Plaintiffs' reply in support of their motion for partial summary judgment

Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 1 of 54 

JOHN DOE, et al., 

v. 

Plaintiffs, 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MOUNT VERNON CITY SCHOOL 

DISTRICT BOARD OF EDUCATION, et al., 

Defendants. 

Date: January 14, 2010 

Case No. 2:08 CV 575 

Judge Frost 

Magistrate Judge King 

PLAINTIFFS’ REPLY IN SUPPORT OF THEIR MOTION 

FOR PARTIAL SUMMARY JUDGMENT 

Respectfully submitted, 

/s/Douglas M. Mansfield________ 

Douglas M. Mansfield (0063443) 

(Trial Attorney) 

dmansfield@jonesday.com 

JONES DAY 

325 John H. McConnell Blvd. Ste. 600 

Columbus, OH 43215 

(614) 469-3939 (telephone) 

(614) 461-4198 (fax) 

Mailing Address: 

JONES DAY 

P.O. Box 165017 

Columbus, OH 43215-2673 

Attorney for Plaintiffs


TABLE OF CONTENTS 

-i- 

Page 

SUMMARY OF ARGUMENT ..................................................................................................... 1 

I. INTRODUCTION ............................................................................................................. 2 

II. ARGUMENT..................................................................................................................... 4 

A. Freshwater’s Defamation Counterclaim Is Entirely Unfounded And 

Therefore Should Be Dismissed ............................................................................ 4 

1. The Dennises Did Not Make Many Of The Allegedly Defamatory 

Statements And Therefore Cannot Be Held Liable For Them .................. 6 

2. The Statements That Zach Dennis Made During The Termination 

Hearing Are Protected By An Absolute Privilege, Or In the 

Alternative, Are Qualifiedly Privileged..................................................... 8 

3. The Statements That The Dennises Made To HR On Call 

Investigators Are Also Protected By A Qualified Privilege .................... 10 

4. Freshwater Is A Limited-Purpose Public Figure Who Cannot Show 

That The Dennises Acted With Actual Malice........................................ 11 

B. Freshwater’s Counterclaim For Intentional Infliction Of Emotional 

Distress Is Similarly Unsupported And Should Be Dismissed............................ 14 

1. Freshwater Has Offered No Evidence That The Dennises Intended 

To Cause Him Emotional Distress Or That They Should Have 

Known That Their Conduct Would Cause Him Emotional Distress....... 15 

2. Freshwater Has Offered No Evidence That The Dennises’ Conduct 

Was Outrageous And Extreme................................................................. 15 

3. Freshwater Has Offered No Evidence That He Suffered From A 

Severe Or Debilitating Injury................................................................... 17 

C. The Dennises Should Be Granted Summary Judgment On Their Battery 

Claim.................................................................................................................... 18 

1. Freshwater Acted With The Requisite Intent To Commit Battery .......... 19 

2. Freshwater’s Application Of The Tesla Coil To Zach’s Arm 

Constitutes Offensive Contact. ................................................................ 20 

3. Freshwater’s Remaining Arguments As To The Dennises’ Battery 

Claim Are Unavailing.............................................................................. 21 

D. Freshwater Provides No Viable Defense For His Own Actions Made In 

Violation Of The Dennises’ Establishment Clause Rights.................................. 24 

1. Freshwater Cannot Pass The Blame For His Personal Deprivation 

Of The Dennises’ Constitutional Rights.................................................. 24


TABLE OF CONTENTS 

(continued) 

-ii- 

Page 

2. The Dennises Have Standing To Challenge Freshwater’s Violation 

Of The Establishment Clause................................................................... 26 

3. Freshwater Inappropriately Raises The Mootness Doctrine With 

Respect To The Dennises’ Claims, Other Than Their Claim For 

Injunctive Relief....................................................................................... 31 

4. Freshwater Presents No Facts That Would Make His Actions 

Constitutional Under the Lemon Test...................................................... 32 

E. Freshwater’s Opposition Brief Is Not Supported By Proper Summary- 

Judgment Evidence And Thus Fails To Demonstrate That Summary 

Judgment Should Not Be Granted In The Dennises’ Favor ................................ 41 

1. All Exhibits Filed By Mr. Hamilton On January 7, 2010 Are 

Untimely And Therefore Improper.......................................................... 41 

2. Their Untimely Filing Notwithstanding, Nearly All Of The 

Exhibits Suffer From Additional Infirmities That Warrant Striking 

Them From the Record ............................................................................ 42 

III. CONCLUSION................................................................................................................ 45


TABLE OF AUTHORITIES 

UNITED STATES SUPREME COURT 

Page 

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986).............................................................................................................4, 21 

Bd. of Sch. Comm’rs of Indianapolis v. Jacobs, 

420 U.S. 128 (1975).................................................................................................................31 

Boag v. MacDougall, 

454 U.S. 364 (1982).................................................................................................................32 

Lemon v. Kurtzman, 

403 U.S. 602 (1971)......................................................................................................... passim 

Lujan v. Defenders of Wildlife, 

504 U.S. 555 (1992)...........................................................................................................26, 29 

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 

475 U.S. 574 (1986)...................................................................................................................4 

Santa Fe Indep. Sch. Dist. v. Doe, 

530 U.S. 290 (2000).................................................................................................................36 

Sch. Dist. of Abington Twp. Pa. v. Schempp, 

374 U.S. 203 (1963).................................................................................................................26 

Stone v. Graham, 

449 U.S. 39 (1980)...................................................................................................................38 

Valley Forge Christian Coll. v. Am. United for Separation of Church & State, 

454 U.S. 464 (1982).................................................................................................................28 

Walz v. Tax Comm’n of New York, 

397 U.S. 664 (1970).................................................................................................................22 

Wisconsin v. Yoder, 

406 U.S. 205 (1972)...........................................................................................................26, 34 

FEDERAL CIRCUIT COURTS 

Am. Civil Liberties Union v. McCreary County, Ky., 

354 F.3d 438 (6th Cir. 2003) .................................................................................36, 38, 39, 40


Cook v. Colgate, 

992 F.2d 17 (2d. Cir. 1993)......................................................................................................26 

Donovan v. Punxsutawney Area Sch. Bd., 

336 F.3d 211 (3d. Cir. 2003)....................................................................................................31 

Fleischfresser v. Dir. of Sch. Dist. 200, 

15 F.3d 680 (7th Cir. 1994) .....................................................................................................26 

Holloman ex rel. Holloman v. Harland, 

370 F.3d 1252 (11th Cir. 2004) ...............................................................................................24 

Lee v. York Co. Sch. Div., 

484 F.3d 687 (4th Cir. 2007) .......................................................................................33, 36, 37 

Roberts v. Madigan, 

921 F.2d 1047 (10th Cir. 1990) .........................................................................................35, 36 

Talley v. Family Dollar Stores of Ohio, Inc., 

542 F.3d 1099 (6th Cir. 2008) ...........................................................................................15, 18 

Wilson v. Luttrell, 

No. 99-5459, 2000 WL 1359624 (6th Cir. Sept. 13, 2000) .....................................................25 

FEDERAL DISTRICT COURTS 

Daugherty v. Vanguard Charter Sch. Acad., 

116 F. Supp. 2d 897 (W.D. Mich. 2000) .................................................................................27 

Doe v. Harlan Co. Sch. Dist., 

96 F. Supp. 2d 667 (E.D. Ky. 2000) ........................................................................................28 

Doe v. Wilson Co. Sch. Sys., 

564 F. Supp. 2d 766 (M.D. Tenn. 2008)................................................................26, 27, 31, 34 

Weimer v. Honda of Am. Mfg., Inc., 

No. 2:06-cv-844, 2008 WL 2557252 (S.D. Ohio June 23, 2008)............................................44 

OHIO SUPREME COURT 

A&B-Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 

651 N.E.2d 1283 (Ohio 1995) .................................................................................................12 

Hecht v. Levin, 

613 N.E.2d 585 (Ohio 1993) .....................................................................................................8 

Jacobs v. Frank, 

573 N.E.2d 609 (Ohio 1991) ...................................................................................................12 

ii


Lacey v. Laird, 

139 N.E.2d 25 (Ohio 1956) .....................................................................................................23 

Nuspl v. Akron, 

575 N.E.2d 447 (Ohio 1991) .....................................................................................................8 

Surace v. Wuliger, 

495 N.E.2d 939 (Ohio 1986) .....................................................................................................9 

Vail v. The Plain Dealer Publ’g Co., 

649 N.E.2d 182 (Ohio 1995) ...................................................................................................14 

Yeager v. Local Union 20, 

453 N.E.2d 666 (Ohio 1983) ...................................................................................................16 

OHIO APPELLATE COURTS 

Am. Ins. Group v. McCowin, 

218 N.E.2d 746 (Ohio Ct. App. 1966).....................................................................................21 

Barilla v. Patella, 

760 N.E.2d 898 (Ohio Ct. App. 2001).......................................................................................8 

Burkes v. Stidham, 

668 N.E.2d 982 (Ohio Ct. App. 1995).....................................................................................17 

Farmer v. Rolls-Royce Energy Sys., Inc., 

No. 06CA8, 2006 WL 2244488 (Ohio Ct. App. Aug. 4, 2006)...............................................17 

Kassouf v. Cleveland Magazine City Magazines, Inc., 

755 N.E.2d 976 (Ohio Ct. App. 2001).....................................................................................12 

Thompson v. Webb, 

735 N.E.2d 975 (Ohio Ct. App. 1999).....................................................................................10 

OHIO COURT OF CLAIMS 

Hardy v. Belmont Corr. Inst., 

No. 2004-09631, 2006 WL 322316 (Ohio Ct. Cl. Jan. 18, 2006)..............................................8 

CONSTITUTIONAL PROVISIONS 

First Amendment .....................................................................................................................34, 35 

FEDERAL STATUTES 

42 U.S.C. § 1983............................................................................................................................25 

iii


STATE STATUTES 

O.R.C. § 3319.16 .............................................................................................................................9 

RULES 

Fed. R. Civ. P. 56.......................................................................................................................4, 21 

Fed. R. Civ. P. 8(a)(2)....................................................................................................................35 

Fed. R. Civ. P. 26(a) ......................................................................................................................43 

Fed. R. Civ. P. 80...........................................................................................................................44 

Fed. R. Civ. P. 37.....................................................................................................................43, 44 

S. D. Ohio Civ. R. 7.2(d) ...............................................................................................................41 

OTHER AUTHORITIES 

WBNS-10TV, http://www.10tv.com ...............................................................................................6 

The Columbus Dispatch, http://www.dispatch.com/ .......................................................................6 

Mount Vernon News, http://www.mountvernonnews.com............................................................12 

iv


SUMMARY OF ARGUMENT 

Defendant John Freshwater has failed to present any evidence showing disputed issues of 

material fact as to his counterclaims for defamation and intentional infliction of emotional 

distress, or as to Plaintiffs’ battery and Establishment Clause claims. Plaintiffs are entitled to 

summary judgment on Defendant’s defamation counterclaim because many of the statements 

that he alleges are defamatory were either made by parties other than the Dennises or are 

protected by an absolute or qualified privilege. Even if the statements are not privileged, they 

were not published with actual malice. Defendant also has offered no evidence to defeat 

summary judgment on his counterclaim for intentional infliction of emotional distress. He has 

not demonstrated that Plaintiffs intended to cause him emotional distress, that Plaintiffs acted in 

an outrageous or extreme manner, or that he suffered a severe or debilitating injury as a result of 

Plaintiffs’ alleged actions. 

Plaintiffs also should be granted summary judgment on their battery claim, as they have 

made out a prima facie case for this tort and Defendant has countered with nothing more than 

disputes over immaterial facts supported only by his own contradictory testimony, self-serving 

affidavits, and nonsensical arguments that lack legal grounding. Additionally, summary 

judgment is proper on Plaintiffs’ Establishment Clause claim. Freshwater’s attempt to shift 

liability for his own constitutional violations to school officials is wholly unsupported in law or 

fact, and he provides no evidence to justify his display of various Bibles and multiple copies of 

the Ten Commandments in his public school classroom. 

Lastly, the exhibits that Defendant untimely filed on January 7, 2010 are improper 

summary-judgment evidence and he should not be permitted to rely on them in opposing 

Plaintiffs’ motion for summary judgment.


JOHN DOE, et al., 

v. 

Plaintiffs, 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

MOUNT VERNON CITY SCHOOL 

DISTRICT BOARD OF EDUCATION, et al., 

Defendants. 

2 

Case No. 2:08 CV 575 

Judge Frost 

Magistrate Judge King 

I. INTRODUCTION 

In opposing the Dennises’ motion for partial summary judgment, Freshwater is so busy 

creating a sideshow that he misses the main event. He fixates on disputes over immaterial facts, 

but fails to point to a single shred of evidence—other than inconsistencies in his own prior 

testimony and denials in his own self-serving affidavits—that gives rise to a material fact dispute 

as to any of the central issues of this case. As a result, he has produced no evidence establishing 

that the Dennises defamed him or that he suffered from emotional distress, and he has offered 

nothing to refute the Dennises’ claims that he committed battery when he applied the Tesla coil 

to Zach Dennis’s arm or that he violated the Establishment Clause by displaying various Bibles 

and several copies of the Ten Commandments in his public school classroom. 

To support his defamation counterclaim, Freshwater provides only a laundry list of 

allegedly defamatory statements made by unknown speakers to unknown parties in unknown 

contexts. Freshwater does not cite the record for these statements, but after tracking down this 

missing-yet-critical information, the Dennises have found that more than a third of the statements 

in question were made by other individuals and entities, not by them. The Dennises cannot be


held liable for the statements of others. The bulk of the remaining statements on Freshwater’s 

list are either protected by an absolute judicial privilege or a qualified privilege. Any statements 

that are not privileged nonetheless fail to establish a claim for defamation, as Freshwater did not 

and cannot offer any evidence that the Dennises acted with actual malice in making them. The 

Dennises therefore should be granted summary judgment on Freshwater’s defamation 

counterclaim. Summary judgment is also proper on Freshwater’s counterclaim for intentional 

infliction of emotional distress, as Freshwater has likewise adduced no evidence to establish the 

elements of an emotional-distress claim. 

As to the Dennises’ battery and Establishment Clause claims, Freshwater tries to shift the 

focus away from his admission that he applied the Tesla coil to Zach’s arm to quibbling over 

immaterial facts that are irrelevant for summary-judgment purposes. He follows this up with a 

ratification argument that defies reason and lacks legal support. Freshwater next argues that the 

Dennises’ Establishment Clause claim is moot and that the Dennises lack standing to bring it. 

Neither argument is persuasive. Freshwater’s effort to avoid liability for his own misconduct by 

passing the blame onto Mount Vernon Middle School officials and onto members of the 

Fellowship of Christian Athletes (“FCA”) proves equally unsuccessful. And Freshwater presents 

no factual dispute to justify his Establishment Clause violations under the Supreme Court’s 

Lemon test. Because Freshwater has failed to demonstrate any genuine issues of material fact as 

to the Dennises’ battery and Establishment Clause claims, the Dennises should be granted 

summary judgment on these claims as well. 

Finally, the exhibits that Freshwater filed on January 7, 2010 constitute improper 

summary-judgment evidence upon which he should not be permitted to rely in defending against 

3


the Dennises’ motion for summary judgment, which likewise requires summary judgment in the 

Dennises’ favor on Freshwater’s counterclaims. 

II. ARGUMENT 

Summary judgment is proper if “there is no genuine issue as to any material fact” and the 

moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A party 

opposing summary judgment “must do more than simply show that there is some metaphysical 

doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 

574, 586 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986) 

(emphasizing that a “mere existence of a scintilla of evidence in support of the [nonmoving 

party’s] position will be insufficient” to withstand summary judgment and that “[f]actual 

disputes that are irrelevant or unnecessary will not be counted”); Fed. R. Civ. P. 56(e)(2) (“When 

a motion for summary judgment is properly made and supported, an opposing party may not rely 

merely on allegations or denials in its own pleading; rather, its response must . . . set out specific 

facts showing a genuine issue for trial.”). Because Freshwater has offered nothing more than his 

own inconsistent testimony and denials, irrelevant arguments with no basis in law or fact, and 

improper summary-judgment evidence, the Dennises should be granted summary judgment on 

his counterclaims and on their own battery and Establishment Clause claims. 

A. Freshwater’s Defamation Counterclaim Is Entirely Unfounded And 

Therefore Should Be Dismissed. 

Freshwater offers a list of 42 items that he alleges constitute defamatory statements that 

“Plaintiffs, either one of the parents or the minor child” purportedly made “to the school 

administration, the public media, or through testimony.” (Counterclaimant/Def. Mem. in Opp. to 

Pls.’ Mot. for Partial Summ. J. at 4-7 (Doc. No. 70) (hereinafter “Hamilton Mem. in Opp.”)). 

