Chris Comer v. Texas Education Agency Lawsuit

All Court Documents Are Available Below

by Steven Schafersman, Ph.D.
Texas Citizens for Science
2009 April 1

TIMELINE
Lawsuit Filed: 2008 June 30
Lawsuit Dismissed: 2009 March 31
Lawsuit Appealed: 2009 August 18
Appeal Argued: 2010 April 26
Appeals Court Upholds Dismissal: 2010 July 2


Chris Comer

In June, 2008, Chris Castillo Comer filed suit in federal court arguing that the Agency's firing of its Director of Science for not remaining "neutral" on the subject of Creationism violates the Establishment Clause, because it employs the symbolic and financial support of the State of Texas to achieve a religious purpose, and so has the purpose or effect of endorsing religion. By professing "neutrality," the Agency gives Creationism the same value as science. Comer's attorneys argued that Creationism is a religious belief, the Establishment Clause forbids teaching of religion in public schools, the same law forbids state public school agency support of religion, the TEA's neutrality policy supports Creationism and thus religion and is therefore unconstitutional, and Chris was fired for violating an unconstitutional policy. In short, Comer’s termination violates the Establishment Clause because it has the purpose or effect of endorsing religion.

Chris also argued that the Agency fired Director Comer without according her due process as required by the 14th Amendment--a protection important here because Science Director Comer was fired for violating  an unconstitutional policy.

The judge ruled, however, that the TEA's neutrality policy is not a violation of the Establishment Clause and thus Chris Comer's termination was not unconstitutional and illegal. Chris asked for a judgment that the TEA's neutrality policy regarding Creationism and science violates the Establishment Clause, an injunction prohibiting the TEA from having an unconstitutional "neutrality policy," and for her to get her job back. The judge denied these requests.

A Narrow Reading of the Establishment Clause

From what I can learn from talking to Chris Comer and very briefly reading the decision, it appears the judge looked at the Establishment Clause very narrowly, perhaps too narrowly. I think his decision is incorrect and should be corrected upon appeal. The judge, a Republican who was appointed by President George W. Bush, apparently ruled that state agency employees do not enjoy Establishment Clause protection in the case of neutrality policies, but public school teachers and students would enjoy such protection from the establishment of religion. That is, state employees can be fired for abridging agency-mandated neutrality policies between science and religion but teachers cannot. Teachers must not favor or disfavor religion in classrooms, but apparently state agencies can. The judge conveniently forgot that state agencies are supposed to be as secular as public schools under the Constitution. This is such a narrow reading of the Establishment Clause that it is of great concern.

Unfortunately, the case may not be appealed. There may be legal reasons to not appeal, and Chris's attorneys will have to make that decision. I can't give a reasoned opinion about the advisability of doing this because I haven't studied the case. I have devoted all my free time over the past six months to defending science standards and science education in Texas.

One curious statement from the March 31 decision is this: "A court need not apply every test each time it faces an Establishment Clause question; it may discern which test or tests apply most appropriately to the situation before it." There are the three traditional Lemon tests, then two new tests applied by Supreme Court Justices in recent years, the endorsement test of O'Conner and the coercion test of Kennedy. I don't know which test the judge picked because I haven't read the entire decision. It is possible he chose the one test that allowed him to make his decision the way he wanted. This case cries out for appeal. The religious accommodation of church-state separation has been becoming too lenient in recent years. Abuses are occurring now.

Another odd statement from the judge is this: "The State 'readily agree(s) that if the Board chooses to consider including some kind of recognition of alternatives to evolutionary theory in the biology curriculum, it will be entering perilous waters...' " This means that the TEA lawyers told the judge it agrees that it would be dangerous for the State Board of Education to explicitly include recognition of alternatives to evolutionary theory in the biology curriculum. The Board hasn't explicitly done this yet, but they came very close during March 26-27 and they plan to force biology textbook authors and publishers to do exactly that in 2011 to comply with the new vague, nonspecific, and confusing new science standards they inserted and revised in Biology and Earth and Space Science. The State Board couldn't be too specific--because that would have been unconstitutional on its face--yet the new language suggests what they want and they plan to "encourage" publishers privately, behind the scenes, to cooperate or face rejection of their profitable products. Don't you just love state-permitted extortion? That's politics in Texas. I am writing my detailed report and analysis of the recent science standards adoption that concerns precisely this point.

