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.