Although Freshwater narrows the universe of potential statements by providing three potential 

4


speakers and three potential contexts in which allegedly defamatory statements were spoken, he 

still fails to identify which member of the Dennis family made any particular statement on this 

list, to whom that family member made a particular statement, or the context in which a 

particular statement was made. Additionally, Freshwater has not provided the Court with any of 

the publications in which any of these allegedly defamatory statements was made, forcing the 

Court to take him at his word that the Dennises made these statements, which, in the case of 

more than a third of the 42 items on Freshwater’s list, they did not. 

Through significant research, the Dennises have been able to identify a speaker for nearly 

all of the allegedly defamatory statements, to whom the speaker made each statement, and the 

context in which the speaker offered each statement. This research unequivocally confirms that 

Freshwater’s defamation counterclaim is entirely unfounded and therefore should be dismissed. 

This is so for several reasons. First, the Dennises did not make and therefore cannot be held 

liable for many of the allegedly defamatory statements on Freshwater’s list. Second, a number 

of statements on the list were taken directly from Zach Dennis’s testimony during the 

termination hearing. These statements are protected by an absolute privilege, or in the 

alternative, by a qualified privilege. Third, other statements on the list were made by the 

Dennises to investigators and are protected by a qualified privilege. Fourth, even if no privilege 

applies to Zach’s testimony or to the Dennises’ statements to investigators, none of these 

statements—or any of the remaining statements on Freshwater’s list—was made with actual 

malice and thus cannot serve as the basis of Freshwater’s defamation counterclaim. Because 

Freshwater has failed to produce any evidence whatsoever that the Dennises defamed him, the 

Dennises should be granted summary judgment on this counterclaim. 

5


1. The Dennises Did Not Make Many Of The Allegedly Defamatory 

Statements And Therefore Cannot Be Held Liable For Them. 

More than a third of the statements that Freshwater claims are defamatory were not made 

by the Dennises. Statements 1, 3, 4, and 8 on Freshwater’s list are statements that the Dennises’ 

former counsel made to the media. Attorney Jessica Philemond provided the first statement on 

Freshwater’s list to WBNS-10TV. See Hamilton Mem. in Opp. at 4; WBNS-10TV, Teacher 

Accused of Burning Crosses Onto Students’ Arms, Apr. 28, 2008, http://www.10tv.com/live/ 

content/local/stories/2008/04/22/freshwater_investigation.html?type=rss&cat=&sid=102 (last 

visited Jan. 14, 2010). She made the third, fourth, and eighth statements on the list to The 

Columbus Dispatch. See Hamilton Mem. in Opp. at 1-2; The Columbus Dispatch, Religious 

‘Healing’ Branding Charged, Apr. 23, 2008, http://www.dispatch.com/live/content/local_news 

/stories/2008/04/23/teacher_bible.html (last visited Jan. 14, 2010); The Columbus Dispatch, 

Report: Science Teacher Mixed Religion, Class, Jun. 19, 2008, http://www.dispatch.com/ 

live/content/local_news/stories/2008/06/19/mtvernon.html (last visited Jan. 14, 2010). Because 

counsel, and not the Dennises, made these statements, they cannot constitute defamation by the 

Dennises. 

Likewise, statements 7, 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28 on Freshwater’s list are 

statements contained in a letter that Ms. Philemond sent to Mount Vernon City Schools 

Superintendent Stephen Short on April 14, 2008, while statement 29 is contained in a letter that 

Ms. Philemond sent to Mr. Short on April 21, 2008. (See Hamilton Mem. in Opp. at 4-6; Letter 

from Jessica Philemond to Stephen Short (Apr. 14, 2008) (attached as Ex. A); Letter from Jessica 

Philemond to Stephen Short (Apr. 21, 2008) (attached as Ex. B).) The Dennises did not draft or 

sign either of these letters and thus they, too, cannot be deemed defamatory. 

6


Two of the statements on Freshwater’s list—statements 30 and 31—are statements taken 

directly from the Mount Vernon Board of Education’s resolution of Intent to Consider the 

Termination of the Teaching Contract(s) of John Freshwater. (See Hamilton Mem. in Opp. at 6; 

Minutes from Special Mtg. of Mt. Vernon. Bd. of Educ., Jun. 20, 2008 (attached as Ex. C).) 

The Dennises are not members of the Mount Vernon School Board and did not participate in any 

way in drafting the Board’s resolution. 

Statement 18, which Freshwater claims consists of “statements and representations 

depicted in two pictures identified in the administrative hearing as Board Exhibits 7 and 8,” 

cannot fairly be considered a statement at all. Not only is it unclear exactly what Freshwater 

means by “statements and representations depicted in two pictures,” but Freshwater fails to 

identify these alleged “statements and representations” with any specificity. Further 

underscoring the infirmity of Freshwater’s defamation claim with respect to statement 18 is the 

fact that Board Exhibits 7 and 8, which are photographs of Zach’s arm after Freshwater had 

applied the Tesla coil to it, were first identified during Superintendent Stephen Short’s 

testimony. (In the Matter of the Termination of Employment of John Freshwater (hereinafter 

“Freshwater Termination Hearing Tr.”), Stephen Short Test., 10/02/08, at 3 (attached as Ex. F to 

Pls.’ Mot. for Partial Summ. J. (hereinafter “Pls.’ MSJ”) (Doc. No. 60)).) The Dennises cannot 

be held liable for any statements that Mr. Short or others made about these exhibits. Because 

none of the aforementioned statements was spoken or otherwise published by the Dennises, 

Freshwater cannot rely on any of these statements to save his defamation counterclaim from 

summary judgment. 

7


2. The Statements That Zach Dennis Made During The Termination 

Hearing Are Protected By An Absolute Privilege, Or In the 

Alternative, Are Qualifiedly Privileged. 

Ten additional statements on Freshwater’s list are quotes or paraphrases from Zach 

Dennis’s testimony during the termination hearing. (See Hamilton Mem. in Opp. at 5-7 (listing 

statements 17; 32-40); Freshwater Termination Hearing Tr., Zachary Dennis Test., 10/28/08, at 

336 (attached as Ex. E to Pls.’ MSJ) (listing statement 17); id. at 345 (listing statement 32); id. at 

339 (listing statement 33); id. at 336-37 (listing statements 34); id. at 343 (listing statements 35); 

id. at 344 (listing statement 36); id. at 347 (listing statements 37); id. at 348 (listing statement 

38); id. at 351 (listing statement 39) id. at 354 (listing statement 40).) Zach’s statements during 

the termination hearing, which were made in the context of a quasi-judicial proceeding, are 

absolutely privileged as a matter of law. See, e.g., Hecht v. Levin, 613 N.E.2d 585, 590 (Ohio 

1993) (extending absolute privilege to statements made in a complaint filed with the grievance 

committee of a local bar association); Barilla v. Patella, 760 N.E.2d 898, 906 (Ohio Ct. App. 

2001), discretionary appeal denied, 757 N.E. 2d 774 (Ohio 2001) (“Communications made 

during unemployment proceedings, which are quasi-judicial in nature, are subject to an absolute 

privilege.”); Hardy v. Belmont Corr. Inst., No. 2004-09631, 2006 WL 322316, at * 4 (Ohio Ct. 

Cl. Jan. 18, 2006) (noting that “[t]he same policy considerations underlying the privilege relating 

to judicial proceedings also apply to quasi-judicial proceedings such as workers’ compensation 

hearings”). 

For an administrative proceeding to be deemed “quasi-judicial” under Ohio law, the 

proceeding must include notice, a hearing, and the opportunity for evidence to be introduced. 

Nuspl v. Akron, 575 N.E.2d 447, 450 (Ohio 1991). Freshwater cannot dispute that the 

termination hearing meets all three requirements: The Mount Vernon School Board provided 

Freshwater with the proper notice, the proceedings (which are ongoing) consist of a hearing 

8

efore a referee who will make a recommendation to the School Board regarding Freshwater’s 

employment, and both Freshwater and the School Board have called numerous witnesses and 

have introduced hundreds of exhibits during that hearing, some of which Freshwater also has 

submitted as exhibits to his memorandum in opposition to the Dennises’ summary-judgment 

motion. See O.R.C. § 3319.16 (setting forth procedures for terminating Ohio public school 

teachers and requiring “the employing board [to] furnish the teacher with a written notice signed 

by its treasurer of its intention to consider the termination of the teacher’s contract with full 

specification of the grounds for such consideration”); Notice of Intent to Consider Termination 

of John Freshwater (attached as Ex. D); Amended Notice of Intent to Consider Termination of 

John Freshwater (attached as Ex. E); Letter to John Freshwater from Stephen Short (July 1, 

2008) (attached as Ex. F); see also, e.g., Exs. O and R to Hamilton Mem. in Opp. (Exhibit O 

stamped at top of first page as “Exhibit O – Administrative Hearing Employee Exhibit 154 and 

Exhibit R stamped at top of first page as “Exhibit R – Administrative Hearing Employee Exhibit 

158). 


Having demonstrated that the termination hearing qualifies as a quasi-judicial 

proceeding, the Dennises need only show that the portions of Zach’s testimony that Freshwater 

claims are defamatory “bear[] some reasonable relation” to the proceeding in which they were 

published. See Surace v. Wuliger, 495 N.E.2d 939, 942-43 (Ohio 1986). Freshwater did not and 

cannot credibly argue that Zach’s testimony bears no reasonable relation to the termination 

hearing in which Zach provided that testimony—he was called as a witness to provide testimony 

about what transpired in Freshwater’s classroom during the 2007-2008 school year. (See, e.g., 

Freshwater Termination Hearing Tr., Zachary Dennis Test., 10/28/08, at 330 (noting that Zach 

9


testified that day).) Zach’s testimony therefore is absolutely privileged and cannot serve as the 

basis for Freshwater’s defamation counterclaim. 

Even if this Court concludes that Zach’s statements are not protected by an absolute 

judicial privilege (which it should not), the statements are nonetheless protected by a qualified 

privilege. See Thompson v. Webb, 735 N.E.2d 975, 979 (Ohio Ct. App. 1999) (“[I]n order to 

establish a qualified privilege,” a party “must show that (1) the publication was made in good 

faith, (2) there was an interest to be upheld, (3) the publication was limited in scope to that 

interest, (4) the publication was made on a proper occasion, and (5) the publication was done in a 

proper manner and to the proper parties.”). Zach acted in good faith when he testified at the 

termination hearing about his experiences in Freshwater’s science class and at FCA meetings; he 

was sworn in as a witness and simply responded to questions by counsel for the School Board 

and Freshwater’s counsel about events and circumstances during the 2007-2008 school year, 

thereby satisfying the first qualified-privilege requirement. The remaining requirements are also 

easily satisfied because there was an interest to uphold and the statements were properly limited 

to those interests, as Zach was called by Freshwater and the School Board in Freshwater’s 

termination hearing to provide testimony to assist the referee in reaching a decision about 

whether to terminate Freshwater from his teaching position, and Zach’s testimony was properly 

offered within the confines of the termination hearing. With all five requirements satisfied, 

Zach’s testimony at the termination hearing is also qualifiedly privileged, and these 10 

statements on Freshwater’s list can in no way be considered defamatory. 

3. The Statements That The Dennises Made To HR On Call 

Investigators Are Also Protected By A Qualified Privilege. 

Statements 9, 10, 11, 12, 13, 14, 15, and 16 on Freshwater’s list are statements contained 

in an investigative report drafted by HR On Call, Inc., the company commissioned by the Mount 

10


Vernon School Board to conduct an independent investigation of the complaints against 

Freshwater, and likewise cannot support Freshwater’s claim of defamation. The allegedly 

defamatory statements are comprised of the HR On Call investigators’ summary of the Dennises’ 

concerns, not of direct quotes by the Dennises, making it difficult to determine which pieces of 

the statements, if any, contain words the Dennises actually used when speaking to investigators. 

See Hamilton Mem. in Opp. at 5; HR On Call Report at 1, 9 (attached as Ex. G). But even 

assuming for summary-judgment purposes that all of the statements fairly can be attributed to the 

Dennises, these statements do not save Freshwater’s defamation counterclaim from summary 

judgment, because they are qualifiedly privileged. 

The Dennises’ statements satisfy the five requirements, discussed supra, for earning a 

qualified privilege. Steve and Jenifer Dennis provided answers to the HR On Call investigators’ 

questions in good faith and did so to protect their child and other children from future harm, thus 

satisfying the first two qualified-privilege requirements. (Jenifer Dennis Decl. 8-11, 13-15 

(attached as Ex. C to Pls.’ MSJ); Stephen Dennis Decl. 10-13, 15-17 (attached as Ex. D to 

Pls.’ MSJ).) The statements were made discretely to and at the request of investigators tasked by 

Mount Vernon school officials with looking into Freshwater’s inappropriate and unconstitutional 

conduct, meaning that the statements were properly limited in scope, were made on the proper 

occasion, and were supplied to the proper parties. Accordingly, a qualified privilege applies to 

the Dennises’ statements to HR On Call investigators and Freshwater cannot rely on them in 

asserting his defamation counterclaim. 

4. Freshwater Is A Limited-Purpose Public Figure Who Cannot Show 

That The Dennises Acted With Actual Malice. 

Even if the Court concludes that Zach’s termination-hearing testimony and the statements 

that the Dennises made to HR On Call investigators are not privileged (which it should not), 

11


Freshwater’s defamation counterclaim still fails, because Freshwater, as a limited-purpose public 

figure, must show that the allegedly defamatory statements were made with actual malice. 

Kassouf v. Cleveland Magazine City Magazines, Inc., 755 N.E.2d 976, 982-83 (Ohio Ct. App. 

2001). The actual malice requirement applies with equal force to the five remaining statements 

on Freshwater’s list, two of which consist of the Dennises’ statements contained in a fax that 

their former counsel sent to media outlets and three of which consist of statements for which the 

speaker and context could not be identified. See Hamilton Mem. in Opp. at 4 (describing 

statements 5 and 6 contained in fax to media); Mount Vernon News, Investigation to Begin Into 

Allegations Against Teacher, http://www.mountvernonnews.com/local/08/04/23/ 

freshwater_upd.php4 (last visited Jan. 14, 2010) (containing statements from fax that Freshwater 

claims are defamatory); Def. Memo in Opp. at 4 (statement 4, the speaker of which is unknown); 

Mem. in Opp. at 7 (statements 41 and 42, the speakers of which are unknown). 

Significantly, Freshwater admits that he is a limited-purpose public figure. (See 

Hamilton Mem. in Opp. at 9 (“Freshwater is a public figure for a limited purpose in this 

matter”).) He also admits that he must show the Dennises acted with actual malice. (See id. at 

9.) He fails to admit, however, that he has no evidence of malicious conduct by the Dennises. 

Indeed, the only “evidence” that Freshwater presents to support his claim that “Plaintiffs’ 

malicious intent can be inferred from several perspectives” (id. at 9) is wholly unsubstantiated 

and only demonstrates that Freshwater misapprehends the legal definition of “actual malice.” 

A&B-Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 651 

N.E.2d 1283, 1295 (Ohio 1995) (defining actual malice as acting “with knowledge that the 

statements [in question were] false or . . . with reckless disregard as to their truth or falsity”); see 

also Jacobs v. Frank, 573 N.E.2d 609, 613 (Ohio 1991) (noting that “actual malice requires 

12


more than evidence of ill will, spite, or ulterior motive; the libeled [party] must prove with 

convincing clarity that the defendant had a high degree of awareness of the probable falsity of 

the published statements”). 

Freshwater’s contention that malice can be inferred from the fact that the Dennises did 

not take Zach to a doctor is nonsensical. (See Hamilton Mem. in Opp. at 9.) Freshwater does 

not explain how the Dennises’ decision not to seek medical care for their son relates to any one 

of the 42 items on his list of allegedly defamatory statements, let alone how this decision 

translates into a malicious statement for the purposes of his defamation counterclaim. If 

anything, the Dennises’ decision not to visit a doctor, who, in turn, would have to report the 

injury and Freshwater’s role in it to Children’s Services, indicates a complete lack of malice and 

is consistent with the Dennises’ efforts to avoid making this matter public. (Jenifer Dennis Decl. 

10-12, 16; Stephen Dennis Decl. 12-14, 18.) 

