 

{¶ 134} Here, the lead opinion, at ¶ 9, adds, “After the hearing, which 

involved 38 different days of witness testimony spread out over almost 21 

months, included more than 80 witnesses and hundreds of exhibits, and ultimately 

resulted in over 6,000 pages of transcript, the referee issued a report on January 7, 

2011.” With a record that large, how could an R.C. 3319.16 referee be wrong 

about the Establishment Clause? 

{¶ 135} How many of those 38 different days were wasted, how many of 

those 80 witnesses were ultimately unnecessary? The 6,000 pages of transcript 

were at least 60 times too many. For the lead opinion, all that was necessary to 

fire Freshwater was proof that he had checked out library books and put them in 

his classroom, a classroom that contained a poster that might be considered 

religious. 

{¶ 136} Thus concludes the sorry saga of John Freshwater, excellent 

junior-high science teacher, terminated as a result of an extreme overreaction of 

the parents of a decent student, followed by even less informed and measured 

responses by Mount Vernon school administrators and the school board. The 
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48

Mount Vernon school board and school administration are the nominal winners of 

this case, but they have managed to divide a really nice community and cost the 

school board and/or its insurance providers well over a million dollars to free 

itself of a very good teacher. And the people they did it for left town. 

{¶ 137} There is a clear set of winners today: the lawyers who advised a 

high-dollar settlement of a good case that would have proved valueless to the 

plaintiff parents and student if taken to trial and those who advised the Mount 

Vernon school board to pursue a very bad case against John Freshwater to a 

hollow but expensive victory in the Ohio Supreme Court. They have told 

themselves that they are participating in the evolved version of the Scopes trial, 

when in reality they have created a modern Jarndyce and Jarndyce. 

{¶ 138} John Freshwater will be deemed today’s loser by superficial press 

accounts. He has lost his job, reportedly mortgaged his home to cover his 

litigation expenses, and will receive no compensation whatsoever. But John 

Freshwater is not today’s big loser, because he fought to prove that he actually 

followed the rules, that he taught well, and that over a lifetime of dedication to the 

students in his classrooms he made a positive contribution to their lives. That 

proof is uncontroverted. In that most important measure of public education, John 

Freshwater is a winner and his final departure is a loss to the Mount Vernon 

schools. 

{¶ 139} 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 
January Term, 2013 

49

in this case proves the existence of God. Apparently, he’s an R.C. 3319.16 

referee from Shelby. 

____________________ 

O’DONNELL, J., dissenting.

{¶ 140} The right of free speech of public school teachers and their 

students and the freedom of a public school teacher to select and utilize teaching 

materials and methods to effectively present the prescribed school curriculum are 

the core issues in this case. It involves a veteran science teacher singled out by 

the Mount Vernon City School District Board of Education because of his 

willingness to challenge students in his science classes to think critically about 

evolutionary theory and to permit them to discuss intelligent design and to debate 

creationism in connection with the presentation of the prescribed curriculum on 

evolution. It is not about marking a cross on a student’s arm with a Tesla coil, 

nor, as viewed by the majority, a simple case of teacher insubordination. We 

accepted jurisdiction on two propositions of law, which present issues of 

constitutional magnitude: 

[I] The termination of a public school teacher’s 

employment contract based on the teacher’s use of academic 

freedom where the school board has not provided any clear 

indication as to the kinds of materials or teaching methods which 

are unacceptable cannot be legally justified, as it constitutes an 

impermissible violation of the rights of the teacher and his students 

to free speech and academic freedom under the First Amendment 

to the United States Constitution and a manifestation of hostility 

toward religion in violation of the First Amendment’s 

Establishment Clause. 
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50

[II] The termination of a public school teacher’s 

employment contract based on the mere presence of religious texts 

from the school’s library and/or the display of a patriotic poster 

cannot be legally justified, as it constitutes an impermissible 

violation of the rights of a teacher and his students to free speech 

and academic freedom under the First Amendment to the United 

States Constitution and a manifestation of hostility toward religion 

in violation of the First Amendment’s Establishment Clause. 

