Freshwater: Oct 30, 2009

This was the last of three October hearing sessions. The next sessions are scheduled for November 17-19.

The highlight of today was testimony by Taylor Strack, a student in Freshwater’s class, who corroborated Zach Dennis’ testimony about how the students’ arms were positioned and what stopped the shock that Freshwater was supplying via the Tesla coil.

Taylor Strack Direct testimony

Taylor Strack was a student in the 8th grade science class at the time the alleged burning of Zachary Dennis’ arm occurred, and she saw the procedure followed. That came out in cross examination; first is her direct testimony by R. Kelly Hamilton, Freshwater’s attorney.

Some time prior to her testimony Hamilton showed Taylor the “Watchmaker” video that Kerri Mahan had once testified was shown in Freshwater’s science class (see here for her latest version). Taylor testified that she had not seen the video before Hamilton showed it to her. She had never been to FCA.

She testified that she was in class the day Freshwater demonstrated the Tesla coil. She said that if Freshwater held a student’s arm down, he would release it. She then said if a student said Freshwater held his arm down “they were lying.” That was a little confused(ing) – Taylor speaks very softly and was hard to hear.

Interpolation from cross examination

This got a little clearer during cross examination. David Millstone, the Board’s attorney, had her clarify that procedure. She testified that Freshwater asked if anyone in the class wanted to try it (being zapped). A student would approach him at the front of the room and put an arm on the overhead projector and Freshwater would apply the arc to the arm. She testified that if the student asked Freshwater to stop, he would stop. That is consistent with Zachary Dennis’ description of what happened. Overall, it’s not clear in her testimony whether Freshwater put his hand on a student’s hand on the overhead or not. She implied both that he did and didn’t during her testimony.

Back to direct examination

Taylor testified that she did not hear Freshwater mention a temporary tattoo, crosses, or red marks in connection with the Tesla coil demonstration.

With reference to a student being zapped on the butt by Freshwater, she testified that she didn’t see it. She heard the student give a :little shriek,” looked up and saw the student looking surprised and Freshwater smiling. She testified she didn’t have a sense that Freshwater did it purposely.

She testified that Freshwater never referred to the Bible in class and didn’t hold it up. She testified that he didn’t tell the class that the Bible explained the Big Bang. She didn’t remember the “hydrosphere” notion being mentioned, nor any mention of Answers in Genesis. She said he didn’t promote Easter or Good Friday in class, and didn’t mention creationism or intelligent design.

She testified that another student brought up a question about how life was formed, and Freshwater described fine tuning. The student then referred to a “higher power” and Freshwater changed the subject. She didn’t remember “here” being used.

Hamilton asked what she thought of the allegations made against Mr. Freshwater. She said that they are “… stupid. Nobody got hurt.”

Taylor Strack cross

Aside from the testimony noted above regarding the procedure by which students were zapped with the Tesla coil, Taylor also testified that there was a creationism/evolution debate in class some time that year (2007-2008), She said Freshwater made the decision to have the debate.

Asked about Mt. St. Helen’s, she said Freshwater did not discuss the rapid formation of coal in relation to it. Asked by Millstone, she gave a pretty mainstream sketch of coal formation.

Regarding dinosaurs, she didn’t recall whether Freshwater mentioned humans and dinos living at the same time. She did say that he said there was insufficient air pressure now for them to be that large.

There was no redirect or recross.

Finn Laursen Direct

Finn Laursen is the executive director of Christian Educators Association International and an experienced school administrator (principal and superintendent in Ohio). He does a good deal of lecturing and workshops on First Amendment issues in the schools.

His initial testimony was directed at the Finding Common Ground book Daubenmire used in his two-day class at Mt. Vernon Nazarene University. It seems to be a well regarded source for that topic. A variety of organizations (pdf), ranging from Laursen’s Christian Educators to People for the American Way, have signed on to it.

Laursen testified that the mere fact of a Bible on a teacher’s desk is not a First Amendment problem; that he himself had a Bible on his desk when he was an administrator. In and of itself it does not constitute a “religious display.” Asked what constitutes a religious display, Laursen said “It promotes religion, draws attention to a specific doctrine or belief.”

There was a fairly long section of testimony concerning Laursen’s interactions with Lori Miller, another teacher who had a Bible on her desk along with other devotional materials, was instructed by an administrator to remove it all, and was later allowed to put the Bible back on her desk. (See here and below for this Keystone Kops sequence.) In summary, Laursen advised Miller, who is a member of his association, that it was legal to have a Bible on her desk, and that if the administration was trying to “cleanse” her desk she should file a grievance.

Laursen testified that in his view if a school tries to “sanitize the school” from religious material, that abounts to “religious harassment,” or discrimination.

Asked by Hamilton about insubordination, Laursen said one had to consider history and patterns of behavior. He would meet with the teacher (who should have representation along), clarify what is meant by insubordination, follow up, and document everything. A successful termination, he said, depends on documentation. In investigating a situation one would talk with as many people involved as possible.

Asked about the mandatory reporting requirement for suspected cases of abuse, Laursen said that the school – teachers and administrators – must report. They do not have discretion in the matter. Asked if a parent reported an injury to a student caused b a teacher, but didn’t want the teacher to go to jail, Laursen said it is not up to the school to make that decision–the incident must be reported. Asked what one should do if he doubted to reliability of the allegation, Laursen said it is still reportable.