Freshwater’s assertion that the Dennises were “hypersensitive” (Hamilton Mem. in Opp. 

at 10) in complaining about Freshwater’s misconduct similarly falls short of establishing the 

requisite malice for sustaining a defamation claim. Whether the Dennises were “hypersensitive” 

in reporting Freshwater’s battery (which they were not) has nothing to do with whether they 

acted maliciously (which they did not). What is more, Freshwater provides no evidence 

whatsoever for his claim that “Plaintiffs went so far as to accuse Freshwater of having an 

‘abortion van’ parked at the middle school and harassing their eighth grade son and keeping the 

student from attending a field trip.” (See Hamilton Mem. in Opp. at 10.) As is the case with the 

42 items on his list of allegedly defamatory statements, Freshwater offers no proof as to who 

made this statement about the “abortion van” or the statement about the harassment of Zach 

13


regarding the field trip. Without any evidence to back up his allegation that the Dennises made 

this statement, Freshwater’s attempt to show actual malice again fails. 

And whether “[r]easonable jurors could find minor Plaintiff lacks credibility” (id. at 11), 

about his claims that Freshwater led a prayer session for an unwell pastor during an FCA 

meeting is of no moment in determining whether Zach or his parents acted with malice. The 

same can be said for Freshwater’s attempt to impute malice to Jenifer Dennis by questioning her 

testimony about Freshwater’s use of the Tesla coil to burn Zach. (Id. at 10.) Freshwater should 

not be permitted to conflate credibility with malice in a last-ditch effort to salvage his defamation 

counterclaim. Because Freshwater has not supplied any viable evidence that the Dennises 

defamed him in any way, his counterclaim should be dismissed. 

B. Freshwater’s Counterclaim For Intentional Infliction Of Emotional Distress 

Is Similarly Unsupported And Should Be Dismissed. 

In his opposition to the Dennises’ motion for summary judgment, Freshwater devotes a 

mere two paragraphs to defending his counterclaim for intentional infliction of emotional distress, 

the first paragraph of which consists entirely of a recitation of the elements of this tort; the 

second of which fails to demonstrate how Freshwater has satisfied any of these elements. 

Although Freshwater correctly sets forth the elements he must satisfy to withstand summary 

judgment on his emotional distress counterclaim (see Hamilton Mem. in Opp. at 11 (quoting 

Pyle v. Pyle, 463 N.E.2d 98, 104 (Ohio Ct. App. 1983))), he fails to demonstrate that he has 

established any of these elements. The Dennises therefore should be granted summary judgment 

on Freshwater’s counterclaim for intentional infliction of emotional distress. 1 

1 As the Dennises point out in their initial summary-judgment memorandum, if the Court grants summary 

judgment to the Dennises on Freshwater’s defamation counterclaim, the counterclaim for emotional distress also 

must be dismissed. See, e.g., Vail v. The Plain Dealer Publ’g Co., 649 N.E.2d 182, 186 (Ohio 1995) (“Since we 

have concluded that the [allegedly defamatory] statements at issue are constitutionally protected speech, [appellant’s] 

14


To survive summary judgment on his counterclaim for intentional infliction of emotional 

distress, Freshwater must demonstrate that (1) the Dennises intended to cause him emotional 

distress, knew, or should have known that their conduct would cause serious emotional distress; 

(2) the Dennises’ “conduct was outrageous and extreme and beyond all possible bounds of 

decency and was such that it can be considered as utterly intolerable in a civilized community;” 

(3) the Dennises’ conduct was the proximate cause of his injury; and (4) his “emotional distress 

was serious and of such a nature that no reasonable person could be expected to endure it.” 

Talley v. Family Dollar Stores of Ohio, Inc., 542 F.3d 1099, 1110 (6th Cir. 2008) (internal 

quotation marks omitted). Freshwater has produced no evidence to satisfy any of these elements. 

1. Freshwater Has Offered No Evidence That The Dennises Intended To 

Cause Him Emotional Distress Or That They Should Have Known 

That Their Conduct Would Cause Him Emotional Distress. 

Nowhere in his paragraph-long defense of his emotional-distress counterclaim does 

Freshwater explain how the Dennises acted with the requisite intent to cause him emotional 

distress. Nor can he, because the Dennises did what any concerned parents would do upon 

discovering a cross-shaped burn on their son’s arm after school—they contacted school officials 

to find out more about how that injury had been inflicted. (Jenifer Dennis Decl. 8-10; Stephen 

Dennis Decl. 10-12.) And the Dennises, unlike Freshwater who has appeared on numerous 

television and radio broadcasts and who held a public rally on the square in downtown Mount 

Vernon, have attempted to keep this matter private. (Jenifer Dennis Decl. 10-12, 16; Stephen 

Dennis Decl. 12-14, 18.) Freshwater has not established the first element of his intentional- 

infliction-of-emotional-distress counterclaim. 

(continued…) 

claims for intentional infliction of emotional distress must also fail.”). Freshwater does not offer any arguments in 

his opposition memorandum to counter this point. 

15


2. Freshwater Has Offered No Evidence That The Dennises’ Conduct 

Was Outrageous And Extreme. 

Likewise, Freshwater has mustered no viable evidence to satisfy the second element of 

this counterclaim. Freshwater first argues that the fact that the Dennises “never attended any 

session of Freshwater’s class or any session of the Fellowship of Christian Athletes,” and 

therefore appeared to “rel[y] exclusively upon the representations made by their minor son 

without verification or consultation with Freshwater as was required by the school systems [sic] 

public complaint process,” somehow constitutes outrageous and extreme conduct. (Hamilton 

Mem. in Opp. 11.) But that is nonsensical. That the Dennises turned to their son for information 

about what happened during his eighth grade science class and FCA meetings hardly rises to the 

level of “outrageous and extreme” behavior needed to sustain a claim for intentional infliction of 

emotional distress. See Yeager v. Local Union 20, 453 N.E.2d 666, 671 (Ohio 1983), rev’d on 

other grounds by Welling v. Weinfeld, 866 N.E.2d 1051 (Ohio 2007) (internal quotation marks 

omitted) (explaining that liability for intentional infliction of emotional distress attaches “only 

where the conduct has been so outrageous in character, and so extreme in degree, as to go 

beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in 

a civilized community”). 

In another attempt to show the Dennises acted outrageously, Freshwater offers an 

untitled, incomplete, and unauthenticated excerpt from an unknown document that he claims 

proves that the Dennises violated the school district’s “public complaint process” by not 

speaking to him about the Tesla coil incident before talking to school administrators. (See Ex. 

LL to Hamilton Mem. in Opp.) Assuming that this unverified document does, in fact, set forth 

the Mount Vernon City School District’s complaint policy and that the Dennises would even be 

bound to follow it, the document proves the very opposite of what Freshwater says it does— 

16


namely, that the Dennises fully complied with the District’s complaint process. Indeed, the 

excerpt that Freshwater has provided expressly states that the policy provision requiring 

complainants to speak directly to the staff member about whom they are complaining “does not 

apply if the matter involves . . . serious allegations which may require investigation or inquiry by 

school officials.” (See id. at 1 (emphasis added).) Freshwater readily admits that the allegations 

against him were serious. In fact, in the very next sentence of his memorandum in opposition, 

Freshwater refers to the “seriousness of the allegations made by Plaintiffs against” him. (id. at 

11.) Freshwater’s attempt to prove that the Dennises’ conduct was outrageous or extreme has 

backfired, as he instead has demonstrated that the family acted anything but outrageously when 

they approached school officials in confidence to talk about what happened to Zach in 

Freshwater’s classroom. 

3. Freshwater Has Offered No Evidence That He Suffered From A 

Severe Or Debilitating Injury. 

The “injuries” from which Freshwater claims to suffer as a result of the Dennises’ alleged 

defamatory statements fall well short of satisfying the final element of intentional infliction of 

emotional distress, which requires “an emotional injury which is both severe and debilitating.” 

Burkes v. Stidham, 668 N.E.2d 982, 989 (Ohio Ct. App. 1995). 

Freshwater’s testimony “about the difficulty he has had finding employment and the 

challenges he has faced as a result of Plaintiffs [sic] conduct” (Hamilton Mem. in Opp. at 12), 

yields no evidence that his lack of employment resulted in a severe and debilitating emotional 

injury. See, e.g., Farmer v. Rolls-Royce Energy Sys., Inc., No. 06CA8, 2006 WL 2244488, at *4 

(Ohio Ct. App. Aug. 4, 2006) (upholding summary judgment for employer on laid-off 

employee’s intentional-infliction of emotional-distress claim and finding employee’s “emotional 

distress,” which consisted of having “to go out and get a new job” and “not getting the same 

17


paycheck [he] was accustomed to . . . over what [he] believe[d] to be trumped-up charges . . . did 

not rise to the level of serious mental anguish under Ohio law”). 

And Freshwater cannot save his counterclaim for intentional infliction of emotional 

distress simply by stating that “[r]easonable jurors could find Plaintiffs [sic] accusations related 

to the alleged ‘healing’ session alone would subject Freshwater to public outrage.” (Hamilton 

Mem. in Opp. at 12.) Even if the Dennises used the term “healing session,” Freshwater still 

cannot prevail on his emotional-distress counterclaim because he offers no evidence, outside of 

his self-serving affidavits and his own testimony at the termination hearing, of public outrage 

flowing from the Dennises’ use of this term, or of any severe and debilitating injuries that he 

sustained as a result of this alleged public outrage. See Talley v. Family Dollar Stores of Ohio, 

Inc., 542 F.3d at 1111 (noting that “while Ohio does not require expert medical testimony to 

support an intentional infliction of emotional distress claim, a [party] must at least provide some 

evidence beyond his or her own testimony”). Because Freshwater has failed to make out a prima 

facie case for intentional infliction of emotional distress, the Dennises should be granted 

summary judgment on this counterclaim as well. 

C. The Dennises Should Be Granted Summary Judgment On Their Battery 

Claim. 

Recognizing the weakness of his own motion for summary judgment on Plaintiffs’ 

battery claim, Freshwater now reverses course and attempts to argue that summary judgment is 

improper because fact disputes remain as to whether Freshwater committed battery when he 

burned Zach’s arm with the Tesla coil. (Def. Freshwater’s Mem. in Opp. to Pls.’ Mot. for Partial 

Summ. J. at 3 (Doc. No. 68) (hereinafter “Deschler Mem. in Opp.”).) But Freshwater has not 

pointed to any dispute as to the material facts surrounding the Dennises’ battery claim, all of 

which establish that Freshwater acted with the requisite intent and committed an offensive 

18


touching when he applied the Tesla coil to Zach’s arm. And Freshwater cannot free himself 

from liability for battery by alleging that school officials authorized or ratified his use of the 

Tesla coil or that other teachers used the Tesla coil on their students as well, as both of these 

theories lack logic and legal support. 

1. Freshwater Acted With The Requisite Intent To Commit Battery. 

Freshwater claims that he lacked the intent to commit battery because he “was not aware 

that a harmful contact could result” from applying the Tesla coil to human skin. (Id. at 9.) But 

Freshwater’s admitted knowledge of this device proves otherwise. Freshwater knew that the 

Tesla coil “put out a lot of volts.” (Freshwater Termination Hearing Tr., John Freshwater Test., 

10/28/08, at 382, 384 (attached as Ex. E to Pls.’ MSJ).) He also was well aware that the device 

creates an electric charge, and that it is capable of causing subcutaneous burns. (Id.; see also Def. 

Freshwater’s Dep. at 156, Oct. 14, 2009 (hereinafter “Freshwater Dep.”) (responding “Sure” 

when asked whether he understood that “electrical shocks [could] cause burns”) (attached as Ex. 

A to Pls.’ MSJ).) 

Additionally, Freshwater testified at his termination hearing that the Tesla coil left a 

slight red mark on students’ arms when he had applied the device in past years, and that students 

frequently pulled their arms away as he applied the Tesla coil because “it hurts.” (Freshwater 

Termination Hearing Tr., John Freshwater Test., 10/28/08, at 399, 401.) Freshwater also has 

admitted that the pattern in which he applied the Tesla coil formed the shape of a cross. (See 

Deschler Mem. in Opp. at 5 (Freshwater, in describing how he applied the Tesla coil to his 

students, stating, “I am going to slide it down your arm, and I am going to go from your elbow 

towards your wrist”) id. (noting that once Freshwater completes “the vertical motion [with the 

Tesla coil] from [students’] elbow to their wrist,” he “will go across the arm”).) Students to 

whom Freshwater applied the Tesla coil confirm that their teacher’s use of the device on their 

19


arms left cross-shaped marks. (See, e.g., Student No. 5 Dep. at 29, Feb. 16, 2009 (testifying that 

Freshwater marked his arm with “a lower case T or a cross”) (attached as Ex. H).). And as 

Freshwater acknowledges, another Mount Vernon Middle School teacher who uses the Tesla coil 

testified during the termination hearing that he warns students that “it may or may not leave a 

mark on their arm” and that “sometimes it left a mark on [his] arm.” (See Freshwater 

Termination Hearing Tr., Dino D’Ettore Test., 1/14/09, at 1752 (attached as Ex. G to Deschler 

Mem. in Opp.).) Having used the Tesla coil for 21 years, having seen red marks on students’ 

arms, and having acknowledged that students pull their arms away because “it hurts,” Freshwater 

certainly knew that applying the Tesla coil to Zach’s arm would cause harm. (See Freshwater 

Dep. at 154.) 

To counter the evidence, including his earlier sworn testimony, that he possessed the 

necessary intent for battery, Freshwater offers only his own contradictory deposition and later 

termination-hearing testimony (provided more than a year after his original testimony in the 

termination proceeding), that he “has never seen red marks on students’ arms.” (See Deschler 

Mem. in Opp. at 6-7.) Freshwater cannot create a fact dispute for summary-judgment purposes 

simply by pointing to his own inconsistent statements and attempts to recant earlier testimony. 

Having offered nothing more than self-serving contradictions, he cannot avoid summary 

judgment on the Dennises’ battery claim. 

2. Freshwater’s Application Of The Tesla Coil To Zach’s Arm 

Constitutes Offensive Contact. 

In opposing the Dennises’ summary-judgment motion, Freshwater does not deny in his 

memorandum that he applied the device to Zach’s arm—a fact to which he previously admitted 

in sworn termination-hearing testimony. (See, e.g., Freshwater Termination Hearing Tr., John 

Freshwater Test., 10/28/08, at 399; see also Freshwater Dep. at 181 (Freshwater responding, 

20


“Yes,” when asked whether he testified during the termination hearing that he used the Tesla coil 

on Zach Dennis’s arm).) Instead, he attempts to divert attention away from this material 

admission by trying to create disputes, supported only by his own denials, over immaterial facts. 

For instance, whether Freshwater put Zach’s arm on the overhead projector or not, or 

whether Freshwater used his left or right arm to hold down Zach’s arm down while using the 

Tesla coil (Deschler Mem. in Opp. at 5-6), does not alter the critical fact that Freshwater applied 

the Tesla coil to Zach’s arm, which constitutes the offensive contact required to establish battery. 

Freshwater’s efforts to conjure up irrelevant discrepancies in the record cannot help him to 

escape summary judgment here. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248 (noting 

that “[o]nly disputes over facts that might affect the outcome of the suit . . . will properly 

preclude the entry of summary judgment” and emphasizing that “[f]actual disputes that are 

irrelevant or unnecessary will not be counted”); Fed. R. Civ. P. 56(c) (defining summary 

judgment as “proper if no genuine issue as to any material fact and that the movant is entitled to 

judgment as a matter of law”) (emphasis added). 

3. Freshwater’s Remaining Arguments As To The Dennises’ Battery 

Claim Are Unavailing. 

a. The School District’s Authorization Or Ratification Provides 

No Defense For Freshwater. 

In yet another effort to obscure the material fact that he committed battery, Freshwater 

tries to pass blame for his misconduct onto Mount Vernon school officials. He argues that 

school officials “witnessed” or “knew or should have known” of his use of the Tesla coil, and 

thus implicitly approved of that use in a way that alleviates his liability. (Deschler Mem. in Opp. 

at 9-10.) Nowhere, however, does Freshwater cite case law to back up this novel legal theory. 

This is likely due to the fact that even under the most basic understanding of respondeat superior, 

the employee or agent remains liable for his or her own actions. See, e.g., Am. Ins. Group v. 

21


McCowin, 218 N.E.2d 746, 749 (Ohio Ct. App. 1966) (discussing respondeat superior and the 

liabilities of employers and employees). As a former Mount Vernon Middle School employee, 

Freshwater may try to sue his superiors for failing to correct his own wrongs, but these 

indemnification issues are not questions before this Court. Indeed, under Freshwater’s faulty 

logic, if school officials witnessed, knew of, or even encouraged his punching of other students 

or any other tortious conduct, it would absolve him of liability. This reasoning cannot stand. 

