The First Amendment Provides Only Limited Protection For Cross Burning
John Freshwater, the Ohio educator who gained fame when he allegedly branded a crucifix onto a student's arm in 2007, is suing the Mount Vernon school district. Mr. Freshwater alleges that his subsequent firing was motivated by religious discrimination. Specifically, Mr. Freshwater observes that one of the reasons the school board cited for dismissing him was that he kept a Bible on his classroom desk.
Mr. Freshwater notes that other teachers, who were allowed to keep Bibles on their desks, have not yet been fired.
The suit claims that Freshwater was discriminated against because of personal religious beliefs and maintains the board took action to terminate Freshwater’s teaching contract simply because he kept a Bible on his desk.
The board has said its decision was based on an investigative report by an independent firm which concluded that Freshwater caused physical harm to a student during a science experiment, overstepped his bounds as a monitor of the Fellowship of Christian Athletes, promoted particular religious beliefs in the classroom while denigrating others and was insubordinate in refusing to follow directives from school administrators.
Though Freshwater's suit doesn't allege this, one does suspect that perhaps burning a cross onto a student's arm also played a role in Mr. Freshwater's misfortune.
Of course, I don't practice educational law, and I leave the First Amendment to experts. But I will note that in Commonwealth of Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court struck down a Virginia statute that criminalized burning a cross in someone's yard, on the grounds that the law was overbroad because it did not require an intent to intimidate the victim. The Court did hold that a properly drafted law, requiring criminal intent to intimidate, might withstand First Amendment scrutiny.
Therefore, it would seem Freshwater's claim may be viable, so long as he can demonstrate that he allegedly branded his student not to intimidate, but in a spirit of Christian love.
We'll continue to follow Freshwater's suit, all the way to the United States Supreme Court, where the constitutional issues it presents will inevitably be decided.
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