I have all the court documents which Chris kindly sent me over the months. I have not posted them until now because I was asked by her attorney not to write anything (that might give the TEA's attorney new ideas!) and truthfully I haven't had time in the last six months to analyze this case and write something. In fact, I have only briefly glanced over the documents since I knew I couldn't write anything about them. That encumbrance is now over, so I will write something after I have had time to think about what happened. I am knowledgeable about Establishment Clause law and can understand the reasoning behind this case. I think the TEA's position is legally weak and I thought Chris had a strong case, but then I am a proponent of strong church/state separation and tend to think the Establishment Clause legal history is very persuasive. In recent years it has not been strong due to the Bush-appointed federal bench and Supreme Court appointments. There has been a lot of accommodation and even neglect of separation by the federal courts lately, especially the Supreme Court. There are plenty of stories about this published by Americans United, the ACLU, and similar organizations, so I won't discuss this now. Because of the animus against church/state separation in many federal courts, attorneys are hesitant to appeal Establishment cases to these courts. You may think that justice is blind and separate from politics in this country, but that is not the case. The same political polarization present in executive and legislative branches is also found on the federal bench, although certainly to a more muted extent.


The Court Documents (updated as necessary)

Here are all the court documents I have. The documents filed by TEA's attorneys in February and March 2009 were apparently filed to delay proceedings and summary judgment for incomprehensible reasons, since they are irrelevant to the issues in the case. Perhaps TEA wanted the final summary judgment delayed until after the science standards were adopted in March 2009.

Court Documents: Christina Comer v. Robert Scott and Texas Education Agency Litigation
(all are PDF files listed in chronological order)


2009 April 3 Update:

I have now read Judge Yeakel's March 31 Opinion thoroughly and can state firmly that he made a number of legal errors. His decision--as I suspected--is wrong on both the logic and the law. I believe it is vital that this erroneous decision be appealed to the Fifth Circuit Court of Appeals in New Orleans.

Let me first discuss the decisions Judge Yeakel made correctly. The TEA argued that Chris Comer did not have standing to sue since she was not a public school teacher, student, or parent of a student who are the only ones who have standing to sue the government to stop the teaching of religion in public schools. The judge reviewed the court's jurisdiction and the fact that Comer suffered an actual injury (loss of employment) as a result of the TEA's allegedly unconstitutional policy, thereby confirming her standing. Second, the TEA mean-spiritedly argued that Comer resigned and was not fired. Interestingly, the judge did not rule on this claim since in his opinion it was "immaterial" to the court's final decision. Indeed, it is immaterial, but the judge should have been explicit about precisely why. In fact, Chris was directly told to resign or she would be fired, being forced to resign under the threat of being fired is legally the same as being fired, and the judge should have said so. The judge referred to the act as "termination" in his decision, which is a satisfactory term, although "fired" or "forced to resign" could be used as well. Chris's termination was not voluntary, she thereby suffered an injury, so it is immaterial whether she was fired or forced to resign.

Also, the judge writes that the following arguments from Comer are "undisputed legal points":

These are all correct statements. Chris was terminated for violating the TEA's "neutrality policy" regarding subjects that might come up before the State Board of Education (SBOE), "only one of which," according to the TEA and blandly accepted by Judge Yeakel, was the controversy between evolution and Creationism. But this carefully worded neutrality policy was not presented this way by other TEA staff members, who undoubtedly had been told the true reasons behind the policy (see this report for the details of how the "neutrality policy was explained by managers to TEA staff), and the judge unreasonably ignores this. The science vs. Creationism controversy was in fact the only genuine controversy that might come up and did come up, so the so-called "neutrality policy" actually dealt only with evolution and Creationism.