Further, even if certain school officials did condone some of Freshwater’s Tesla coil 

experiments, Freshwater cites not one official who approved of his applying the device to 

students’ arms in the shape of a cross. For instance, Freshwater asserts that Jeff Kuntz, a former 

Mount Vernon Middle School principal, was present to witness Freshwater’s use of the Tesla 

coil. (Deschler Mem. in Opp. at 9-10.) But according to Mr. Kuntz and Freshwater, none of the 

demonstrations that Mr. Kuntz witnessed included a branding or similar exercise. (Freshwater 

Termination Hearing Tr., John Freshwater Test., 12/11/09, at 4559-60 (attached as Ex. K to 

Deschler Mem. In Opp.).) Thus, not only is the school officials’ approval of Freshwater’s cross 

burning experiment irrelevant, it is nonexistent. 

b. Freshwater Cannot Hide Behind Other Teachers’ Use Of The 

Tesla Coil. 

It is similarly futile for Freshwater to try to skirt liability for battery by pointing out that 

other Mount Vernon Middle School teachers used the Tesla coil. (See Deschler Mem. in Opp. at 

7-8.) These teachers’ experiences and actions with this device have no bearing on whether 

Freshwater committed battery when he used the Tesla coil on Zach’s arm. Not surprisingly, 

Freshwater cites no case law for the proposition that just because other teachers have improperly 

used an electrostatic device on their students means that he should not be held accountable for 

doing so. As a middle school teacher, Freshwater should be quite familiar with the well-known 

22


admonishment that just because others do something wrong does not make it okay for him to do 

it too. The law adopts a similar principle—proving that others have broken the law does not 

make one’s own violation of that law acceptable. See, e.g., Walz v. Tax Comm’n of New York, 

397 U.S. 664, 678 (1970) (“[N]o one acquires a vested or protected right in violation of the 

Constitution by long use, even when that span of time covers our entire national existence and 

indeed predates it."). 

c. The Medical Battery Cases Highlight A Lack of Consent. 

The Dennises comprehensively addressed Freshwater’s consent arguments in their 

Memorandum in Opposition to Freshwater’s Motion for Partial Summary Judgment. (See 

generally Pls.’ Mem. in Opp. to Def.’s Mot. for Partial Summ. J. (hereinafter “Dennis Mem. in 

Opp.”) (Doc. No. 69).) Nonetheless, Freshwater’s argument that the “[m]edical battery cases are 

not applicable” (Deschler Mem. in Opp. at 10) merits a brief response here. The consent cases 

generally require full disclosure of the “probable consequences.” Lacey v. Laird, 139 N.E.2d 25, 

29 (Ohio 1956) (Hart, J., concurring). Freshwater did not verbally disclose the probable 

consequences of the Tesla coil’s application, and the visual cues on which Freshwater relies—the 

momentary application of the device to other students, the “shock” coming out of the coil, and 

the immediate reactions of other students (Deschler Mem. in Opp. at 10-11)—do not reveal the 

full, material risks that may result from contact with the Tesla coil. From limited cues in the 

classroom, Zach could not foresee the “probable consequences” of the blistering, burning 

sensation, and discomfort to come. (Zachary Dennis Decl. 6-11 (attached as Ex. B to Pls.’ 

MSJ).) Thus, his consent was uninformed, and the medical battery cases prove informative. 

Because the Dennises have satisfied the elements of battery and because Freshwater does not 

provide any evidence placing the material facts surrounding their battery claim in dispute, the 

Dennises should be granted summary judgment on this claim. 

23


D. Freshwater Provides No Viable Defense For His Own Actions Made In 

Violation Of The Dennises’ Establishment Clause Rights. 

Freshwater raises several legal and factual arguments regarding the Establishment Clause 

cause of action, but these present no viable defense. First, as with the Dennises’ battery claim, 

he attempts at several points to pass the blame for his actions onto the school or school officials 

through a “ratification” theory, but ultimately, he remains responsible for the unconstitutional 

activities in his own classroom. Second, Freshwater challenges the Dennises’ standing to bring 

this claim, but as parents, the Dennises have the right to teach Zach their own religious beliefs 

and to protect Zach from Freshwater’s unconstitutional religious activities in a public school 

classroom. In this regard, Freshwater’s actions did not create mere “psychological” injury but 

are a direct affront to the Dennises’ constitutional rights. Third, Freshwater’s mootness defense 

is unfounded because he conveniently forgets that, in addition to seeking certain equitable relief, 

the Dennises sought various damages and raised other causes of action to confront Freshwater’s 

unconstitutional activities. Finally, and as made clear in his motion for summary judgment, 

Freshwater cannot show any factual dispute that could possibly justify his Establishment Clause 

violations under the Supreme Court’s Lemon test. Under these precedents, Freshwater’s actions 

stand in clear violation of the Establishment Clause. 

1. Freshwater Cannot Pass The Blame For His Personal Deprivation Of 

The Dennises’ Constitutional Rights. 

Throughout his memorandum in opposition, and specifically in the section relating to the 

Establishment Clause claims, Freshwater attempts to hide behind the cover of the Mount Vernon 

Middle School’s “ratification” or approval of his unconstitutional religious activities. (See, e.g., 

Deschler Mem. in Opp. at 12.) Regardless of whether the school permitted or even encouraged 

Freshwater’s actions, he, in his individual capacity as a teacher and state actor, remains liable for 

his own missteps made in violation of the Dennises’ constitutional rights. See Holloman ex rel. 

24


Holloman v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004) (“There are two ways in which an 

individual may be held liable under § 1983-he may be sued for his own personal actions (‘direct 

liability’), or, under certain limited circumstances, for the actions of his subordinates 

(‘supervisoral liability’).”). Similar to a police officer who commits constitutional violations 

under the supervision of superiors, both Freshwater and school officials may be found liable for 

his unconstitutional activities. Therefore, whatever the school or school officials’ 

responsibilities regarding the activities in Freshwater’s classroom, Freshwater cannot redirect the 

finger of blame to somehow try to establish a controversy of fact. 

Notably, regarding this finger-pointing, Freshwater provides no legal support for his 

claim that school ratification or approval of his actions absolves him from liability. In fact, he 

ignores the very text of Section 1983, which provides: 

Every person who, under color of any statute, ordinance, regulation, 

custom, or usage of any State . . . subjects, or causes to be 

subjected, any citizen of the United States . . . to the deprivation of 

any rights, privileges, or immunities secured by the Constitution 

and laws, shall be liable to the party injured in an action at law [or] 

suit in equity . . . . 

42 U.S.C. § 1983 (emphasis added); see also First Amend. Compl. (Doc. No. 11) 1-2 (basing 

the cause of action in 42 U.S.C. § 1983). According to the plain language of the statute, 

therefore, Freshwater assumes liability as a person who deprived the Dennises of their 

constitutional rights while acting under color of state law. See, e.g., Wilson v. Luttrell, No. 99- 

5459, 2000 WL 1359624 at *8 (6th Cir. Sept. 13, 2000) (finding that a teacher “took advantage 

of his position” in violation of constitutional rights). The fact that the school or school officials 

may have had liability as well is of no consequence to Freshwater’s liability for his own conduct. 

These peripheral concerns do not in any way change the fact that Freshwater remains liable to 

the Dennises for his actions in his own classroom. 

25


2. The Dennises Have Standing To Challenge Freshwater’s Violation Of 

The Establishment Clause. 

Freshwater also misses the mark by arguing that Zach or his parents lack standing. Not 

only does standing jurisprudence clearly provide the Dennises with “the rights of parents to 

direct the religious upbringing of their children.” Wisconsin v. Yoder, 406 U.S. 205, 233 (1972), 

but the Dennises have been “directly affected by the . . . practices against which their complaints 

are directed,” Sch. Dist. of Abington Twp. Pa. v. Schempp, 374 U.S. 203, 225 n.9 (1963). As 

such, the Dennises suffered injuries, these injuries are traceable to Freshwater’s unconstitutional 

actions, and the relief sought will bring the Dennises appropriate redress for the injuries caused. 

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (discussing the requirements for 

standing). 2 

a. The Dennises Have Standing To Enforce Their Own Rights As 

Parents And To Intervene On Behalf Of Their Son. 

Freshwater fundamentally fails to understand the question of standing here. Courts have 

long held that “[p]arents have a constitutionally protected interest in guiding the religious future 

and education of their children.” Doe v. Wilson Co. Sch. Sys., 564 F. Supp. 2d 766, 789 (M.D. 

Tenn. 2008) (internal citations omitted); see also Fleischfresser v. Dir. of Sch. Dist. 200, 15 F.3d 

680, 684 (7th Cir. 1994) (granting parental standing to challenge Establishment Clause violations 

where they merely “might inhibit their right to direct the religious training of their children”). 

Courts also recognize that “[s]chool children who are subjected to unwelcome religious exercises 

2 As to the standing issue, the arguments here respond only to the factual contentions raised by Freshwater 

in his Memorandum in Opposition. (See Deschler Mem. in Opp. at 12-16.) It is important to note, however, that 

standing presents a question of this Court’s subject matter jurisdiction over the claims presented by the parties at the 

outset of litigation, not just based on the facts presented by Freshwater in his Memorandum in Opposition or by the 

Dennises’ in their Motion for Partial Summary Judgment. See Cook v. Colgate, 992 F.2d 17, 19 (2d. Cir. 1993) 

(“[S]tanding doctrine evaluates [a litigant’s] personal stake as of the outset of the litigation.”) As such, many other 

relevant claims raised by the Dennises at the outset of this litigation but not included in the summary judgment 

briefing also support their standing under Article III. 

26


or are forced to assume special burdens to avoid them have standing to complain of an 

Establishment Clause violation.” Daugherty v. Vanguard Charter Sch. Acad., 116 F. Supp. 2d 

897, 905 (W.D. Mich. 2000). Accordingly, it takes no great leap of logic to realize that the 

Dennises have standing to challenge and seek redress for Freshwater’s religious activities in his 

classroom based on their right to guide Zach’s religious education. 

Several cases prove instructive on this point. In Doe v. Wilson County School System, for 

example, parents had standing to sue a school district, several school officials, and a teacher 

challenging a “pattern and practice of endorsing religious activities and particular religious 

beliefs.” 564 F. Supp. 2d at 771. Among other things, the school officials had permitted a 

parental group to convey various religious messages through posters and the school’s website 

and to promote various religious events. Id. at 787. Defendants in that case challenged the 

Does’ standing, asserting that they “were not directly affected by these activities,” but the Court 

rightly held that the parties had standing when James and Jane Doe, their children, had observed 

religious “flyers, posters, signs, and ‘I Prayed’ stickers.” Id. at 789-90. The children “could not 

avoid the religious posters and signs in the hallways” and the Does claimed offense at such 

exposure. Id. at 790. Here, of course, Zach Dennis was exposed daily to Freshwater’s religious 

activities in the eighth grade science classroom—something he could not avoid—and the 

Dennises have claimed offense at such exposure. (See First Amend. Compl. 74-81.) 

Similarly, in Washegesic v. Bloomingdale Public Schools, the Sixth Circuit found 

standing for a student bringing an action to compel his school district to remove a portrait of 

Jesus Christ from the hallway. 33 F.3d 679, 681 (6th Cir. 1994) (caption indicating that an adult 

plaintiff brought the suit as “next friend” of the minor). In addressing standing, the Washegesic 

Court remarked that “[t]he use of governmental authority to encourage a sectarian religious view 

27


is a sufficient injury if directed toward the plaintiff.” Id. at 682. There, the plaintiff’s contact 

with the portrait was indeed direct because he saw it in the school, and, therefore, the 

“unwelcome direct contact with the offensive object [was] enough” to find standing. Id. (internal 

citations and quotations omitted). 

Freshwater attempts to rely on the broad “psychological consequence” standard in Valley 

Forge Christian Coll. v. Am. United for Separation of Church & State, 454 U.S. 464 (1982), 

(Deschler Memo In Opp. at 14), by suggesting that standing does not exist, but that is misguided. 

See Washegesic Pub. Sch., 33 F.3d at 682-83 (criticizing the school district’s heavy reliance on 

the Valley Forge language). Construing the “psychological consequence” language, the Sixth 

Circuit clarified that the Valley Forge plaintiffs’ “grievance had a vicarious quality” because 

they “were members of an organization challenging a government action they learned about 

through a news release.” Id. at 682. In that case, there was no “direct” contact with the 

offending conduct, unlike Washegesic or here, where a student had “continuing direct contact 

with the object at issue” and “[h]is grievance [was] not remote, vicarious or generalized as in 

Valley Forge.” Id. at 683. 

b. The Dennises Suffered Actual Injury From Freshwater’s 

Unconstitutional Actions—Wrongs That Can Be Redressed By 

This Court. 

In light of the above-outlined case law, the Dennises suffered actual injury when 

Freshwater interfered with their right to teach their son religion and when he exposed their son to 

unconstitutional religious activity. Freshwater’s attempt to dismiss the Dennises’ direct harm as 

mere “psychological consequence” not only ignores Sixth Circuit instruction on this language 

but takes away from the harm that the Dennises have indeed suffered. See Doe v. Harlan Co. 

Sch. Dist., 96 F. Supp. 2d 667, 670 (E.D. Ky. 2000) (finding standing for parents and their child 

when contact with the “Ten Commandments [was] far more regular than that of the former 

28

student in Washegesic.”). For the entire 2007-2008 school year, Freshwater subjected Zach 

Dennis to unconstitutional religious activities in his science classroom including, but not limited 

to, his postings of the Ten Commandments and his display of various Bibles. (Zach Dennis Decl. 

12-13) In doing so, he violated the Dennises’ constitutional right to guide the “religious 

future and education” of their son. In that regard, the Dennises have consistently held that 

Freshwater’s religious activities were unwelcome and inappropriate, and at the least, they did 

this in the Complaint where the standing inquiry should begin. (See First Amend. Compl. 

74-81; see also Jenifer Dennis Decl. 11 (raising concerns of Freshwater’s various religious 

activities with school officials); Stephen Dennis Decl. 13 (same).) Thus, because the Dennises 

seek redress “individually and as natural parents and next friends of their minor child,” they 

possess the requisite standing to challenge Freshwater’s teachings, which “defeat the rights of 

[the Dennises] to teach their children their own religious beliefs.” (See First Am. Compl. at 1 & 

81.) 


Further, Freshwater’s use of statements from Zach to pursue his “psychological 

consequence” argument should not defeat the Dennises’ direct interests in protecting their son’s 

well-being. Freshwater claims that the box of Bibles did not bother Zach and that the Ten 

Commandment postings were minimally invasive. (See Deschler Mem. in Opp. at 14.) As an 

impressionable minor, however, Zach may not foresee or understand the harm caused by 

Freshwater’s Establishment Clause violations. Thus, his parents intervened on his behalf to 

ensure that Zach’s interests were protected in addition to their own right to teach their child the 

religious instruction of their choosing. Just because Zach may not fully understand or articulate 

the harm or threat of harm posed by Freshwater’s religious indoctrination does not mean that 

particularized or actual “injury in fact” has not occurred. See Lujan, 504 U.S. at 560 (discussing 

29


the injury in fact requirement). Zach’s parents, “individually and as natural parents and next 

friends of their minor child,” retain the right to appreciate and address these actual harms caused 

by Freshwater. (See First Am. Compl. at 1.) And, at the very least, even Zach himself 

recognized the harm caused by the Ten Commandments postings by stating it was “wrong 

and . . . shouldn’t be happening.” (Zachary Dennis Dep. at 179, Aug. 18, 2009 (hereinafter 

“Zachary Dennis Dep.”) (attached as Ex. A to Deschler Mem. in Opp.).) 

In an attempt to minimize the harm done to the Dennises, Freshwater also argues that 

Zach suffered little exposure to Freshwater’s display of the Ten Commandments and Bibles and 

that the Dennises did not even complain of these displays until April 2008. (Deschler Mem. in 

Opp. at 15.) Regarding Zach’s exposure, even the undisputed facts make clear that Zach was 

aware of Freshwater’s displays for much of the 2007-2008 school year. For instance, he was 

exposed to the collection of Bibles in the back of the room sometime in 2007. (Zachary Dennis 

Dep. at 37; see also Zachary Dennis Decl. 13 (stating that a collection of Bibles remained in 

the classroom until May 2008).) Similarly, Zach knew the Ten Commandments were posted 

throughout the 2007-2008 school year, a fact that Freshwater does not deny. (See Zachary 

Dennis Dep. at 36.) Also, Zach was exposed to the Bible on Freshwater’s desk for the entirety of 

the 2007-2008 school year. (Freshwater Dep. at 71.) The exposure to these displays—however 

minor or inconsequential Freshwater deems them—are sufficient to maintain standing for the 

Dennises’ Establishment Clause claim. 

