Chris Comer appeals case in Texas

| 36 Comments

The NCSE reported on August 13th that

Chris Comer, whose lawsuit challenging the Texas Education Agency’s policy of requiring neutrality about evolution and creationism was dismissed on March 31, 2009, is now appealing the decision. Formerly the director of science at the TEA, Comer was forced to resign in November 2007 after she forwarded a note announcing a talk by Barbara Forrest in Austin; according to a memorandum recommending her dismissal, “the TEA requires, as agency policy, neutrality when talking about evolution and creationism.” In June 2008, Comer filed suit in federal court in the Western District of Texas, arguing that the policy violates the Establishment Clause of the First Amendment: “By professing ‘neutrality,’ the Agency credits creationism as a valid scientific theory.” The judge ruled (PDF, p. 18) otherwise, however … In her appellate brief, submitted to the United States Court of Appeals for the Fifth Circuit, Comer asked (PDF, p. 39) the court to “review the record de novo and reverse and vacate the district court’s decision. Specifically, it should grant Comer’s motion for summary judgment, and vacate the grant of summary judgment for defendants, as well as the dismissal of plaintiff’s complaint. At a minimum, this Court should vacate the grant of summary judgment to defendants, plus the order dismissing the complaint, and remand for further proceedings.”

Hat Tip: Tony Whitson’s blog on curriculum-related matters

36 Comments

Imagine my chagrin, as a retired Texas educator, at the discovery that “the TEA requires… neutrality when talking about evolution and creationism.”

I wonder if they require “neutrality” when talking about any other pseudoscience (or non-science).

Chagrin, but alas, not surprise.

How does posting an announcement about a talk violate “neutrality”? Has every member who has ever mentioned any talk by any creationist been fired? How can you fire someone for refusing to obey an unconstitutional law anyway? This matter has already been decided by the courts and they have ruled consistently that creationism is unconstitutional. I would say that Comer should get her job back and then the person who fired her should be fired.

DS said:

… creationism is unconstitutional. I would say that Comer should get her job back and then the person who fired her should be fired.

Creationism taught in a public school (government) classroom by taxpayer-funded teachers is unconstitutional. I’m sure that’s what you meant. As for the following sentence–I couldn’t agree more.

Just Bob wrote:

“Creationism taught in a public school (government) classroom by taxpayer-funded teachers is unconstitutional. I’m sure that’s what you meant.”

You are correct sir.

Now, if TEA is a federal or state funded institution, or if they create policy for state sponsored schools, then certainly their policy is unconstitutional. If they are a private organization, then Comer might be on more shaky ground. If they are a religioius institution, then she should have known better than to wprk for them in the first place if she planned to rock the boat.

DS said:

Now, if TEA is a federal or state funded institution, or if they create policy for state sponsored schools, then certainly their policy is unconstitutional. If they are a private organization, then Comer might be on more shaky ground. If they are a religioius institution, then she should have known better than to wprk for them in the first place if she planned to rock the boat.

TEA is the Texas Education Agency, the organ of the state government which pretty much controls all public education in the state. Among other things, they develop and administer the minimum proficiency test (TAKS), which determines if kids are eligible to graduate. In my area they occasionally take over and administer local districts for financial malfeasance or more than usually abysmal educational performance.

This was an incidence of an agency of the state government firing a state employee, whose job was, it would seem, partly helping other TEA officials understand the teaching of science and problems related to such, for alerting them to a presentation by an organization dedicated to preventing religion from intruding into public school science classes.

The ruling that TEA must remain “neutral” in such matters is just bizarre, especially since the creationism alternative has unambiguously been ruled religious in Federal courts, including the Supreme Court. Comer alerting her colleagues to a presentation by, say, the DI about how to insert ID or doubts about “darwinism” into science classes would surely also have been within the purview of her duties. Their jobs, and hers, involve understanding the problems and issues in public school science teaching. Yet the cynic in me doubts that she would have been fired for doing the latter.

Just Bob wrote:

“TEA is the Texas Education Agency, the organ of the state government which pretty much controls all public education in the state.”

Thanks Bob.

It would seem to me that there is ample legal precedent for any court with a competent judge to rule that the policy is illegal and unconstitutional for any state sponsored organization. Therefore, a state employee cannot be fired for not obeying an illegal policy. Instead, it is reasonable that those responsible for developing and enforcing the policy be sued and or fired or both.