The SBOE and TEA leaders attempted to make it appear that anti-evolutionism--or more specifically alleged "scientific objections to evolution"--and not Creationism was the issue, since these carefully Discovery Institute-briefed Creationists tried very hard to hide their religiously-motivated Creationism and spoke only about the "scientific" "weaknesses," "controversies," and "criticisms" of evolution, i.e., about alleged anti-evolutionism and never about Creationism. This, of course, is transparent nonsense, since the scientific community has long considered such objections about evolution to be a Creationist project, not legitimate scientific criticism. Among scientists, evolution has been a factual, occurring, and observable natural process within living nature for over 140 years. The true scientific controversies and criticisms deal with specific evolutionary trends, modes, tempos, and auxiliary processes, not with the factual occurrence of evolution as an explanation for the diversity of life.

Chris Comer argued through her attorneys that the TEA's neutrality policy was unconstitutional and thus she was unlawfully terminated. Conversely, the TEA argued through its attorneys that

The Court's Errors

Here are Judge Yeakel's errors. First, (...)


2010 July 3 Update:

Chris Comer lost her appeal of the dismissal of her lawsuit against the Texas Education Agency. I have posted a copy of the Fifth Circuit Appeals Court Opinion at http://www.texscience.org/news/comer/2010July2-Comer-Appeals-Court-Opinion.pdf. The Opinion is also available as a webpage. I have updated my current discussion of the Comer vs TEA litigation (this webpage) which has links to all the court documents, news reports, and some analysis.

I believe both the original District Court and now the Appeals Court's opinions were wrongly decided. The theory of the case selected by Chris's attorneys involved the Establishment Clause, i.e. church/state separation. Right from the beginning Chris and her attorneys faced the question of what legal theory to litigate under: whether to sue from a worker's rights standpoint (state employment law, contract law, federal workers rights law, etc.) or from an establishment clause standpoint. After much discussion and research, the latter was decided upon because it was thought the case details gave this theory of litigation a better chance. Workers have few rights in Texas, even (especially) a state employee with a contract, so the attorneys rejected this approach. Chris was fired unfairly but courts give great latitude to government employers over retention of employees, especially in Texas. Even the establishment clause theory, however, was iffy. Events confirmed this.

I think the appeals court judges made an incorrect decision but will have to study it to fully understand why. As we all know, judges and justices make controversial decisions from their political beliefs as well as from their legal knowledge, and this may have been a factor here. I don't know. Certainly the TEA policy that Chris allegedly infringed was unconstitutional (i.e., it violated the establishment clause), but it is difficult for some individuals to understand why this is the case, so the decision was very unfair. Of course, I could be wrong, but I don't think so.

As readers will remember, the content of Chris's forwarded message to a group list that advertised an anti-ID presentation by Barbara Forrest in Austin was the alleged violation. The appeals court failed to understand that the anti-ID presentation was scientific and thus secular, so Chris could not have violated a constitutional neutrality policy by forwarding such a message. Forrest's presentation was not anti-religious or pro-atheist, but dealt with the science and philosophy of why ID is corrupt and incorrect. Forwarding a message that announced (1) a Christian presentation, (2) an atheist presentation, (3) a Creationist presentation, or (4) a presentation that criticized ID as Christianity and thus wrong would undoubtedly have violated a constitutional neutrality policy, but Chris didn't do any of these. Barbara Forrest's presentation was critical of ID for scientific and philosophical reasons, not for religious reasons, and it did not promote atheism over theism or anti-religion over religion. The Appeals Court failed to understand this.

