Comer decision appealed

added 8/31/2009: The case of the banned band T-shirts in Missouri may be eerily related to this case.

=========

Chris Comer, who was forced out of her job as Science head in the Texas Education Agency for forwarding an email announcement of a talk by Barbara Forrest in Austin, has filed her brief appealing the decision by a district court judge who had dismissed her lawsuit challenging her job termination.

A previous post here proposed a different legal strategy for the appeal. Briefly, I suggested that since the TSBOE and the TEA were pretending that creationism was not even being considered for inclusion in curriculum in any way, Comer could not be held legally responsible for acting on the knowledge that the question of inclusion was actually a matter for consideration by the Board (in effect, that the Board members were telling lies). The lower court’s reasoning is totally dependent on the premise that Comer knew that creationism would be considered as a matter for a policy decision by the Board.

I think my suggested approach, taking the Board members on their word, as speaking honestly and in good faith, might stand a better chance on the appeal. How can federal courts rule that Comer had a legal duty to conduct herself on the basis of knowing that the Board members were lying to the public?

Comer is taking a more straightforward approach, directly claiming that creationism has been the policy of SBOE and TEA, and calling on the courts to rule this policy (and the job action in her case) unconstitutional under the Establishment Clause of the First Amendment. Her victory on these grounds will be much more valuable than it would be following my suggested argument, if she does win the case.

About these ads

46 Comments

  1. Posted August 15, 2009 at 4:52 pm | Permalink

    Comer’s brief makes a frontal assault on the neutrality policy regarding creationism. It’s a risky approach, but it just might be the best way to go.

  2. Posted August 15, 2009 at 5:32 pm | Permalink

    Your proposed strategy couldn’t possibly work — it is too arbitrary and subjective.

    IMO Chris Comer has an extremely weak, virtually non-existent case. Here is an excerpt from my blog article about the appeal:

    The TEA’s neutrality policy was created for the purpose of making the Texas BOE hearings more fair and was not created for the purpose of promoting or advancing religion or creationism. The judge ruled, “As a matter of law, the Agency’s neutrality policy, if it advances religion at all, only does so incidentally.” Deciding on a case-by-case basis when an exception to the neutrality policy is justifiable would be an excessive burden on the TEA. Furthermore, Chris Comer took it upon herself to decide to make an exception to the neutrality policy. Also, there is no evidence that she had constitutional issues on her mind when she decided to make an exception to the neutrality policy — at the time, she said that her reason for sending out the email was that she was impressed by the speaker’s credentials.

    Constitutional issues that could arise in upcoming Texas BOE hearings deserve the same TEA policy of neutrality as other kinds of issues that could arise in upcoming Texas BOE hearings. Constitutional issues are especially sensitive here because of claims that terms like “strengths and weaknesses,” “analyze and evaluate,” and even “theory” are “code words” for teaching creationism. There is a lot more involved here than just the issue of openly teaching creationism. Also, neither Chris Comer nor Barbara Forrest — the speaker whose lecture Comer announced in her email — are attorneys and so they should not be considered to be qualified to officially give or endorse legal advice on constitutional issues in public education.

    I am not aware of any TEA staff member who supported Comer.

  3. Posted August 15, 2009 at 7:08 pm | Permalink

    The TEA defense in the lower court was completely based on the factual premise that inclusion of ID/creationism was a “disputed issue” that the SBOE would be considering, which was the basis of their claim that she should have remained neutral. She could simply have quoted Board members to show that, unless they were lying, it was not going to be taken up as a disputed issue, so she had no reason to understand that it was (unless she had a legal obligation to assume that they were lying). It’s not arbitrary to rebut their central contention, and it’s not subjective to submit public statements directly on that point by the Board members.

    If she had submitted evidence against the central premise of their case, the burden would have shifted to TEA to demonstrate, with evidence, that it was known to be an issue that the Board was going to consider. That would have been embarrassing, to say the least, since they could not have done so without exposing the false public statements by members of the Board. In any case, by forcing evidence-based fact finding, this would have precluded Summary Judgment in favor of the TEA.

    As the Curmudgeon has noted, she took the more direct and courageous approach; and, as I said, this will make her victory more important, if she wins.

    BTW, state-level administrative law was my field of practice. People tend to look at the big Constitutional Law issues in a case like this, and don’t realize that there are more mundane reasons why courts are extremely reluctant to rule against administrative agencies in favor of an agency employee, especially on a policy matter (vs., say, a personnel matter). So the deck is stacked against her even without regard to the merits of the case.

  4. Posted August 15, 2009 at 8:29 pm | Permalink

    Tony Whitson said,

    The TEA defense in the lower court was completely based on the factual premise that inclusion of ID/creationism was a “disputed issue” that the SBOE would be considering, which was the basis of their claim that she should have remained neutral. She could simply have quoted Board members to show that, unless they were lying, it was not going to be taken up as a disputed issue,

    The board had no power to prevent public commenters from introducing issues concerning creationism and ID. For example, a National Center for Science Education report has given the name “creationist jargon” to terms like “teaching the controversy,” “critical analysis,” “strengths and weaknesses,” “academic freedom,” and “discussing the full range of scientific views.”

    If she had submitted evidence against the central premise of their case,

    But she didn’t, and it is too late now to submit such evidence. At the time she sent out the email, she said that her reason for sending it out was that she was impressed by Forrest’s credentials.

    As the Curmudgeon has noted, she took the more direct and courageous approach; and, as I said, this will make her victory more important, if she wins.

    For the reasons I gave here and in my blog article, I don’t see how she can possibly win.

    The issue here is not what is taught in the public schools — the issue is giving a fair hearing to all sides in the Texas board of education hearings.

    • MPW
      Posted August 16, 2009 at 2:27 am | Permalink

      Oh, what a surprise. It’s Larry Fafarman, the Internet’s #1 Expert on Creationism and the Law, and the Man of a Thousand Screennames.

      “The board had no power to prevent public commenters from introducing issues concerning creationism and ID.”

      Oh, so TEA employees can’t comment on anything curriculum-related to anyone because who knows when someone might bring up the subject in public comments and thus make it an issue. I see. Kind of hard to do their jobs that way, I would imagine.