How can a state employee at a state run institution institute illegal policies and hope to get away with it? How can they expect to generate so much publicty and remain unpunished for their illegal activity? A law suit for unlawful termination or maybe civil rights violations would seem to the most effective way of dealing with such nonsense and holding those who abused their authority personally responsible.

As a Texan, it’s hard to come to grips with how far Texas education has fallen under the control of creationism. Comer’s firing, an action that once seemed extreme, now seems almost mild compared to the antics of our board of education.

To everyone outside of Texas, I’m not sure how this is going to turn out, but know that many of us are fighting like hell to turn this around. The fat lady hasn’t sung yet … Although in Texas she’s more likely to be a church-going, loud-mouthed creationist.

She’s a very brave woman. I hope she gets all the support she deserves. Plus, I hope the courts deliver the big smack-down to creationists.

I checked out the link to Tony Whitson’s blog. One guess who the second commenter is, weighing in with legal theorizing on the case and assiduously ignoring the fact that the unconstitutionality of inserting creationism into public school classrooms is a solidly settled matter of law.

Maybe I’m being too harsh, though. Looks like the judge who made the ruling isn’t aware either. From the NCSE link, this quote from the ruling that Dave left out:

As a matter of law, the Agency’s neutrality policy, if it advances religion at all, only does so incidentally. Further, a reasonable observer of the neutrality policy would not believe the Agency endorses religion through the policy.

This jurist has apparently been living under the same rock as Larry Fafarman.

“As a matter of law, the Agency’s neutrality policy, if it advances religion at all, only does so incidentally.”

Right. Now let’s see, what if the policy required that schools remain neutral on the question of the germ theory of disease because some religious nut was opposed to antibiotics. Now if all of the children die, would that be only “incidentally” advancing religion?

Come on, who are these guys trying to fool? If such a policy only “incidentally” advances religion, then how does sending out an announcement for a talk without even advocatiing any position involve anything other than “incidentally” promoting science? And since when can a government official be fired for advovating for science education when that was apparently her job? Even if the policy is not ruled unconstitutional, there are still no grounds for dismissal whatsoever.

This whole business stinks. I say, make an example of these fools once and for all. Hold them personally responsible for their abuses and send the message that we will not allow them to use our public schools for preaching their nonsense.

Bitterman was EXPELLED (fired) from an Iowa CC for not agreeing with some students that Western civilization, the course he was teaching, started with a smart ass, walking, talking snake.

The CC paid him off. IIRC, it wasn’t much $25,000 or so. But the college didn’t seem too anxious to go to court either.

Sounds like Iowa SW CC is run by a bunch of christofascists who never heard of the first amendment.

thefire.org:

Victory in Southwestern Iowa’s ‘Adam and Eve’ Case July 22, 2008 by Adam Kissel

The American Humanist Association’s legal center has reached a settlement in the case of Steven C. Bitterman, a professor at Southwestern Community College (Iowa) who was fired in September—over the phone—after students complained about his argument in a Western Civilization course that the biblical story of Adam and Eve should not be taken literally. Bitterman is satisfied with the settlement. FIRE helped Bitterman compose a letter to the college in defense of his academic freedom, and a group of Iowa faculty circulated an open letter on his behalf. Thanks to the AHA for taking up Bitterman’s case and defending academic freedom.

I thought Chris Comer had an open and shut case for religious disrimination and phony charges to fire here.

Creationism isn’t a xian dogma. It is a xian cult dogma that most other xians don’t agree with.

It was obvious the TEA and the TBOE were gunning for anyone not a fundie cultist. In these cases, if they can’t find a pretext to fire someone, they just do what they always do. Lie and make something up.

It is a real stretch to say forwarding an email about someone’s talk violates “neutrality”. It is even worse to say that a state education board should be neutral about a fundie cult attack on science.

Wonder if the judge was a creationist? Well Texas, it wouldn’t be surprising.

Wish her well and good luck.

Raven reminds me that I neglected to say how exciting and gratifying it is that Comer is pursuing this case and attacking the ridiculous “neutrality” requirement head on. I wish her good luck as well.

I, too, would like to know a little more about this judge. He seems, at best, inexcusably naive about the history of these matters and the court precedents.

As a matter of law, the Agency’s neutrality policy, if it advances religion at all, only does so incidentally. Further, a reasonable observer of the neutrality policy would not believe the Agency endorses religion through the policy.

Forced neutrality between evolution(ary biology) and creationism in a science classroom would not be equivalent to giving equal time to a Holocaust denier in a World History classroom: it would be equivalent to forced neutrality between 20th Century World History and mandatory daydreaming about how wonderful the world would have been had the Allies allowed the Nazis to win World War 2, and complete the Holocaust the Nazis were never allegedly able to do.