The Court opinion said this: "Thus, we find it hard to imagine circumstances in which a TEA employee's inability to publicly speak out for or against a potential subject for the Texas curriculum would be construed or perceived as the State's endorsement of a particular religion." This statement is part of the problem: the Court obviously does not correctly understand Establishment Clause jurisprudence and precedence. A person or agency doesn't have to endorse a particular religion to violate the EC, but simply endorse religion in general or any religious doctrine over the neutral, secular, mainstream topic--in this case, science. This is precisely what the TEA's neutrality policy did. The TEA's policy--as initially obfuscated by the TEA but well documented in the court records and proceedings--was itself unconstitutional since it asked employees to be neutral between evolution and ID Creationism. This is an impossible condition, since evolution is science and science is secular, so the TEA was asking employees to be neutral between a secular alternative and a religious alternative. This demarcation is unconstitutional, since government or state agencies must remain secular; in other words, they must support science, a secular discipline, not religion.

A neutrality policy of being neutral between (1) atheistic, anti-religious, anti-Creationism and (2) theistic, religious, ID Creationism would be perfectly appropriate and constitutional, but this was not the policy that Chris Comer violated. She did not criticize ID Creationism by advocating (with her forwarded announcement message) an atheistic, anti-religious presentation, but rather a presentation that criticized ID Creationism for it scientific and philosophical difficulties. Thus, her action was constitutional and thus legal, but the District and Appeals Courts did not interpret it this way. Many individuals, apparently including Appeals Court judges, do not understand that the secular position lies between two alternatives, the pro-religious and the anti-religious. The EC demands that governments remain secular, neither establishing or hindering the religious or irreligious. In other words, the EC requires governments and their agencies to be neutral and secular and show neither favoritism or antagonism to either religions or anti-religions (such as atheistic philosophies or atheist-freethought-humanist organizations). But this is precisely what the TEA neutrality policy did: it was antagonistic to secular science and favored religion because it opposed evolution (a scientific topic and thus secular) with ID Creationism (a religious doctrine or philosophy) as the demarcated elements within its neutrality policy. Thus, this policy itself was illegal, and it was therefore illegal to fire Chris Comer for violating an illegal, unconstitutional policy.

I would stipulate that it would be legal to fire an employee for violating a legal, constitutional neutrality policy. Chris did violate the TEA neutrality policy because she innocently thought it did not apply to the circumstance of promoting a science presentation. She was certainly surprised when she discovered otherwise! In a normal case her innocent violation would have been forgiven but not in the highly-politicized radical religious right administration of Gov. Rick Perry and his appointed Commissioner of Education Robert Scott. Chris has too many enemies in high positions who wanted her out and who were waiting for the opportunity and justification to fire her. The simple act of forwarding an email message that advertised a science and philosophy lecture provided the justification, as mean-spirited as that action is. The whole point of the litigation was that the neutrality policy itself was unconstitutional, not that Chris violated it, so her alleged "violation" of an unconstitutional policy meant she committed no wrong for which she can be terminated. It is my and others' belief that forwarding an announcement of an anti-ID presentation could not violate a constitutional neutrality policy but would violate an unconstitutional one. In other words, it was impossible for Chris Comer to be non-neutral when merely promoting science--a secular discipline and in fact one function of her job at TEA--in the context of criticizing ID Creationism from a scientific and philosophical standpoint, the actual content of the presentation.

Chris's forwarded message would have been non-neutral if the Austin presentation she advertised criticized ID Creationism solely for its religious content and she could be legally terminated in that case, but this was not the case. As readers know, it is perfectly possible to have a non-religious ID hypothesis (perfectly-natural extraterrestrial aliens with superhuman powers to manipulate organic chemicals and biological molecules to create life, RNA, and DNA), so one can't generally criticize ID from an anti-religious perspective. ID, however, is not currently presented or advocated using this hypothesis, but with one in which a Supreme Creator or Deity is responsible (although the proponents try to obfuscate this belief). Intelligent Design is, therefore, unscientific, non-empirical, and illogical. Basically, ID Creationism has no evidence and no logical arguments that support it and no methods to test many of ID's claims, all of which must be the case for ID to be scientific, so it is justly criticized from scientific and philosophical perspectives, as Barbara Forrest did in her Austin talk and as hundreds of other scientists and philosophers have done. The main focus of Forrest's presentation was to document that the main support for ID was a vast mendacious marketing campaign utilizing advertising and framing, not traditional scientific evidence and arguments, and to illustrate the history of this marketing campaign using the story of her testimony in the Dover trial. ID's religious implications, while present, are beside the point, and are certainly no reason to reject it, since many legitimately scientific theories have possible religious implications, such as the Big Bang theory.