Because the majority resolves this case by finding that sufficient evidence exists 

to support just cause for termination and fails to examine the constitutional issues, 

I respectfully dissent.

Insubordination 

{¶ 141} John Freshwater served with distinction as a teacher in the Mount 

Vernon City School District for more than 20 years. Prior to his termination by 

the board of education, he had received overwhelmingly positive performance 

reviews and, as acknowledged in the referee’s report issued after a protracted 

hearing in this matter, he had been “recognized by his peers for his outstanding 

teaching skills.” In addition, the record reflects, he had never been subject to any 

formal discipline by school administrators. 

{¶ 142} In December 2007, one of his students, Z.D., complained about 

the use of a Tesla coil that marked his arm with what appeared to be an “X” or a 

cross. After Z.D.’s parents complained, William White, the school principal, 

resolved the matter by instructing Freshwater not to use the Tesla coil on students 

and to secure it when not in use. That directive, however, did not satisfy the 

student’s parents, and in April 2008, through counsel in a letter to district 

Superintendent Stephen Short, they threatened to sue the board of education if it 

did not order Freshwater to remove Bibles and religious displays from the 
January Term, 2013 

51

classroom by April 18, 2008, and if it did not suspend him from teaching pending 

an investigation. 

{¶ 143} In an apparent response to the threatened litigation, White 

instructed Freshwater by letter that “all religious items need to be removed from 

your classroom by the end of the day on Wednesday, April 16, 2008. Bibles and 

other religious DVD’s, videos, etc. should also be placed out of sight and access 

of the students by this date.” Despite the fact that he had been singled out and 

that other teachers and administrators had Bible verses or other religious 

references on display in their rooms, Freshwater removed copies of the Ten 

Commandments from the walls in his classroom, together with at least ten 

inspirational posters containing Bible verses, various religious DVDs and videos, 

and boxes of Bibles used by the Fellowship of Christian Athletes, a schoolsanctioned organization that he monitored and allowed to meet in his classroom. 

The only items that remained at the end of the day on April 16 were his personal 

Bible, a religious book and a Bible from the school’s library, and a poster of 

President George W. Bush and his cabinet captioned, “The effectual fervent 

prayer of a righteous man availeth much,” James 5:16, which had been distributed 

by the school and which other teachers and colleagues displayed in their 

classrooms and offices at the school. 

{¶ 144} The board concluded that by having his personal Bible, the school 

library books, and the school-issued poster in his classroom, Freshwater “acted in 

defiance of direct instructions and orders of the administrators.” The board then 

stated, “Freshwater was directed to remove or discontinue the display of all 

religious articles in his classroom, including all posters of a religious nature, and 

* * * has failed to comply with that directive and, further, has brought additional 

religious articles into his classroom, in a direct act of insubordination.” That 

finding is wrong and is not supported by the record. Notably, White’s letter did 

not instruct Freshwater to remove all religious articles from his classroom, as the 
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52

board stated. The principal testified that he told Freshwater that “certainly he may 

read his Bible during his own time, but during the times that students were in the 

classroom it was supposed to be, you know, out of sight and put away from the 

students.” White also informed Freshwater that “other religious DVD’s, videos, 

etc. should also be placed out of sight and access of the students.” Lacking in the 

record is any indication that any students were present in the classroom when 

White inspected it on April 16 or that students had access to them. The 

conclusion that Freshwater defiantly violated the directive is subjective—

especially because Freshwater had permission to read his own Bible and the two 

other books in his classroom came from the school’s own library. 

{¶ 145} The lead opinion recognizes that Freshwater had a constitutional 

right to keep his Bible on his desk and that he was not insubordinate for doing so 

and could not be terminated on that basis, yet it concludes that he had no First 

Amendment right to have the copies of the Oxford Bible or Jesus of Nazareth

from the school library in his classroom, because these books were not a part of 

his personal religious exercise. But this is a specious argument and a distinction 

without a difference. The conclusory statement in the lead opinion that Freshwater 

was defiant because he had these library books in his classroom is unwarranted. 