      “the issue is giving a fair hearing to all sides in the Texas board of education hearings”

      Why should a public education body give neutral, “fair” hearing to an idea whose unconstitutionality in public classrooms has been repeatedly established by court decisions, including by the Supreme Court? The only proper thing for a school board to do in such a situation is to say, “Already been tried, can’t do it. Next.” Of course, that assumes the board is an honest dealer whose only agenda is good education, which isn’t the case here.

      Any honest observer without their head in the sand who’s been following this case knows that Don McLeroy and allied individuals have been working for years to introduce creationist ideas into the Texas public school curriculum, while making only half-hearted efforts to thinly veil that agenda. His own past statements make that clear. *That* is the issue here, because Comer was pushed out to help smooth the way for that agenda, as is clear to anyone who’s not willfully obtuse. All your obfuscations won’t change that.

      • Posted August 16, 2009 at 8:59 am | Permalink

        Right. Next up in Texas is social studies.

        Suppose an expert (and yes, BF is an expert on the topic she was speaking about) is going to speak on the Holocaust denial movement, who they are, where they’re coming from, how they argue, how to deal with them if it comes up in history class …

        Would a TEA social studies person be forced out for forwarding the information because (who knows?) maybe somebody will show up at the SBOE meeting advocating that they teach “all sides of the historical evidence” on whether the Holocaust really happened? (I hope not, but who knows, in this TEA?)

  5. Posted August 16, 2009 at 4:08 am | Permalink

    MPW barfed,

    It’s Larry Fafarman, the Internet’s #1 Expert on Creationism and the Law, and the Man of a Thousand Screennames.

    I know a hell of a lot more about the law than you do, bozo — the judge is in agreement with me, not with you. And the reason for the Thousand Screennames, doofus, is that bigoted Darwinists like you have been kicking me off their blogs for no good reason.

    –Oh, so TEA employees can’t comment on anything curriculum-related to anyone because who knows when someone might bring up the subject in public comments and thus make it an issue. —

    Exactly — that was the instruction given to Comer. It was a particularly sensitive time because the Texas board of education hearings on the new science standards were going to be held soon.

    Tony Whitson’s defense of Comer was that Texas BOE members stated that ID and creationism would not be taken up as issues. I countered that defense by pointing out that the BOE had no control over that because public commenters could introduce issues related to ID or creationism — an example is the claim that things like teaching “strengths and weaknesses” and “teaching the controversy” are tantamount to teaching creationism.

    Why should a public education body give neutral, “fair” hearing to an idea whose unconstitutionality in public classrooms has been repeatedly established by court decisions, including by the Supreme Court?

    I already answered that question in my comment #2 — for example, I said,

    “The TEA’s neutrality policy was created for the purpose of making the Texas BOE hearings more fair and was not created for the purpose of promoting or advancing religion or creationism. The judge ruled, “As a matter of law, the Agency’s neutrality policy, if it advances religion at all, only does so incidentally.” Deciding on a case-by-case basis when an exception to the neutrality policy is justifiable would be an excessive burden on the TEA. Furthermore, Chris Comer took it upon herself to decide to make an exception to the neutrality policy. . . . .Also, neither Chris Comer nor Barbara Forrest. . are attorneys and so they should not be considered to be qualified to officially give or endorse legal advice on constitutional issues in public education.”

    Also, only one judge — who has no jurisdiction in Texas — ruled that teaching — or even mentioning — ID is unconstitutional and no court has ruled that such things as teaching “strengths and weaknesses” and “teaching the controversy” are tantamount to teaching creationism. And even if courts had so ruled, the policy of neutrality would still require the TEA to remain silent on those issues.

    Comer was pushed out to help smooth the way for that agenda, as is clear to anyone who’s not willfully obtuse.

    Comer pushed herself out by her own insubordinate, irresponsible actions. And ironically, Don McLeroy spoke in defense of Comer by saying that so far as he was concerned, she had freedom of speech.

    As usual, I get a torrent of abuse for not toeing the party line on a Darwinist blog.

    “I’m always kicking their butts — that’s why they don’t like me.”
    — Gov. Arnold Schwarzenegger

  6. Posted August 16, 2009 at 10:41 am | Permalink

    Well-known creationism defender Larry Fafarman conveniently ignores the body of legal precedent, up to and including a US Supreme Court decision, establishing that teaching creationism in public schools is unconstitutional. The George W. Bush flunky who had Comer fired was obviously also unaware of this minor detail.

    C’mon, Larry, tell us about the “Edwards v. Aguillard” decision which ruled “that a Louisiana law requiring that creation science be taught in public schools along with evolution was unconstitutional, because the law was specifically intended to advance a particular religion.” Do you think that decision might have anything to do with this case? Or do you think the US Supreme Court has no jurisdiction in Texas?

    Or how about “McLean v. Arkansas Board of Education” which ruled “the Arkansas “Balanced Treatment for Creation-Science and Evolution-Science Act” (Act 590) was unconstitutional because it violated the establishment clause of the U.S. Constitution. The judge, William Overton, handed down his decision on January 5, 1982, giving a clear, specific definition of science as a basis for ruling that “creation science” is religion and is simply not science.” – http://en.wikipedia.org/wiki/McLean_v._Arkansas

    How can you possibly defend neutrality against creationism or intelligent design creationism?

  7. MPW
    Posted August 16, 2009 at 11:33 am | Permalink

    Larry, your modesty shines through as always. I’d like to see YOU take on the Predator or the T-1000. Or even the California legislature.

    Moving along…

    So TEA employees, including those directly responsible for curriculum matters, have to take a vow of silence on ANY curriculum-related matter? I… but the… The mind boggles. How is this supposed to work, again?

    The linchpin to your fantasies is the idea that there’s some sort of legal ambiguity around the creationist tactics used by the Texas bureaucrats here, or that there’s any ambiguity about what they’re up to. Court precedent and the history of creationist behavior in matters like these eliminate any such ambiguity. The record of anti-evolution, explicitly religious rants like those by education board member Don McLeroy mean that he and his allies would lose, badly, any court case challenging the nonsense they have tried to inject into the curriculum. As has happened with so many similar situations before.

