On November 19, 2013, the Ohio Supreme Court concluded that, pursuant to R.C. 3319.16, acts of insubordination constitute “good and just cause” to terminate a teacher’s contract as long as the underlying rules or directives violated were themselves reasonable and valid.    John Freshwater was an eighth grade science teacher at the Mount Vernon City School District. As early as 1994, Freshwater began to interject religious principles into his classroom instruction. Specifically, he supplemented school curriculum with religious handouts, showed videos on creationism and intelligent design, displayed religious materials in the classroom, made statements about the Bible, and awarded extra credit to students who attended religiously-based seminars that were critical of evolution.  Although district administration occasionally directed Freshwater not to incorporate religious materials or teachings into his instruction, he generally received positive evaluations during the twenty-one years he taught in the district. His students also usually received the highest scores on state achievement tests.

In 2003, the Board of Education rejected Freshwater’s proposal to amend the district’s science curriculum by incorporating material that criticized the theory of evolution. However, Freshwater ignored the Board’s decision and continued to teach certain topics in accordance with his religious beliefs. A few years later, the district’s superintendent issued a written directive to Freshwater that he must delete all supplemental materials which were not scientifically accepted. Again, Freshwater chose not to comply with the directive.

Matters came to a head in the fall of 2007, when parents complained Freshwater used an electrical instrument to burn what appeared to be the sign of the cross into their son’s arm. Freshwater confirmed he used the instrument to mark the student, but denied the mark was intended to be a cross. The district responded by sending Freshwater a letter stating he could not use classroom instruments to shock students.

The following spring, Freshwater met with the school principal again to discuss issues related to his religious instruction. At the conclusion of the meeting, he received written orders in clear and unequivocal terms that he could not display religious materials in the classroom.  Freshwater was specifically directed to remove the Bible displayed on his desk and a poster of the Ten Commandments that hung on his door. The written notice also stated “[u]nless 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.”

Freshwater refused to comply with the order despite several follow-up requests. Meanwhile, the parents of the student who was shocked in class sent a demand letter and filed suit against the district. In response, the district hired an outside investigator to observe Freshwater’s classes. The investigator reported that Freshwater taught creationism and intelligent design in class, discussed various other religious subjects, distributed religious materials, and made statements such as “science is wrong because the Bible states that homosexuality is a sin.” The investigator also discovered that Freshwater gave extra credit to students who viewed a movie on intelligent design.

Eventually by the end of the 2007-2008 school year, the Board decided to terminate Freshwater’s teaching contract pursuant to ORC 3319.16. At the public hearing, a referee addressed four specific grounds for termination set forth in the board’s resolution: (1) the burn incident, (2) Freshwater’s failure to adhere to curriculum, (3) Freshwater’s role in the Fellowship of Christian Athletes organization, and (4) his disobedience of orders.  The referee concluded that claims (2) and (4) constituted just cause for termination.

Freshwater appealed the decision to court. Both the Court of Common Pleas and the Court of Appeals for Knox County upheld termination, and the Ohio Supreme Court granted review of the matter.  The Court’s decision in the case was limited to whether the district met the just cause standard mandated by R.C. 3319.16. The Court provided only a cursory review of constitutional issues regarding Freedom of Religion and the Establishment Clause.  Therefore, the Court did not provide any substantial guidance to school boards or teachers as to the constitutionality of teaching or displaying religious materials in a public school setting.

The Supreme Court ultimately held that in this case, Freshwater’s repeated acts of insubordination alone constituted “good and just cause.”  The Court focused on Freshwater’s persistent disobedience and refusal to comply with administrative directives, and specifically on his refusal to remove religiously-oriented materials from class. According to the Court, “good and just cause” under ORC 3319.16 includes insubordination, which is 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.   The letter from Freshwater’s principal made clear that 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 while teaching, as mandated by Board policy and the law. The Court concluded that the district’s orders were both reasonable and valid, and further that Freshwater willfully refused to comply with the directives.  The Court summarized their findings by stating that “Freshwater [was] 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 superior while in the workplace.”

The Supreme Court’s decision confirmed that insubordination alone may constitute just cause as long as the rule or directive is reasonable, and the employee willfully or intentionally refused to comply. However, it is important to note that the standard for just cause itself has not been lessened by the Court’s decision, and districts should be cautious to interpret the case otherwise.

Further, even though the Ohio Supreme Court did not address whether Freshwater’s actions violated the Establishment Clause of the U.S. Constitution to any great degree, school districts should be ever mindful of possible Establishment Clause infringements. The U.S. Supreme Court has interpreted the Establishment Clause to strictly forbid any law or act undertaken by a public entity that furthers religion, or attempts to disapprove of a particular religion or religion in general. The U.S. Supreme Court and lower courts repeatedly emphasize that a public entity must remain neutral on the subject of religion.

In this case, the extent to which Freshwater incorporated religious beliefs and displays into his classroom and instruction very likely constituted an Establishment Clause violation. Because of the many legal implications of such violations, we highly recommend that you contact legal counsel for advice on any issue that involves religion in schools.

Freshwater v. Mt. Vernon City School Dist. Bd. Of Edn., 2013-Ohio-5000 (November 19,2013).