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Federal Appeals Court Rejects Chris Comer’s Lawsuit Alleging Discrimination Against Evolution

Casey Luskin

In 2007, Chris Comer was forced to resign from her job at the Texas Education Agency (TEA). She then filed a lawsuit alleging she was forced to “stay neutral on creationism,” and claimed that TEA’s “neutrality” policy violated the First Amendment. We reported last year when Comer lost on summary judgment at the federal district court level. Comer then appealed her case to the Fifth Circuit Court of Appeals, which filed its ruling on July 2 upholding the district court’s decision and tossing Comer’s case. The Fifth Circuit held, “we find no evidence to support the conclusion that the principal or primary effect of TEA’s policy is one that either advances or inhibits religion, we conclude that the policy does not violate the Establishment Clause” and thus “the decision of the district court is AFFIRMED.” While Comer’s case was initially favorably pushed by New York Times in two articles and an editorial from NY Times editors, somehow the NY Times and the rest of the national news media have (as-of-yet) completely ignored the dismissal of her lawsuit.

Chris Comer and her attorneys argued that the First Amendment requires the government to allow her to take an affirmative stance against creationism (a religious viewpoint), and that any requirements to remain neutral in matters of creationism are unconstitutional. In reality, as the Fifth Circuit noted, the U.S. Supreme Court has required the government to remain neutral on matters of religion:

Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of noreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.

(Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968).)

Since creationism is a religious viewpoint, this long-standing precedent dictates the government must remain neutral with respect to creationism. Not so, argued Chris Comer. In fact, she essentially argued that it’s unconstitutional to NOT be neutral with respect to creationism; in essence she argued that the First Amendment requires the government to oppose creationism — or to at least permit opposition towards it. Apparently this twisted, backwards understanding of First Amendment religious freedom is what drives Darwin lobbyists like Chris Comer. The reality is that if TEA were to adopt Chris Comer’s non-neutral position on creationism, it’s likely that such a policy would be unconstitutional.

But even entering into the above-discussion falls into Comer’s trap, because it’s actually irrelevant to resolving Comer’s case. Both the federal district and appellate courts saw right through Comer’s baseless argument since the TEA’s “neutrality” policy in fact had nothing to do with creationism or religion. I noted last year:

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.”

The Fifth Circuit also concluded that Comer’s claims have little to do with Establishment clause neutrality, but rather require a different type of neutrality. As the court wrote: “Noticeably absent from the present case are the common elements that ordinarily implicate a violation of the Establishment Clause. In First Amendment constitutional jurisprudence, TEA’s neutrality policy is much more akin to a policy regulating speech than a policy advancing any specific religion.” The Fifth Circuit accurately described TEA’s neutrality policy as follows:

In accordance with this neutrality policy, TEA staff can describe the contents of Board policy to others in neutral terms, if their jobs call for it, but they may not express opinions on the wisdom of any particular policy option in their capacity as TEA employees.

(Comer v. Scott, Case No. 09-50401 (5th Cir. 2010).)

Thus, TEA’s neutrality policy does not have a primary effect which advances religion:

Upon review of the record and applicable law, we cannot conclude that TEA’s neutrality policy has 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. … we find it hard to imagine circumstances in which a TEA employee’s inability to publicly speak out for or against a potential subject for the Texas curriculum would be construed or perceived as the State’s endorsement of a particular religion.

(Comer v. Scott, Case No. 09-50401 (5th Cir. 2010).)

The court also observed that “[t]he record also reflects that the neutrality policy has been enforced across a variety of different curriculum issues subject to decision by the Board” — an important point since Comer had in fact violated TEA’s neutrality policy with respect to a number of curriculum decisions made by the Texas State Board of Education, as seen below.

Check the Facts Before Hitching Your Wagon to a Lawsuit
In 2008, the National Center for Science Education (NCSE) was desperate for a response to “Expelled: No Intelligence Allowed,” the documentary which exposed the epidemic of intolerance, persecution, and other forms of academic discrimination against proponents of intelligent design (ID). Aside from creating an error-filled website that unwittingly validated Expelled by encouraging further persecution of ID proponents, the NCSE’s primary response was touting a single incident of alleged persecution of a Darwin-lobbyist — that of Chris Comer. According to a YouTube video touted on the NCSE’s website, Comer was “expelled for real” from the TEA because she allegedly refused to “stay neutral on creationism.” Really?