“Further, a reasonable observer of the neutrality policy would not believe the Agency endorses religion through the policy.”

Actually, that is exactly what any reasonable observer would have to conclude, since creationism has already been consistently ruled to be religiously motivated pesudoscience. Therefore, one cannot be required to remain “neutral” on on issue that has already been ruled on by the supreme court. It is an implicit endorsement of a specific religious position that has no evidence whatsoever.

Now why in the world would anyone want to remain “neutral” in the face of the overwhelming evidence? How is that not an endorsement of a religious position by a state funded institution? Why would anyone think that any reasonable judge would fall for that argument? This policy could not possibly pass the lemon test. Case closed.

This comment has been moved to The Bathroom Wall.

And another thing - are the Texas state science standards “neutral”? Do they demand equal time for creationism? That would definately be illegal and unconstitutional. How can the official policy of the advisory board directly contradict what is taught in the public schools? What is it these guys do exactly if they ignore what is supposed to be taught?

As far as I know, even the McElroy nonsense only demands that the claims of evolution be critically examined. Even the most radical creationist cannot demand “neutrality” with respect to this issue. How can these guys think that they can get away with such crap? DIdn’t they learn anything from Dover?

Paul Burnett said:

Speaking of life-forms from under a rock, you can see a good example of Larry Fafarman’s native civility and respect for civil discourse at …

Oh gosh yes, I just HAVE to rush off and inspect the latest articulate, well-reasoned, good-natured, and credible musings of “Larry The Loser” …

Larry wrote:

“If Comer didn’t know or suspect that the “strengths and weaknesses” language would possibly be discussed in the lecture, that was her fault.”

So now Comer is responsible for anything someone else says? Bull puckey. Comer should not be required to remain neutral on scientific issues and neither should Barbara Forrest, period. And the fact that Forrest is absolutely right doesn’t seem to be at all significant to you?

“Also, it is not the job of every government agency to enforce every law and every court decision.”

No, but it is the law that government agencies cannot break the law as they have done here. They are in blatant violation of the constitution and there is ample legal precedent.

“There are other examples of laws and policies requiring particular government agencies to keep personal information confidential. In the same way, it is OK for the Texas Education agency to have an airtight neutrality policy to avoid even the possibility of the appearance of taking a position on any matter that the SBOE might consider, regardless of legal or constitutional issues concerning the matter.”

Comer did not give out any personal information, nor did she compromise the agency in any way. They cannot “consider” this issue, since it has already been decided by the supreme court. If you want to argue that the agency can have a policy that is unconstitutional in order to promote a religious position go right ahead, you will lose.

“Give up already, Darwinists – you don’t have a leg to stand on. Enough is enough.”

Waterloo! Waterloo! I’m so scared.

ABCLarry weasels…The biggest issue in the Texas board of education hearings on the new state science standards was whether to retain the “strengths and weaknesses” language that had been in the standards for around 20 years or more, and here is Forrest arguing against this language.

OH, good!

Since this is all about the “strengths and weaknesses of evolution”, and has nothing to do with ID, then Comer calling attention to Barbera Forrest (who is, after all, a critic of ID, not a proponent of evolution, is fair game, since it has nothing to do with the subject at hand.

ABCLarry said:

Also, it is not the job of every government agency to enforce every law and every court decision.

So, it’s not the police’s responsibility to enforce laws prohibiting murder, or that it’s not the IRS’ responsibility to enforce laws mandating that citizens pay their income tax on time?

In the same way, it is OK for the Texas Education agency to have an airtight neutrality policy to avoid even the possibility of the appearance of taking a position on any matter that the SBOE might consider, regardless of legal or constitutional issues concerning the matter.

So, explain to us again how it’s okay for the Texas Education Agency to defy the constitutional amendment prohibiting government from favoring religion to the extreme (educational) detriment of Texas school children?

Give up already, Darwinists – you don’t have a leg to stand on. Enough is enough.

How is your legal nonsense and false bravado supposed to make up for the facts that there is no evidence for Creationism or Intelligent Design Theory, and that the proponents thereof have absolutely no desire to do any science to begin with?

ABCLarry said:

Give up already, Darwinists – you don’t have a leg to stand on. Enough is enough.

Since no one here is a “Darwinist”, you’re talking to no one.

ABCLarry says he’s arguing that it is not the task of an agency of the Government of Texas actually to enforce the law, which is in this case the First Amendment to the Constitution of the United States of America.

But that isn’t what he’s actually arguing. He’s arguing that such an agency need not abide by the law. That it can behave as if there were no law prohibiting the establishment of any religion, and proceed to establish a religious doctrine by mandating that it be taught in the public schools on an equal basis with actual science.

No, really. That’s what he’s saying. He actually has the brass-bound nerve to get up in a public place and say that agencies of the various State Governments are above the law. What powers would he grant to agencies of the US Federal Government, one wonders. Omnipotence, perhaps?

I have unpublished ABCLarry’s comments. Please do not feed the little holocaust denier. If that discussion continues, I’ll send all related replies to Larry’s drivel to the bathroom wall as well. Posts that link to ABC’s website will be sent to the bathroom wall, period. I have better things to do than allow this humanoid to foul the internet using my posts.

Dave

the creationists are deliberately or ignorantly confusing two things: “going after” creationists; and going after creationism activists. the first would be like harrassing men who quietly wear women’s underwear. While some anti-creationists are in favor of targeting all creationists it’s not appropriate in an educational setting (in the sense of making unfortunate fundamentalists targets of abuse) and it’s not what’s being discussed here. the second is in fact what happens when discussions of organized creationism are organised, and is a perfectly scientific endeavor, since it is corrective of anti-scientific processes. If the policy concerns the first case, as an issue of cultural sensitivity, it’s arguably reasonable but not relevant for this situation. If it’s intended for both cases, then it’s not reasonable and should lose on appeal. The entirely unrelated third situation, that creationists who otherwise mind their business will learn evolution in school, is an unavoidable consequence of those children making contact with reality, which doesn’t check with scripture before manifesting

It’s hard to overstate the importance of this case.

If an education department employee anywhere in the country can be fired for simply drawing attention to a talk by a well-respected academic figure, and if a state education department can officially declare itself “neutral” with respect to mainstream science versus a science denying ideological or sectarian religious dogma, then this country is in deep trouble.

This needs to be fought as far as it takes.

It needs to be taken to whatever level of court will overturn it, and it that isn’t working well enough, it needs to be fought at the legislative level.

snaxalotl said:

The entirely unrelated third situation, that creationists who otherwise mind their business will learn evolution in school, is an unavoidable consequence of those children making contact with reality, which doesn’t check with scripture before manifesting

This may be the primary fear of those sectarians who are politically active in preventing evolution from being taught. And it is one of the major fears that demagogues like Rush Limbaugh, Glen Beck, and many of the preachers on TV are now exploiting.

This fear appears to be only one of a whole series of terrors that have become the central themes of the current scare tactics among right-wing conservatives and fundamentalists. Since the last election, their leaders are telling them on the TV channels at night that these are the “end times”, that the government is out to persecute Christians, that the Anti-Christ is now stalking them, and “Darwinists” and atheists are now in ascendancy.

It goes even farther than this. Conservative talk show hosts are airing guests who have written books discussing their fears that the government is shutting down conservative opinions and seeking to close all conservative media. They are trying to generating as much panic as possible.

It was interesting to watch Dick Armey (R- Texas) on a Meet the Press panel this weekend making up stuff as fast as other panelists could express skepticism at his claims.

These hate groups are shoveling crap faster than others can clean it up. Texas seems, as usual, to be one of the nesting grounds of this kind of sectarian politics.

Personally I find the whole thing shameful and wholly disingenuous. Firing a Director of Science for recommending a talk on the concept of valid science vs pseudoscience demonstrates ANYTHING BUT neutrality with regards to the concepts of evolution and creationism. I hope the Ms. Comer gets the opportunity to kick the TEA members’ behinds straight back to Sunday school.

Let’s not forget that the great state of Texas has a strong impact on what textbooks are printed and available for public schools in the rest of the country. This traditional role for Texas needs to be challenged.

Robin said:

Personally I find the whole thing shameful and wholly disingenuous. Firing a Director of Science for recommending a talk…

She didn’t even recommend it, she just said “FYI.” The recipients could’ve thought she sent the message because she was strongly opposed to Forrest’s views.

That point is important because is shows that TEA’s claim that the message constitutes endosement is ludicrous. Forwarding a message for information can mean you agree with the speaker, disgree with them, are ambivalent…heck you might’ve never heard of them before but thought the abstract sounded interesting. There’s simply no reasonable way to get endorsement out of “FYI.” Look back through the PT threads and you will find instances where people post FYIs with links to creationist articles. It certainly doesn’t imply endorsement! If mentioning was the same as endorsing, you couldn’t hold a discussion on anything!

eric said: (FYI) certainly doesn’t imply endorsement! If mentioning was the same as endorsing, you couldn’t hold a discussion on anything!

Well, do remember that this an organization staffed mostly with people who honestly and literally think that there are only two types of thoughts and opinions: Biblical Truth tm, and the Devil’s Lies. And trying to suggest otherwise is just happens to be, coincidentally, a lie of the Devil.

eric said:

Robin said:

Personally I find the whole thing shameful and wholly disingenuous. Firing a Director of Science for recommending a talk…

She didn’t even recommend it, she just said “FYI.” The recipients could’ve thought she sent the message because she was strongly opposed to Forrest’s views.

That point is important because is shows that TEA’s claim that the message constitutes endosement is ludicrous. Forwarding a message for information can mean you agree with the speaker, disgree with them, are ambivalent…heck you might’ve never heard of them before but thought the abstract sounded interesting. There’s simply no reasonable way to get endorsement out of “FYI.” Look back through the PT threads and you will find instances where people post FYIs with links to creationist articles. It certainly doesn’t imply endorsement! If mentioning was the same as endorsing, you couldn’t hold a discussion on anything!

Quite so Eric. I meant ‘recommend’ in the sense of putting forth a suggestion (as in, if you are just getting into wine, I recommend you start with sauvignon blancs or pino grigios as they tend to be more accessible to new palates than the more complex, minerally whites. In any event, I agree whole heartedly with your statement.

Sometimes tuning a spam filter makes things better.

A key point of contention in this case that I hope someone(s) can address: I’ve read here and there that the TEA claims they had a general policy of neutrality towards all controversial subjects that might come up before the board. Comer claims the policy was specifically targeted at the creationism/evolution issue. Can anyone speak to the evidence for those competing claims?

Of course, the two aren’t necessarily mutually exclusive. If I understand him correctly, Steve Schafersman of Texas Citizens for Science says, in his blog, that he has inside information that TEA employees were verbally told that evolution was the main or real issue behind the policy, while there was a written policy claiming general neutrality. A little quick ‘n’ lazy googling, though, fails to turn up anything more concrete on this.

I know which version I find most plausible, given the respective track records of the pro- and anti-evolution sides with regards to honesty, but that’s not the same thing as having convincing evidence.

MPW said:

I’ve read here and there that the TEA claims they had a general policy of neutrality towards all controversial subjects that might come up before the board. Comer claims the policy was specifically targeted at the creationism/evolution issue. Can anyone speak to the evidence for those competing claims?

I have not seen any of the court evidence but the decision reads like TEA presented evidence that they had applied their policy (i.e. don’t comment on subjects before the Board) to non-creationism subjects before.

At the same time, we haven’t heard of anyone else being fired for breaking this rule. So it may be a case of discriminatory application of a neutral policy, rather than discriminatory policy.

The judge didn’t appear to seriously consider the former, only the latter. The ruling talks a great deal about whether the policy endorses religion or not, concluding it doesn’t. But the case should really be about TEA’s implementation of that policy in this instance, not the wording of the policy in general. If the law says cops may stop any and all speeders, and they only stop people with dark skin, the neutral wording of the law is not a defense. And if TEA reprimands employees who talk about Board sujects, but only fires the ones who talk about evolution/creationism, it seems to me (IANAL) they’re in the same boat.

Perhaps I feel more sympathy for Freshwater and lawyer. I think Comer agreeing to go for summary judgment gave a prejudiced judge an out. I say prejudiced because there’s no way you can read Aguillard and say what the judge said. (Aguillard is the law, Kitzmiller v. Dover is PA case law). The court ruled in Aguillard v. Edwards that creationism and creation science are religion, that teaching them is unconstitutional. Comer passed on an email about a presentation by a woman who’d helped prove in court that ID was an unconstitutional form of religion injected in science classes, as an FYI.

The supreme court ruled creationism is religion. To have a policy neutral towards the TEACHING of creationism and the TEACHING of evolution, that is, you cannot either promote or criticize creationism, even including pointing out that it’s illegal to include it in the science curriculum promotes a religious viewpoint. The judge in this case was wrong - I believe so wrong that there’s strong evidence of a mind already made up looking for a reason to dismiss with prejudice. had both sides not sought summary judgment, I think a trial would have, while expensive, won out for Comer. Once enough was on the record, no out for the judge.

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This page contains a single entry by Dave Thomas published on August 15, 2009 11:04 AM.

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