Former TEA employee appeals case over controversial creation-evolution policy

Amie Ninh

[email protected]

The federal court in the Western District of Texas dismissed her lawsuit earlier this spring, but Chris Comer, former Director of Science for the Texas Education Agency, will appeal the decision that upheld the TEA's unwritten “neutrality” policy on evolution and creationism.

Comer was terminated in November 2007 after she forwarded an email to her colleagues from the National Center for Science Education about a public lecture by intelligent design critic Barbara Forrest.

Comer filed suit against the TEA in June 2008, arguing that the neutrality policy violated the Establishment Clause. After hearing oral arguments in December, the court denied Comer's request for summary judgment, dismissed her claims with prejudice, and granted the TEA's motion for summary judgment.

The opinion argued that the “policy is reasonable” and maintained TEA's position that “Agency staff must remain neutral on disputed curriculum issues regardless of a particular position's merit or constitutionality.”

Comer's appellate brief states that the termination memo Comer received from her superiors was the first and only document in which the Agency mentioned its “neutrality” policy. The memo evoked a letter of protest signed by 135 science professors from Texas universities.

“Comer's been the only person who has been reprimanded or forced to resign over such a policy,” said Glenn Branch, deputy director of the NCSE, who originally sent the email about Forrest's lecture to Comer. “No one had heard about a policy before they decided to punish Comer. Certainly if I were in Texas, I would be concerned that state bureaucrats set these policies that aren't written anywhere and are governing the way agencies are administered.”

Branch said Comer was simply doing her job.

“It's perfectly reasonable for a state employee to disseminate information on that,” he said. “The most troubling part is that `this lawsuit` has to be brought in the first place and that she could be discharged for simply sending an email with â??FYI' added on.”

John L. Oberdorfer, one of Comer's attorneys with Patton Boggs, said the state's reply to the appeal will most likely be due in early October. He said a date for oral argument has not been scheduled yet.

“We thought Ms. Comer had been wronged, and we thought it was an important issue that needed to be addressed,” he said. “I'll let the brief speak for itself. I think we've laid out why we thought the district court was wrong.”

In the brief, other notable court cases ruling on issues of creationism and evolution were cited, including Edwards v. Aguillard, which forbids the teaching of creationism along with evolution.

Comer and her attorneys are arguing the policy advances religion and thereby fails the “Lemon” test, established by Lemon v. Kurtzman in 1971. The test's three criteria outline that legislation must have a secular purpose, cannot advance or inhibit religion, and cannot encourage excessive government entanglement with religion.

“Granting the Agency license to enforce neutrality â??regardless of constitutionality' impermissibly empowers the TEA to discipline employees for unconstitutional reasons,” the brief says.

Currently, no organizations have filed amicus briefs on Comer's behalf. Branch said if the lawsuit continues past the appellate level, NCSE might consider filing one. However, he noted the importance of understanding that issues of creationism and evolution pervade multiple levels of the educational bureaucracy.

“Creationism and evolution controversy doesn't only play out in the level of the classroom,” he said. “Things do happen like this at the local state departments of education and on the state boards of education, and they can have a greater impact.”


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