Fast forward to the end of 2009. No sooner had the California Science Center (CSC) been sued for cancelling a contract of a group seeking to show a pro-ID film than did local Southern California-area evolutionists started e-mailing the NCSE asking for guidance on how to react to the situation. In December, after a lawsuit had been filed against the CSC alleging viewpoint discrimination, NCSE executive director Eugenie Scott gave the following advice to one SoCal evolutionist:

I don’t know what the regulations are for renting space to outside parties, so I don’t know if the CSC followed its regs or not, so we should be cautious about what we say. I’ll get back to you on that later.

(E-mail obtained through public documents request on Natural History Museum of Los Angeles County)

I understand Eugenie Scott’s reasoning: If you know that you don’t know the facts of a case, it’s probably best not to comment on it.

However, as noted, when Comer’s case first hit the media in early 2008, it was being widely touted by the NCSE, New York Times and other media. I received multiple e-mails from individuals seeking a comment on her case. Some of those e-mails came from evolutionists who were basically harassing me to issue a statement supporting Comer. Of course it would be a travesty if an evolutionist was fired due to his or her beliefs on evolution, but much like Eugenie Scott felt about the CSC lawsuit, I told them I didn’t feel it was prudent to issue any statement until I knew more about the facts of the situation.

Dr. Scott and the NCSE should have applied this cautious methodology and investigated the facts more carefully before jumping on the bandwagon of Chris Comer’s case.

Later in 2008, more facts about Comer’s case came out after Texans for Better Science Education (TBSE) filed a public documents request on the Texas Education Agency (TEA) requesting documents pertaining to Chris Comer’s performance as a TEA employee. TBSE obtained many internal documents showing that Comer’s history of employment at the TEA wasn’t exactly exemplary. To summarize some of the problems Comer encountered while working the TEA, consider the following, adapted from TBSE’s “Summary and Timeline of Chris Comer’s Disciplinary History at the TEA“:

    • (1) June 2003: Comer receives a “Letter of Reprimand and a Notice of Disciplinary Probation” after evidence surfaced that she may have illegally used her position to gain paying contracts with TEA clients outside-of-work. The Letter noted that if she had done this, such actions would actions violate the Texas Penal Code–i.e. they would constitute a crime.
    • (2) November, 2006: Monica Martinez (Comer’s supervisor) instructs Comer not to communicate with anyone outside the TEA about fourth-year science requirements, a curricular matter that was unsettled at the time. But later that same morning, Comer violated this directive in an e-mail she sent to various Texas educators. Martinez later recounted that she “specifically asked” Comer “not to communicate with anyone outside the agency regarding the State Board of Education item on the fourth year of science requirements and asked that you notify George or me immediately if anyone, including board members asked you for information on this topic.” Because Comer violated Martinez’s directive, Martinez reprimanded Comer stating, “This email was sent in direct violation of the directive not to communicate with anyone regarding these issues” and therefore Comer’s actions constituted “insubordination.”
    • (3) February 3, 2007: TEA rules require that “Each employee or official authorized to travel must prepare a travel itinerary for his or her trip” and that this itinerary “is to be approved by a traveler’s manager prior to the trip.” Comer participates in a science conference, but contrary to TEA policies, did not receive prior approval to attend the conference.
    • (4) February 12, 2007: Comer attended 2 off-site meetings but again, contrary to TEA policies did not receive prior approval to attend.
    • (5) February 23, 2007: Monica Martinez sent Comer a “Letter of Counseling,” stating that “Over the past several months I have developed serious concerns regarding your job performance with respect your involvement with work outside the agency and failure to follow supervisory directives.” Martinez cited the Nov. 16, 2006 e-mail subordination incident, and the Feb. 3 and Feb. 12, 2007 non-approved meeting incidents, as evidence supporting her charges. Martinez warned Comer that some of Comer’s actions “constitutes insubordination … and will not be tolerated.” Comer was given the following direct orders from her supervisor:
      • “You are not to attend or present at any meeting or conference, whether on your own time or on agency time, in which you represent the agency, attend as the Director of Science, or present on a science related topic unless you have obtained the appropriate prior approval.”
      • “You are not to travel in-state or out-of-state to represent the agency as the Director of Science, whether on your own time or on agency time, unless you have obtained prior approval.”
      • “When making any presentations, you are to obtain approval on the content prior to the presentation.”
      • “You are not to communicate in writing or otherwise with anyone outside the agency in any way that might compromise the transparency and/or integrity of the upcoming TEKS development and revision process.”
    • (6) August 14, 2007: Comer sends an e-mail to Monica Martinez notifying that she had recently given a presentation at a meeting of Texas educators. In violation of the February 23 Letter of Counseling ordering Comer to obtain “prior approval” when traveling to conferences, and to “obtain approval on the content” when giving presentations, Comer had neither received approval to travel and give this presentation, nor did she seek or receive approval for her presentation content. Martinez stated that Comer’s failure to receive approval and violation of the directives in the Feb. 23 Letter of Counseling, constituted “insubordination.” (Martinez also found that the content of Comer’s presentation was problematic because they included “comments on policy implications that are inappropriate for Ms. Comer to make” including information that “had not been approved by the SBOE.” Martinez thus concluded that this presentation as “inappropriate to share publicly” and that Comer “lacks an adequate understanding of her appropriate role as Science Director.”)
    • (7) October 9, 2007: Comer allegedly stood up in front of a meeting of the Texas Regional Collaborative Science Directors, who represent educators from all over Texas, and publicly badmouthed her boss, acting TEA Commissioner Robert Scott, saying that “there was no real leadership in the Agency.” Martinez found that Comer’s actions constituted “misconduct” under the TEA’s stated definition of “Conduct that negatively impacts TEA.”
    • (8) October 26, 2007: Comer receives an e-mail from an NCSE staff member advertising a lecture by Barbara Forrest on November 2, 2007, sponsored by the Center for Inquiry’s Austin branch entitled “Inside Creationism’s Trojan Horse” on the “history of the ‘intelligent design’ movement.” Comer replies to the e-mail promising “Thanks so much Glenn. I will help get the word out.” Later that day Comer used her TEA e-mail account to forward the e-mail advertising Forrest’s lecture to about 36 science educators in the Austin area.
    • (9) October 29, 2007: Comer attends another meeting without obtaining approval. Martinez found that this again “violates the directive Ms. Comer was given not to travel in-state or out-of-state to represent the agency as the Director of Science, whether on her own time or on agency time, unless she obtained prior approval.”
    • (10) Nov. 5, 2007: Monica Martinez drafted a memo of “Proposed Disciplinary Action” and sent it to Susan Barnes and Sharon Jackson. The memo alleged that Comer engaged in “a series of incidents evidencing a serious lack of good judgment and failure to follow agency policies and supervisory directives.” Martinez thus wrote, “I request that you approve this recommendation for the termination of Ms. Comer’s employment. This action is necessary due to Ms. Comer’s repeated incidents of insubordination, the seriousness of her misconduct, and the extent to which she has demonstrated poor judgment.” The next day, Comer resigned.