    It also means that anyone claiming that these people are genuinely “neutral” and *not* on a pro-creationism crusade is either ignorant of the history here, or lying because they’re on board with the agenda.

    And I neglected to mention in my last post: as has been pointed out by many people before, the idea that Comer violated “neutrality” at all is highly questionable. She forwarded an e-mail about a talk by a well-known public commenter on these issues, as she had many times before with e-mails about matters related to her field, with no other comment than “FYI.” Sounds pretty neutral to me. Larry, you seem to conflate “neutrality” with “total silence” to get around this objection, but it’s not convincing. And furthermore, to make this claim, you once again have to feign innocence on what the real agenda here is – no honest and informed observer believes a TEA employee would have been marked for firing because they forwarded an announcement about a PRO-creationist talk with an “FYI” note.

  8. Posted August 16, 2009 at 12:37 pm | Permalink

    MPW and Paul are right.

    I have some concerns, however, about reliance on the Establishment Clause as the primary rationale for not including ID/creationism in biology classes.

    As I concluded in “The Dover (PA) Evolution Case: A True Win for Education?” (available free only for subscribers ($15/yr.) to the Teachers College Record Online),

    So long as students are given to understand that the reason they are not hearing about ID in their biology class is because of the Constitution, or because the courts or judges have said that it’s not allowed. . . . so long as students think that the reason they are learning about evolution is that it’s required by the state standards … so long as students think—and are even being told—that the reason they need to learn about evolution is so that they will score well on the high-stakes test . . . so long as this is how the students think about what’s happening in science class, such thinking deflects attention from their learning to understand biology and how it is the character of biology, as a natural science, that necessitates an evolutionary perspective, and distinguishes ID Theory as an alternative to the quest for explanations based on the operation of naturalist principles.

    The consequences from students and the public being given the impression that the reason for not including ID/creationism is to keep religion out of public school teaching are seriously regrettable, IMHO. It needs to be understood that the primary reasons for not including ID/creationism in public school biology classes should be the same as the reasons for not including ID/creationism in biology classes in religious schools, which are not limited by the Establishment Clause.

    I myself had four years in a religious high school, which was not limited by the Establishment Clause. We spent an hour every day, five days a week, for four years, in required religion classes. They used religion classes for teaching religion; but in physics class, they taught physics, and in chemistry class they taught chemistry, and in biology class, they taught the natural science known as “biology,” without any admixture of things other than biological science — religious or otherwise.

    What both students and the public need to understand is that the real, primary reason for not including ID/creationism in biology classes is because of how that would interfere with good science teaching by misleading students in their understanding of the nature of biology as a natural science. Although we cannot forgo use of the Establishment Clause as a last resort, both to protect good science teaching and to prevent religious teaching in the public schools, it should be our last resort, and not the first or only reason given for exclusion of ID/creationism, in any of its forms or guises, from classes on biology or any of the other natural science subjects.

    I think we also need to defend honest and effective teaching of natural science disciplines, as they really are, and not some kind of abstract “Science.” Paul mentions the McLean opinion, which the Edwards majority followed in its reasoning. This reasoning relies on the criteria supplied by Michael Ruse, as an expert witness in McLean, for the the “demarcation” between science and non-science. This demarcation argument has been subject to a lot of criticism. From a curriculum perspective, however, it’s beside the point. What is to be taught in biology class should be based on the specific science of biology, and not some kind of abstract “Science” in general. That’s why you see me using “sciences” in these arguments, instead of simply “science.”

    For anybody interested, there is a new updated edition of But Is It Science? The Philosophical Question in the Creation/Evolution Controversy (2009) edited by Robert T. Pennock & Michael Ruse, with a lot of worthwhile background material, and discussion of the demarcation argument, Ruse’s role in the McLean case, and updates following the Dover case.

  9. Posted August 16, 2009 at 12:38 pm | Permalink

    Here is the coup de grace to Tony Whitson’s defense of Chris Comer. Whitson argued that because of statements made by Texas board of education members, Comer had reason to believe that Forrest’s lecture would not discuss any “disputed issue” the SBOE would be considering — Whitson said (comment #3),

    The TEA defense in the lower court was completely based on the factual premise that inclusion of ID/creationism was a “disputed issue” that the SBOE would be considering, which was the basis of their claim that she should have remained neutral. She could simply have quoted Board members to show that, unless they were lying, it was not going to be taken up as a disputed issue, so she had no reason to understand that it was (unless she had a legal obligation to assume that they were lying).

    A paper by Forrest says,

    “The strengths and weaknesses evidence for and against” evolution. Although this has been standard creationist terminology for decades, it is now an often-used ID mantra . . . ID creationists have no empirical evidence to support ID. Like earlier creationists, they have established a false dichotomy between evolution on one hand and ID on the other, betting that if they can sufficiently discredit evolution, ID will be seen by potential supporters as being more credible by default. Not only is this a classic case of fallacious reasoning, but . . . . . (pages 21-22 of document, pages 23-24 of PDF file)

    The paper is a position paper from the The Center for Inquiry, the organization that sponsored Forrest’s lecture.

    The biggest issue in the SBOE 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. Even if ID and creationism were not “disputed issues” that the SBOE would be considering, the “strengths and weaknesses” language was certainly such a “disputed issue.” If Comer didn’t know or suspect that the “strengths and weaknesses” language would possibly be discussed in the lecture, that was her fault.

    Also, it is not the job of every government agency to enforce every law and every court decision. For example, the US Census Bureau is required by law to keep personal census information confidential — the Wikipedia article on the Census Bureau says,

    The Census Bureau can not share responses, addresses or personal information with anyone including United States or foreign government and law enforcement agencies such as the IRS or the FBI or Interpol. “Providing quality data, for public good, — while respecting individual privacy and, at the same time, protecting confidentiality — is the Census Bureau’s core responsibility,” says Arnold Jackson, chief operating officer for the US Census. “Keeping the public’s trust is critical to the Census’s ability to carry out the mission as the leading source of quality data about the Nations people and economy.” Only after 72 years does the information collected become available to other agencies or the general public.

    The confidentiality provisions of the US census laws are described here. 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.

