the Comer decision: What “disputed issues”?

While awaiting news on whether the decision against Chris Comer’s suit against the TEA will be appealed, I have finally gotten around to reading the opinion by District Court Judge Lee Yeakel (not to be confused with the Simpson’s character).

There’s a serious problem in the judge’s analysis (and the TEA’s argument), but to take advantage of that problem requires taking seriously the pretenses of the Board members whom we all know to be creationists, despite their protestations to the contrary.

Comer was fired because she forwarded an email message announcing a talk by Barbara Forrest on the “Intelligent Design” [ID] movement. TEA argues that Comer’s action in forwarding that email violated the requirement that she must maintain “neutrality” on disputed curriculum issues that must be decided by the State Board of Education (SBOE).

Comer’s legal argument was that since ID has been judicially ruled to be religious, a requirement that she must maintain neutrality on issues of teaching science vs. ID (religion) violates the First Amendment: She cannot Constitutionally be required to remain neutral on whether to teach religion in the public school science classes. That argument was rejected by the judge, based on his way of applying relevant tests under the First Amendment.

But all of this assumes that the question of whether or not to teach ID (the subject of Forrest’s talk) was, or might become, a disputed issue for the SBOE to decide. Remember, the federal court in Dover said that teaching ID in public schools would be unconstitutional. And the Texas SBOE members have been saying that none of them supported the inclusion of ID in the curriculum. So why should Comer be legally expected to believe that there was any “disputed issue” over whether or not to teach ID,  a dispute on which she should maintain neutrality?

Here are the passages from Judge Yeakel’s opinion stating the legal importance of the existence of such a “disputed issue”:

Page 8:
The Agency asserts that achieving the required balance between the Agency and Board requires that Agency staff, in their capacities as state employees, not advocate for or take positions on contested curriculum issues the Board will resolve.


The Agency asserts that Comer’s superiors directed her multiple times not to advocate for or against a position on a curriculum issue that the Board was considering or might consider.

Page 15:
Agency staff must remain neutral on contested curriculum issues, not only creationism and evolution. The policy is reasonable, given the elected body the Agency supports. The Agency supports 15 elected Board members who often disagree among themselves regarding curriculum issues and who make final decisions regarding such disputed issues. Agency staff, by virtue of their job description, must avoid acting in ways that favor any particular Board member’s position.

Page 16:
Given the reasons for the Agency’s neutrality policy, Agency staff must remain neutral on disputed curriculum issues regardless of a particular position’s merit or constitutionality.

Page 18:
Comer does not argue she is prevented from explaining in response to a hypothetical inquiry that her neutrality is not a comment on the merits of contested positions but instead applies to all contested curriculum issues and derives from the nature of her position at the Agency.

During the official public hearings and meetings of the SBOE in November, January, and March, and in many public statements in the media, the so-called “creationist” SBOE members insisted that none of them favored introducing ID into the curriculum, none of them had done so, and that charges or characterizations to the contrary were all outright lies.

During the November hearings, for example, State Board of Education Chairman Don McLeroy said (Click here for the audio):

I don’t think you’ll find a single Board member that has ever advocated — in fact I don’t know of a single Board member that has ever advocated — teaching creationism, teaching intelligent design, or teaching supernatural explanations in the science classroom.

To hold Comer legally responsible for handling ID as a “disputed issue” being considered by the Board is to say that she was legally required to treat McLeroy & company as liars bent on violating the First Amendment doctrine as applied by the federal court in Dover. It should have been enough for her to plead that she was given no indication that the Board was considering ID as part of the curriculum; then the burden would have been shifted to the TEA to argue that she did know or should have known that this is really what was going on.

(Of course we do know that McLeroy was lying; but that does not mean that Comer’s job required her to act on the assumption that he was — and TEA should be required to make that argument, if they want to argue that Comer was required to maintain neutrality on ID as the subject of a “disputed issue” that was actually under consideration by the Board.)

Depending on how the arguments unfolded, an appellate court could say that Comer missed her chance to raise this line of argument at the trial court level, so it’s too late to raise it now. Besides, this would be a diversion from the argument over neutrality that Comer has been wanting to make.

In any case, the audio recordings of the SBOE sessions are full of strenuous denials by McLeroy & Co. that there was ever any thought of including ID in the curriculum. Audio recordings can be found at:

Either ID was being considered by the Board, or it was not. TEA should not be allowed to have it both ways, and they should be required to admit that ID was in controversy or else relinquish their claim that Comer had to remain neutral (a requirement that, as Comer argues, should be ruled unconstitutional in any case).



  1. Dick N
    Posted April 29, 2009 at 4:21 pm | Permalink

    Sharp analysis, Tony. Makes sense to me. I hope Chris can use it in the appeal.

  2. Paul Braterman
    Posted April 30, 2009 at 6:16 am | Permalink

    Even if we were absurdly to regard creationism versus evolution as a valid controversy, how could disseminating information about a talk relevant to that controversy be equated with adopting a non-neutral position? One might argue the very opposite; that to refrain from doing so would be an act of partisanship.

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