Although Freshwater is correct that the Dennises did not formally approach school 

officials regarding concerns of inappropriate religious activities until April 2008, this does not 

change the fact that Zach had been exposed to these unconstitutional activities throughout the 

2007-2008 school year. Their delay in reaching out to school authorities cannot negate the harm 

30


done, nor the Dennises’ ability to seek redress for Freshwater’s actions during the entirety of the 

2007-2008 school year. See Doe v. Wilson Co., 564 F. Supp. 2d at 787 (permitting federal 

claims regarding activities that parents had not originally raised with school officials). Indeed, 

the Dennises only became aware of the facts giving rise to their concerns as the school year 

progressed, and this natural discovery process does not negate standing. (See Jenifer Dennis 

Decl. 11; Stephen Dennis Decl. at 13.) 

Finally, this Court can redress the harm created by Freshwater. Admittedly, the Dennises 

need no longer enjoin Freshwater’s unconstitutional actions, but as will be discussed below, they 

continue to seek damages, attorneys fees, and the other relief necessary to redress Freshwater’s 

constitutional violations. 

3. Freshwater Inappropriately Raises The Mootness Doctrine With 

Respect To The Dennises’ Claims, Other Than Their Claim For 

Injunctive Relief. 

Freshwater inappropriately raises the mootness doctrine against all of the Dennises’ 

claims when he could only challenge their equitable claim for injunctive relief. It is true that 

Freshwater no longer teaches at and the Dennis children no longer attend the Mount Vernon 

Middle School. (See Deschler Mem. in Opp. at 17.) It is also true that all of the challenged 

religious activities with respect to Mr. Freshwater have ceased. (Id.) As such, these facts render 

the Dennises’ claim for injunctive relief moot. See, e.g., Bd. of Sch. Comm’rs of Indianapolis v. 

Jacobs, 420 U.S. 128, 129-30 (1975) (per curiam) (finding moot a suit for injunctive relief where 

all plaintiffs had graduated). The Dennises have already conceded this point, but Freshwater 

was not aware of this concession at the time he filed his Memorandum in Opposition. (Dennis 

Mem. in Opp. at 1 n.1.) Otherwise, the Dennises’ claims for damages, attorneys fees, and other 

relief flowing from their Establishment Clause cause of action and other claims (see First Amend. 

Compl. 74-81, 96-104) should remain. See Donovan v. Punxsutawney Area Sch. Bd., 336 

31


F.3d 211, 218 (3d. Cir. 2003) (permitting a student to pursue Establishment Clause claims 

against a school board for damages and attorney’s fees although graduation rendered injunctive 

relief moot); see also Boag v. MacDougall, 454 U.S. 364, 264-65 (1982) (per curiam) (holding 

that prisoner’s transfer to another prison did not moot a claim for damages in the prior location). 

4. Freshwater Presents No Facts That Would Make His Actions 

Constitutional Under the Lemon Test. 

Freshwater fails to establish any factual controversy regarding his placement of several 

Bibles and Ten Commandments posters in his classroom in direct violation of the Establishment 

Clause. While he trumps up several issues to create a supposed factual controversy—denying 

that the Bible on his desk is at issue, blaming the FCA for several Bibles and a Ten 

Commandments poster, and even faulting school officials for his Ten Commandments posters 

and any supposed FCA materials—Freshwater has acknowledged responsibility for some or all 

of these materials, and he cannot now attempt to controvert these concessions. And based on the 

undisputed facts of his placement, maintenance, and eventual removal of these religious 

materials, he violated the purpose, endorsement, and excessive entanglement prongs of the 

Lemon test. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). 

a. Freshwater’s Explanations For The Bibles In His Classroom 

Do Not Create A Controversy of Fact Sufficient To Escape 

Lemon. 

Freshwater attempts to deny responsibility for the Bibles in his classroom, but he cannot 

do so based on the undisputed facts. Regarding the box or bag of Bibles in the back of his 

classroom, 3 for instance, Freshwater claims that they were FCA Bibles, not his. (Deschler Mem. 

in Opp at 25; see also Freshwater Dep. at 84.) This claim, however, ignores the contextual facts 

3 Whether it is a box or bag of Bibles is not a factual dispute sufficient to defeat summary judgment (See 

Deschler Mem. in Opp. at 1), but for the purposes of this motion alone, the Dennises will concede that the Bibles 

were in a box. 

32


relevant to his responsibility for their display in his classroom. First of all, he let the Bibles enter 

his public school classroom. Regarding this fact, he claims that FCA students brought them into 

his classroom for use by the FCA. (Id.) This may be true, but as the FCA supervisor for the 

fifteen or so years preceding his termination, Freshwater was well aware of FCA student 

activities, particularly those regarding the transport of a large box of Bibles into his public school 

classroom. (See Freshwater Termination Hearing Tr., John Freshwater Test., 10/28/08, at 405.) 

He could have, but chose not to, prevent their entry. Not only did he allow the Bibles into his 

classroom for display, but he also maintained and permitted their display over time. See Lee v. 

York Co. Sch. Div., 484 F.3d 687, 690 (4th Cir. 2007) (upholding a school district's decision to 

order removal of a teacher's religious materials from his classroom out of concern that the 

materials violated the Establishment Clause). Regarding this point, Freshwater admits that the 

box of Bibles remained in his public school classroom for three or four years. (Freshwater Dep. 

84-85.) Yet during this time he did nothing to hide them, despite the fact that as the FCA 

supervisor, he could have very easily asked a member to have them removed or put out of sight. 

Only at the directive of school officials in April 2008, however, did he eventually have the 

Bibles removed. (Id. at 92 (“Q. So by April 16th [2008] the FCA Bibles that were in the back of 

the classroom, you had put those somewhere out of sight. A. Yes.”).) This removal, under his 

supervision, again emphasizes Freshwater’s control over the Bibles’ location and their display in 

his public classroom over those three or four years, including the 2007-2008 school year. 

Freshwater also argues that he is not liable for the purported “FCA” Bibles because Zach 

learned of their existence in late 2008 through FCA and because the Dennises have waived 

claims about these Bibles due to Zach’s participation in FCA. (Deschler Mem. in Opp. at 14.) 

This misstates Zach’s testimony. Zach testified that he first learned of the Bibles not during 

33


FCA, but when Freshwater asked him to stay after class to help clean up his classroom. 

(Zachary Dennis Dep. at 36-37.) Zach also clearly states in his deposition that he first became 

aware of the existence of the Bibles in the classroom prior to December 2007. (Id.) But even if 

Zach had only noticed the Bibles in 2008, which he did not, this minimal exposure would be 

sufficient to find an Establishment Clause violation. Further, Zach’s participation in FCA does 

not defeat the Establishment Clause cause of action because Freshwater inappropriately 

displayed and maintained those Bibles in his classroom outside the times that Zach participated 

in FCA. Such exposure contradicts Zach’s parents’ constitutional right to provide their child 

religious teaching. See Wisconsin v. Yoder, 406 U.S. at 233 (stating that right). 

Beyond the purported “FCA” Bibles, Freshwater remains liable for the other Bible on 

display in his classroom throughout the 2007-2008 school year. Despite Freshwater’s attempt to 

evade constitutional scrutiny regarding this Bible—a Bible prominently displayed on his own 

desk throughout the 2007-2008 school year—in no way does he deny the existence or display of 

this Bible. (Deschler Mem. in Opp. at 2.) Instead, he simply states that the Dennises cannot use 

this Bible in support of their overall Establishment Clause claim because they did not raise it as 

an issue with the school district and because they did not specifically mention it in the Complaint. 

(See id.) Freshwater cannot, however, disclaim discussion of this evidence under these 

arguments. Regarding the first argument, the Dennises are not foreclosed from raising claims 

against Freshwater merely because they did not present them in a complaint to the school district. 

See Doe v. Wilson Co., 564 F. Supp. 2d at 787 (permitting federal claims when not originally 

raised with school officials). As to Freshwater’s second argument, the Dennises did not need to 

specifically allege facts regarding this Bible in their First Amendment Complaint. (See Deschler 

Mem. in Opp. at 2.) The Federal Rules of Civil Procedure only require a complaint to contain “a 

34


short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. 

P. 8(a)(2). As such, claims regarding this Bible need not be made with specificity, and various 

general claims in the First Amended Complaint regarding Freshwater’s unconstitutional behavior 

necessarily included specific, yet unmentioned, factual claims that might be raised at a later date. 

(See generally First. Amend. Compl.) Even now, and at trial, the Dennises could raise new 

factual claims against Freshwater as they come to light through discovery or otherwise. 

Therefore, the Dennises have not waived arguments pertaining to the Bible on Freshwater’s desk, 

and it remains viable evidence in proving Freshwater’s violations of the Establishment Clause. 

The undisputed display of any of these Bibles—“FCA,” personal, or otherwise—serve as 

prima facie evidence of Freshwater’s Establishment Clause violations. Certainly, Freshwater can 

provide no secular purpose for the display of Bibles in his classroom, as evidenced by the lack of 

any arguments to the contrary. (See Deschler Mem. in Opp. at 25-26.) Put simply, a public 

school teacher’s display of Bibles—particularly in a science classroom—will rarely, if ever, 

serve a secular purpose. 

In an attempt to show a secular purpose for the religious materials in his classroom, 

Freshwater tries to deflect the negative impact of Roberts v. Madigan, but in this effort he takes 

issue with the specific facts of that case while ignoring the underlying legal implications. 

921 F.2d 1047 (10th Cir. 1990), cert. denied, 505 U.S. 1218 (1992). Undeniably, Madigan 

concerned a teacher’s Free Exercise claim against a school district that had removed a Bible 

from his desk, taken religious books from his classroom library, and prevented the teacher’s 

silent reading of his Bible in class. Id. at 1049-50. Nonetheless, the Madigan Court backed the 

school’s actions over the teacher’s First Amendment interests because the teacher’s displays and 

conduct “had the purpose and effect” of endorsing religion “in the context of a fifth-grade class 

35


full of impressionable young children.” Id. at 1059. Freshwater’s actions regarding the Bibles 

(alone or in conjunction with the Ten Commandments posters), while not identical to those in 

Madigan, indicate nothing but a religious purpose in violation of the Establishment Clause. See 

id. at 1049 (noting that in addition to his other actions, the teacher displayed an inappropriate 

religious poster in his classroom); see also Lee, 484 F.3d at 690 (discussing similar facts). 

While failure under Lemon’s purpose prong alone is sufficient to find Freshwater’s 

actions unconstitutional, his display of the Bibles also fails under the endorsement and 

establishment prongs. Looking to context and content, an “objective observer” would view one 

or any number of these Bibles in Freshwater’s classroom as state endorsement of religion. See 

Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000) (internal quotation marks omitted). 

This is particularly true considering the context of Freshwater’s eighth-grade science classroom 

and the prominent display of Bibles in the back of his room and on his desk. See Am. Civil 

Liberties Union v. McCreary County, Ky., 354 F.3d 438, 458 (6th Cir. 2003) (considering the 

“totality of the circumstances surrounding the display” and “the specific content of the display 

and the context of its presentation.” (internal citations and quotations omitted). 

b. Freshwater’s Explanations For the Ten Commandments 

Postings Do Not Create A Controversy Of Fact Sufficient To 

Escape Lemon. 

Similar to his display of various Bibles, Freshwater cannot deny responsibility for the 

Ten Commandments posters hanging in his classroom during the 2007-2008 school year. With 

three copies of these Ten Commandments posters, Freshwater at least acknowledges 

responsibility for their posting on and removal from the window adjacent to his classroom door 

during the period of September 2001 to April 2008. (See Deschler Mem. in Opp. at 19-21.) 

Nonetheless, he tries to distance himself from these Ten Commandments posters by blaming the 

administration for providing them and for failing to admonish him to take them down. (Id.) But 

36


again, these arguments ring hollow because Freshwater remains liable for his own Establishment 

Clause violations. Even if school officials ordered Freshwater to plaster Ten Commandments 

posters all over his windows and provided the materials for this strange exercise—something it 

did not do—Freshwater would still be liable for his part in the unconstitutional undertaking. (See 

supra Section II.D.1.) 

As to the fourth copy of the Ten Commandments that was in his classroom, Freshwater 

claims that it was FCA material and not his. (Deschler Mem. in Opp. at 21-22.) Much like his 

arguments for the supposed “FCA” Bibles in the back of the room, however, these arguments do 

not relieve him of responsibility for its display. This poster remained on the bulletin board in his 

classroom for any number of years, and yet again, Freshwater did nothing to remove the 

unconstitutional display until school officials intervened, and he subsequently took it down. 

(Freshwater Dep. at 92.) Freshwater even admits in his opposition memorandum that the Ten 

Commandments were on his bulletin board, but that he just so happened to share his bulletin 

board with the FCA. Deschler Mem. in Opp. at 22; see also Lee, 484 F.3d at 690 (upholding 

removal of religious materials from a bulletin board in a teacher’s classroom). Freshwater also 

tries to blame school administrators for his unconstitutional actions, stating that they permitted 

him to store FCA materials. (Id. at 21.) Again, whatever activities school officials permitted do 

not relieve Freshwater himself of liability. (See supra Section II.D.1.) Further, while some 

school officials did not prevent Freshwater from storing FCA materials in his classroom, they did 

not say that he could store them by displaying them in his classroom but that he needed to store 

them out of sight. (See Freshwater Termination Hearing Tr., Timothy Keib Test., 10/28/09, at 

3599 (attached as Ex. Q. to Deschler Mem. in Opp.) (“I didn’t realize that they had [stored FCA 

37


materials in his classroom], but I never told him no.”); Freshwater Dep. at 92 (stating that school 

officials made Freshwater put FCA materials out of sight).) 

Much like the Bibles, Freshwater’s display of the Ten Commandments—both on his 

window and on his bulletin board—violate the Lemon test. Looking to the purpose prong of 

McCreary County, Freshwater again cannot provide a reasonable secular explanation for his 

religious activity. 354 F.3d at 446. Much of this is due to the fact that the “pre-eminent purpose 

for posting the Ten Commandments on schoolroom walls is plainly religious in nature” because 

the Commandments “are undeniably a sacred text in the Jewish and Christian faiths.” Stone v. 

Graham, 449 U.S. 39, 41 (1980). 

Freshwater nonetheless argues that the postings on his windows were made in response to 

a security directive issued by the Mount Vernon Middle School following the terrorist attacks of 

September 11, 2001. (Deschler Mem. in Opp. at 20.) As such, he claims that religion was not 

the “predominate purpose” but that it was instead for security purposes. (Id.) It may indeed be 

true that the school issued a security directive for teachers to cover the hallway windows to their 

classrooms, but this directive did not and could not legally mandate covering the windows with 

religious materials. To comply with this directive Freshwater could have used a newspaper, 

construction paper, or any other appropriate materials available at the school. Instead, he chose 

to cover his windows with religious materials, and in the process, hijacked a worthwhile secular 

directive for his own religious purpose. To follow Freshwater’s reasoning to its logical end, any 

posting—no matter how lude or offensive—would be shielded from legal scrutiny because 

security matters hold sway. His arguments in this regard are unavailing, and therefore, the 

religious nature of the posters predominates. 

38


Freshwater also inappropriately suggests that his actions did not involve a predominate 

religious purpose under the McCreary County standard. See McCreary County, 354 F.3d 

at 448-49 (discussing the content, context, and evolution of the display considerations). In 

discussing the content consideration, Freshwater argues that his postings were “both half 

inspirational and religious.” (Deschler Mem. in Opp. at 23.) Unfortunately, this ignores the 

McCreary County holding that the display in question, however dominated by other 

“inspirational” quotes, could not justify the posting of the Ten Commandments in a public school. 

McCreary County, 354 F.3d at 449-50. The McCreary County Court criticized the content of the 

displays at issue for not integrating the Ten Commandments “with a secular study of American 

law or government” and “in no way connect[ing] the Ten Commandments with the other 

historical documents.” Id. at 450. Similarly, despite limited combination with other 

“inspirational quotes” on the other side of the posters, Freshwater’s Ten Commandments posters 

serve the predominate purpose of advancing religion. This is further evidenced by the fact that 

the book covers in question were produced by the faith-based organization, the Total Living 

Network. (See Freshwater Termination Hearing Tr., John Freshwater Test., 12/10/09, at 4425 

(stating that the book covers had been distributed in Chicago about ten years ago under a 

program called “Operation Book Cover or something like that”) (attached as Ex. I); Chicago 

Students Head Back to School With Ten Commandments on Books, PRNewswire, Aug. 16, 2000 

(describing the “Operation 10” initiative and the necessity that the book covers be distributed off 

school grounds) (attached as Ex. J).) 