He explained that at the time he checked these books out, he “was expecting my 

Bible to be removed out of my classroom. And my daughter and I would walk 

in—my daughter would always open it up and say, Dad, it’s still there, Dad, it’s 

still there. That’s my inspiration. I’m not going to go without my inspiration.” 

He testified that he checked these books out of the library for two reasons: 

[O]ne, I was curious about if the library had them. I wanted to 

look at them. And I found some interesting information. 

Q. Okay. 
January Term, 2013 

53

A. So it was a curiosity. Two, it’s my inspiration. I 

thought that someday, after the 16th and on, that my Bible would 

be removed out of my classroom, so I would have the Oxford

[Bible] from the school library there. And my thinking was they’re 

not going to remove the school library Bible. 

* * * 

* * * My point would be, again, inspirational. I want to 

have a Bible on my desk. They’re not going to take the school 

library Bible off my desk. That was my thinking at the time. 

{¶ 146} Thus, his purpose for having the school Bible on a lab table in his 

classroom had nothing to do with being defiant or insubordinate. As an individual 

who read his Bible during his personal time for inspiration and moral growth, he 

did not want to be deprived of that opportunity if the school authorities 

confiscated his personal Bible. The school board could not constitutionally 

preclude Freshwater from seeking religious inspiration from the school library’s 

Oxford Bible or its book Jesus of Nazareth. Rather, the analysis articulated by the 

lead opinion in holding that Freshwater had a First Amendment right to have his 

personal copy of a Bible at his desk also applies to the books he withdrew from 

the school library, because his purpose for doing so is protected by the Free 

Exercise Clause of the First Amendment. The presence of these school library 

books in the classroom cannot reasonably be viewed as an official endorsement of 

religion, because they are the school’s own books, and thus does not justify the 

school board’s action that encroached on Freshwater’s constitutional right to 

personal religious exercise, let alone justify discharging him for insubordination 

because he had them in the classroom. 

{¶ 147} Nor did Freshwater have any reason to believe that he had to 

remove the poster of President Bush and his cabinet, because he considered it to 
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inspire patriotism, not religion, and it had been provided to him by the school. In 

addition, other members of the faculty had the same poster on display in their 

classrooms and offices—including Dino D’Ettore, Ben Sanders, David Carter, 

Brian Gastin, and Timothy Keib—apparently none of whom had been ordered to 

remove it from display. Carter kept the poster in his office long after the board 

resolved to terminate Freshwater for not removing it. And faculty members 

testified that in their view, the poster was not a religious display. Seventh grade 

teacher Lori Miller thought, “[W]hat an awesome poster to see men that are—that 

have so much power having a moment of humbleness or weakness or—you know, 

I just thought that was great for—especially for middle school kids to see 

powerful men kind of taking a time out.” Former interim principal Timothy Keib 

called the poster “non-religious”; former middle school principal Jeff Kuntz 

“didn’t look at it as a religious poster”; and intervention specialist Andrew 

Thompson saw it as depicting “the leader of the country and not necessarily 

religious connections.” 

{¶ 148} Thus, based on this and other evidence, Freshwater did not act in 

defiance of instructions and orders of school administrators when he failed to 

remove his personal Bible, school library books, or the poster of President Bush 

and his cabinet that the school had provided him. The conclusion that Freshwater 

was insubordinate for failing to remove these items is not supported by the 

evidence, which demonstrates that the school board singled him out to avoid 

defending itself against a threatened lawsuit. This is not a valid basis to terminate 

the teaching contract of a veteran science teacher with skill and talent whose 

students demonstrated their level of curriculum comprehension by their scores on 

the Ohio Achievement Test.