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

  10. Posted August 16, 2009 at 1:31 pm | Permalink

    Tony correctly argues in message #8 that creationism (which almost everybody realizes includes intelligent design creationism) technically has no place in the biology curriculum because it is not biology or science. But school boards and legislatures have displayed a long history of technical ignorance (not to mention cowardice) on this issue, and thus need to be reminded continuously of the other reason that neither creationism nor intelligent design creationism have any place in the biology curriculum – because they are not biological science but religion.

    Everybody knows (and some even publicly admit) that the reason people want creationism or intelligent design creationism taught as if it were science is not based on scientific issues, but on anti-science religious issues. Most “cdesign proponentsists” (Google the term if you’re not familiar with it) are not scientists but religious apologists of one sort or another.

    Some cdesign proponentsists such as Larry Fafarman delight in throwing up all sorts of smoke screens and irrelevant issues (the Census Bureau?…puhleeze) to avoid the basic truth that creationism, “creation science” and intelligent design creationism are not science and have no place in any science curriculum because they are religious pseudoscience, not science.

    C’mon, Larry – give us your opinion of “Edwards v. Aguillard” and why you think the US Supreme Court was wrong and religion should be taught as if it were science.

  11. Posted August 16, 2009 at 2:26 pm | Permalink

    Paul Burnett said,

    Some cdesign proponentsists such as Larry Fafarman delight in throwing up all sorts of smoke screens and irrelevant issues (the Census Bureau?…puhleeze)

    It is not irrelevant, doofus — to show that the Texas Education Agency should not be required to attempt to enforce court decisions, I gave the example of the Census Bureau being prohibited from sharing personal information with anyone, including law enforcement agencies.

    C’mon, Larry – give us your opinion of “Edwards v. Aguillard” and why you think the US Supreme Court was wrong and religion should be taught as if it were science.

    I showed that court decisions are irrelevant to Chris Comer’s case.

  12. Posted August 16, 2009 at 2:56 pm | Permalink

    Larry refuses to give us his opinion of “Edwards v. Aguillard.” Obviously that must mean it has some bearing on Chris Comer’s case. C’mon, Larry, surely you have an opinion…

  13. Posted August 16, 2009 at 3:34 pm | Permalink

    Paul Burnett said,

    Larry refuses to give us his opinion of “Edwards v. Aguillard.” Obviously that must mean it has some bearing on Chris Comer’s case.

    How in the hell did you reach that conclusion? It means the opposite.

    If you want to read a good argument against the Edwards decision, I suggest that you read Justice Scalia’s dissenting opinion in the case.

    I think it is high time for the Supreme Court to revisit Edwards. Edwards is over 20 years old and is getting long in the tooth. A lot has happened in the evolution controversy in the time since Edwards was decided.

  14. Posted August 16, 2009 at 6:31 pm | Permalink

    Larry wrote: “A lot has happened in the evolution controversy in the time since Edwards was decided.”

    A lot has happened, true – but there is no “controversy” whatsoever about evolution in the world of actual science. The scientific support of the fact of evolution has continued to expand almost exponentially, while the best the creationists have been able to do was re-label creationism and “creation science” as “intelligent design” creationism while producing no supporting research.

    So the Dishonesty Institute and their dupes and minions have taken the bogus
    “controversy” to the churches and other refuges of the scientifically illiterate, providing templates for creationists in Texas and other states to use in drafting bills using the latest anti-evolution / pro-creationism code phrases. That’s what Chris Comer got caught up in. And that’s what Larry is defending.

    • Posted August 16, 2009 at 11:02 pm | Permalink

      Paul Burnett said,

      Larry wrote: “A lot has happened in the evolution controversy in the time since Edwards was decided.”

      A lot has happened, true – but there is no “controversy” whatsoever about evolution in the world of actual science.

      Saying that over and over again does not make it so. And there are many issues involved other than the purely scientific ones. For example, the “Lemon test” that was the basis of the Edwards decision has become increasingly discredited in the time since Edwards was decided and use of this test by the courts is now considered to be optional.

  15. MPW
    Posted August 16, 2009 at 11:55 pm | Permalink

    Out of the abundant piles of nonsense Larry has posted above, this stands out:

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

    He appears to be ignoring the fact that “obey” and “enforce” are two quite different words, and they mean different things. He means to say, government agencies don’t have to *obey* laws and court decisions if they really, really, really feel they shouldn’t. Especially if they’re laws and court decisions Larry doesn’t like.

    Sorry, they do.

    Again, it’s simple: Those in charge of the public education system have, legally (not to mention ethically), no business promoting creationism in it, nor demanding that their employees cooperate or acquiesce in such promotion.

    • Posted August 17, 2009 at 2:06 am | Permalink

      MPW said,

      He appears to be ignoring the fact that “obey” and “enforce” are two quite different words, and they mean different things.

      “Obey”? “Obey” WHAT? What law requires the Texas Education Agency to interpret and enforce laws, the Constitution, and court decisions?

      Comer’s charge that TEA’s neutrality policy is unconstitutional is based on the false assumption that all government agencies are always required or expected to help enforce laws, the Constitution, and court decisions. But the Census Bureau is a government agency that is actually prohibited by law from helping in such enforcement, even in matters of grave importance (in contrast to the relatively minor importance of a potential violation of the establishment clause).

      Even assuming arguendo that the TEA is obligated to help enforce court decisions about evolution education, neither Chris Comer nor Barbara Forrest are attorneys and hence they are not qualified to help in such enforcement. Comer’s email implicitly endorsing Forrest’s lecture actually constituted an unauthorized practice of law.

      He means to say, government agencies don’t have to *obey* laws and court decisions if they really, really, really feel they shouldn’t. Especially if they’re laws and court decisions Larry doesn’t like.

      The TEA’s neutrality policy is entirely appropriate. When Comer sent out the email announcing a very one-sided lecture, there was no opportunity for anyone to present opposing views. You Darwinists DON’T WANT there to be opportunities for presentation of opposing views — that is why you are so vociferously supporting Comer. You have no sense of fairness — none at all.

      Those in charge of the public education system have, legally (not to mention ethically), no business promoting creationism in it, nor demanding that their employees cooperate or acquiesce in such promotion.