Finally, and likely because the ruling is detrimental to his case, Freshwater attempts to 

distance himself from the facts of McCreary County (Deschler Mem. in Opp. at 24), but he 

cannot do this. Just because the McCreary County Court analyzed circumstances where a school 

39


district posted the Ten Commandments, 354 F.3d at 446-54, this does not detract from the case’s 

relevance for generally analyzing Ten Commandments displays in schools under the 

Establishment Clause. In fact, McCreary County is quite applicable to the present circumstances 

because Freshwater, a state actor, posted the Ten Commandments on public school grounds. In 

McCreary, the Sixth Circuit created explicit guidelines for analysis of the Ten Commandments, 

and under any reasonable interpretation of these established rules, Freshwater violated the 

Establishment Clause by posting the Ten Commandments in his classroom. 

Looking to the endorsement and entanglement prongs, Freshwater’s acts likewise fail 

constitutional scrutiny. Primarily, he cannot tie the posted Ten Commandments to a “unifying 

historical or cultural theme that is also secular.” See id. at 460. And any reasonable person 

viewing and reflecting on these posters would “think religion, not history,” particularly because 

Freshwater made no efforts to contextually place the Commandments otherwise. See id. Zach 

Dennis noted as much when he stated that the Ten Commandments postings were “wrong and . . . 

shouldn’t be happening. (Zachary Dennis Dep. at 179.) Therefore, even if Freshwater can 

justify these displays under the purpose prong, he should fail under the endorsement or 

establishment prongs. 

In short, each of the individual ways in which Freshwater has promoted religion in his 

classroom is sufficient to show an Establishment Clause violation. And these actions analyzed 

as a whole—the Bibles, the several Ten Commandments postings, and the other religious items 

that Freshwater admits to removing (Freshwater Dep. at 71-74, 82-93, 106; Zachary Dennis Decl. 

12-13.)—unquestionably demonstrate the unconstitutionality of Freshwater’s behavior. 

40


E. Freshwater’s Opposition Brief Is Not Supported By Proper Summary- 

Judgment Evidence And Thus Fails To Demonstrate That Summary 

Judgment Should Not Be Granted In The Dennises’ Favor. 

When Freshwater’s Counsel filed a memorandum in opposition to the Dennises’ motion 

for summary judgment on December 31, 2009, he filed no exhibits in support of that 

memorandum. (See generally Hamilton Mem. in Opp.) Eight days after the deadline for filing 

memoranda in opposition passed, the Court permitted defense counsel to file the missing exhibits, 

but because those exhibits were untimely, because many of the documents contained therein 

were never disclosed to the Dennises despite the documents’ clear responsiveness to discovery 

requests, because many of the documents are unauthenticated, and because several of the 

documents violate the Court’s Protective Order, those exhibits should be stricken from the record 

and should not be considered by the Court. Plaintiffs respectfully request that the Court strike 

from the record all exhibits that Freshwater filed on January 7, 2010. 4 

1. All Exhibits Filed By Mr. Hamilton On January 7, 2010 Are Untimely 

And Therefore Improper. 

The Local Civil Rules require that all evidence be “submitted no later than [] the primary 

memorandum of the party relying upon such evidence.” S. D. Ohio Civ. R. 7.2(d). Freshwater’s 

counsel, R. Kelly Hamilton, filed Freshwater’s memorandum in opposition on December 31, 

2009, but did not file the supporting exhibits until January 7, 2010—seven days later. 

Mr. Hamilton’s claim that he inadvertently filed the wrong draft of his memorandum in 

opposition in no way explains why he failed to timely file the 39 exhibits to that memorandum. 

When electronically filing exhibits in the Southern District of Ohio, the document filing system 

automatically prompts the filing party to attach exhibits to a main document. Even if Mr. 

4 The Dennises intended to file a memorandum in opposition to Freshwater’s Motion for Permission to File 

Out of Time to Amend/Correct (Doc. No. 71). While counsel were preparing their clients’ response for filing on 

January 8, 2010, the Court issued its Order granting Freshwater’s motion. (See 1/8/10 Order (Doc. No. 72).) The 

Dennises therefore raise their objections to Freshwater’s untimely filed exhibits in this Reply Memorandum. 

41


Hamilton’s earlier draft did not contain exhibit citations, the document filing system’s prompt 

would have reminded him that he needed to file exhibits as attachments to his memorandum in 

opposition. And although it certainly is possible for a party to accidentally omit an exhibit or 

two from a lengthy exhibit list when filing electronically, inadvertent mistake hardly seems a 

credible excuse for failing to file all 39 exhibits in a timely fashion. 

Nor can Mr. Hamilton argue in good faith that he did not have sufficient time in which to 

prepare the exhibits in question. Freshwater’s counsel asked for and this Court granted a 21-day 

extension for filing memoranda in opposition, giving defense counsel more than ample time to 

identify and compile any evidence upon which they wished to rely in opposing summary 

judgment. (See Def.’s Mot. for Extension Of Time (Doc. No. 63); 12/10/09 Order (Doc. No. 66) 

(granting defense counsel’s requests for 21-day extension for filing memoranda in opposition).) 

With no valid reason for filing exhibits a week late, the Dennises respectfully request that the 

Court reconsider its order allowing Freshwater to file the exhibits late and further rule that 

Freshwater should not be permitted to use these exhibits to defend against summary judgment. 

2. Their Untimely Filing Notwithstanding, Nearly All Of The Exhibits 

Suffer From Additional Infirmities That Warrant Striking Them 

From the Record. 

Even if defense counsel’s late filing of the exhibits is justified, the vast majority of the 

exhibits nevertheless are improperly before the Court. Fifteen of the exhibits contain documents 

directly responsive to the Dennises’ discovery requests that Mr. Hamilton has heretofore refused 

to disclose and which are part of a motion to compel pending before the Court. (See Pls.’ Mot. to 

Compel Produc. of Docs. and Further Dep. of John Freshwater at 5 (Doc. No. 67) (hereinafter 

42


“Pls.’ Mot. to Compel”). Twenty-two of the exhibits consist of excerpts from termination 

hearing transcripts and lack signed certification pages. 5 

a. The Federal Rules Of Civil Procedure Preclude Freshwater 

From Relying On Documents That He Failed To Disclose To 

Plaintiffs During Discovery. 

Among the exhibits attached to Defendant’s January 7, 2010 motion are 15 affidavits 

signed by Freshwater that, despite being directly responsive to Plaintiffs’ discovery requests, Mr. 

Hamilton never produced to Plaintiffs until attaching them to his memorandum in opposition. 

(See Exs. B, E, H, I, J, K, L, M, N, O, P, Q, R, S, T to Def.’s Mot. for Permission to File Out of 

Time to Amend/Correct; see also Hamilton Mem. in Opp. at 3 (erroneously claiming that “[a]ll 

information, evidence and exhibits from the administrative hearing have been made available to 

Plaintiff’s [sic] counsel”).) Because Freshwater failed to provide the Dennises with these 

responsive materials, he should not be allowed to rely on them in opposing the Dennises’ motion 

for summary judgment. Federal Rule of Civil Procedure 37(c)(1) prohibits a party who “fails to 

provide information . . . as required by Rule 26(a) or 26(e)” from “using that information . . . to 

supply evidence on a motion . . . unless the failure was substantially justified or is harmless.” 

Mr. Hamilton has provided no justification for his failure to produce these affidavits, nor 

can he. All of the affidavits were drafted in May 2008, more than five months before the 

Dennises served their First Set of Requests for Production of Documents on Freshwater’s 

counsel and more than seven months before the Dennises served defense counsel with their 

Second Set of Requests for Production of Documents. (See Exs. B, E, H, I, J, K, L, M, N, O, P, 

Q, R, T to Def.’s Mot. for Permission to File Out of Time to Amend/Correct (dated May 25, 

5 The Dennises object to a remaining exhibit—Exhibit A—as untimely, but do not object to this exhibit on 

any additional grounds. The Dennises also object to Exhibit LL on the grounds that it cannot be authenticated. 

Because Freshwater provided only four pages of the document contained in this exhibit, the document’s source 

cannot be verified. 

43


2008); Ex. S (dated May 23, 2008); see also Exs. 2, 3 to Pls.’ Mot. to Compel (containing copies 

of first and second set of document requests).) Freshwater cannot argue that these affidavits 

were unavailable at the time that the Dennises propounded their document requests and he has 

not offered any legitimate justification for refusing to produce them. 

Similarly, Freshwater cannot credibly claim that his failure to produce the affidavits 

caused the Dennises no harm. Because these affidavits were not produced, the Dennises had no 

opportunity to ask Freshwater about these documents during his deposition—documents upon 

which Freshwater relies heavily in mounting his defense in pre-trial pleadings and likely will rely 

on heavily at trial. The Dennises therefore have been, and will continue to be, unfairly 

prejudiced by Mr. Hamilton’s refusal to produce these affidavits until his January 7, 2010 filing. 

Accordingly, Freshwater should be barred under Rule 37 from relying on these affidavits in 

opposing the Dennises’ motion for summary judgment. 

b. The Exhibits Containing Transcript Excerpts Also Should Be 

Stricken Because Defense Counsel Has Failed To Supply 

Signed Certification Pages To Authenticate Them. 

Twenty-two of the exhibits that defense counsel untimely filed on January 7, 2010 are 

transcript excerpts from the Mount Vernon School Board’s administrative proceedings to 

terminate Freshwater. (See Exs. C, D, F, G, U, V, W, X, Y, Z, AA, BB, CC, DD, EE, FF, GG, 

HH, II, JJ, KK, MM to Def.’s Mot. for Permission to File Out of Time to Amend/Correct.) 

Because defense counsel has failed to furnish the Court with signed certification pages for any of 

these excerpts, the excerpts are not proper summary-judgment evidence. Cf. Fed. R. Civ. P. 80 

(“If stenographically reported testimony at a hearing or trial is admissible in evidence at a later 

trial, the testimony may be proved by a transcript certified by the person who reported it.”). This 

Court has recognized the importance of providing signed certification pages when relying on 

transcripts as summary-judgment evidence. See, e.g., Weimer v. Honda of Am. Mfg., Inc., No. 

44


2:06-cv-844, 2008 WL 2557252, at *1, 5 (S.D. Ohio June 23, 2008) (denying motion for 

reconsideration of denial of summary judgment that was based in part on the fact that defendant 

“failed to file the required court reporter certification with a deposition transcript that would 

enable the Court to consider the transcript as summary judgment evidence”). 

c. Several Of The Exhibits Contain Documents Identifying 

Mount Vernon Students By Name In Violation Of The Court’s 

Protective Order. 

Although the protective order the Court put in place on June 24, 2008 has been lifted as 

to Zach Dennis, it remains in place as to all other minors. (See 11/16/09 Order (Doc. No. 59) 

(granting that the Proposed Agreed Protective Order (Doc. No. 38) “remain in place with respect 

to all minors other than James Doe”).) A number of the exhibits that defense counsel filed on 

January 7, 2010 refer by name to students in the Mount Vernon City School District. (See, e.g., 

Exs. C, AA, CC, HH to Def.’s Mot. for Permission to File Out of Time to Amend/Correct.) 

Because these exhibits violate this Court’s protective order, they should not be considered as 

summary-judgment evidence. 

III. CONCLUSION 

For these reasons, Plaintiffs respectfully request that the Court grant them summary 

judgment on Defendant Freshwater’s counterclaims for defamation and intentional infliction of 

emotional distress and on their battery and Establishment Clause claims. 

45


Respectfully submitted, 


Douglas M. Mansfield (0063443) 

(Trial Attorney) 

dmansfield@jonesday.com 

JONES DAY 

325 John H. McConnell Blvd. Ste. 600 


(614) 469-3939 (telephone) 

(614) 461-4198 (fax) 

Mailing Address: 

JONES DAY 

P.O. Box 165017 

Columbus, OH 43215-2673 

Attorney for Plaintiffs


CERTIFICATE OF SERVICE 

I hereby certify that on January 14, 2010, I electronically filed the foregoing 

Memorandum in Opposition to Defendant’s Motion for Partial Summary Judgment with the 

Clerk of the Court using the CM/ECF system, which will send notification of such filing to the 

following at their e-mail address on file with the Court: 

Robert H. Stoffers 

Jason R. Deschler 

MAZANEC, RASKIN, RYDER & KELLER, CO., LPA 

250 Civic Center Drive, Suite 400 


Counsel for Defendant John Freshwater 

R. Kelly Hamilton 

4030 Broadway 

P. O. Box 824 

Grove City, OH 43123 

Counsel for Counterclaimant John Freshwater 


Douglas M. Mansfield

Case 2:08-cv-00575-GLF-NMK Document 75-1 Filed 01/14/10 Page 1 of 1 

PLAINTIFFS’ EXHIBITS IN SUPPORT OF THEIR REPLY BRIEF 

Exhibit A: Letter from Jessica Philemond to Stephen Short (Apr. 14, 2008) 

Exhibit B: Letter from Jessica Philemond to Stephen Short (Apr. 21, 2008) 

Exhibit C: Minutes from Special Meeting of Mount Vernon Board of Education, Jun. 20, 2008 

Exhibit D: Notice of Intent to Consider Termination of John Freshwater 

Exhibit E: Amended Notice of Intent to Consider Termination of John Freshwater, Jul. 23, 2008 

Exhibit F: Letter to John Freshwater from Stephen Short (Jul. 1, 2008) 

Exhibit G: HR On Call Report (without attachments) 

Exhibit H: Student No. 5 Deposition, Feb. 16, 2009 

Exhibit I: In the Matter of the Termination of Employment of John Freshwater, John Freshwater 

Test., 12/10/09 (excerpts) 

Exhibit J: Chicago Students Head Back to School With Ten Commandments on Books, 

PRNewswire, Aug. 16, 2000


Exhibit A

Case 2:08-cv-00575-GLF-NMK Document 75-2 Filed 01/14/10 Page 2 of 4




Exhibit B



Exhibit C


A special meeting of the Mount Vernon Board of Education was held in the Mount 

Vernon Middle School library on June 20, 2008 at 1:00 p.m. 

Mr. Watson called the meeting to order. 

Roll call of the Board Members with the following present: Dr. Bennett, Mrs. Fair, 

Mrs. Goetzman, Mr. Hughes and Mr. Watson. 

Mrs. Goetzman moved, seconded by Dr. Bennett, to approve the following: 

Approval for Tax Abatement for Rolls Royce 

Approve the tax abatement for Rolls-Royce, Mount Vernon. They are requesting a one 

hundred percent (100%) real property tax exemption for a period of 15 (fifteen) years. 

Call of votes: Mrs. Goetzman, Yes; Dr. Bennett, Yes; Mrs. Fair, Yes; Mr. Hughes, Yes; 

Mr. Watson, Yes. 

Motion carried. 

Mrs. Goetzman moved, seconded by Dr. Bennett, to recess to Executive Session to discuss 

personnel. 

Call of votes: Mrs. Goetzman, Yes; Dr. Bennett, Yes; Mrs. Fair, Yes; Mr. Hughes, Yes; 

Mr. Watson, Yes. 


All Board Members present returned from Executive Session. 

Mrs. Fair motioned, seconded by Mr. Hughes, to approve the resolution of Intent to 

Consider the Termination of the Teaching Contract(s) of John Freshwater as follows: 

INTENT TO CONSIDER THE TERMINATION OF THE TEACHING CONTRACT(S) OF 

JOHN FRESHWATER. 

WHEREAS, the Superintendent has received complaints about conduct by Mr. John Freshwater 

endangering and injuring students and about the failure of Mr. Freshwater to teach the prescribed curriculum; 

and 

WHEREAS, Mr. Freshwater is employed by the Board of Education as an eighth grade 

science teacher at Mount Vernon Middle School; and 

WHEREAS, the Board retained counsel and requested a complete investigation of the charges 

against Mr. Freshwater by a neutral, outside party; and 

WHEREAS, an investigation was completed and a report of the investigation was provided to the 

Board on June 19, 2008; and 

(1) WHEREAS, in December 2007, Mr. Freshwater used a high frequency generator, Model 

BD10A manufactured by Electro-Technic Products, Inc., to mark the shape of a cross into the arm of 

eighth grade students; at least one of which received red welts, blistering, swelling and blanching in the 

surrounding area; 

(a) The instructions for Model BD10A clearly indicate one should “[n]ever touch or 

come in contact with the high voltage output of this device” and Mr. Freshwater 

knew or should have known the manufacturer’s advice regarding proper use of the 

science instrument; and 

(b) Mr. Freshwater branded a religious symbol on the skin of some eighth grade students. 

