Preceding posts: Day 3 and Days 1 & 2. This summarizes Day 4, October 29, 2008.

I’ll take a slightly different approach in this post for several reasons. First, I’m short of time and sleep. Second, much of the day was given over to cross examination of the middle school principal by Kelly Hamilton, Freshwater’s attorney, and Hamilton’s approach to cross examination does not lend itself to any sort of narrative flow. Therefore I’ll summarize the main themes of the testimony with some examples of Q&A rather than attempting to reproduce the exact sequence of questions through hours.

The bulk of the testimony today was from Bill White, Principal of the Mt. Vernon Middle School. Another student, a former student of Freshwater who is currently a senior at Mt. Vernon High School, also testified.

More below the fold.

Stylistic note: Throughout this account where I use a sentence form like “He was first notified of the Tesla coil incident on Dec 10,” read it as “He testified that he was first notified …”.

White direct examination

Conducted by David Millstone, the Board of Education’s attorney.

White started in the job of Middle School Principal in the Fall of 2007, just in time for the hoorah. He was first notified of the Tesla coil incident the morning of Dec 10 by Steve Short, Superintendent of Schools, who called White to his office. Short described the parents’ allegation and showed White the pictures taken by Jenifer Dennis, the student Zachary’s mother. White identified two pictures entered as exhibits in the hearing yesterday as those Short had shown him. Short instructed White to ascertain what he could about the allegation.

That afternoon White and Mr. Ritchie, the middle school assistant principal, met with Freshwater. According to White, when asked about it Freshwater initially said that nothing had occurred, but as the conversation proceeded admitted that there was a class exercise with shocks.

White instructed Freshwater to sequester the Tesla coil (I think the phrase used was “lock up” but I’m not sure). He subsequently instructed Bill Oxenford, chairman of the middle school science department, to retrieve all the Tesla coils in the department and turn them in to White. Oxenford returned three devices to White. Note that yesterday Freshwater testified that he retained the device he had used in class. White was not aware that there was a coil outstanding, and did not authorize Freshwater to remove one from the school.

Moving on to the Fellowship of Christian Athletes (FCA), White testified that he met with Freshwater and Ritchie early in the 2007-2008 school year to pass to Freshwater an FCA manual outlining the duties of FCA faculty monitors. Sections of the manual had been specifically highlighted by Superintendent Short.

White testified that he had multiple problems/complaints regarding Freshwater’s activities through the 2007-2008 school year. This is a summary of White’s testimony:

The complaints/issues included the use (or lack thereof) of parent permission forms for FCA. Under White’s new administration of the middle school, parental permission forms are required whenever a student is not in his or her scheduled place during the school day. Since FCA meets during lunch time, the new policy was applicable to FCA, and White testified that Freshwater was laggard in getting them. Each such activity is also required to submit a report of an attendance count, and White testified that on a number of occasions the number of students reported to be attending FCA meetings exceeded the number of permission slips turned in. White said that the permission slip problem persisted longer with Freshwater than the other FCA monitors (6th and 7th grade), and that he doesn’t know if Freshwater ever fully complied with the policy.

White said that some of the topics discussed at FCA were reported to be inappropriate. One such allegedly inappropriate topic was discussing students going to anti-abortion rallies. Freshwater is a participant in Dave Daubenmire’s Minutemen United, which is a fundamentalist Christian activist organization that (among other things) protests at abortion clinics and takes pictures of vehicle license plates of patrons of a topless joint in Newcastle, Ohio, a hamlet out in Amish country. (Careful about those mental images you’re generating!). Daubenmire was a coach at Mt. Vernon high school years ago. He moved to London, Ohio, where the ACLU brought suit against the district to prohibit Daubenmire from leading prayers with his football team. The district settled out of court. Daubenmire then left public education and founded Pass the Salt Ministries. He was one of Freshwater’s most vocal and mililtant supporters early on in this brouhaha, but has been frozen out over the last three or four months.

Note that it is OK for a public school teacher to protest at abortion clinics on his/her own time. The question here was whether Freshwater initiated that discussion with students while acting as a school employee. White testified that he couldn’t substantiate the allegation that Freshwater initiated that discussion at FCA, and that Freshwater apparently discouraged students’ participation at this time due to unspecified conditions.

