This week, the Ohio Supreme Court issued a sharply divided 4-3 opinion in Freshwater v. Mt. Vernon City School Dist. Bd. of Edn., Slip Opinion No. 2013-Ohio-5000(Nov. 19, 2013), which held that the Mt. Vernon City School District had “good and just cause” under Ohio Revised Code §3319.16 for terminating a controversial middle school science teacher for insubordination because he refused to remove religious displays from his classroom after being ordered to do so. While the Court also held that the school district violated Freshwater’s First Amendment rights when it ordered him to remove his personal Bible from his desk, the firing was affirmed because Freshwater’s refusal to remove other religious materials on display in his classroom supplied sufficient “good and just cause” for termination required under §3319.16 for terminating a public school teacher’s contract. Having upheld the insubordination finding, the Court avoided having to address the more thorny constitutional issue of whether the teacher impermissibly imposed his religious beliefs in his classroom.

In 2007, a student and his parents claimed that Freshwater: (1) used an electrostatic device to make a mark on the student’s arm resembling a cross; (2) participated in the student group Fellowship of Christian Athletes when he was only permitted to monitor it; and, (3) had religious materials in his classroom.

School officials repeatedly told Freshwater to remove religious icons and materials from his classroom, including a collage incorporating the Ten Commandments and a poster showing a Biblical verse. Freshwater was also informed that Bibles and other religious materials needed to be kept out of the students’ sight. Freshwater did not listen. In fact, disregarding the school’s instructions, Freshwater checked out two religious books from the school library and displayed them in his classroom.

In 2008, the family who made the original complaint sent a letter to the district superintendent alleging that Freshwater’s actions violated the Establishment Clause of the First Amendment to the U.S. Constitution. Freshwater eventually was terminated on four grounds: (1) the electronic cross marking incident; (2) for failing to adhere to the school’s established curriculum; (3) for participating in (not just monitoring) the Fellowship of Christian Athletes; and, (4) for not adhering to the school’s orders. The referee who reviewed the case determined that Freshwater did not follow the school’s curriculum policies and repeatedly ignored orders from his supervisors, both of which were “good and just cause” reasons to support termination under §3319.16.

Freshwater appealed the determination through the appropriate administrative channels, then to the Knox County Court of Common Pleas, then to the Fifth District Court of Appeals, then to the Ohio Supreme Court. He lost at every stage, including most recently before the Ohio Supreme Court.

The Ohio Supreme Court’s Decision
In the Supreme Court’s massive 68-page opinion, Chief Justice O’Connor, writing for the majority, reasoned the Court had to determine whether the orders given to Freshwater by the school were reasonable and valid and, if so, if Freshwater disobeyed them. In finding for the school district, the Court answered both questions affirmatively and held that Freshwater engaged in “insubordination consisting of a willful disobedience of, or refusal to obey, a reasonable and valid rule, regulation, or order issued by a school board or by an administrative superior.”

In supplementing its reasoning, the Court noted that the school’s principal had told Freshwater in writing that he as a public school teacher could not “engage in any activity that promotes or denigrates a particular religion or religious beliefs while on board property, during any school activity” or when he was teaching. With this, the Court noted, “Freshwater not only ignored the school district’s directive, he defied it. After he was directed to remove the items, Freshwater deliberately added to them, incorporating the [two religious books he checked out of the school’s library] into his classroom. He then refused to remove his personal Bible from his desk, and refused to remove [other religious materials complained of].”

Freshwater did prevail on one point: The school district’s direction to Freshwater to put away his personal Bible, which was on his desk, infringed on his First Amendment right protecting the free exercise of religion, and Freshwater could not be terminated just for keeping a personal Bible on his desk, which was considered to be his personal space. The Court found that this request by the school was akin to demanding that Freshwater give up his constitutionally guaranteed right to exercise his religion and was not reasonable or a valid request. The Court went on: “Because this particular order was invalid, Freshwater’s disobedience of the order cannot be considered insubordination or grounds for his termination.” At the end of the day, however, the Court’s rejection of this one order did not change the Court’s ultimate decision to affirm the termination. Had Freshwater only defied this one order he might have a job, but that is not all he did.

The Court went on to find that the school’s orders to Freshwater to remove the other religious materials were reasonable and valid because Freshwater’s First Amendment rights did not protect the display of these items because they were not a part of his exercise of his religion and that by not following them, Freshwater was insubordinate: “Freshwater’s willful disobedience of these direct orders demonstrates blatant insubordination. That insubordination is established by clear and convincing evidence, and the record fully supports the board’s decision to terminate him on these grounds.”

In a dissenting opinion, Justice Pfeifer argued that the majority’s decision sets a low bar for what constitutes “good and just cause” under §3319.16 and that “[t]eachers throughout the state should feel much less secure in their employment today.”

I won’t get into Justice O’Donnell’s dissent because it goes way beyond employment law, but it is a thoughtful dissent that suggests that while Freshwater’s teaching methods may have been controversial, they may also have been effective.

From a constitutional law perspective, many expected that the Court would tackle the constitutional issues it left unanswered, especially the scope of academic freedom secondary school teachers have to teach creationist theories in the classroom. Those issues remain for another day, much to the consternation of Justice Pfeifer, who wrote a dissenting opinion chastising the majority for addressing the “piddling” claims of insubordination and “sidestep[ping] all of the difficult issues presented in the case.”

From an employment law perspective, the Freshwater decision’s direct impact is limited to public school districts subject to §3319.16. Nevertheless, the message to employers and employees here is a simple one; an employer has the right to insist on compliance with its reasonable directives to its employees. If the employee believes that the directive, for one reason or another, is invalid or inappropriate, he risks discipline, including termination, if he refuses to comply and turns out to be wrong.