Rather than interpret correctly the Establishment Clause, the two courts gave great discretion to a state agency's right to dismiss an employee for any reason it wanted to, thus ignoring the establishment of religion violation as manifested in the TEA's pro-religious, anti-scientific neutrality policy. In effect, by finding against Chris, the Appeals Court confirmed that ID is religious, since only forwarding an announcement critical of ID as religion (rather than unscientific) would violate a constitutional neutrality policy, which is what TEA's attorneys claim is the case. The judges should be ashamed of their poor understanding of Establishment Clause law and adjudicated history. Their opinion should be appealed to the full Appeals Court en banc.

Of course, the Appeals Court may have been confused by the spin, framing, and marketing of ID Creationists that maintains that ID is not Creationism but a scientific alternative to evolution. If this was the case, then the Court should be even more ashamed of their ignorance of science and reasoning ability.

As with the recent ICR decision, I will have to write a longer analysis later after I have actually read and analyzed the decisions. Please monitor the TEA group email list and twitter account.


Original Comer v. TEA lawsuit news articles.

Most recent news articles:

http://www.dallasnews.com/sharedcontent/dws/dn/education/stories/040109dntexteasuit.3565b22.html

Ex-Texas Education Agency employee's lawsuit tossed in ouster over creationism e-mail

By TERRENCE STUTZ / The Dallas Morning News
tstutz@dallasnews.com
Tuesday, March 31, 2009

AUSTIN – A federal judge dismissed a lawsuit Tuesday by a former state science curriculum director who alleged that she was illegally fired for sending out an e-mail on a lecture that was critical of those wanting to teach creationism in science classes.

The lawsuit by Christina Comer of Austin charged that her firing by state Education Commissioner Robert Scott in November 2007 was improper because she was accused of violating an "unconstitutional" policy. The Texas Education Agency requires that employees to be neutral on the subject of creationism, the biblical interpretation of the origin of humans.

Comer said in her suit that the agency's neutrality policy had the effect of endorsing religion, and thus violated the establishment clause of the U.S. Constitution.

State attorneys said Comer was fired for sending out e-mails from the TEA Web site that gave the impression the agency supported the views of a lecture speaker, Barbara Forrest, who wrote a book critical of the tactics of creationists and their attempts to inject religion into science classes.

U.S. District Judge Lee Yeakel sided with the state and Scott on Tuesday, granting a motion for summary judgment and dismissing the lawsuit.

Yeakel had indicated during a hearing in December that he was skeptical of Comer's claims.

TEA officials also said Comer made unauthorized remarks not connected to the debate over creationism during her tenure at the agency, another factor in her termination. She was the science curriculum director for 10 years.

Her dismissal – she resigned under threat of being fired – came as the State Board of Education was beginning to plan for a rewrite of the science curriculum in 2008.

Texas curriculum standards have long required that Charles Darwin's theory of evolution, including the premise that humans evolved from lower forms of life, be taught in all high school biology classes.

Public schools have been prohibited from teaching creationism, or creation science, since a landmark decision by the U.S. Supreme Court in 1987 that struck down a Louisiana law requiring that creation science be taught in public schools whenever evolution was taught. The high court said the law was an attempt to advance a particular religion.