      You Darwinists are going to have a very hard time convincing the courts that the TEA’s neutrality policy is an intentional promotion of creationism.

      • Posted August 17, 2009 at 11:14 am | Permalink

        Comer’s charge that TEA’s neutrality policy is unconstitutional is based on the false assumption that all government agencies are always required or expected to help enforce laws, the Constitution, and court decisions. But the Census Bureau is a government agency that is actually prohibited by law from helping in such enforcement, even in matters of grave importance (in contrast to the relatively minor importance of a potential violation of the establishment clause).

        Again, MPW is right. Article VI, paragraph 2 of the Constitution of the United States establishes the Constitution as the Supreme Law of the Land:

        This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

        The First Amendment was not originally applied to state governments, but that changed after ratification of the Fourteenth Amendment. The Census Bureau does not violate the Constitution by operating according to “the Laws of the United States which shall be made in Pursuance thereof.” Any private person may hold the opinion that our religious freedoms are relatively unimportant, but “We the people” for whom the Constitution speaks have decided otherwise.

        neither Chris Comer nor Barbara Forrest are attorneys and hence they are not qualified to help in such enforcement.

        The TEA memo quoted and used in the TEA brief in this case says

        As the Director of Science, Ms. Comer should understand that it is her job to explain law and rule regarding the science Texas Essential Knowledge and Skills (TEKS) …

        In any case, it’s just bizarre to argue in effect that the plaintiffs in Brown v. Bd. of Ed., for example, were guilty of practicing law without a license by filing complaints to redress the violation of their constitutional rights.

        You Darwinists

        What the heck is a “Darwinist”? Are there also “Einsteinists”? “Lavoisierists”?

        I’d be pretty surprised myself if Comer wins, as I suggested earlier. but if the Summary Judgment is vacated and this goes to trial, it will be another fun trial to watch.

  16. Posted August 17, 2009 at 9:48 pm | Permalink

    Larry said “You Darwinists” and Tony asked “What the heck is a “Darwinist”?”

    That’s what a cdesign proponentsist calls an evolutionist when he gets excited and forgets that intelligent design creationism is supposed to actually be sciency “science” and has nothing whatsoever to do with religion, nosiree. Because only creationists and other religionists use the pejorative term “Darwinist.” (They keep forgetting that the Wedge Document blew their cover, and Barbara Forrest’s paper “Understanding the Intelligent Design Creationist Movement” blew their cover, and all their holy-rolling Bible-thumper fellow travelers who continually conflate intelligent design and creationism keep blowing their cover.)

  17. MPW
    Posted August 18, 2009 at 8:40 am | Permalink

    Man, Larry’s not even trying anymore. I expected a superficially slicker bit of argumentative sleight of hand in that last comment. But he just blatantly changes “obey” to “enforce”, in the same line, barreling on as if no one will notice the difference, and going right back to his argument that government agencies and employees aren’t obligated to understand and obey the Constitution, laws and legal precedents. Unless they’re lawyers, I guess. Or something. (Ably contradicted by the quote Tony posted, for anybody who actually needed it – nice catch, Tony.)

    I forgot what Larry gets like when an argument goes on a while and he starts to fly off the handle. I’m not sure there’s a more pathetic scientific argument than “It’s not FAIR!” Especially when you’re using it to argue that high school science classes are the appropriate forum for (supposed) major new theoretical developments to be hashed out. Of course, that’s the Bizarro World contention creationists have been making for decades, in one way or another.

  18. Posted August 18, 2009 at 12:02 pm | Permalink

    Tony Whitson said,

    Again, MPW is right. Article VI, paragraph 2 of the Constitution of the United States establishes the Constitution as the Supreme Law of the Land: . . . The Census Bureau does not violate the Constitution by operating according to “the Laws of the United States which shall be made in Pursuance thereof.”

    The supremacy clause is irrelevant. And by your line of reasoning, the law prohibiting the Census Bureau from releasing personal census information that could be used to help enforce the Constitution is not “in Pursuance” of the Constitution.

    The TEA memo quoted and used in the TEA brief in this case says

    “As the Director of Science, Ms. Comer should understand that it is her job to explain law and rule regarding the science Texas Essential Knowledge and Skills (TEKS) …”

    What that statement means is that one of Ms. Comer’s duties is to explain the science education code that is in state law — that statement is not a blanket authorization to practice law. For example, if Comer is asked about creationism, the proper response is that creationism is not in the state science standards.

    In any case, it’s just bizarre to argue in effect that the plaintiffs in Brown v. Bd. of Ed., for example, were guilty of practicing law without a license by filing complaints to redress the violation of their constitutional rights.

    What in the hell are you talking about? The plaintiffs in Brown were not practicing law — they were represented by attorneys. Anyway, non-attorneys are allowed to represent themselves in court — they just can’t represent others. Anyway, that is irrelevant.

    IMO the “FYI” on Comer’s email implied endorsement — it implied, “this will make you better informed.” What Comer did in effect was appoint Forrest as a spokesperson for the Texas Education Agency, but the TEA has no control over Forrest’s statements. For example, if Comer were asked, “do you think that the ‘strengths and weaknesses’ language should be removed from the state science standards,” the proper answer would be, “The TEA’s neutrality policy prevents me from stating a position on that — that is a matter to be decided by the state board of education,” but Forrest would be free to state her opposition to the language and have this opposition interpreted as the position of the TEA, and there would be no opportunity for anyone to counter her. The reason for the TEA neutrality policy is that it was decided that there would be fair and open debate about the new state science standards. You Darwinist thugs have called the TEA managers all kinds of names for trying to enforce the neutrality policy. Name one TEA staffer or one politician who defended Comer — ironically, AFAIK the only politician who defended Comer was avowed creationist SBOE chairman Don McLeroy, who said that so far as he was concerned, Comer had freedom of speech. When Comer resigned, there was a bunch of newspaper editorials defending her, but I have seen no such editorials since that time — apparently the newspapers now understand that she has no case.

  19. Posted August 18, 2009 at 1:01 pm | Permalink

    MPW said,

    But he just blatantly changes “obey” to “enforce”, in the same line,

    That was because you assume that part of obeying the Constitution is helping to enforce the Constitution.

    and going right back to his argument that government agencies and employees aren’t obligated to understand and obey the Constitution, laws and legal precedents.

