Freshwater Hearing Day 5: Only from Freshwater's students

The last two days of this installment of the hearing on John Freshwater’s appeal of the decision of the Mt. Vernon City Board of Education were on October 30 and 31. Once again I’ll summarize rather than try to present a sequential account of questions and answers. This post is Day 5; the next will be Day 6. I hope to have Day 6 written and posted sometime tonight.

Previous posts on the hearing: Days 1 & 2 and Day 3 and Day 4.

See also the coverage of Day 5 in the Mount Vernon News.

Day 5 saw the completion of cross examination of Bill White, Principal of the middle school in 2007-2008, and the testimony of Kathy Kasler, the high school Principal; David Levy, M.D., an expert witness; and Bonnie Schutte, a high school science teacher.

More below the fold.

Bill White, continuation of cross examination

Kelly Hamilton, Freshwater’s attorney, mainly pressed on two lines in this last segment of his cross examination, compliance with the master contract and Debe Strouse’s role as an observer in Freshwater’s class, and Hamilton’s strained interpretation of the effect prong of the Lemon test.

Hamilton asked about Debe Strouse, who was the observer assigned by the administration to monitor Freshwater’s classroom late in the 2007-2008 school year, from sometime in April to the end of the school year. He asked why she was in Freshwater’s classoom (“To monitor”), what she was looking for (“Everything that went on”) and to whom she reported (White). He asked if Freshwater had the opportunity to sign off on her reports – the master contract specifies that teachers be permitted to sign off on reports of evaluators and enter rejoinders if they wish. White’s answer was that Freshwater had not been asked to sign off because this was not part of the evaluation process specified in the contract.

Hamilton asked whether he thought any falsehoods had been alleged against Freshwater (No), whether Freshwater had Constitutional rights in the classroom (Yes), and whether White thought Freshwater got those rights (Yes).

Hamilton returned to the promotion of religion issue, asking whether Freshwater’s reputation as a “spiritual” man influenced the perception that the poster with a Bible verse showing Bush and Powell praying was a religious display. White denied that. Hamilton asked how the book “Jesus of Nazareth” (checked out along with a Bible from the library in mid-April 2008 and placed on a science table in Freshwater’s classroom) constituted a promotion or denigration of religion. White answered that Jesus is an important historical figure in Christianity. Hamilton went on to ask whether an item displayed in a classroom would be a “religious” item only if Freshwater explicitly put a religious interpretation on it. I think White answered “No,” though it was inaudible and I’m not sure. Hamilton asked whether Freshwater’s activities outside school interfered with his activities inside the classroom. White didn’t know. Asked how Freshwater manifested his “spiritual” character, White replied “He was always nice.” That evoked followups relating to whether religious people can display not-nice behavior and non-religious people can display nice behavior.

Hamilton asked a series of questions about White’s knowledge of the independent investigation. White denied most knowledge except insofar as he was interviewed as part of the investigation.

Finally, Hamilton asked whether White could have involuntarily transferred Freshwater had he wished to do so. White agreed he could have, but did not.

White redirect examination

In David Millstone’s redirect he asked whether Debe Strouse was in the classroom do to an evaluation under the terms of the contract, and White answered she was not. Millstone asked whose responsibility it was to resolve conflicts between one’s role as a parent and one’s role as a teacher when one’s child is in the school (referring to Freshwater’s daughter’s participation in FCA). White replied it was the teacher’s responsibility. Finally, Millstone asked whether if you see “Bible” on a book you know it’s a religious item. White answered that you do know that. This refers to several occasions on which Hamilton had witnesses (Superintendent Short and White) look over Freshwater’s Bible to see whether it mentioned “Christianity” on its cover. (It doesn’t – it’s titled “The Living Bible”). Hamilton seems to be implicitly arguing that there are students in rural central Ohio who are so stupid they wouldn’t know that a Bible is a religious document without being explicitly told that.

White recross

On recross Hamilton asked if Freshwater’s apparent passion for religious activities and topics (which White had commented on earlier in his testimony) was really a passion for following the rules. White replied that it was not, using as examples Freshwater’s eagerness for FCA activities and his in-school advocacy of (and having a poster in his classroom about) a Will Graham evangelical event in the area in 2007.

That ended White’s testimony. The next witness was Kathy Kasler, the high school Principal in 2007-2008.