State Board of Education members approved new curriculum standards for science classes last week that will remain in force for the next decade. In adopting the standards, board members excluded language favored by evolution critics, but did include compromise provisions that will encourage students to examine "all sides of scientific theories," including evolution, in science classes.

Comer said in her suit that the agency's neutrality policy had the effect of endorsing religion, and thus violated the establishment clause of the U.S. Constitution.

State attorneys said Comer was fired for sending out e-mails from the TEA Web site that gave the impression the agency supported the views of a lecture speaker, Barbara Forrest, who wrote a book critical of the tactics of creationists and their attempts to inject religion into science classes.

U.S. District Judge Lee Yeakel sided with the state and Scott on Tuesday, granting a motion for summary judgment and dismissing the lawsuit.

Yeakel had indicated during a hearing in December that he was skeptical of Comer's claims.

TEA officials also said Comer made unauthorized remarks not connected to the debate over creationism during her tenure at the agency, another factor in her termination. She was the science curriculum director for 10 years.

Her dismissal – she resigned under threat of being fired – came as the State Board of Education was beginning to plan for a rewrite of the science curriculum in 2008.

Texas curriculum standards have long required that Charles Darwin's theory of evolution, including the premise that humans evolved from lower forms of life, be taught in all high school biology classes.

Public schools have been prohibited from teaching creationism, or creation science, since a landmark decision by the U.S. Supreme Court in 1987 that struck down a Louisiana law requiring that creation science be taught in public schools whenever evolution was taught. The high court said the law was an attempt to advance a particular religion.

State Board of Education members approved new curriculum standards for science classes last week that will remain in force for the next decade. In adopting the standards, board members excluded language favored by evolution critics, but did include compromise provisions that will encourage students to examine "all sides of scientific theories," including evolution, in science classes.

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http://www.statesman.com/news/content/news/stories/local/04/01/0401comer.html

Former science director's suit against TEA dismissed

Texas Education Agency prevailed in its arguments that it must be neutral on issues the State Board of Education must decide, such as teaching creationism.

By Molly Bloom
AMERICAN-STATESMAN STAFF
Wednesday, April 01, 2009

A federal judge dismissed a lawsuit Tuesday that was filed by a former Texas Education Agency science director who alleged that the agency's neutral position on the teaching of creationism was unconstitutional.

Chris Comer, who was the agency's head of science curriculum for nine years, resigned in November 2007 after her supervisors threatened to fire her for forwarding an e-mail about a speaker who was critical of teaching creationism and intelligent design, an idea that the origins of life are best explained as the intentional result of a creator.

Comer's lawsuit against the agency and Texas Education Commissioner Robert Scott, filed in July 2008 in the Western District of Texas, sought a court order that would overturn the agency's neutral stance on teaching creationism, prohibit policies that "in any way credits creationism as a valid scientific theory" and reinstate Comer in her former position.

The state's attorneys argued in court filings that the agency is allowed to bar its employees from giving the appearance that the agency is taking positions on issues that the State Board of Education must decide, such as the content of the science curriculum.

"We are sorry that this situation resulted in a lawsuit but we were confident we would prevail," Scott said in a statement. "We wish Ms. Comer well."

John Oberdorfer, one of Comer's lawyers, said he was disappointed by the dismissal. "We'll look at it and decide what we'll do next," Oberdorfer said.

Comer's lawsuit said the agency's policy of not criticizing or advocating the teaching of creationism as science in effect credits creationism, the belief that human life was created as described in the Bible, as a valid scientific theory.

Comer was put on 30 days of paid administrative leave shortly after she forwarded an e-mail in October 2007 announcing a presentation that was being given by Barbara Forrest, author of "Creationism's Trojan Horse," which says creationist politics are behind a movement to include intelligent design theory in public school curricula. Comer sent the e-mail to several science educators and two science education e-mail lists, with the note "FYI."

State records show that supervisors told Comer she would be fired if she refused to resign. They said that by using her agency account to forward the e-mail, she had implied that the agency agreed with Forrest.