Academic Freedom 

{¶ 149} The remaining cause asserted for terminating Freshwater is that he 

“injected his personal religious beliefs into his plan and pattern of instructing his 
January Term, 2013 

55

students” by exceeding the bounds of all pertinent bylaws and policies of the 

Mount Vernon City School District. The board referenced Freshwater’s 

instruction on evolution as injecting Christian religious principles of creationism 

and intelligent design. 

{¶ 150} Notably, the referee in this case rejected any claim that 

Freshwater failed to teach any material, including evolution, as required by the 

Academic Content Standards, and the referee found that Freshwater’s students 

met or exceeded the expectations for eighth grade science students regarding such 

mandatory subject areas. 

{¶ 151} And the Bylaws and Policies of the Mount Vernon City School 

District provide: 

The Board of Education believes that the consideration of 

controversial issues has a legitimate place in the instructional 

program of the schools. 

Properly introduced and conducted, the consideration of 

such issues can help students learn to identify important issues, 

explore fully and fairly all sides of an issue, weigh carefully the 

values and factors involved, and develop techniques for 

formulating and evaluating positions. 

For purposes of this policy, a controversial issue is a topic 

on which opposing points of view have been promulgated by 

responsible opinion. 

The Board will permit the introduction and proper 

educational use of controversial issues provided that their use in 

the instructional program: 

A. is related to the instructional goals of the course of study 

and level of maturity of the students; 
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B. does not tend to indoctrinate or persuade students to a 

particular point of view; 

C. encourages open-mindedness and is conducted in a spirit 

of scholarly inquiry. 

Controversial issues related to the program may be initiated 

by the students themselves provided they are presented in the 

ordinary course of classroom instruction and it is not substantially 

disruptive to the educational setting. 

{¶ 152} The Academic Content Standards as promulgated by the State 

Board of Education and the Ohio Department of Education do not provide a script 

that teachers are required to follow when teaching core requirement subjects. 

Rather, the Ohio Department of Education explains that in standards-based 

instruction, 

teachers start with the state standards as the basis for classroom 

instructional planning, rather than starting with a textbook or other 

classroom materials. Teachers select a unit of instruction that 

meets the standards, benchmarks and indicators and use the 

standards to determine how the unit shall be designed, assessed, 

delivered and evaluated. 

 

Ohio Department of Education, What Does Standards-Based Instruction Look 

Like?, http://ims.ode.state.oh.us/ODE/IMS/Lessons/FAQ/planning_standards_bas

ed_instruction_what_does_it_look_like.asp (accessed Sept. 3, 2013). Several 

teachers at Mount Vernon Middle School testified that they were given “wide 

latitude” in planning their classes. One teacher explained that this allowed lesson 

plans to include “[w]hatever * * * would enhance that standard and * * * would 
January Term, 2013 

57

help the students be successful in learning the concept.” Thus, Freshwater too 

enjoyed wide latitude in the realm of academic freedom to teach his classes in the 

manner he felt most effective and had the discretion to supplement the lessons 

with handouts and movies. 

{¶ 153} Importantly, teachers in public schools have a First Amendment 

interest in choosing a particular pedagogical method for presenting the material in 

the official curriculum to students. The United States Supreme Court first 

recognized the academic freedom of teachers in a series of cases arising from 

efforts to purge Communists and subversives from college campuses. See, e.g., 

Sweezy v. New Hampshire, 354 U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 

(1957) (“Teachers and students must always remain free to inquire, to study and 

to evaluate, to gain new maturity and understanding; otherwise our civilization 

will stagnate and die”); Barenblatt v. United States, 360 U.S. 109, 112, 79 S.Ct. 

1081, 3 L.Ed.2d 1115 (1959) (“When academic teaching-freedom and its 

corollary learning-freedom, so essential to the well-being of the Nation, are 

claimed, this Court will always be on the alert against intrusion by Congress into 

this constitutionally protected domain”).