    Because that argument is airtight — I pointed out that the Census Bureau is prohibited by law from releasing personal census information even if that information could be used to help enforce the Constitution.

  20. MPW
    Posted August 19, 2009 at 2:00 am | Permalink

    I don’t know why anything Larry types amazes me anymore, but he still keeps managing it. Curriculum directors aren’t allowed to talk about curriculum-related matters because someone might bring them up at a school board meeting. Government agencies don’t have to follow the law because they’re not lawyers. Welcome to Planet Fafarman, population 1.

    • Posted August 19, 2009 at 3:25 pm | Permalink

      MPW, AFAIK no politician except Don McLeroy ever defended Comer’s action. The newspapers initially defended Comer but are not defending her now. It now appears that only the National Center for Science Education and a few Darwinist blogs are defending Comer. So who is being crazy here?

    • Posted August 19, 2009 at 5:44 pm | Permalink

      Ever wonder why it is illegal for people without law licenses to practice law?

  21. Posted August 19, 2009 at 4:42 pm | Permalink

    BTW, how could the TEA have a policy that is unconstitutional under the establishment clause if the TEA does not have a policy specifically concerning religion and creationism? That’s right — the TEA only has a general across-the-board neutrality policy regarding all issues that are before the state board of education. What Comer is really claiming is that what is unconstitutional is that the neutrality policy does not have an exception for religion and creationism. But she did not go through the proper channels to obtain such an exception — she just took it upon herself to make an exception.

    Comer is just so wrong on so many levels. I’ve got you Darwinists every which way but loose. I am really making you look silly.

    • MPW
      Posted August 20, 2009 at 9:19 pm | Permalink

      Larry: “the TEA only has a general across-the-board neutrality policy regarding all issues that are before the state board of education.”

      Yeah, right. On paper, perhaps, but TEA staff were told verbally that the creationism-evolution debate was of special concern. And according to this article by Steven Schafersman of Texas Citizens for Science…

      http://www.texscience.org/reviews/tea-science-director-resigns.htm

      … Comer said “We were actually told in a meeting in September that if creationism is the party line [of the Board], we have to abide by it.” (Regardless of the fact that teaching creationism in public schools is illegal, I will point out again.)

      And numerous others have pointed out that no one seems to have ever been fired or forced out before for violating such a neutrality policy. Yet remarkably swift and severe reaction was handed out to Comer for a minor and arguable infraction. If I recall correctly, an official sent an e-mail to Comer’s supervisors the same day her “FYI” e-mail went out, calling in very angry tones for her dismissal or reassignment, which was forthcoming within a few days.

      Add in the obvious pro-creationism agenda and maneuverings of the current powers-that-be on the board, and it all gives very strong support to the idea that the neutrality policy was being used in this case as a very tiny fig leaf (pardon the Genesis reference) to just barely cover a pro-creationism policy. You can claim on paper that you’re neutral, but if your actions say otherwise, that’s no defense.

      I fear, though, as do a number of other people, that Comer’s superiors may have built in enough “plausible deniability” to get away with this in a court of law. It doesn’t mean they’ve done the right thing or the legal thing, or that Chris Comer is wrong.

      “I’ve got you Darwinists every which way but loose.”

      Right turn, Clyde!

      • Posted August 20, 2009 at 10:40 pm | Permalink

        I assumed that those defending science education were connecting dots that TEA had left inexplicit. From the news coverage, I had not realized that the TEA explicitly cited “teaching creationism” in the public schools as the “subject on which [TEA claimed] the agency must remain neutral.” As the complaint points out,

        Under Aguillard, the “subject on which the Agency must remain neutral” — the “teaching [of] creationism in public education” — is a subject on which the Agency may not, without violating the Establishment Clause, have, express, or impose a so-called “neutral” position.

        The relief requested in the complaint includes

        an injunction against the Agency’s having, expressing, or imposing through any means, a policy of “neutrality” with respect to the teaching of creationism in the Texas public schools, or a policy that expressly or implicitly equates evolution and creationism, or that in any way credits creationism as a valid scientific theory.

        Now I see that TEA’s own blatantly explicit unconstitutional grounds for their action makes Comer’s case stronger than I thought it was.

  22. Posted August 21, 2009 at 2:38 am | Permalink

    MPW said,

    TEA staff were told verbally that the creationism-evolution debate was of special concern.

    Well, duh, of course the creationism-evolution debate was of special concern under the neutrality policy — the TEA was just stating the obvious. And creationism — the religious kind — per se was not really one of the issues, because as Tony pointed out, it was not on the table as an option for including in the curriculum. But terms like “strengths and weaknesses” (already in the state standards for 20+ years) and “analyze and evaluate” were certainly on the table, and Darwinist propagandists have called these terms “creationist jargon” and “creationist code words.” All you Darwinists talk about is creationism, creationism, and more creationism. There is much more involved here than just creationism.

    … Comer said “We were actually told in a meeting in September that if creationism is the party line [of the Board], we have to abide by it.”

    The TEA may have been exaggerating to make a point.

    And numerous others have pointed out that no one seems to have ever been fired or forced out before for violating such a neutrality policy.

    Did anyone else violate the neutrality policy? Did anyone else have a long history of disciplinary problems like Comer?

    If I recall correctly, an official sent an e-mail to Comer’s supervisors the same day her “FYI” e-mail went out, calling in very angry tones for her dismissal or reassignment

    “The same day”? That official sent that email to Comer’s supervisors less than two hours after Comer sent out her “FYI” email, and as I remember that official was home sick at the time.

    Add in the obvious pro-creationism agenda and maneuverings of the current powers-that-be on the board, and it all gives very strong support to the idea that the neutrality policy was being used in this case as a very tiny fig leaf (pardon the Genesis reference) to just barely cover a pro-creationism policy.

    Gullible Judge Jones swallowed a conspiracy theory, but not all judges are going to swallow a conspiracy theory.

    I fear, though, as do a number of other people, that Comer’s superiors may have built in enough “plausible deniability” to get away with this in a court of law.