Kathy Kasler direct examination

On direct examination Kasler testified that she had numerous complaints from high school science teachers about the students they were getting from Freshwater’s 8th grade class. Asked about the content of the teachers’ complaints, she listed teaching things not in the standards, having to reteach some material to correct student misconceptions, and hearing comments from students expressing doubt about various scientific concepts like carbon dating and the age of the earth from Freshwater’s students. The first complaints she was aware of came in 2002, when the district was beginning to align its curriculum with the new state science standards. It was suggested that there be a meeting between the then middle school Principal, Freshwater, and some high school science teachers to “straighten things out.” It’s not clear that meeting ever occurred.

Asked whether she got complaints from high school teachers after 2002-2003, she replied that she did, and the complaints had expanded to include Freshwater having students memorize the periodic table (there’s no chemistry in the 8th grade standards), that students commented that they shouldn’t believe everything they hear about evolution, and that science isn’t always accurate. Asked whether she got written complaints from high school teachers, Kasler responded that she did, citing email from Bonnie Schutte, a high school science teacher who teaches 9th grade science.

Kasler was presented with an email from Bonnie Schutte to her in August 2007. Every year Schutte gives a short questionnaire to her incoming 9th grade students to gauge where they are with respect to their science knowledge and interests. Based on responses to several questions by Freshwater’s students she has provided copies of those questionnaires to Kasler for years and has emailed her concerns to Kasler. Asked whether she had heard similar concerns from other high school science teachers about Freshwater’s students, she replied that she had but they were not in written form. Asked whether she had heard similar complaints about students from other 8th grade science classes, she replied that she had not.

Asked what she did about the complaints, Kasler said she informed the relevant administrators, the several Principals (over the years) of the Middle School, of the concerns. Asked whether she took her concerns to the Superintendent and/or the Board of Education, she replied she had not. Freshwater, she said, was not her employee but that of the Middle School Principals.

In the independent investigators’ report it was mentioned that Kasler had requested that her daughter not have Freshwater as her 8th grade science teacher. Asked why she did so, she replied that there were concerns about the material he was teaching, and that her husband had threatened to call the ACLU if the daughter was taught what he was hearing from Kasler that Freshwater taught. So in part to preserve domestic tranquility, Kasler testified that she requested that her daughter not have Freshwater for 8th grade science.

Kasler cross examination

In cross examination Hamilton first established that Kasler had never sat in on Freshwater’s classes. Asked again what she did about the complaints she received, she replied again that she passed the concerns on to the relevant administrators at the Middle School. Asked if it was in writing, she replied that it was not, and that she called the other administrators. Asked if she knew what action they took she replied that she did not. Asked why she didn’t go to the Board of Education about it, she replied “I followed protocol.”

Concerning the request that her own daughter not have Freshwater for 8th grade science, she was asked how she protected other students. She replied again that she passed on the concerns to the relevant administrators. Asked whether there was a school policy prohibiting parents requesting teacher changes, she replied that there was not.

Hamilton then moved to the 20 or so surveys from Schutte’s classes that were included in the investigators’ report and testified about in direct examination. Asked whether some mentioned creationism, Kasler replied that they did. Asked whether the questionnaires could reflect what students learned at home or in the community, I didn’t catch Kasler’s answer. Asked whether the design of the questionnaires permitted statistically isolating relevant variables like information from other sources besides Freshwater’s class, she replied it did not. Asked whether other high school science teachers used similar surveys, Kasler replied that they did not, though she received similar complaints from them based on students’ verbal comments in classes. Asked how many such surveys she had (Schutte gave her copies through the years), she replied around 120 from 2002 through 2008.

Kasler testified that teachers can teach beyond the standards if it’s consistent with the Board-adopted curriculum. Other teachers who do so use Board-adopted and approved curricula.

Kasler was asked about a building tour she had done with a new member of the Board of Education, Sharon Fair, in the Spring of 2008. In an office shared by two (several?) coaches they saw a religious-themed poster. At the suggestion of Ms. Fair, Kasler concealed/removed the poster (it wasn’t clear which) and later advised the coach to whom it belonged to remove it. The coach did so without demurral.

In response to a Millstone objection to a line of questions concerning Kasler’s handling of other situations not related to the Freshwater affair, Hamilton argued that he was trying to show that Kasler is a decisive administrator who takes action when she deems it necessary and that she didn’t hesitate to put things in writing. Since she didn’t take decisive action in the case of Freshwater and didn’t put things in writing, she must not have thought it was serious. In response to the question that was generated after the objection was overruled, Kasler said again that she had notified relevant administrators and “He’s not my staff.”