{¶ 154} In Keyishian v. Bd. of Regents of Univ. of State of New York, 385 

U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), members of the faculty of a state 

university challenged state laws that disqualified those who advocated the 

overthrow of government by force, including members of the Communist Party, 

from teaching. The court held that the laws chilled the exercise of First 

Amendment rights by not clearly informing teachers what conduct was 

prescribed, and it stated: “Our Nation is deeply committed to safeguarding 

academic freedom, which is of transcendent value to all of us and not merely to 

the teachers concerned. That freedom is therefore a special concern of the First 

Amendment, which does not tolerate laws that cast a pall of orthodoxy over the 

classroom.” Id. at 603. The court emphasized that “ ‘[t]he vigilant protection of 
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58

constitutional freedoms is nowhere more vital than in the community of American 

schools.’ ” Id., quoting Shelton v. Tucker, 364 U.S. 479, 487, 81 S.Ct. 247, 5 

L.Ed.2d 231 (1960). 

{¶ 155} Although these prior cases dealt with academic freedom in 

universities and colleges, the court in Epperson v. Arkansas, 393 U.S. 97, 107, 89 

S.Ct. 266, 21 L.Ed.2d 228 (1968), applied this precedent to a state statute that 

barred school teachers from teaching evolutionary theory. Relying on Keyishian

in holding the statute unconstitutional, the court explained, 

The State’s undoubted right to prescribe the curriculum for its 

public schools does not carry with it the right to prohibit, on pain 

of criminal penalty, the teaching of a scientific theory or doctrine 

where that prohibition is based upon reasons that violate the First 

Amendment. It is much too late to argue that the State may impose 

upon the teachers in its schools any conditions that it chooses, 

however restrictive they may be of constitutional guarantees. 

{¶ 156} Thus, as the Supreme Court of Colorado observed in State Bd. for 

Community Colleges & Occupational Edn. v. Olson, 687 P.2d 429, 437 

(Colo.1984), 

a teacher in a public educational institution has a constitutionally 

protected First Amendment interest in choosing a particular 

pedagogical method for presenting the idea-content of a course, as 

long as the course is part of the official curriculum of the 

educational institution and the teaching method serves a 

demonstrable educational purpose. 
January Term, 2013 

59

{¶ 157} The academic freedom of teachers also extends to the teaching of 

controversial subjects. It is recognized that “teachers at public institutions may 

not be forced to surrender their rights to speak out on controversial issues as a 

condition of their employment.” 2 Rodney A. Smolla, Smolla and Nimmer on 

Freedom of Speech, Section 17:32 (2013); accord Dube v. State Univ. of New 

York, 900 F.2d 587, 597 (2d Cir.1990) (explaining that the denial of tenure or 

promotion in retaliation for controversial teachings viewed by some observers as 

racist violates the First Amendment). In accord with the principle, the Seventh 

Circuit Court of Appeals noted in Zykan v. Warsaw Community School Corp., 631 

F.2d 1300, 1305-1306 (7th Cir.1980), that local school boards may not place “a 

flat prohibition on the mention of certain relevant topics in the classroom,” forbid 

“students to take an interest in subjects not directly covered by the regular 

curriculum,” or take actions “guided by an interest in imposing some religious or 

scientific orthodoxy or a desire to eliminate a particular kind of inquiry 

generally.” 

{¶ 158} More recently, in C.F. ex rel. Farnan v. Capistrano Unified 

School Dist., 654 F.3d 975 (9th Cir.2011), the Ninth Circuit Court of Appeals 

considered a claim that a teacher violated the Establishment Clause by making 

controversial comments in class that were hostile to religion in general and to 

Christianity in particular. The court noted, “we are aware of no prior case holding 

that a teacher violated the Establishment Clause by appearing critical of religion 

during class lectures, nor any case with sufficiently similar facts to give a teacher 

‘fair warning’ that such conduct was unlawful.” Id. at 987. And holding that the 

teacher lacked notice that the comments might violate the Establishment Clause, 

the court explained: 