Last week, the State Board of Education adopted new science curriculum standards for the first time in a decade. Much of the public discussion had focused on how evolution should be taught.

The new curriculum, which outlines what will be taught about science in every public school in Texas, has been described by some people as a compromise between those who were critical of teaching evolutionary theories without scrutiny and those who feared attacks on evolution would lead to the teaching of creationism.

mbloom@statesman.com; 445-3620

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http://www.statesman.com/blogs/content/shared-gen/blogs/austin/education/entries/2009/03/31/a_federal_judge_has_dismissed.html

Former science director’s suit against TEA dismissed

By Molly Bloom
Austin American-Statesman
Tuesday, March 31, 2009

A federal judge dismissed today a lawsuit filed in July 2008 by a former Texas Education Agency science director who claimed that the agency’s neutral position on the teaching of creationism was unconstitutional.

Chris Comer, right, who was the agency’s head of science curriculum for nine years, resigned in November 2007 after her supervisors threatened to fire her for forwarding an e-mail about a speaker who was critical of teaching creationism and intelligent design.

(Here’s the March 31 order from Judge Lee Yeakel.)

(Update, 3:05 p.m.: Transcript of December 2008 motions hearing before Judge Yeakel.)

Comer’s suit against the agency and Education Commissioner Robert Scott, filed in the Western District of Texas, sought a court order overturning the agency’s neutrality policy on teaching of creationism, prohibiting any agency policy that "in any way credits creationism as a valid scientific theory" and reinstating Comer in her former position as director of science for the agency’s curriculum division.

Comer’s suit maintained that creationism, the belief that human life was created as described in the Bible, is a religious belief and that the agency has a policy of not criticizing or advocating the teaching of creationism as science. The suit claimed that the agency’s "neutrality" policy in effect credits creationism as a valid scientific theory.

"The agency’s policy is not neutral at all, because it has the purpose or effect of inviting dispute about an issue -- teaching creationism in public schools -- that is forbidden by" the First Amendment of the U.S. Constitution, the suit said, referring to the section of the Bill of Rights that says, in part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Comer was put on 30 days of paid administrative leave shortly after she forwarded an e-mail in late October 2007 announcing a presentation being given by Barbara Forrest, author of "Creationism’s Trojan Horse," which says creationist politics are behind the movement to get intelligent design theory taught in public schools. Comer sent the e-mail to several science educators and two science education e-mail lists, with the note: "FYI."

State records show that supervisors told Comer that she would be fired if she refused to resign because, by using her agency account to forward the e-mail, she implied that the agency agreed with Forrest’s criticism.

In a 2007 interview with the Statesman, Comer said the actions of science curriculum employees at the agency had been subject to increasing scrutiny in 2007 as the State Board of Education prepared to consider revisions to the science curriculum for all Texas public school students.

State officials and a lawyer representing Comer did not immediately return calls and emails from the Statesman.

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http://www.washingtonpost.com/wp-dyn/content/article/2010/04/26/AR2010042603703.html [dead link]

http://www.timesleader.com/TheDallasPost/news/ap?articleID=4432872 [dead link]

Firing over creationism e-mail leads to appeal

By MICHAEL KUNZELMAN
The Associated Press
Monday, April 26, 2010

NEW ORLEANS -- The former director of the science program for Texas' public schools asked a federal appeals court Monday to revive a lawsuit over her firing for forwarding an e-mail about a forum opposed to teaching creationism.

The agency that runs Texas public schools argued that Christina Castillo Comer's e-mail broke its policy of neutrality toward any potentially controversial issue, including creationism. A lawyer for Comer says the agency has an unwritten, unconstitutional policy of treating creationism as science.

A three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans heard arguments Monday in Comer's lawsuit against Robert Scott, commissioner of the Texas Education Agency.

A federal judge in Austin, Texas, dismissed her claims in March 2009. Comer is appealing that decision. The 5th Circuit panel didn't indicate when it will rule.