Kasler testified that she had heard concerns about Freshwater’s teaching from Dick Cunningham, chairman of the high school science department, in 2002-2003 during preparations for the new Ohio Graduation Test while the local curriculum was being aligned with the new state standards and indicators.

Kasler was asked whether there were teachers with religious displays in their classrooms in the high school. She testified that she wasn’t aware of any, and that she wasn’t aware of any teachers at the high school with Bibles on their desk.

Kasler redirect examination

In redirect, Millstone asked why the soccer coach’s poster was removed. Kasler replied it was at the request of the Board Member who saw it during the building tour. She thought it was inappropriate.

Dr. David Levy, expert witness, direct examination

Next to testify was Dr. David Levy, Chairman of emergency medicine at St. Elizabeth Health Center in Youngstown. The main thrust of Levy’s testimony was that a Tesla coil of the sort used in Freshwater’s classroom is a high-voltage device and the fact that it generated an RF signal is medically relevant. With an electrical burn, Levy testified, visible surface damage can be just the tip of the iceberg, that there can be subdermal damage not immediately apparent given the device allegedly used in Freshwater’s classroom. He testified that the specific device used, the BD10A, has the potential to cause significant damage, particularly in children whose bodies have lower electrical resistance. Asked whether there is a risk to the heart of a non-pacemaker wearing person, Levy replied that there is, that it could induce cardiac arrhythmia.

Shown the pictures on the marks on the arm earlier entered into evidence, Levy testified that his original reaction is that they are pictures of a second-degree burn, and that the marks are consistent with a BD10A having been used on the arm in the described manner, 2 passes in each direction, 10-12 hours preceding when the pictures were taken. Levy testified that it was his opinion that it was an electrical burn, and that the appearance would not have been significantly affected (nor would his opinion be affected) by knowing that the boy participated in hockey practice with goalie’s equipment between the occurrence of the burn and the taking of the pictures.

Levy cross examination

On cross Hamilton asked whether a Tesla coil has the same voltage as a defibrillator. Levy answered that defibrillators have variable settings ranging up to 300 joules.

Asked about the likelihood of subdermal damage, Levy replied that it depended on four variables, the duration of contact with the source, the electrical resistance of the particular person, the ratio of contact (that is, the area of contact), and the voltage of the source. They jointly determine the current flow. Asked to estimate the duration of contact implied by the pictures Levy replied it couldn’t be estimated without knowing the values of the variables mentioned. Asked whether a couple of seconds of contact could produce the appearance of the injury in the pictures, Levy responded that it could. Asked how long a contact would have to be to produce blistering, Levy replied it could be as little as 5 seconds.

Hamilton spent a few questions on whether the pictures could be faked. Levy’s response was that the injury in the pictures had the appearance of a burn. Hamilton even asked whether someone could use a marker to create the appearance. Levy agreed that it might be possible.

Levy agreed that the BD10A was a low amperage device.

Hamilton asked how one medically determines whether there is subdermal damage. Levy replied that history and the mechanism of injury are important, and that one can look for changes in blood myoglobin levels, cataracts, and ECG indications. Asked how long it might be to manifest symptoms of subdermal damages, Levy said it could be up to 3-4 weeks. Levy also testified that marks from the depicted injury could last 3-4 weeks.

Levy conceded that diagnosing the extent of damage was very difficult from pictures, and in response to a direct question replied that his opinions depend on the veracity of the pictures. He testified that the injury might be exacerbated by the goalie pads the boy was said to use between the time of the injury and the time the pictures were taken. (Note here that I may have erred in reporting previously that the mother took pictures between school dismissal and the hockey practice. She informed me later that the pictures were actually taken after the boy got home from hockey practice, and that’s what she thought she’d testified. She is probably right: My notes get fragmentary once in a while.)

Hamilton asked whether Levy was being paid to testify. Levy replied that he was but he didn’t know how much because it was a favor to a friend, another physician who had originally been asked to testify but had a conflict. A sustained objection ended this line of questioning.

As a mandatory reporter (in Ohio, health professionals, among others including school personnel, are legally required to report any possible instance of child abuse to Children’s Services), Levy’s opinion is that this injury as it appeared in the pictures was reportable.

Levy redirect

Millstone asked whether a low amperage/high frequency device has implications for cardiac risk, and Levy replied that it does.