Freshwater was alleged to have participated in a healing ceremony or healing prayer for a visiting speaker at an FCA meeting. White testified that he determined that Freshwater had indeed participated in a prayer for healing/good health for a guest speaker. White testified that Freshwater told him he probably had prayed in that situation.

White testified that there was an allegation that Freshwater had initiated contact with at least some guest speakers rather than students, as is required. FCA is supposed to be a student-led and operated organization, with the faculty member a monitor rather than leader/participant. While FCA is not a school sponsored organization, the requirement for a faculty monitor derives from the fact that FCA meets during the school day (at lunch time) when the school bears responsibility for the students. White testified that inquiries were made to several outside speakers (by whom it was not clear), and that Freshwater had indeed initiated the contact with a couple of them.

White testified that Freshwater had religious materials displayed in his classroom, and at a meeting in early April 2008 White instructed Freshwater to remove those displayed materials. They included a collage featuring the 10 Commandments; stickers on cupboard doors with inspirational sayings and Bible verses; a poster of Colin Powell and George Bush praying with a Bible verse on it; a poster advertising a Will Graham evangelical event; a couple of boxes of FCA New Testaments in the room; and Freshwater’s Bible on his desk. With respect to the latter, Freshwater was instructed that he could read it during non-class ‘off’ time, but that it had to be out of sight when students were in the room.

White had pictures taken of aspects of the religious displays, and several of those photos were entered into evidence at the hearing.

White testified that Freshwater did not promptly comply with the instructions to remove the religious materials, so in mid-April White wrote Freshwater a letter giving him a deadline for the removal. White said that Freshwater asked him if he didn’t comply would that be insubordination. White replied in the affirmative. Sometime during that week Freshwater added a Bible checked out from the middle school library and a book titled “Jesus of Nazareth,” also from the middle school library, to the science table in his room.

White testified that Freshwater left his Bible on his desk at the end of the school year.

White cross examination

Conducted by Kelly Hamilton, Freshwater’s attorney. Once again, Hamilton’s cross examination style is scattershot, with questions skipping from topic to topic and back again. Hamilton was once a Columbus, Ohio, police sergeant, and his cross examination style resembles a good cop’s interrogation style. So I’ll here try to impose some narrative structure that was not in the actual sequence of questions and answers. White’s cross examination was suspended late in the afternoon so the student mentioned above could testify, and will resume tomorrow.

First, Hamilton established that White had not reviewed the testimony from Days 1 and 2 of this hearing, had not reviewed the independent investigator’s report before it was submitted several months ago, and had no input to that report beyond the questioning of White by the investigators in the course of their investigation.

There were two main themes that I saw in the cross examination questioning. One was the degree and appropriateness of the supervision provided to Freshwater. The second was whether Freshwater was treated differently from other teachers through the last year in these kinds of matters. Some subsidiary themes popped up now and then. For example, the strange interpretation of the 1st Amendment Establishment Clause, to the effect that if someone doesn’t know that a Bible is a religious book, would it be promoting religion to have a Bible on one’s desk? That is almost exactly what Hamilton asked White in one question sometime during the afternoon.

Supervision Theme

The supervision theme emerged in several lines of questioning. For example, in one line of questioning Hamilton established that White had talks with several other teachers about religious material displayed in their rooms subsequent to the public eruption of the Freshwater affair. White testified that in answer to a question from one of them, he told those teachers that if they objected to removing the materials their best course was to remove the materials and then file a grievance as provided in the master contract with the collective bargaining unit. Hamilton wondered why White had not given the same grievance advice to Freshwater. White replied that Freshwater hadn’t asked about it, and that every teacher is (or should be) aware of the opportunity to file grievances through the process specified in the master contract. When asked by Hamilton, White didn’t know if Freshwater is a member of the bargaining unit, a chapter of the Ohio Education Association. (In fact Freshwater is not a member of the bargaining unit, but nevertheless the provisions of the master contract apply to him.)

Further questions in this theme focused on the boundaries of acceptable behavior by teachers concerning religious matters. For example, Hamilton asked if a student raised a question about, say, Easter, could a teacher entertain a brief discussion of it. White replied that if it was not in the standards-based curriculum, discussion would be inappropriate. Asked what the teacher should do, White replied that speaking as an ex-elementary teacher, he would advise the student to take that question to his/her parents.