Comer says she was told to quit or be fired in 2007 after forwarding an e-mail about a presentation by a Southeastern Louisiana University philosophy professor viewed as opposed to teaching creationism in schools. Her only comment on the forwarded e-mail was "FYI."

The agency says Comer violated her employer's "neutrality" policy by airing her personal opposition to creationism.

Douglas Mishkin, a lawyer for Comer, said the agency's neutrality policy violates the First Amendment's establishment clause because it endorses a religious belief.

"It takes something that's not science and treats it as if it is," he said.

Judge Fortunato Benavides pressed Mishkin to explain how the agency violated the establishment clause.

"I can see a free speech claim," the judge said. "This looks like to me a First Amendment claim in the robe of an establishment claim."

James Ho, Texas' solicitor general, said Comer doesn't dispute that her e-mail violated the agency's neutrality policy.

"This is a policy of employee neutrality, and neutrality is the touchstone of the establishment clause," Ho said. "It's certainly not a violation of it."

The agency says Comer was fired for "repeated subordination." Besides violating the neutrality policy, she allegedly attended meetings and presentations without agency approval and disclosed details of the school board's deliberations to non-board members.

"What makes this case unique is that there is a pattern of misconduct," Ho said.

Comer's lawyers say no other agency employee has been warned, reprimanded or fired for failing to remain neutral on an issue before the board. Mishkin said the neutrality policy requires teachers to "pull your punch" if students ask about the relationship between creationism and evolution.

"They said, 'You must do your job with one hand tied behind your back,'" he said.

Creationism is the belief that the Earth and its creatures were created by a deity. It's an alternative to the origin of life explanation taught in public schools under the theory of evolution, which puts forth that all living organisms descended from a common ancestral gene pool.

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http://www.chron.com/disp/story.mpl/ap/tx/7092214.html

Appeals court refuses to reinstate lawsuit

The Associated Press
July 2, 2010

AUSTIN, Texas — A federal appeals court has refused to reinstate a lawsuit against the Texas Education Agency by a former state science curriculum director who said she was illegally fired and that the agency's neutral position on the teaching of creationism was unconstitutional.

The New Orleans-based 5th U.S. Circuit Court of Appeals on Friday upheld a lower court's decision to dismiss the lawsuit by Christina Comer.

Comer's lawsuit alleged that her firing by state Education Commissioner Robert Scott in November 2007 was improper because she was accused of violating an "unconstitutional" policy.

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http://ncse.com/news/2010/07/comer-loses-appeal-005612

Comer loses appeal

NCSE
July 2nd, 2010

In a decision issued on July 2, 2010, the United States Court of Appeals for the Fifth Circuit upheld a lower court's decision that the Texas Education Agency's policy requiring "neutrality" of its employees when "talking about evolution and creationism" is not unconstitutional. The case, Comer v. Scott, was filed by Chris Comer, the former director of the Texas Education Agency, who was forced to resign from her post in November 2007 after she forwarded a note announcing a talk by Barbara Forrest. In June 2008, Comer filed suit, arguing that the agency's neutrality policy violates the Establishment Clause. Her lawsuit was dismissed in March 2009, but she appealed the decision, and oral arguments were heard in April 2010.

Writing for a three-judge panel of the Fifth Circuit, Fortunato Benavides explained (PDF, pp. 11-12), "Upon review of the record and applicable law, we cannot conclude that TEA's neutrality policy has the 'primary effect' of advancing religion. The fact that Comer and other TEA employees cannot speak out for or against possible subjects to be included in the curriculum ... does not primarily advance religion, but rather, serves to preserve TEA's administrative role in facilitating the curriculum review process for the Board. ... Thus, we find it hard to imagine circumstances in which a TEA employee's inability to publicly speak out for or against a potential subject for the Texas curriculum would be construed or perceived as the State’s endorsement of a particular religion."


Texas Citizens for Science
Last updated: 2009 July 3