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Texas Education Agency Firing Over Creationism E-Mail Upheld

A federal appeals court has upheld the dismissal of the Texas Education Agency's science-curriculum director for violating the agency's policy requiring "neutrality" on curriculum deliberations by sending e-mail critical of creationism.

Christina Castillo Comer, the science director for TEA's curriculum division from 1998 until her 2007 termination, violated the policy by forwarding an e-mail about an event in Austin, Texas, called "Inside Creationism's Trojan Horse."

The e-mail noted that a speaker would make a presentation critical of teaching creationism in public schools. Comer responded to the e-mail by promising to "help get the word out," and she forwarded the e-mail from her TEA account to 36 science teachers in the Austin area and leaders of science teacher groups.

Comer's supervisor determined that the science director had violated the neutrality policy, which bars TEA employees from expressing opinions about policy positions being weighed by the Texas State Board of Education. In recent years, the state board has been debating the role of evolution and creationism in the state science curriculum.

Comer had been disciplined once before for disclosing internal information, and after the creationism e-mail, she was forced to resign. Comer sued the TEA, alleging among other things that the agency effectively considers creationism to be legitimate subject matter for the state board to consider in the curriculum, and thus, the policy constitutes an establishment of religion in violation of the First Amendment.

She lost in a federal district court. On July 2, a three-judge panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, unanimously upheld Comer's dismissal. The court concluded that the neutrality policy does not have the primary effect of advancing religion.

"The fact that Comer and other TEA employees cannot speak out for or against possible subjects to be included in the curriculum—whether the considered subjects relate to the study of mathematics, Islamic art, creationism, chemistry, or the history of the Christian Crusades—their silence does not primarily advance religion, but rather, serves to preserve TEA's administrative role in facilitating the curriculum review process for the Board," said the opinion by U.S. Circuit Judge Fortunato P. Benavides.

In a footnote, the court suggested, without ruling as much, that Comer might have a valid First Amendment free-speech claim for being disciplined for speech as a citizen on a matter of public concern. But the court noted that Comer's suit did not raise a free-speech claim.

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