Hamilton asked whether there was a written policy specifically regarding teaching to the standards. White replied that teachers were expected to teach to the standards. Asked whether teachers could go beyond the material specified in the standards, White replied that they could if they had covered the material in the standards.

There was a series of questions to attempt to establish that Freshwater didn’t/couldn’t know that his use of the Tesla coil to shock students was inappropriate. For example, Hamilton pursued the notion of on-the-job training, asking whether having been trained in the use of the Tesla coil by a now-retired teacher (Jeff George), and given that there had been no prior complaints or administrative communication regarding that use, could Freshwater rely on those to conclude that his use was appropriate? White’s answer was inconclusive.

Hamilton displayed (but did not enter into evidence) a poster showing a U.S. flag and the mottoes “In God We Trust” and “With God Everything is Possible.” The former is the U.S. motto, the latter the State of Ohio motto. Hamilton asked if there were such posters in the school. White replied that there is a fair number of them in classrooms and other areas, that they had been donated by an organization in Steubenville, and that the school was legally required to display them if they were donated to the school. (I know nothing about that – any Ohio legal scholars out there?)

Hamilton asked a series of questions about whether the administrators, and White in particular, had a mandatory duty to report the incident to Children’s Services and why it wasn’t reported to the police if Freshwater had held the boy’s hand down, as the boy had testified. White replied that he had too little information at the time to initiate a report – he knew only that one anonymous student of more than a thousand had possibly been injured, and that he reported what he found from Freshwater back to Superintendent White. Pressed further, White said that if the same sort of situation occurred again he would report it.

Hamilton asked White if he had observed any tests of the use of the Tesla coil on humans. White replied that he had seen one, when the President of the Board of Education, Ian Watson, had asked White to shock him. White declined on the ground that he (White) has an electronic implant and doesn’t fool around with things like that. White called Elle Button, another middle school science teacher, to his office and asked her to shock Watson. She declined on the ground that she thought it was inappropriate use of the device. Watson finally shocked himself on the arm. White could recall no details of the mark, if any, since he was keeping his distance on account of his implant. White reported that Watson said it hurt.

White was later reminded by Hamilton’s referring to the investigator’s report that White had also been present when an investigator shocked himself with a Tesla coil. White conceded that he had been present, but once again had kept his distance from the procedure on account of his implant.

(Parenthetically, writing as an ex-Navy missile technician who was trained to work around RF sources, I am flabbergasted at how casually these people wander around zorching themselves and each other with RF (500 KHz) generating devices. A few weeks ago I had a lively sidewalk discussion with a Kenyon physicist about a couple of his colleagues in that department who got peripherally involved early in the Freshwater affair by zapping themselves with a Tesla coil and going on to the newspaper about how it didn’t seem to cause tissue damage. I passed on some suggestions about skin effects of RF – basically, it’s mainly conducted on or very near the surface of metallic conductors – and how in human bodies the RF “skin” depth is up in double-digit centimeters, meaning that RF readily passes into deeper tissue and into the nervous and circulatory systems. There are anecdotal accounts of subdermal tissue damage with relatively minor visible manifestations due specifically to devices like those in the middle school. It puts me in mind of 17th century alchemists who tested compounds for their poisonous effects by dosing themselves with strange and wondrous concoctions. We do not seem to have come far in some respects. The only sensible people in this respect that I’ve seen mentioned in this affair are Elle Button and Bill White.)

Discrimination theme

In several lines of questions Hamilton attempted to show that Freshwater was systematically treated differently than other teachers in similar circumstances. For example, Hamilton asked White if other teachers had Bibles on their desks and/or religious displays in their rooms. White replied that several teachers had had such displays, but took them down on instructions from him. White was aware of only Lori Miller, another middle school science teacher, with a Bible on her desk currently. Asked why Miller was allowed to keep her Bible on her desk while Freshwater was not, White replied that Miller’s was not there in the context of a larger display of religious materials, whereas at the time the instruction to conceal his Bible was given to Freshwater his was a part of a larger set of religious displays in his classroom.

Some subsidiary themes

As mentioned above, Hamilton returned to his bizarre notion of the effect prong of the Lemon test described in my earlier post linked at the top.

One line of questioning established that the Dennis family was the original source of several of the allegations that are included in the independent investigator’s report. White conceded that is true. (One task of the Board’s attorney is to provide independent corroboration of those allegations, and that’s under way – see James Hoeffgen’s testimony below for the beginning of that corroboration.)