The mark has lasted as long as 3-4 weeks on at least one student who described 

the area as “very painful”; and


(2) WHEREAS, Mr. Freshwater has consistently failed to adhere to established curriculum under the 

American Content Standards for eighth grade, as adopted by the State of Ohio, the Mount Vernon City School 

Board and the Superintendent of Schools. The American Content Standards were adopted in part to present subjects 

that are commensurate with the cognitive development of adolescents. Mr. Freshwater’s failure to adhere to 

these standards superseded the best interest of his students; 

(a) Mr. Freshwater taught additional subject areas that are not included in the eighth grade 

American Content Standards, including but not limited to: thermodynamics, the periodic 

table, the big bang theory and the creation of the universe. By using class time to explore 

these subjects, Mr. Freshwater failed to properly instruct his students in the approved eighth 

grade American Content Standards. This serves as a disadvantage to his students, as the 

Mount Vernon City School District is built upon a progressive learning model, where each 

grade builds upon the curriculum standards of the courses in earlier grades; and 

(b) Mr. Freshwater taught Creationism and Intelligent Design in his eighth grade science class, in 

violation of School Board Policy and the U.S. Constitution; and 

(c) In 2003, Mr. Freshwater unsuccessfully petitioned the Mount Vernon City School Board to 

allow him to teach Creationism or Intelligent Design in the classroom. Subsequently, Mr. 

Freshwater continued to engage in teaching Creationism and Intelligent Design, in direct 

insubordination of School Board Policy and Administrators’ directives; and 

(d) Mr. Freshwater distributed unauthorized handouts based on Creationism and Intelligent Design 

and violated School Board Policy by teaching a course of study not adopted by the 

Board, and by deviating from approved science standards without approval by the Superintendent, 

including, but not limited to the following examples: 

(i) Mr. Freshwater handed out two worksheets in 2002 titled: “The Giraffe” and “The 

Woodpecker”, which challenged the theory of Evolution and promoted the theory 

of Intelligent Design. Each handout ended with the statement, “Is there an I.D. involved?”; 

(ii) Mr. Freshwater handed out documents in 2003 titled: “Dragon History,” “Dinosaur 

Fossils – Age Old Debate” and “Dinosaur Extinction,” which included references 

to God and the Bible; 

(iii) In 2006, a complaint was filed against Mr. Freshwater regarding the religious content 

of a handout titled, “Darwin’s Theory of Evolution- The Premise and the Problem”; 

(iv) In 2008, Mr. Freshwater provided an “extra credit” assignment to his students related 

to intelligent design; to view and report on a documentary entitled; “Expelled; 

No Intelligence Allowed”; 

(e) During the 2007-2008 school year and in prior school years going back to at least 2002, Mr. 

Freshwater taught Creationism and Intelligent Design in his eighth grade science classes as 

direct challenges to evolution in direct violation of the District’s Curriculum, Board Policy, 

and the Establishment Clause of the U.S. Constitution; 

(f) Mr. Freshwater taught religious beliefs in his classroom, including, but not limited to the following 

examples: 

(i) In 2008 discussing with students the meaning of Easter and Good Friday, including 

the Resurrection; 

(ii) In 2006 or 2007 Mr. Freshwater, in the presence of Mr. Jim Stockdale, taught his 

eighth grade students that “the Bible states that homosexuality is a sin and so anyone 

who is gay chooses to be gay and is therefore a sinner” which may have created 

a hostile environment for some students; 

(iii) In his eighth grade science class Mr. Freshwater has expressed his personal belief in 

the flood theory as it relates to Noah’s Ark; 

(g) Mr. Freshwater taught his students to use the code word, “here” when the textbook would 

contradict religious or Biblical perspectives; and 

(3) WHEREAS, Mr. Freshwater was the monitor for the Fellowship of Christian Athletes at the Middle 

School and exceeded the statutorily imposed limitations of that position in the following manner: 

(a) Mr. Freshwater conducted and led prayer in the Fellowship of Christian Athletes (FCA) meetings, 

exceeding his mandatory non-participatory role;


(b) Mr. Freshwater has asked students to lead prayer in FCA meetings; 

(c) Mr. Freshwater frequently went beyond his role as monitor and contacted guest speakers for 

FCA events or recommended speakers to students; and 

(4) WHEREAS, in April 2008, Mr. Freshwater was directed to remove or discontinue the display of all 

religious articles in his classroom, including all posters of a religious nature, and whereas, Mr. Freshwater has 

failed to fully comply with that directive and, further, has brought additional religious articles into his classroom to 

“make a point” in direct acts of insubordination; and 

WHEREAS, John Freshwater’s conduct described in paragraphs numbered 1 through 4 above constitutes 

willful and persistent violation of reasonable regulations of the Board; and 

WHEREAS, the conduct described in each of the paragraphs numbered 1 through 4 constitutes independent 

grounds for other good and just cause for termination of employment whether considered separately or jointly; 

NOW, THEREFORE, BE IT RESOLVED by the Board of Education of Mount Vernon City School District, 

Knox County, Ohio, that the Board intends to initiate proceedings to consider the termination of John Freshwater’s 

employment contract(s). The Treasurer shall furnish John Freshwater with written notice in the form of this 

Resolution, signed by the Treasurer, denoting the Board’s intention to consider the termination of his employment 

contract(s) in accordance with Ohio Revised Code § 3319.16. 

BE IT FURTHER RESOLVED that each of the grounds specified in this Resolution in paragraphs numbered 

1 through 4 constitutes a separate, distinct and independently sufficient ground for termination of employment. 

Each act of Mr. Freshwater described in this Resolution is in contravention of Ohio Revised Code § 3319.16, 

and standing alone or considered with one or more, constitutes good and just cause for contract termination. 

BE IT FURTHER RESOLVED that the Board shall proceed with such termination at its meeting on July 

7, 2008, unless Mr. Freshwater files a written demand with the Treasurer for a hearing before the Board or a Referee 

within ten (10) days after his receipt of the Treasurer’s Notice, in which case a hearing shall be held pursuant to 

the provisions of Ohio Revised Code §§3319.16 and 3319.161. 

BE IT FURTHER RESOLVED that this Resolution constitutes a full specification of the grounds to be 

considered by the Board in deciding whether to terminate the employment contract(s) of Mr. Freshwater with the 

Board. 

BE IT FURTHER RESOLVED that the Board hereby authorizes and directs the Treasurer to provide Mr. 

Freshwater, in accordance with law, with written notice of its intention to consider the termination of his contract 

(s) with a full specification of the grounds for such consideration by providing Mr. Freshwater with a copy of this 

Resolution via certified mail, return receipt requested, with a copy sent by regular U.S. mail, and with a copy of the 

Resolution provided to counsel for Mr. Freshwater via email and regular U.S. mail. 

BE IT FURTHER RESOLVED that it is hereby found and determined that all formal actions of the Board 

concerning and relating to the adoption of this Resolution were adopted in an open meeting of the Board, and that 

all deliberations of the Board and any of its committees that resulted in such formal action were open to the public 

when required by law, in full compliance with the law. 

Call of votes: Mrs. Fair, Yes; Mr. Hughes, Yes; Dr. Bennett, Yes; Mrs. Goetzman, Yes; Mrs. 

Watson, Yes. 


Mrs. Goetzman moved, seconded by Dr. Bennett, to adjourn the meeting. 

Call of votes: Mrs. Goetzman, Yes; Dr. Bennett, Yes; Mrs. Fair, Yes; Mr. Hughes, Yes; Mr. 

Watson, Yes. 


___________________________ _______________________________ 

President Treasurer


Exhibit D









Exhibit E






Exhibit F


Bpxrd of Education 

Mr Ian Wa gon, President 

Dr Margie Bennett, Vice President 

Mrs !


Exhibit G


Mr. Freshwaters' Use ofReligion in Teaching and His Teachings In Relation To The 

Cnrriculum OfThe Mount Vernon City Schools And State Standards 

Overview 

Dr. Lynda Weston and two representatives ofthe science department stated that the curriculum 

for the Mount Vernon City Schools follows the Academic Content Standards adopted by the State 

Board ofEducation and published by the Ohio Department ofEducation. They stated that their 

curriculum is standards based. They teach to the standards and test to the standards (O.A.T. 

tests). Results are published and their school is measured by how students perfonn on the tests. 

Dr. Weston and the two representatives ofthe science department stated that the key academic 

standards related to this investigation are in the Academic Content Standards K-12 Science book 

in the Life Sciences sections on the following pages (Copy as Attachment 3): 

120: The benchmarks for life sciences to be achieved by the end ofthe grade 6-8 program 

130: What I am expected to teach in the eighth grade. 

132-133: The benchmarks for life sciences to be achieved by the end ofthe grade 9·10 program 

along with a statement under H. that says "(The intent ofthis benchmark does not 

mandate the teaching or testing ofintelligent design.) " 

144-145: What I am expected to teach in the tenth grade 

225: The following statement has been struck from the standards "Describe how scientists 

continue to investigate andcritically analyze aspects ofevolutionary theory. (The intent 

ofthis benchmark does not mandate the teaching or testing ofintelligent design.)" 

They stated that the teaching ofevolution should be limited to the standards for that grade level 

and the cognitive development ofan adolescent is not sufficient to teach aspects ofevolution that 

are in the tenth grade standards to students in the eighth grade. They stated that there should be 

no instruction regarding creationism or intelligent design or any challenge to the concept of 

evolution, since it is the underlying principle ofall biology taught at the high school level. 

They also described a "spiral approach" to the curriculum where the instruction at each grade 

level builds on what the students have learned in the previous grades. Ifa student is taught 

something at a lower grade that should be taught at a higher grade it creates difficulties, 

particularly ifthe instruction was in conflict with the standards. The teacher then has to ''reteach" 

the subject. 

A position statement regarding the teaching ofevolution published in July 1997 by the National 

Science Teachers Association (NSTA) was reviewed with Dr. Weston and the two representatives 

ofthe"science department. This document was in a file titled "Evolution" in the superintendent's 

office. (Copy as Attachment 4) This document states, "The National Science Teachers 

Association supports the position that evolution is a major unifying concept ofscience andsh.ould 

be included as part ofK·College scienceframework andcurricula." It also states, "Science 

teachers should not advocate any religious view about creation, nor advocate the converse: that 

there is no possibility ofsupernatural influence in bringing about the wziverse as we know it. 

Teachers should be nonjudgmental about the personal beliefs ofstudents. " Dr. Weston and the 

two representatives stated that while there may be a newer version ofthis document it still 

represents the guidelines that a science teacher should follow in teaching evolution. (A copy of 

the most recent version published in July, 2003 on the NSTA website is Att:aehment 5). 

Mount Vernon Schools - John Freshwater Investigation. 3 June 19. 2008 

0000320 

."'" 

': ..


Mr. Freshwater with passing out a paper from "All About God Ministries" entitled "Darwin's 

Theory ofEvolution - The Premise and the Problem" which the parent believed to be 

improper. As a result ofthis complaint Mr. Freshwater received a letter dated June 8, 2006 

from Superintendent JeffMaley stating in part, "The material has notpassed the test of 

scientific review andacceptance ofthe establishedsdentiflC community. I am directing you 

to delete the materialfrom your supplemental resources. Also, in the future please refrain 

from using materials that the source or author cannot be readily identified" (Copy as 

Attachment 10) 

Dr. Weston stated that she has had to deal with internal and external complaints about his failure 

to follow the curriculum for much ofher 11 years at Mount Vernon. It has come to her attention 

many times. She has reported these events to administrators and there have been some attempts 

to make changes and other instances where they seem to have been disregarded, particularly by 

one fornier assistant principal. She said that Mr: Freshwater cannot separate creationism! 

intelligent design from teaching to the science standards. She stated Mr. Freshwater has a lot of 

influence with his students that causes her concern. 

Former Superintendent JeffMaley said he had received informal complaints regarding Mr. 

Freshwaters' teaching creationism/intelligent design rather than evolution. When he had such· 

circumstances with Mr. Freshwater he would tell him not to teach creationism or intelligent 

design. He stated he never had complaints concerning any other teacher like the ones concerning 

Mr. Freshwater. He tried to find another position for Mr. Freshwater, but could not do so because 

he was only certified in science. 

In a January 21,2003 evaluation by Principal JefIKuntz, Mr. Freshwater was directed to 

"Continue to adhere to board policy and guidelines 2270 with respect to Religion In The 

Curriculum." As part ofthe evaluation, he was given copies ofthe policy and guidelines. 

The High School Principal said thatMr. Freshwater has caused issues for her high school teachers 

in having to reeducate students from his teachings. The specific issues include a number ofareas 

-- his failure to follow the curriculum regarding teaching creationism/intelligent design rather 

than evolution and his teaching ofthe Periodic Table, as examples. The High School Principal 

specifically asked that her daughter not be assigned to Mr. Freshwater for her 8 1b grade science 

due to her concern about his teaching not being consistent with the curriculum. 

A ninth grade science teacher provided copies ofquestionnaires that incoming students complete 

on the first or second day ofschool in the fall. The teacher provided copies for the following 

school years (Copies attached as Attachments 11,12 and 13 respectively): 

• 2005 - 2006 (Incoming students from Mr. Freshwaters' 2004 - 2005 class) 

• 2006':'" 2007 (Incoming students from Mr. Freshwaters' 2005 - 2006 class) 

• 2007 - 2008 (Incoming students from Mr. Freshwaters' 2006 - 2007 class) 

These questionnaires have a consistent pattern ofcomments from year to year such as: 

• In response to question 2: What are some things you disliked or fQund difficult in your past 

science classes? 

o ''1 disliked how much time we spent studying evolution, although I found it 

interesting, I wanted to move on." (2005 - 2006) 

o "Studying evolution out ofthe book because it is all opinion. Not proven facts." 

(2005 - 2006) 


D000322

"; 


In the interview ofone other Sib grade science teacher, she indicated she followed the curriculum 

and, as such, did not teach evolution, creationism, intelligent design, the periodic table, the big 

bang theory or thermodynamics. 

A teacher who was present in Mr. Freshwaters' classroom on a substitute basis for one period in 

either 2006 or 2007 (The teacher could not recall which year) stated in a written statement (Copy 

as Attachment 15): 

"The lesson ofthe day had been on the creation ofthe universe. John talked about how 

the textbook could be wrong. He said, 'Let me give you an example ofhow science can 

be wrong. , He then went on to say that an article in Time magazine afewyears back 

stated that scientists hadfound a genetic /ink to homosexuality. 'In that case science is 

wrong because the Bible states that homosexuality is a sin' and so anyone who is gay 

chooses to be gay and therefore is a sinner. My reaction was one ofdisbeliefthat he was 

saying these things to eighth graders. I thought ofhow those two or three students in that 

classroom who might be struggling with their sexual i


written instructions that could be located with the device, however operating instructions were 

available and could be downloaded from the company's website. It was confirmed that the 

device has been owned for a number ofyears by the school. 

The parents who filed the complaint said their primary concern was what had been done to their 

child's arm and why? They were also concemed about it being a cross. The marks on their 

child's arm caused pain the night ofthe incident, December 6, 2007, however they said that part 

ofthe pain could have been due to the spot being further irritated by the equipment he wore later 

that evening. They stated the bum remained on their child's arm for three or four weeks. They 

said that they did not take the issue to the police or the hospital because ofconcern regarding 

what would happen to Mr. Freshwater. They didn't want him to go to jail. 

They approached the school regarding their concern on Friday, December 7,2007. The parents 

indicated they wanted anonymity, did not want the authorities contacted and did not want Mr. 

Freshwater to lose his job, but wanted to learn what happened with the electrostatic device and 

wanted the activity stopped. The school investigated the incident and met with Mr. Freshwater 

on the following school day (December 10, 2007) advising him it was inappropriate to have used 

the device on any student, that he was not to use it again and confiscating the device. The school 

followed up with Mr. Freshwater after the return from winter break and gave him a letter on 

January 22,2008 advising him, "As per our conversation the electrostatic machine(s) should not 

be used for purposes ofshocking students. It was further directed that the machine(s) should be 

removed from the classroom or locked up so that the students do not have access to these 

machines." (Copy as Attachment 16) 

The current or former students that were interviewed that had participated in the December 2007 

incident or other similar incidents in earlier years described the demonstration in the same manner 

as had Mr. Freshwater with one exception. The all described the mark Mr. Freshwater put on his 

arm as a "cross". One student stated Mr. Freshwater would mark the student with a cross unless 

the student requested a different type ofmarking. It was the default mark. The pictures below 

were provided by the parents. 

TIle parents and student who filed the complaint indicated the bum marks remained on the 

student's arm for approximately three to four weeks. 

In the presence ofPrincipal Bill White, one ofthe investigators tried the device on own arm. 

There is a knob to adjust the voltage ofthe unit. When held at full power for one or two seconds 

in the manner described by Mr. Freshwater, the device left a slight redness with no bums and the 

redness disappeared overnight. 


D000327


The investigators contacted the President ofElectro-Technic Products Inc. who stated that the 

device should not be used on individuals and e-mailed written iDstructions that state, "Never 

touch or come in contact with the high voltage output ofthis device, nor with any device it is 

energizing. " (Copy ofwarning label as Attachment 17). 