The Supreme Court has long recognized the importance of 

protecting the “robust exchange of ideas” in education, “which 
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60

discovers truth ‘out of a multitude of tongues.’ ” Keyishian v. Bd. 

of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 17 L.Ed.2d 629 

(1967) (quoting United States v. Associated Press, 52 F.Supp. 362, 

372 (S.D.N.Y.1943)). “Teachers and students must always remain 

free to inquire, to study and to evaluate, to gain new maturity and 

understanding * * *.” Id. (quoting Sweezy v. New Hampshire, 354 

U.S. 234, 250, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957)) (internal 

quotation marks omitted) * * *. This academic freedom will 

sometimes lead to the examination of controversial issues. * * * 

In broaching controversial issues like religion, teachers 

must be sensitive to students’ personal beliefs and take care not to 

abuse their positions of authority. * * * But teachers must also be 

given leeway to challenge students to foster critical thinking skills 

and develop their analytical abilities. This balance is hard to 

achieve, and we must be careful not to curb intellectual freedom by 

imposing dogmatic restrictions that chill teachers from adopting 

the pedagogical methods they believe are most effective. 

(Citations omitted.) Id. at 988. 

{¶ 159} However, the academic freedom of teachers is not without limit. 

Local school boards are vested with the authority to establish the curriculum and 

the responsibility to ensure that teachers do not “stray from the established 

curriculum by injecting religious advocacy into the classroom,” such as by 

teaching creationism in violation of the Establishment Clause. Webster v. New 

Lenox School Dist. No. 122, 917 F.2d 1004, 1007 (7th Cir.1990); accord Edwards 

v. California Univ. of Pennsylvania, 156 F.3d 488, 492 (3d Cir.1998) (holding 

that academic freedom did not permit professor’s classroom tools to inject 

religious ideals in curriculum materials in contravention of university dictates); 
January Term, 2013 

61

Piggee v. Carl Sandburg College, 464 F.3d 667 (7th Cir.2006) (upholding 

decision not to renew contract of teacher who injected her religious views in 

cosmetology classes); Helland v. S. Bend Community School Corp., 93 F.3d 327, 

331-332 (7th Cir.1996) (concluding that substitute teacher could be removed from 

list of approved substitutes for failing to follow lesson plans and discussing 

creationism in a fifth grade science class); Peloza v. Capistrano Unified School 

Dist., 37 F.3d 517, 521-522 (9th Cir.1994) (holding that biology teacher could be 

required by the school board to teach evolution and precluded from discussing 

religion with students). 

{¶ 160} But presenting 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.” 

{¶ 161} 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 
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62

tenth grade, they should have understood “how scientists continue to investigate 

and critically analyze aspects of evolutionary theory.” 

{¶ 162} 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. 

{¶ 163} 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. 

{¶ 164} 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 
January Term, 2013 

63

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.” 

{¶ 165} In addition to this objective evidence, Mahan, who regularly 

attended Freshwater’s classes for almost six years with her special education 

students, remembered him teaching the evolution section in the textbook. And 

Andrew Thompson, an intervention specialist who also attended Freshwater’s 

classes, disputed the media’s portrayal of Freshwater as “a crazy science teacher 

who the rest of the staff did not care for or respect” and expressed the opinion that 

Freshwater taught evolution effectively. 

{¶ 166} Further, the record shows that Freshwater did not teach students 

creationism or intelligent design, either as a substitute for or an alternative to the 

theory of evolution. The best evidence in the case is Freshwater’s own testimony: 

“I do not teach intelligent design. * * * I teach evolution. I do not teach ID or 

creationism.” He denied attempting to indoctrinate students, nor did he inject his 

personal religious beliefs into his lessons, explaining: “I do not want creationism 

taught in the schools. * * * [C]reationism is based on faith. Science is based on 

scientific method. * * * I wouldn’t want my students or my own personal kids to 

be taught in the schools by somebody that didn’t understand or didn’t—didn’t 

understand creationism.” 

