While a public school district violated a middle school science teacher’s First Amendment rights when ordering him to remove a Bible from his desk, the teacher’s firing was valid because his refusal to eliminate other religious symbols from the classroom was insubordination, the Supreme Court of Ohio ruled today.

The court was limited to reviewing the lower court decisions for “abuse of discretion.” Those courts did not err when they determined that the Mount Vernon City School District Board of Education had “good and just cause” to terminate John Freshwater’s teaching contract, Chief Justice Maureen O’Connor wrote in the court’s lead opinion.

Because the case was resolved by determining that Freshwater was legally fired for being insubordinate, it was unnecessary for the court to address the issue of whether he was unconstitutionally injecting his personal religious beliefs, including creationism and intelligent design, into his science class instruction.

Today’s decision affirms the judgment of the Fifth District Court of Appeals, the common pleas court, and the school’s referee in the matter.

In 2007, a student and his parents alleged that Freshwater had used an electrostatic device called a Tesla coil to make a mark on the student’s arm resembling the shape of a cross. They also complained to the school that Freshwater, the facilitator for a student group called Fellowship of Christian Athletes, was directly participating in the organization’s affairs when, as a teacher, he was only permitted to monitor it. In addition, they said he had religious materials in the classroom.

School officials repeatedly instructed Freshwater to remove overtly religious icons and materials, including a collage incorporating the Ten Commandments and a poster showing a Biblical verse and former President George W. Bush in prayer with other government officials, from his classroom. He was also told that Bibles and religious DVDs, videos, and similar materials needed to be out of sight of students.

Despite these instructions, Freshwater checked out two books, Jesus of Nazareth and the Oxford Bible, from the school’s library and displayed them on a lab table in his classroom.

Around this time in April 2008, the family who made the original complaint sent a letter to the district superintendent alleging that Freshwater’s actions violated the Establishment Clause of the First Amendment to the U.S. Constitution, which their letter describes as having a central value of religious neutrality. The Establishment Clause requires what is often referred to as the separation of church and state.

The referee who reviewed the case issued a report in January 2011 after presiding over 38 days of testimony from more than 80 witnesses who testified during a 21-month period. The record in the case included hundreds of exhibits and more than 6,000 pages of transcripts. In his report, the referee addressed the four grounds asserted by the school board for Freshwater’s termination: the Tesla coil incident; Freshwater’s failure to adhere to established curriculum; his role with the Fellowship of Christian Athletes; and his disobedience of orders. The referee concluded that Freshwater did not follow the school’s curriculum policies and he repeatedly ignored orders from his supervisors. Both were “good and just cause,” the referee found, to support Freshwater’s termination under R.C. 3319.16, which spells out procedures for terminating a teacher’s contract.

The school board adopted the referee’s report and fired Freshwater. Freshwater appealed the board’s action to the Knox County Court of Common Pleas and the Fifth District Court of Appeals, and both affirmed the referee’s findings. Freshwater then appealed to the Supreme Court.

Chief Justice O’Connor wrote in today’s opinion that good and just cause for terminating a public school teacher’s contract 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.” The court, she reasoned, had to both determine whether Freshwater disobeyed orders given to him and also evaluate whether the orders were reasonable and valid.

She explained that the school’s principal told Freshwater in writing that, as a public school teacher, he 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,” she wrote. “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.”

However, the chief justice explained, when the school district told Freshwater he had to put away his personal Bible, it infringed on his First Amendment right protecting the free exercise of religion. The school board could not terminate Freshwater merely for keeping a personal Bible on his desk, the chief justice continued. She stressed that the class considered his desk to be his personal space, that Freshwater relied on that Bible in the exercise of his religion, and that he did not display his personal Bible to his students.

“The Free Exercise Clause protected Freshwater’s conduct as to his personal Bible,” she wrote. “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.”

“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,” the chief justice concluded. “Because this particular order was invalid, Freshwater’s disobedience of the order cannot be considered insubordination or grounds for his termination.”

However, the court held that the school’s orders to remove the other religious texts and the Bush poster from the classroom were reasonable and valid.

“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,” the chief justice wrote. “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.”

The court’s lead opinion was joined by Justices Judith L. French and William M. O’Neill. Justice Judith Ann Lanzinger joined the syllabus and wrote a separate opinion concurring only with the court’s judgment. Justice Terrence O’Donnell entered a dissenting opinion joined by Justices Paul E. Pfeifer and Sharon L. Kennedy. Justice Paul E. Pfeifer also dissented in a separate opinion.

In her concurrence, Justice Lanzinger stated she would hold that the school board’s order that Freshwater not display his personal Bible when students were present was a reasonable and valid attempt to avoid an Establishment Clause violation. By referring to the Bible while teaching science and keeping the book on his desk rather than in a drawer, those actions were part of Freshwater’s insubordination, she wrote.

In his dissent, Justice O’Donnell stated that the case 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.” He contended that Freshwater’s firing for insubordination was not supported by the evidence and, therefore, he should be reinstated with back pay. Justice O’Donnell further pointed out that public school teachers have a First Amendment interest in choosing the method for presenting material in the school curriculum to students and noted that the academic freedom of teachers also extends to the teaching of controversial subjects.

Regarding the question of insubordination, Justice O’Donnell stated: “[T]he analysis articulated by the majority 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 [religious inspiration] 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…. 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 inspire patriotism, not religion, and it had been provided to him by the school.”

On the issue of what Freshwater taught in class, Justice O’Donnell noted that evolution is a controversial topic, and the school district’s bylaws and policies allow teachers to address controversial issues that come up in class.

“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,” Justice O’Donnell wrote. “Further, the evidence vindicates Freshwater’s teaching methods because it demonstrates that his students learned evolutionary theory as mandated by the official curriculum. … [O]nly 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.”

“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.”

Justice O’Donnell also cited the Seventh Circuit Court of Appeals for the proposition that schools boards may not fire teachers for random classroom comments and observed that the school board had “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.”

Justice Pfeifer in his dissent agreed with the lead decision that the order for Freshwater to remove the Bible from his desk was invalid. However, he continued, the presence of two religious books from the library and the poster did not rise to the level of insubordination or a “good and just cause” for Freshwater’s termination.

In addition, he wrote, the majority should have considered the constitutional free speech issues in this case to provide guidance to school boards and teachers in the state.

“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,” he stated. “Instead this court sidesteps all of the difficult issues presented in the case ….”

2012-0613. Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., Slip Opinion No. 2013-Ohio-5000.

View oral argument video of this case.

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