Bonnie Schutte direct examination

Next to testify was Bonnie Schutte, a high school science teacher who receives students from all the 8th grade science classes in her 9th grade classes.

The first part of Schutte’s direct examination focused on the questionnaire she has used for half a dozen years on the first day of class in 9th grade science. She asks a variety of questions, including questions about what interested them most about their 8th grade science class and what the most important concept they learned in 8th grade science is. Note that she refers specifically to the 8th grade science class in those questions. That will become relevant later.

Millstone walked Schutte through roughly 20 such questionnaires of Freshwater’s former students from her 2005-2006 class, all of which had been given to the independent investigators and were included as an attachment to the investigation report. She identified a number of problematic responses, including

* “Science is a lot of theory and guesswork”

* “Evolution follows opinion and it’s not fact”

* “Enjoyed creation of the universe” and “it’s a very open subject”

* “Evolution and why that isn’t probable”

* “Dates scientists put on things aren’t always accurate”

* “Evolution because we learned about it and that it can or can’t be true”

* “Most important concept was the different views on evolution”

* “different looks on evolution”

* “debating about creation and evolution”

* “Evolution and religions. I find such debates interesting”

* “God or Big Bang”

There were also a number of mentions of memorizing the periodic table of elements in Freshwater’s class, which Schutte testified is not in the 8th grade science standards and interfered with her subsequent teaching of chemistry to the state standards and indicators in 9th grade.

Schutte testified that verbal comments from students confirmed the impressions produced by the written comments. She testified that the anomalous questionnaire responses came only from Freshwater’s students and not from students of other 8th grade science teachers.

Schutte testified that there are genuine controversies within evolution, for example the controversy about punctuated equilibrium vs. gradualism.

Schutte cross examination

In cross examination Hamilton mainly focused on two issues, whether a teacher can teach beyond the standards and whether the students might have learned the problematic responses on the questionnaires from home or the community rather than in Freshwater’s science class.

First, though, Hamilton had learned that Schutte’s husband had been in the hearing room for the last several days, and asked what he had told her about the questions Hamilton might ask. She replied he’d told her that Hamilton was a tough questioner, but to think about the mililtary people in Iraq and how much tougher they had it, but that he had not described any of the specific questions.

Once again we walked through all 20 or so questionnaires. With respect to Hamilton’s questions on students’ responses about the periodic table and why that was problematic, Schutte’s response that it was not in the 8th grade standards, that Freshwater teaching it as he did – memorization – interfered with her teaching to her own standards and indicators in chemistry since it gave those students the impression that they knew chemistry when they didn’t and put them in a place where teaching chemistry to them was more difficult. On the Nth iteration of Hamilton’s query about the appropriateness of Freshwater having his students memorize the periodic table, she replied “It’s like having students memorize the dictionary, saying ‘Wasn’t that fun’ and then saying ‘OK, now let’s write.’”

Asked a number of times by Hamilton whether students’ responses about creationism and evolution could have been based on what they had learned at home or in the community about evolution and science, Schutte slowly and clearly read the question to Hamilton, emphasizing the phrase “in your 8th grade science class.” She said she assumed that students were answering the question as asked. Note below that on redirect Schutte testified that she got those sorts of problematic answers only from students coming from Freshwater’s class and not from students from other 8th grade science classes.

On the question of whether teachers can teach beyond the standards for their grade/class, Schutte reiterated a number of times that they should teach their own indicators first, and then they could go beyond them. Asked how teachers know that and whether there was written Board policy requiring it, Schutte responded that teacher training in general implied it, and that the district’s emphasis on standards and indicators following the adoption of the new state standards and indicators in 2002-2003 and the addition of the Ohio Graduation Test to the educational scheme in Ohio in that period were strong messages that teachers should teach to the standards and indicators.

Asked about a student named (I think) Dustin Bross, Schutte related how she took him to Dick Cunningham, chairman of the high school science department, so Bross could tell Cunningham about Freshwater having referred Bross to a creationist web site about how scientists supposedly work. She testified the material to which Bross was referred was an example of quote mining (though she didn’t use that phrase). She was asked if she ever put her hands on Bross, and she replied that she didn’t recall doing so.

Schutte redirect

On redirect Schutte was asked if she got similar problematic responses about creationism and the Big Bang from students from other 8th grade science classes. She responded that she did not, but only from Freshwater’s students.

Schutte recross – Hamilton had no recross.

Thus endeth the 5th Day. My post on Day 6 should be up sometime tonight.