Another set of questions dealt with the pictures of Zachary’s arm. White was asked if he thought someone could have altered the injury to make it look more like a cross. I didn’t catch White’s response. He was asked if he thought the pictures were fabricated. He did not.

Another line of questions focused on Zach Dennis’ honesty. White was asked if he knew whether Zach had ever been dishonest. White replied that he was once, that on one occasion Zach had apparently told his parents that he himself had contacted a potential FCA speaker, but that Freshwater had actually made the contact.

There were repeated questions scattered through the cross about documentation – did White keep notes of conversations and events (sometimes), where were they (in his office), and so on.

Another set of questions focused on the fact that Freshwater’s daughter was a member of FCA, and on the potential conflicts that might involve. White was asked if he thought there was a potential conflict between his role as parent and his role as FCA monitor. White agreed there was. Asked if he’d advised Freshwater of that potential conflict, White replied that he had not.

White’s cross examination was suspended so James Hoeffgen could testify.

James Hoeffgen direct examination

James is a Mt. Vernon High School student who had Freshwater as his teacher in 8th grade science in 2004-2005.

James testified that Freshwater spent a lot of time on evolution in his class. Under questioning, he said that Freshwater used a creationist video by Kent Hovind, who Freshwater introduced as “a renowned scientist.” James said that Freshwater told his class that carbon dating is unreliable, that the earth might only be a few thousand years old, and that dinosaurs may have lived at the same time as cave men.

James testified that Freshwater used creationist-related material in his teaching of science. For example, James said Freshwater used two handouts, one called Survival of the Fakest, a 2001 American Spectator article by Jonathan Wells, and the other a handout concerning Haeckel’s embryos asserting they were fake but are still used in biology textbooks. While the handouts were supposed to be returned at the end of the class period, James took his home. He said his parents were disturbed that Freshwater was using it and explained to him that it was in error.

Note that this was in 2004-2005. Freshwater had testified that he ceased using the “Survival of the Fakest” handout in 2003 after his “Objective Origins Policy” had been rejected by the Board of Education. According to James’ testimony Freshwater continued using obvious creationist materials well after that.

Asked if Freshwater taught about “intelligent design,” James replied he did not, but hinted at a creator.

James was asked if he was uncomfortable with the religious overtones of Freshwater’s teaching and room. James replied that he was, that at that time he considered himself to be Jewish and that the displays of Christian materials in the room made him uncomfortable. He said he told his parents that, but he didn’t know if they did anything further about it with the school.

James Hoeffgen cross examination

Hamilton asked if James knows the Dennis family. He does not. He was asked how many times he’d met with David Millstone, the Board’s attorney. Once, last summer. Hamilton asked how James came to be involved in this hearing. James replied that a friend, Ron Griggs, knew of the pending hearing and knew James had been Freshwater’s student, and suggested he contact the relevant people.

In the cross examination James reported that Freshwater had used the Hovind video once, and that it lasted one or two class periods. He said he reported that to his parents, and that they contacted the middle school principal at the time about it.

James confirmed that Freshwater did not use the words “intelligent design,” “ID,” or “creationism in class.

Referring to a discussion of abortion in class, James could not remember whether Freshwater brought it up or a student did.

Hamilton showed James some of the pictures of religious items in Freshwater’s room taken in the 2007-2008 school year. James identified the 10 Commandments poster as having been in the room in 2004-2005.

James Hoeffgen redirect examination

Millstone asked James if he reached any conclusion, then or later, about what Freshwater was doing in his teaching of evolution. James replied that his parents were upset about Freshwater’s use of Survival of the Fakest, about Freshwater’s claims of the inaccuracy of carbon dating, about the Hovind video, and about the notion that dinosaurs and humans were on earth together.

Millstone asked James what he concluded from Freshwater’s teaching. James replied with an anecdote. He said his sister had found a rock and was going to take it to a teacher to see if she could find out how old it is. James said he told his sister to not bother, “Science can’t be trusted. Science can’t teach us anything.”

That’s a direct quote, immediately checked with an attorney who was also taking notes.

And it says it all.

The hearing was recessed until 9:00 tomorrow (well, today, actually, in about 5 hours!)