    You can bet your sweet bippy they have.

    It doesn’t mean they’ve done the right thing or the legal thing, or that Chris Comer is wrong.

    It was all perfectly legal and Chris Comer was a loose cannon.

    Tony Whitson said,

    From the news coverage, I had not realized that the TEA explicitly said in their memo that the “subject on which [TEA claimed] the agency must remain neutral” was explicitly identified as the subject of “teaching creationism” in the public schools. Now I see the TEA’s own documents are blatantly explicit.

    As I said, there is more involved here than just the issue of teaching creationism in the public schools. For example, Forrest’s paper — and quite possibly her lecture too — discussed the issue of the “strengths and weaknesses” language, as I pointed out.

    The relief requested in the complaint includes “an injunction against the Agency’s having, expressing, or imposing through any means, a policy of “neutrality” with respect to the teaching of creationism in the Texas public schools, or a policy that expressly or implicitly equates evolution and creationism, or that in any way credits creationism as a valid scientific theory.”

    How can there be “a policy that expressly or implicitly equates evolution and creationism”? They are two different things.

    If Comer thought that any TEA policy was unconstitutional, she should have gone through the proper procedure for trying to change that policy. Instead she just took it upon herself to violate the neutrality policy. And I am not aware of any evidence that constitutional issues were on her mind when she violated the neutrality policy — she said at the time that she sent out the “FYI” email because she was impressed by Forrest’s credentials. Here is the story on my blog (the original NCSE article is apparently no longer available) —

    The National Center for Science Education says,

    Comer herself appeared on NPR’s “Science Friday” on December 7, 2007, relating her story to the show’s host, Ira Flatow. After receiving the e-mail announcing Forrest’s talk, she said, “you know, I had a half minute and I said, gee, this is really interesting. And then, I looked up the credential on my computer, I Googled Barbara Forrest and I said, oh my goodness, this is quite a credential[ed] speaker. And then I thought to myself — you know, I’m telling my biology teachers almost on a weekly basis, teach the curriculum, teach the evolution curriculum because it’s part of the state-mandated curriculum. And now, I should be — you know, I should be walking the talk here, and I — there’s nothing wrong with this e-mail, of course.” Less than two hours later, a colleague was calling for her termination, and in the following week, she was effectively forced to resign.

    Tony Whitson said,

    The explicit unconstitutional grounds for TEA’s action makes Comer’s case stronger than I thought it was.

    Comer has no case.

  23. Posted August 21, 2009 at 8:05 am | Permalink

    Quoth the shill for the Dishonesty Institute: “And creationism — the religious kind — per se was not really one of the issues, because as Tony pointed out, it was not on the table as an option for including in the curriculum.”

    Riiight – Don McLeroy and his fellow travelers never use the word “creationism” or speak about this issue in churches, do they?

    Larry continued: “All you Darwinists talk about is creationism, creationism, and more creationism. There is much more involved here than just creationism.”

    Well, of course, there’s “creation science” and “intelligent design creationism” and “strengths and weaknesses” and other terms – all used by the same batch of Liars For Jesus(TM) – essentially never by actual scientists.

    Larry mentioned “Gullible Judge Jones” – well, I’m sure that was all resolved when the creationists appealed Judge Jones’ decision, wasn’t it?

    Larry asked “How can there be “a policy that expressly or implicitly equates evolution and creationism”? They are two different things.” Keep beating the drum, Larry – keep tooting the horn – keep repeating the Big Lie. Not only Judge Jones, but the AAAS and every other actual science organization in the country says creationism and intelligent design creationism are the same thing. Do you suppose there’s a reason for that?

    Larry bleated hopefully: “Comer has no case.” Everything that comes out about this shows her case to be stronger and stronger. Didn’t you say Tammy Kitzmiller had no case?

  24. Posted August 21, 2009 at 10:33 am | Permalink

    As the saying goes, don’t feed the trolls.

    • Paul Burnett
      Posted August 21, 2009 at 10:56 am | Permalink

      “As the saying goes, don’t feed the trolls.”

      Right – troll all you want, and when somebody trolls back, advise “don’t feed the trolls.”

      If Judge Jones was so wrong, what happened to the appeal?

      • Posted August 21, 2009 at 11:25 am | Permalink

        –“If Judge Jones was so wrong, what happened to the appeal?”–

        That shows how little you know about the Kitzmiller case. It was not appealed because of a changeover in the school board membership.

        • Paul Burnett
          Posted August 21, 2009 at 12:20 pm | Permalink

          “…the Kitzmiller case…was not appealed because of a changeover in the school board membership.”

          In most parts of the world, when such a decision is wrong, the folks who feel strongly enough about the wrongness of the decision follow through with an appeal. But since the Dishonesty Institute or Thomas More didn’t have whatever it takes to appeal, the decision stands. So why do some folks keep carping about it? It’s over – your side lost – so instead of appealing the judge’s decision, you resort to character assassination against the judge.

          You have no respect for the US Supreme Court’s Edwards decision, the Lemon Test, Judge Jones’ decision…and when Chris Comer wins big in Texas, you probably will carp about that, too. But you keep predicting victory – just like you predicted a big win in Dover…

          • Posted August 21, 2009 at 12:43 pm | Permalink

            –“In most parts of the world, when such a decision is wrong, the folks who feel strongly enough about the wrongness of the decision follow through with an appeal. But since the Dishonesty Institute or Thomas More didn’t have whatever it takes to appeal”–

            You stupid fathead, whether to appeal was the school board’s decision to make, and as I said, there was a changeover in the school board membership.

            –“just like you predicted a big win in Dover.”–

            No, bozo, I did not predict a win in Dover. Stop putting words in my mouth.

            • Posted August 21, 2009 at 1:19 pm | Permalink

              “whether to appeal was the school board’s decision to make”

              For once (and for the first time) Larry is right about this. If the Pandas & People publishers had been allowed to intervene as a party, then they might have had standing to appeal, but their petition to intervene was rejected.

              Only a party to the litigation (in this case, the school district) can appeal. So if DI or Thomas More want to overturn Kitzmiller, their only recourse is to get another school district to do something that they would be sued for on the same grounds.