Summary OfFindings 

Mr. Freshwater did improperly use an electrostatic device on the student who filed the complaint 

and other students in his science class in a manner that was not in compliance with the 

manufacturer's instructions. While there did not appear to be any intent by Mr. Freshwater to 

cause injury to any student, he was not using the device for its intended purpose. Contrary to Mr. 

Freshwater's statement he simply made an "X" not a "cross," all ofthe students described the 

marking as a "cross" and the pictures provided depict a "cross". 

Mr. Freshwaters t Activities With TheFellowship OfChristian Athletes weAl Club At The 

Middle School 

Overview 

The middle school FCA group meets during the students' 30 minute lunch period. On Monday 

there is a "leadership group" ofeighth grade students that typically meets in Mr. Freshwaters' 

room. There are separate meetings for sixth, seventh, and eighth grade members on Tuesdays. in· 

prior years the Tuesday meetings were held on the stage that is part ofthe cafeteria where other 

students are eating lunch. They are now held in the band room. FCA meetings are also held on 

Fridays before school. Outside speakers have regularly participated in the meetings 

John Freshwater Interview 

Mr. Freshwater said that the middle school FCA group was started 17 years ago and that he has 

been involved with it on a voluntary basis since it started. He said that he acts consistent with the 

law and has never gone against that. 

When asked ifhe has ever contacted speakers he said that he has when he has run into them in the 

community. When asked ifhe has ever directed students regarding what speakers to call, he said 

yes there is defmitely dialog. When asked about any other speaker contact he said he could not 

recall any. 

When asked ifhe has ever engaged in prayer with students he said that I'm praying all the time. 

He said that he had never led prayer at a meeting. When asked ifhe had ever asked students to 

lead prayer, he said I may have. 

When asked ifthere was an incident this year where the FCA group had gathered in a circle of 

prayer around a non-school speaker, Mr. Freshwater said that such an incident had occurred about 

a month to a month and a halfago. The speaker was Pastor Zirkle who had commented during 

the meeting about a personal medical issue. He or the students initiated a circle ofprayer around 

Pastor Zirkle. He said another teacher also participated in the prayer. Mr. Freshwater said that he 

needed to end the prayer because the lunch period was ending, so he said "Amen." 

Mr. Freshwater said that he had been involved in discussions regarding a trip to an abortion 

clinic, however he could not recall ifit was in an FCA meeting or his class. He said that he did 

not initiate discussions or propose a trip.. 


0000328


SUMMARY OF FJNl>INGS FROM OUR JNVESTIGATION 

There is a significant amount ofevidence that Mr. Freshwaters' teachings regarding subjects 

related to evolution were not consistent with the curriculum ofthe Mount Vernon City Schools 

and State standards. Contrary to Mr. Freshwater's statement, the evidence indicates he has been· 

teaching creationism and intelligent design and has been teaching the unreliability ofcarbon 

dating in support ofopposition to evolution. He has passed out materials to students for the past 

several years challenging evolution and then collecting the materials back from the students. He 

has done so in spite ofspecific directives not to teach creationism or intelligent design. He has 

taught students to use the code word "Here" to challenge scientific process that is considered 

settled by the high school science teachers. 

In addition, there is evidence that Mr. Freshwater inappropriately said to his class that science is 

wrong because the Bible states that homosexuality is a sin and so anyone who is gay chooses to 

be gay and therefore is a sinner. 

Mr. Freshwater did improperly use an electrostatic device on the student who filed the complaint 

and other students in his science class in a manner that was not in compliance with the . 

manufacturer's instructions. While there did not appear to be any intent by Mr. Freshwater to 

cause injury to any student, he was not using the device for its intended purpose. Contrary to Mr. 

Freshwater's statement he simply made an "x." not a "cross," all ofthe students described the 

marking as a "cross" and the pictures provided depict a "cross". 

Based on Mr. Freshwaters' own comments and infonnation provided by attendees, his 

involvement with the Fellowship ofChristian Athletes (FCA) club at the Middle School exceeded 

the role ofonly being a monitor by regularly being an active participant in FCA activities. Nonschool 

personnel regularly attended FCA meetings and played an active role in them. There was 

no information presented to indicate that Mr. Freshwater had voiced opposition to the new 

pennission slip policy in the presence ofstudents and parents. 

Mr. Freshwater was insubordinate in failing to remove all ofthe religious materials from his 

classroom as ordered by his superior, Principal White. 

• Mr. Freshwater did bum a cross onto the complaining family's child's arm using an 

electrostatic device not designed for that purpose. 

• The Ten Commandments together with other poSters ofa religious nature were posted in 

Mr. Freshwater's classroom. Most were removed after Mr. White's letter ofApril 14, 

2008, but at least one poster remained which Mr. Freshwater was again instructed to 

remove on April 16, 2008, but did not do so. 

• Several Bibles were kept in Mr. Freshwater's classroom including his personal Bible on 

his desk and one he checked out ofthe library placed on the lab table near the desk. 

Other Bibles that had been maintained in the room were removed by the time the 

investigators viewed Mr. Freshwater's room. 

• Mr. Freshwater engaged in teaching ofa religious nature, teaching creationism and 

related theories and calling evolution into question. He had other materials in his 

classroom that could be used for that purpose. 

• Mr. Freshwater engaged in prayer during FCA meetings in violation ofthe District's 

legal obligations for monitoring such organizations. 


D000332


Exhibit H


















Exhibit I

Case 2:08-cv-00575-GLF-NMK Document 75-10 Filed 01/14/10 Page 2 of Page 15 

4320 

THE TERMINATION OF EMPLOYMENT 

OF JOHN FRESHWATER 

IN THE MATTER OF 

VOLUME XXVII 

TRANSCRIPT OF PROCEEDINGS 

held at Knox County Office Building, 

Mount Vernon, Ohio, 

on December 10, 2009, 

before Mr. R. Lee Shepherd, Referee 

O'DONNELL & McGHEE, LLC 

Registered Professional Reporters 

13 Park Avenue West, Suite 502 

Mansfield, OH 44902 

(419)522-9700 


(419)522-9700


4321 

APPEARANCES: 

FOR THE BOARD OF EDUCATION 

Mr. David J. Millstone 

SQUIRE SANDERS 

4900 Key Tower 

127 Public Square 

Cleveland, OH 44114-1304 

(216)479-8500 

FOR MR. FRESHWATER 

Mr. R. Kelly Hamilton 

P.O. Box 824 

Grove City, OH 43123 

(614)875-4174 

ALSO PRESENT 

Ms. Sarah Moore 

Mr. Steve Short 

Mr. Doug Mansfield 

(afternoon session only) 

Ms. Kathy Portman 

Mr. Jason Deschler 


(419)522-9700


4322 

EXHIBITS: 

Board's 

6 -- H.R. On Call report 

27 -- photograph of classroom 

37 -- Academic Content Standards 

Employee's 

8 -- affidavit of John Freshwater (date illegible) 

-- two (2) pp. 

70 -- Finding Common Ground 

112 -- textbook Astronomy 

113 -- textbook Inside the Restless Earth 

114 -- textbook Cells, Heredity, and Classification 

129 -- copies of photographs of Tesla coil -- 

fifteen (15) pp. 

130 -- copy of Employee's handwritten notes 

dated March 4 and 7 -- one (1) page 


dated March 10 and 19 -- one (1) page 


dated March 19 -- one (1) page 


dated April 2 -- one (1) page 


dated April 7 and 8 -- one (1) page 


dated April 18 and 29 -- one (1) page 


(419)522-9700


4323 

EXHIBITS: 

Employee's 


-- one (1) page 


dated April 22, 2008 -- one (1) page 

138 -- copy of e-mail dated 03/25/08 from Ruth 

Williams to Bill White re FCA permission 

slips -- one (1) page 

139 -- memo dated 04/02/08 from Bill & Brad to 

All club/group advisors and staff -- 

one (1) page 

140 -- Knox Community Hospital records -- 

fourteen (14) pp. 

141 -- affidavit of John Freshwater dated 05/23/08 

-- four (4) pp. 

142 -- copies of cover, inside cover, title page for 

Chapter 6, index, and pp. 71-86 of Finding 

Common Ground 

143 -- affidavit of John Freshwater dated 05/25/08 -six 

(6) pp. 

144 -- book cover with "Good Thinking" and "The Ten 

Commandments" 

145 -- Bullet Points for Meeting with John Freshwater 

04/21/08 -- one (1) page 

146 -- Bullet Points for Meeting with John Freshwater 

04/21/08 with handwritten notes -- one (1) page 

147 -- Mansfield News Journal article dated 04/18/08 

-- three (3) pp. 


(419)522-9700


4324 

EXHIBITS: 

Employee's 

148 -- transcript of Freshwater interview with H.R. 

On Call -- fifty-nine (59) pp. 

149 -- affidavit of John Freshwater dated 05/25/08 -two 

(2) pp. 


(2) pp. 


(2) pp. 


(2) pp. 


(2) pp. 


(2) pp. 


(2) pp. 


(2) pp. 

157 -- affidavit of John Freshwater dated 05/25/08 -four 

(4) pp. 


(419)522-9700


4325 

1 

2 

3 INDEX: 

4 

5 

6 

7 

Witnesses 

8 John Freshwater 

Page:Line 

9 Direct Examination by Mr. Hamilton 4326:7 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 


(419)522-9700


4419 

1 is like a -- oh, what's the term that the prosecutor used? 

2 It was Nifong. I believe this is a Nifong situation. That's 

3 the reason for the lawsuit. It's as simple as that. I can't 

4 make it any simpler than that. We would not be here in this 

5 situation today if the investigators would have done their 

6 job, if Mr. Millstone would have done his job the way it 

7 should have been done. That's all I have to say. 

8 Q. I want to look at Employee Exhibit No. 143. I want to 

9 cover some other items here. What items, John, were in your 

10 room that you took down? 

11 A. Oh, what items I took down was the Ten -- they called it 

12 the Ten Commandments, but they were security posters that 

13 I got out of the office. I removed those. I removed the 

14 half-sheet motivational statements that were up on the 

15 cabinets. Eight of them were up there. I took -- the FCA 

16 Bibles were removed out of there. I can tell you what 

17 I didn't take down. I didn't take the poster down. 

18 Q. Why not? 

19 A. Because it's a patriotic poster, and I was never told to 

20 take it down. 

21 Q. Let's go back to those book covers for a second. Where 

22 did you get these book covers? First of all, is this one of 

23 the book covers that was in your room? 

24 A. Yes, that is one. 

25 Q. Okay. Now, my question to you is this: This looks like 


(419)522-9700


4420 

1 one of the book covers that was in your room. Right? I 

2 mean, it's actually a different question. Does this look 

3 like one of the book covers that was in your room? 

4 A. Yes. 

5 Q. When you took the book covers down from your room, do 

6 you have any of those anymore? 

7 A. No. 

8 Q. And do you even know where this one came from? 

9 A. No. 

10 Q. Does this look like one of those that was in the glass 

11 portion of your door? 

12 A. Yes. 

13 Q. We will go ahead and submit this. I mean, this isn't 

14 yours, right? 

15 A. No. 

16 Q. So you don't care if we put -- 

17 A. No. 

18 Q. Taking a look at this particular book cover, let's talk 

19 about first where did you get them, the ones that you hung up 

20 in your window? 

21 A. Down in the administration office. 

22 Q. When you say "the administration office," where exactly 

23 is that? 

24 A. Down in the office where the guidance counselors and 

25 principals were. 


(419)522-9700


4421 

1 Q. At the Mount Vernon Middle School? 

2 A. Yes. 

3 Q. And tell me how you came to get them from there. Did 

4 you request them? 

5 A. No. There was a stack of them down there. 

6 Q. When you say "a stack," how big is a stack? 

7 A. An inch. 

8 Q. An inch stack? 

9 A. An inch thick. 

10 Q. Okay. And these were full of these kinds of book 

11 covers? 

12 A. Yes. 

13 Q. Now, was there a note there saying take some or don't 

14 take some? 

15 A. That's just where they keep book covers. 

16 Q. Is that typical, for things to be down there in the 

17 office for teachers to pick up and take? 

18 A. Yes. 

19 Q. Give me some other examples of things that are down 

20 there often that people can pick up and take. 

21 A. Student records, which are locked up. The secretary 

22 always has candy down there, peppermints or something like 

23 that I'll grab. 

24 Q. Is that why you go through there at the end of the day? 

25 A. Yeah, could be. Assorted book covers. Things down 


(419)522-9700


4422 

1 there in the lost and found. 

2 Q. How did something like this come to be put next to the 

3 door where the glass window is? 

4 A. It fit well. It was a good fit. It fit right in 

5 there. 

6 Q. Did you have to put two of them together to make it fit 

7 in the window or was it exactly -- 

8 A. Oh, no, that was the width of the window right there. 

9 Q. Now, how many of these did you use in the window? 

10 A. Three. 

11 Q. So would it be correct to say that it was a good or 

12 accurate or perfect fit going side to side widthwise? 

13 A. Yes. 

14 Q. But you needed multiple ones to go lengthwise, 

15 vertically? 

16 A. Correct. 

17 Q. And you used how many? 

18 A. Three. 

19 Q. Now, let's go back to the reason why you had to put 

20 something in the glass at all. Why did you have to put 

21 something in the glass? 

22 A. 9/11. With 9/11, there was a lot of things, obviously, 

23 going on then; that if someone would come into the building, 

24 they wanted that person, a terrorist or whatever, not to be 

25 able to look into the window. So we went through a lot of 


(419)522-9700


4423 

1 drills hiding underneath the desks. And every once in a 

2 while, we would do a drill of being quiet, lock the door, 

3 have a code-blue-type thing. And so they could not look 

4 through there. 

5 Q. Did this achieve the purpose -- 

6 A. Yes. 

7 Q. -- for which you were directed to put some sort of 

8 security covering over the glass window? 

9 A. Yes. 

10 Q. How many years do you think they had been up there? 

11 A. Since 9/11/2001, so seven, eight years. 

12 Q. Okay. Had anyone ever previously told you, hey, John, 

13 you need to take down those book covers because they've got 

14 the Ten Commandments on them? 

15 A. No one has ever said that. 

16 Q. Did principals and assistant principals and other people 

17 come by your door every day? 

18 A. Yes. Like I said, Mr. Keib that was here, he said he 

19 was in my room 70, 80, 90 times, so he walked within a foot 

20 of it, 12 inches. 

21 Q. Did anybody ever complain about these particular book 

22 covers being put up in the glass part of your window? 

23 A. No. 

24 Q. When was the first time that you ever heard that these 

25 were a concern to anybody? 


(419)522-9700


4424 

1 A. In April 2008. 

2 Q. And when they were identified, what did you do? 

3 A. I took them down. 

4 Q. Now, let's look more precisely at this. On one side, it 

5 says "Good Thinking." Right? 

6 A. Yes. 

7 Q. And on the other side, it says "The Ten Commandments"? 

8 A. Yes. 

9 Q. On the "Good Thinking" side, what are some of the people 

10 that are referenced there? If you need to look at it, tell 

11 me, but I'm letting the Referee examine it. 

12 A. Helen Keller. I think there were some coaches on there. 

13 Q. Some who? 

14 A. Football coach. I think Vince Lombardi. 

15 Q. Now, the other side, it has "The Ten Commandments." 

16 Correct? 

17 A. Yes. 

18 Q. Taking a look at what it says here and reading the words 

19 verbatim, does it refer to any specific religion? 

20 A. No. 

21 Q. Did you ever do any research about these particular book 

22 covers? 

23 A. Yes. 

24 Q. What research did you do? 

25 A. I got on my computer and found out where they came from. 


(419)522-9700


4425 

1 Q. Let me ask you when you did this research. 

2 A. In April when they asked to have it removed. 

3 Q. Okay. And research -- what did you learn about these 

4 book covers? Where did they come from and how were they 

5 used? 

6 A. I found out they were used in Chicago's public schools, 

7 Operation Book Cover or something like that. And I recall 

8 over a million of them were distributed out to public 

9 schools. 

10 Q. And so three of that one million ended up in your glass 

11 doorway? 

12 A. Yes. 

13 Q. And your research, did it indicate that these were 

14 distributed to public school students? 

15 A. Yes. 

16 Q. Previous to April of 2008, have you ever heard of the 

17 www.tln.com? 

18 A. No. 

19 Q. Let's talk about these -- what were the other things on 

20 the cabinet? What did you call them? 

21 A. Motivational statements. 

22 Q. Give me a size and description of these motivational 

23 statements. 

24 A. Half a sheet of paper. 

25 Q. Half page like that. So you took an 8-1/2-by-11 piece 


(419)522-9700



Exhibit J

Plaintiffs' reply in support of their motion for partial summary judgment

Create successful ePaper yourself

Delete template?

Save as template?