Attorney(s) appearing for the Case
The Law Office of R. Kelly Hamilton, L.L.C., and R. Kelly Hamilton ; and The Rutherford Institute and Rita M. Dunaway , for appellant.
Britton Smith Peters & Kalail Co., L.P.A., David Kane Smith , Krista Keim , and Paul J. Deegan , for appellee.
Appignani Humanist Legal Center and William J. Burgess , urging affirmance for amici curiae American Humanist Association and the Secular Student Alliance.
Mayer Brown, L.L.P., Charles P. Hurley , Richard B. Katskee , and Scott M. Noveck , urging affirmance for amici curiae Americans United for Separation of Church and State and Anti-Defamation League.
Lape Mansfield & Nakasian, L.L.C., and Douglas M. Mansfield , urging affirmance for amici curiae Stephen Dennis and Jenifer Dennis.
Calfee, Halter & Griswold, L.L.P., Christopher S. Williams , Colleen M. O'Neil , and Jeffrey J. Lauderdale , urging affirmance for amicus curiae National Center for Science Education. prominently staged nor placed in a way that would draw any particular attention to it. Other witnesses testified that Freshwater himself never drew any attention to the Bible. Given this unobtrusive, obscured, personal setting, no reasonable observer would assume that the state intended to promote or endorse Freshwater's Bible. See, e.g., ARIN Intermediate, 268 F.Supp.2d at 554 ("unobtrusiv[e] displays [of] religious adherence" by school employees do not imply government endorsement of religion and do not violate Establishment Clause).
{¶ 93} Finally, we consider that the district has the power to correct any misperceptions it anticipates. As the Supreme Court has stated, a school district's "fear of a mistaken inference of endorsement is largely self-imposed, because the school itself has control over any impressions it gives its students." Westside Community Schools, 496 U.S. at 251, 110 S.Ct. 2356, 110 L.Ed.2d 191. If the school does not want people to think that it promotes Freshwater's beliefs, it can tell them so. Id.; see also Capitol Square, 515 U.S. at 769, 115 S.Ct. 2440, 132 L.Ed.2d 650 ("If Ohio is concerned about misperceptions, nothing prevents it from requiring all private displays * * * to be identified as such").
{¶ 94} The Free Exercise Clause protected Freshwater's conduct as to his personal Bible. When the district asked Freshwater to remove his Bible from his desk, it was not asking him to cease a meaningless activity. It was demanding that he give up his constitutionally guaranteed rights. The government can encroach upon constitutional rights, but it must have a legitimate reason for doing so. Here, the district's reason was not legitimate. The district feared an Establishment Clause violation where none existed. Unsubstantiated fear alone cannot justify flouting the First Amendment.
{¶ 95} We therefore conclude that the district's order for Freshwater to remove his personal Bible from his desk was neither reasonable nor valid; the order infringed on Freshwater's free-exercise rights without justification. Because this particular order was invalid, Freshwater's disobedience of the order cannot be considered insubordination or grounds for his termination.
The remaining orders
{¶ 96} Freshwater's refusal to remove the other items from his classroom—the Oxford Bible, Jesus of Nazareth, and the George W. Bush/Colin Powell poster—presents a much simpler issue. 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. Freshwater admitted that he checked out the additional books only in order to make a point once this controversy began. Thus, the district would not run afoul of the Free Exercise Clause by ordering Freshwater to remove these materials; the orders were both reasonable and valid. 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.
Teaching of Creationism and Intelligent Design Alongside Evolution Generally Disfavored
{¶ 97} We recognize that this case is driven by a far more powerful debate over the teaching of creationism and intelligent design alongside evolution. See, e.g., McLean v. Arkansas Bd. of Edn., 529 F.Supp. 1255 (E.D.Ark.1982). Federal courts consistently hold that the teaching of evolution in public schools should not be prohibited, Epperson v. Arkansas, 393 U.S. 97, 106-107, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), and have struck as unconstitutional policies and statutes that require public school teachers to devote equal time to teaching both evolution and the Biblical view of creation. See, e.g., Daniel v. Waters, 515 F.2d 485 (6th Cir.1975). The United States Supreme Court and at least one other federal court have held that teaching theories of creationism and intelligent design in public schools violates the Establishment Clause because they convey "supernatural causation of the natural world" and therefore are inherently religious concepts. Kitzmiller v. Dover Area School Dist., 400 F.Supp.2d 707, 736 (M.D.Pa.2005); Edwards v. Aguillard, 482 U.S. 578, 591-592, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). However, the Supreme Court holds that teaching creationism is not prohibited in public schools as long as it is done "with the clear secular intent of enhancing the effectiveness of science instruction." Edwards at 594.
{¶ 98} The Supreme Court also cautions that the courts must be "vigilant in monitoring compliance with the Establishment Clause in elementary and secondary schools" because
[f]amilies entrust public schools with the education of their children, but condition their trust on the understanding that the classroom will not purposely be used to advance religious views that may conflict with the private beliefs of the student and his or her family. Students in such institutions are impressionable and their attendance is involuntary.
Id. at 583-584, citing Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985).
{¶ 99} Here, we need not decide whether Freshwater acted with a permissible or impermissible intent because we hold that he was insubordinate, and his termination can be justified on that basis alone. Freshwater is fully entitled to an ardent faith in Jesus Christ and to interpret Biblical passages according to his faith. But he was not entitled to ignore direct, lawful edicts of his superiors while in the workplace.
CONCLUSION
{¶ 100} For the reasons set forth in this opinion, we affirm the judgment of the court of appeals that upheld Freshwater's termination.
Judgment affirmed.
The Law Office of R. Kelly Hamilton, L.L.C., and R. Kelly Hamilton ; and the Rutherford Institute and Rita M. Dunaway , for appellant.
Britton Smith Peters & Kalail Co., L.P.A., David Kane Smith , Krista Keim , and Paul J. Deegan , for appellee.
Appignani Humanist Legal Center and William J. Burgess , urging affirmance for amici curiae American Humanist Association and the Secular Student Alliance.
Mayer Brown, L.L.P., Charles P. Hurley , Richard B. Katskee , and Scott M. Noveck , urging affirmance for amici curiae Americans United for Separation of Church and State and Anti-Defamation League.
Lape Mansfield & Nakasian, L.L.C., and Douglas M. Mansfield , urging affirmance for amici curiae Stephen Dennis and Jenifer Dennis.
Calfee, Halter & Griswold, L.L.P., Christopher S. Williams , Colleen M. O'Neil , and Jeffrey J. Lauderdale , urging affirmance for amicus curiae National Center for Science Education.
PFEIFER, O'DONNELL, and KENNEDY, JJ., dissent.