              No other school district will do that, because they know that there would be huge costs incurred in a hopeless cause, and that any board members responsible would be dumped by the voters just like they were in Dover.

  25. Posted August 21, 2009 at 6:45 pm | Permalink

    Larry posted: “No, bozo, I did not predict a win in Dover.”

    I’m still looking…but I did find these lines you wrote in 2005: “If the (Dover) plaintiffs lose, there would still be the question of whether the current anti-ID board would maintain the previous board’s pro-ID decision.” and “Also, I doubt that the losing side will have to pay the winning side’s legal expenses…” – http://pandasthumb.org/archives/2005/12/barbara-forrest.html

    Well, you blew that prediction, didn’t you?

    • Posted August 21, 2009 at 7:02 pm | Permalink

      You can link to the specific comment like this:

      http://pandasthumb.org/archives/2005/12/barbara-forrest.html#comment-60114

      (click the date/time on Thumb. other blog software may have other things to click on — here it’s “Permalink” but there’s some way to do it on any blog I know about)

      Right-wingers have unsuccessfully introduced bills in Congress to immunize school boards from liability for lawyers fees in cases of constitutional violations such as this. Unless such legislation were to pass, those found to be violating constitutional rights are liable for the plaintiffs’ legal fees. That’s the law, it’s not up to some kind of judicial whim.

      Also, since the new Dover board ran for office on the promise of reversing the incumbents’ unconstitutional policy, there was never any question about that.

      Paul, have you really no better uses for your time than looking for Larry’s past predictions?

      • Posted August 21, 2009 at 7:05 pm | Permalink

        Tony asked “Paul, have you really no better uses for your time than looking for Larry’s past predictions?”

        It’s a spare-time hobby…I’ll stop.

  26. Posted August 22, 2009 at 12:15 am | Permalink

    Paul Burnett said,

    Larry posted: “No, bozo, I did not predict a win in Dover.”

    I’m still looking…but I did find these lines you wrote in 2005: “If the (Dover) plaintiffs lose, there would still be the question of whether the current anti-ID board would maintain the previous board’s pro-ID decision.” and “Also, I doubt that the losing side will have to pay the winning side’s legal expenses…”

    Well, that first statement from 2005 is quite a bit different from predicting a win, isn’t it?

    As for the second statement, the fee-shifting statute only provides for “reasonable” attorney fees. The plaintiffs’ fee demand was not reasonable — there were nine plaintiffs’ attorneys of record, with five of them in the courtroom on every day of a six-week trial, and 2-3 of them were partners in a big law firm and probably charged accordingly (big pro bono projects are usually done by junior attorneys as a means of gaining experience). In contrast, the defendants had only 3-4 attorneys, and as I remember, only one of those attorneys was a full timer. The plaintiffs’ attorneys’ original bill of over $2 million — negotiated down to $1 million — was way out of line considering the magnitude of the offense.

    Well, you blew that prediction, didn’t you?

    The second one, but not the first. You Darwinists have blown predictions — you predicted district court wins for Chris Comer and Yoko Ono (in her copyright infringement lawsuit against the producers of the movie “Expelled”), and both of them lost.

    Tony Whitson said,

    Right-wingers have unsuccessfully introduced bills in Congress to immunize school boards from liability for lawyers fees in cases of constitutional violations such as this.

    Actually, most of the original impetus for these bills to eliminate the attorney-fee awards for establishment clause lawsuits came from the American Legion in regard to lawsuits against religious symbols in veterans’ memorials. My blog has a post-label group of several articles about these bills. I proposed — as an alternative to complete elimination of the awards for establishment clause lawsuits — a fee cap for the awards in both establishment clause and free-exercise clause lawsuits. A fee cap would allow reasonable awards while preventing the exorbitant awards that discourage governments from doing things that the courts might determine to be constitutional.

    Unless such legislation were to pass, those found to be violating constitutional rights are liable for the plaintiffs’ legal fees. That’s the law, it’s not up to some kind of judicial whim.

    In Blum v. Stenson, which I think was wrongly decided, the Supreme Court ruled that the attorney fee awards to plaintiffs in civil rights lawsuits could not be reduced on the grounds that legal representation was by a non-profit group (I presume that the ruling also applies to pro bono representation in general). However, IMO Judge Jones could have reduced the award to the Kitzmiller attorneys on the grounds of excessive legal representation (see above remarks about nine attorneys of record, etc.).

    Also, since the new Dover board ran for office on the promise of reversing the incumbents’ unconstitutional policy, there was never any question about that.

    I disagree. If the plaintiffs had lost, the ACLU probably would have wanted to appeal the decision, so the ACLU as well as the fundies would have put pressure on the school board to continue the ID policy so that the ACLU could appeal. Also, the new board members’ opposition to the ID policy was partly based on the potential cost of an attorney fee award to the plaintiffs, and if the plaintiffs had lost, there would have been no such award (at least not initially).

    What made the Kitzmiller case a slam-dunk case was (1) the judge’s use of the “Lemon test,” which is now considered to be optional (actually, if this test had not been used, the case would not have been slam-dunk), and (2) the clearly religious motivations of some of the school board members.

    • Voice in the Urbanne
      Posted September 17, 2009 at 7:23 pm | Permalink

      This has gone on for quite a while and, as always, Larry is losing. It looks like it is about time for him to declare victory and sulk off with his tail between his legs. His destination will be his heavily censored blog.

  27. Posted May 22, 2010 at 9:38 pm | Permalink

    I like it when Larry says, “Bozo”. I can tell he’s getting riled up.

    I’m still shaking my head over “I’ve got you Darwinists every which way but loose. I am really making you look silly.”

    It’s a nice comedic touch, I think.

  28. Posted September 11, 2012 at 2:32 pm | Permalink

    Thank you for stimulating me to go do my own my own analysis.

    Yours was way more wide-ranging than mine.


One Trackback/Pingback

  1. [...] the state to take a “neutral” stance on such teaching of religion in the public schools is clearly unconstitutional following the precedent of Edwards v. Aguillard (in which the Supreme Court ruled against a [...]

Post a Comment

Required fields are marked *
*
*

Follow

Get every new post delivered to your Inbox.

%d bloggers like this: