From Secular Humanism On-line News (July, 2010)  

by Steven Schafersman

Chris Comer On July 2 the Federal Fifth Circuit Court of Appeals in New Orleans refused to reinstate a lawsuit against the Texas Education Agency (TEA) filed by Christine Comer, the former Texas science curriculum director, who said she was illegally forced to resign for violating an agency “neutrality policy” on the teaching of creationism. Comer said the neutrality policy is unconstitutional.

Comer was terminated by the TEA in November 2007 for forwarding a memo to a TEA e-mail list that advertised an upcoming anti-Intelligent Design Creationism (IDC) talk in Austin. The forwarded memo violated the TEA neutrality policy forced on the agency by radical religious right administrators appointed by Texas Governor Rick Perry. The unwritten but subsequently court-acknowledged TEA policy was essentially devoted to one topic: neutrality in science policy between creationism and evolution. Overwhelming evidence suggests that the new radical religious right TEA leadership created the policy to keep TEA staff from influencing anticipated anti-science, pro-IDC State Board of Education decisions during the upcoming science standards revision (January 2008–March 2009). In addition, it could be used to get rid of Science Curriculum Director Chris Comer, a frequent advocate for science, assuming that she would eventually violate it in some way. Undeserved, trumped-up letters criticizing Comer for “misconduct and insubordination” were placed in her personnel file to create a pattern of misconduct that could later be used to justify her termination for simply forwarding a memo. Comer’s TEA supervisor claimed that Comer’s forwarded memo “implies endorsement” of science and anti-IDC about a “subject on which the agency must remain neutral.” That subject was evolutionary science vs. creationism.

The TEA policy was obviously unconstitutional, so in June 2008 Comer sued the TEA under the Establishment Clause. Her attorneys argued that the TEA’s firing of its director of science for not remaining “neutral” on the subject of creationism violated 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 TEA gave creationism, a religious topic, the same value as science, a secular topic. It is impossible to maintain constitutional “neutrality” between a religious topic and a secular one when employed as a government employee because governments and their agencies must remain secular (i.e., neither endorsing nor impeding either religion or philosophies opposed to religion).

Unfortunately, the District Court judge dismissed the lawsuit in March 2009 by summary judgment, narrowly ruling that Comer’s forced resignation was not a violation of the Establishment Clause because she was a state agency employee, not a public school teacher or student who enjoys protection from religious establishment by law. In short, the judge gave great license to state agencies to employ or terminate employees about matters for which teachers and students would receive constitutional protection. The court overlooked the fact that state agencies must be secular themselves, not promoting religion or infringing irreligion (what the TEA did) or vice-versa.

This decision was so narrow and poorly-reasoned that Comer and her attorneys appealed it in August 2009. Three judges of the Fifth Circuit Court of Appeals heard arguments on April 26, 2010 (listen to arguments at http://bit.ly/aqUavy ). Unfortunately, again, the Appeals Court upheld the dismissal. The Court’s opinion said, “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 reveals why the Court is wrong and 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 Establishment Clause but simply endorse religion in general or any religious doctrine over the neutral and secular alternative, in this case, science.

As with the District Court, the Appeals Court gave great deference to a state agency’s right to dismiss an employee for any reason it wants to, including violations of unconstitutional policies. This surely is a miscarriage of justice concerning religious freedom, something we have seen too much of recently from Federal courts dominated by Republican appointees. State employees—especially the director of science—should be able to promote science without it being determined as causing injury to religion. Because of radical religious right state leadership, Texas now has a pro-religious, anti-science “neutrality” policy that has been upheld by two federal courts. Science as a secular subject is now unprotected in the four states of the Fifth Circuit unless appealed and won en banc.

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