Laursen said that he would immediately talk to the people directly involved, especially the teacher as soon as possible after the parent(s) left his office.

Asked by Hamilton, Laursen testified that teachers in public schools “absolutely” have academic freedom. This wasn’t pursued, so we don’t know what “academic freedom” means in Laursen’s response.

FInally, Laursen testified that it was all right if FCA materials were stored in a teacher’s classroom.

Laursen Cross

On cross examination Laursen testified that it was appropriate to refer to the Bible in English and history classes where it was relevant to the topic under discussion. Asked about applications in math classes, he replied “None that come to mind.” Millstone asked, “How about Numbers?” A good laugh was had by all.

In answer to questions, Laursen said it was inappropriate to teach creationism, but that with respect to intelligent design it depends on “what is considered to be intelligent design.” “If there’s some science that doesn’t line up with evolution that would be appropriate.” Asked about the relevance of Kitzmiller to that remark, Laursen said Kitzmiller was decided on intent. Asked about whether intelligent design was shown to be equivalent to creationism in Kitzmiller, Laursen replied “In the ruling, yes.”

Asked whether a collage of 10 Commandments posters constituted a religious display, if there were no other such material, e.g., Hammurabi’s Code or some such present, Laursen testified that it could be inappropriate, “depending on the purpose.”

That ended Laursen’s cross; there was no redirect (except for another “Numbers” joke) or recross.

Patricia Dice testimony

Patricia Dice is a teacher in the Mt. Vernon school system, and accompanied Lori Miller to the meeting with middle school Assistant Principal Ritchie and Principal White (following Miller’s earlier testimony in this hearing) at which Miller was told she could keep her Bible on her desk so long as it wasn’t opened in the presence of students. The meeting was very short, on the order of 5-7 minutes, according to Dice. Dice kept notes and summarized them in a note to Miller that was introduced into evidence. Dice included a paragraph from the district’s policy on religion in the classroom in her note, though that wasn’t referenced in the meeting. m The policy says that religious materials are not to be displayed at any time.

Referring to Dice’s jewelry (recall this was the Friday before Halloween) Hamilton asked if the jewelry – earrings and a necklace of plastic skulls – promoted paganism. She said, “no.”

There was no cross examination.

Lori Miller testimony

There was some discussion about whether Miller could testify, having already testified at length early in the hearing. The referee allowed the testimony, since it refers to events that occurred after Miller testified the first time.

Miller testified that four days after her earlier testimony, accompanied by another teacher, Bill Oxenford, she met with Assistant Principal Ritchie and Principal White and was instructed to remove all religious materials, including her Bible, from students’ sight. She then contacted Finn Laursen, who advised her to look into the grievance process. She talked to Karen Seward, president of the union (MVEA), who told her she (Seward) would contact the OEA regional labor relations consultant. Miller called Laursen again, and he referred her to “Liberty Center.” I suspect, but do not know, that she meant Liberty Counsel, which is associated with the Liberty University School of Law.. That in turn is associated with Jerry Falwell’s Liberty University.

Miller testified that she had trouble inducing the union to take action, and that Seward and the consultant, Jeff Kesner, told her it wasn’t a grievable issue and that she should let it go.

Then the Liberty Center (Counsel?) told her to get clarification from the administration, the first step in the grievance process. That’s when she had the second meeting with Ritchie and White at which Dice was present. She recorded that meeting, as she had an earlier meeting with administrators, though this time the recording was not surreptitious. The recording shows the meeting to have lasted less than two minutes. Asked directly by Miller, White told her she could have a Bible on her desk.

Hamilton asked her about an in-service in August, 2009, on religion in the classroom led by David Millstone (the Board’s attorney) and another attorney from a Columbus law firm. She testified that at one point in Millstone’s Powerpoint presentation there was a slide with

May a teacher keep a Bible on his or her desk?

Courts have found it impermissible to keep a Bible on the desk when it is used for other than secular purposes.

Miller testified that there was then a slide with a large NO on it.

Finally, Miller testified that after the in-service she still didn’t understand the policy.

Miller Cross

Millstone produced a printout of the powerpoint show, and there is no such “NO” slide. (I have the actual .ppt file, and there’s no such slide in it.) Asked about the discrepancy, Miller said that she couldn’t remember where she saw it, or maybe she didn’t see a slide but just heard it said.

There was no redirect or recross.

That ended the testimony for the day. Another witness had been scheduled by Hamilton, but the dog ate his homework he forgot to bring his notes on the questions he wanted to ask the witness so the session was adjourned early.

Finally, I have to relate an anecdote that occurred Wednesday, when David Daubenmire was testifying. I didn’t hear it – I had to leave for a physician’s appointment – but another spectator did and posted it on a local web board:

At Wednesday’s hearing last week during a break, Mrs. Daubenmire was speaking with Levi Stickle. I thought I caught what she said to him but I wanted to be sure so I asked her to repeat her comment. She stated to me that she asked Levi who at the hearing “was good and who was bad”.

Obviously someone attending the hearing for the first time might want to know who is supporting John Freshwater, who is not but to twist it to “who is good, who is bad” speaks volumes about how Mrs. Daubenmire views those who don’t agree with the Freshwater agenda. I wonder how her husband feels about the subject? I think I can guess.