{¶ 167} His students and colleagues corroborated his testimony. Various 

former students testified that Freshwater had never taught creationism or 

intelligent design in class. For instance, a classmate of the student whose parents 

threatened to sue the district testified that Freshwater never referred to his Bible in 

class and never said anything about God, intelligent design, or creationism in the 
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classroom, and she even noted that Freshwater changed the subject when a 

student brought up a “higher power.” Three other classmates testified that 

Freshwater did not teach the Bible or his religious beliefs in class, and another 

agreed that Freshwater did not promote creationism or intelligent design. Mahan, 

who brought her special education students for inclusion into Freshwater’s 

science class, stated that during the six years she attended his classes, Freshwater 

taught evolution without mentioning intelligent design to the students. 

Thompson, who also often attended Freshwater’s classes as an intervention 

specialist, testified that he never witnessed Freshwater teach creationism or 

intelligent design, and former interim principal Keib observed that he never saw 

Freshwater “try to push his faith or his philosophical beliefs on anybody that was 

a student.” 

{¶ 168} And when Freshwater proposed changing the curriculum in 2003 

to adopt an Objective Origins Science Policy, his proposal sought only to 

“[e]ncourage the presentation of scientific evidence regarding the origins of life 

and its diversity objectively and without religious, naturalistic, or philosophic 

bias or assumption.” (Emphasis added.) As Freshwater explained, he meant “to 

take a tenth grade standard and put it down to the eighth grade standard to 

critically analyze evolution.” Like the tenth grade standard, his proposal 

distinguished the secular method of critically examining evolution from teaching 

intelligent design, and Freshwater confirmed that he did not intend that the 

proposed standard permit the teaching of religious concepts in science class. 

{¶ 169} Thus, the evidence in this case reveals that the school board has 

misinterpreted Freshwater’s effort to challenge students to think critically about 

evolutionary theory and instead construed his instruction as promoting intelligent 

design from a creationist perspective. This is a misimpression and contrary to the 

evidence in this case, and it is not a basis to terminate the contract of a teacher. 
January Term, 2013 

65

{¶ 170} The school board concluded that Freshwater had injected his 

personal religious beliefs into his plan and pattern of instruction. It apparently 

assumed that he could not fairly present lessons on evolution and stated that he 

“not only injected his subjective, biased, Christian religion based, non-scientific 

opinion into the instruction of eighth grade science students but also gave those 

students reason to doubt the accuracy and or veracity of scientists, science 

textbooks, and/or science in general.” Yet student scores on standardized tests 

stand as strong, persuasive evidence of the board’s faulty conclusion; those scores 

instead reveal that Freshwater did teach evolution as mandated by the curriculum. 

Moreover, teaching 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. 

{¶ 171} In the last analysis, it is apparent that the board has taken separate, 

isolated instances where Freshwater allegedly made religious statements 

sometime between 1994 and 2008 to demonstrate that he injected his personal 

religious beliefs into his plan and pattern of instruction in the 2007-2008 school 

year.8

 In 1994, Freshwater gave students information about a seminar supporting 

 

8. Many of these incidents are not supported by record evidence. Administrators recalled that 

Freshwater distributed three “unauthorized” handouts between 2000 and 2007; the content of the 

first is unknown, the second could not be identified, and the problem with the third was that its 

source could not be documented. And although the board concluded that Freshwater used the 
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the Biblical story of creation, and he also provided several handouts challenging 

evolutionary theory in 2002 or 2003 and in 2006 that the school board viewed as 

promoting intelligent design. And there is some evidence that Freshwater made 

off-hand remarks of a religious nature, including one reference to views on 

homosexuality mentioned by the school board in its termination resolution. In 

addition, Z.D. testified that sometime during the 2007-2008 school year, 

Freshwater referred to a “higher being” while discussing the Big Bang theory, 

suggested that the earth would come “to a fiery end” as foretold by the Bible, and 

said that Good Friday “should be called the greatest Friday or the best Friday 

ever.” But those isolated statements over an extended period of time do not 

establish a practice of injecting religious belief into his regular classroom 

instruction. As the Seventh Circuit Court of Appeals explained in Webster, 917 

F.2d at 1007, “school boards may not fire teachers for random classroom 

comments.” This is especially true where, as here, the school board has not 

complained about religious statements or displays in classrooms of other teachers, 

but rather, has targeted this specific teacher only after he became the subject of a 

complaint and the board faced a threatened lawsuit. 

