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Texas Evolution Lobby Dealt Another Blow With Dismissal of Chris Comer Lawsuit

Last fall, John West blogged about a press release from Texans for Better Science Education (TBSE) about Chris Comer’s lawsuit against the Texas Education Agency (TEA), a lawsuit which has been highly touted by the NCSE and other evolution lobbyists as purported evidence of discrimination against evolutionists. They claimed that Comer was “expelled for real,” and the national newsmedia uncritically bought the story hook, line and sinker. As TBSE’s timeline of Chris Comer’s disciplinary problems observed, “News reports of Comer’s departure have parroted the claim that Comer was ‘fired’ because she opposed teaching ‘creationism’ and ‘intelligent design’ and supported evolution.” The reality is that Comer was not “fired” and her resignation came because (as West put it), “TEA documents … show that Comer had a long history of disciplinary problems at her agency that had nothing to do with evolution.” TBSE rightly observed that “[i]f Darwinists want to create a scandal and invent a martyr for their cause, they appear to have picked the wrong case.” This week Comer’s lawsuit was dismissed, further showing the baselessness of her claims of discrimination.

When I first read the complaint in the Comer case, I was struck by how Comer equivocated over the meaning of the word “neutral.” Comer claimed that the TEA illegally required her to remain “neutral” on creationism, when in reality the TEA’s policy simply required its staff to remain “neutral” on unsettled curricular matters (regardless of the subject matter in question). The former type of “neutrality” is legal neutrality and is violated only when there is a lack of religious neutrality, whereas the latter type of neutrality simply means avoiding taking a position on an unsettled curricular policy. The latter type should be considered distinct, as far as the law is concerned, from questions about religious “neutrality.” Thus Comer’s entire lawsuit was based upon equivocating over the legal meaning of “neutrality,” conflating the TEA’s benign (and statutorily mandated) policy requiring staff “neutrality” on unsettled curricular questions, with the constitutional requirement of religious “neutrality.”

Thankfully, the judge in this lawsuit saw through Comer’s fallacious arguments. Here are some excerpts from the ruling dismissing Comer’s case:

The Agency’s neutrality policy has different origins and effects from the balanced-treatment approach struck down in Aguillard. 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. (p. 15)


Comer repeatedly asserts that the neutrality policy treats creationism like science, but it only treats creationism as science to the extent that Agency staff may not take a public position on it. 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. The State “readily agree[s] that if the Board chooses to consider including some kind of recognition of alternatives to evolutionary theory in the biology curriculum, it will be entering perilous waters”, but that is the Board’s voyage to weather. (p. 16)


In sum, Comer provides no summary-judgment proof raising an issue of material fact regarding whether the Agency’s neutrality policy has a primary effect of advancing or endorsing religion. As a matter of law, the Agency’s neutrality policy, if it advances religion at all, only does so incidentally. Further, a reasonable observer of the neutrality policy would not believe the Agency endorses religion through the policy. Because the neutrality policy does not violate the Establishment Clause, all of Comer’s claims fail, and the Court will grant summary judgment in favor of the Agency. (p. 18)

And since the TSBOE did not choose to include any alternatives to evolution (like creationism) into the new Texas Science Standards, it’s clear that it did not enter those “perilous waters” that the court spoke of.

The truth of the matter is that the Texas Education Agency had very good reasons for being upset at Comer’s violation of its neutrality policy on unsettled curriculum questions: TBSE’s timeline shows that Comer had violated this policy multiple times during her tenure at the TEA, and some of those instances had nothing to do with evolution. According to TBSE, some of Comer’s troubles at the TEA included:

  • Multiple findings of “insubordination” and “misconduct,”
  • Reference to possible violation of the Texas Penal Code over payments made to Comer from entities receiving TEA money under contracts she administered.
  • Comer received three separate disciplinary letters spanning at least eight separate incidents. Seven of these eight incidents had nothing to do with evolution.
  • Comer had been disciplined and charged with “insubordination” because she repeatedly disregarded the TEA’s strict rule that staff must remain neutral and silent regarding unsettled curricular questions. Comer was charged with insubordination for violating this rule on issues that had nothing to do with evolution. In her last year alone at the TEA, Comer was found by superiors to be guilty of “insubordination” or “misconduct” on three separate occasions, including one incident where she disparaged the TEA leadership publicly.
    (TBSE Press Release on Chris Comer case)

The final incident regarding Comer’s TEA-sent e-mail endorsing a lecture by Barbara Forrest on evolution appears to have merely been the straw that broke the camel’s back.

What do we call a lawsuit from an ousted employee with a history of disciplinary problems, which is then touted to the national media as evidence of discrimination, when the entire lawsuit is based upon equivocation, misrepresentation, and a stifling of the employee’s less-than-exemplary history of disciplinary problems? We call it a publicity stunt. (In this case, a publicity stunt that was carefully timed to distract from all the bona fide discrimination against Darwin-skeptics that was being revealed via the release of the Expelled documentary.)

Thankfully, a clear-thinking judge has now tossed this publicity stunt from court.


Casey Luskin

Associate Director and Senior Fellow, Center for Science and Culture
Casey Luskin is a geologist and an attorney with graduate degrees in science and law, giving him expertise in both the scientific and legal dimensions of the debate over evolution. He earned his PhD in Geology from the University of Johannesburg, and BS and MS degrees in Earth Sciences from the University of California, San Diego, where he studied evolution extensively at both the graduate and undergraduate levels. His law degree is from the University of San Diego, where he focused his studies on First Amendment law, education law, and environmental law.



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