{¶ 172} Teachers enjoy academic freedom to adopt the pedagogical 

methods they believe are most effective and are permitted to discuss controversial 

subjects with students related to the curriculum. Although local school boards 

have authority to establish the curriculum and may discipline teachers who stray 

from it by injecting religious advocacy in the classroom, they may not prohibit 

teachers from mentioning topics that are relevant to teaching the curriculum nor 

forbid students from considering issues not specifically prescribed by it. 

 

movie Expelled: No Intelligence Allowed and the video The Watchmaker to challenge evolution, a 

copy of Expelled does not appear in the record, and Freshwater did not show The Watchmaker in 

science class; rather, some of his science students saw it during a meeting of the Fellowship of 

Christian Athletes. 
January Term, 2013 

67

{¶ 173} Thus, the school board violated Freshwater’s First Amendment 

rights when it terminated his contract based on its belief that he failed to adhere to 

the curriculum and that he was instead teaching creationism and intelligent 

design. Rather, the evidence demonstrates that he encouraged students to critique 

the theory of evolution to foster their critical thinking skills and to develop their 

analytical abilities, not to inject his religious beliefs into that instruction. Further, 

monitoring a student-led debate on evolution, providing handouts critical of 

evolutionary theory, and making isolated comments over a 20-year career that 

could be construed as religious does not establish that Freshwater taught 

creationism or intelligent design in the classroom. To the contrary, the evidence 

shows that Freshwater excelled in teaching evolutionary theory as part of the 

science curriculum for eighth grade students. 

{¶ 174} Accordingly, this record neither demonstrates that Freshwater 

defied direct orders from school administrators, nor reflects that he taught 

creationism or intelligent design, nor shows that he strayed from the established 

curriculum on evolution. The claim of insubordination is not proven by clear and 

convincing evidence, which is “that measure or degree of proof which will 

produce in the mind of the trier of facts a firm belief or conviction as to the 

allegations sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 477, 

120 N.E.2d 118 (1954). Thus, the school board lacked sufficient cause to 

terminate his contract. I would therefore reverse the judgment of the court of 

appeals and order his reinstatement with back pay. 

{¶ 175} For these reasons, I respectfully dissent. 

PFEIFER and KENNEDY, JJ., concur in the foregoing opinion.

____________________ 

The Law Office of R. Kelly Hamilton, L.L.C., and R. Kelly Hamilton; and 

the Rutherford Institute and Rita M. Dunaway, for appellant. 
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68

Britton Smith Peters & Kalail Co., L.P.A., David Kane Smith, Krista 

Keim, and Paul J. Deegan, for appellee. 

Appignani Humanist Legal Center and William J. Burgess, urging 

affirmance for amici curiae American Humanist Association and the Secular 

Student Alliance. 

Mayer Brown, L.L.P., Charles P. Hurley, Richard B. Katskee, and Scott 

M. Noveck, urging affirmance for amici curiae Americans United for Separation 

of Church and State and Anti-Defamation League. 

Lape Mansfield & Nakasian, L.L.C., and Douglas M. Mansfield, urging 

affirmance for amici curiae Stephen Dennis and Jenifer Dennis. 

Calfee, Halter & Griswold, L.L.P., Christopher S. Williams, Colleen M. 

O’Neil, and Jeffrey J. Lauderdale, urging affirmance for amicus curiae National 

Center for Science Education. 

________________________