(Adapted from “Summary and Timeline of Chris Comer’s Disciplinary History at the TEA“)

In case you weren’t keeping count, in the year leading up to her departure from the TEA, Comer was charged with insubordination on three separate occasions. Counting her full term at the TEA, she experienced eight separate disciplinary incidents — seven of which had nothing to do with evolution. The final incident — which did touch upon evolution — was just the proverbial straw that broke the camel’s back. Thus, it seems that Comer’s oft-repeated insinuation that she was “getting fired over evolution” is not entirely accurate. In fact, as the Fifth Circuit notes in its ruling, the final evolution incident was not the first time that Comer had violated TEA’s curricular neutrality policy:

Martinez’s previous directive to Comer had prohibited Comer from communicating with anyone outside TEA in any way that could imply endorsement of a position on any curriculum issue that may be considered by the Board. Thus, on November 7, 2007, in response to Comer’s act of forwarding the Branch email, Martinez drafted a memorandum recommending Comer’s termination.

The reality is that Chris Comer appears to have been a difficult employee all along who continually offered her opinion on curricular matters where she was supposed to remain neutral. In one instance, about a month before her departure, she even went so far as to publicly castigate her boss, violating TEA’s rules of employee conduct. (As General McChrystal recently learned, publicly criticizing your boss is not a good way to keep your job.) The Fifth Circuit rightly rejected her claims.

The moral of this story is this: Whether the case ultimately wins or loses in court, don’t speak out publicly on a case until you know the facts. The NCSE is understandably reticent to speak out about a case that shows persecution against ID when it doesn’t know the facts. But in early 2008, it was eager to tout a lawsuit allegedly showing persecution against an evolutionist, even though I’m not sure if they knew how weak her case was at the time. It seems that when faced with the avalanche of evidence of persecution against ID as documented in Expelled, the NCSE was desperate to find a rhetorical rebuttal and hitched their wagon to Comer’s case.

Chris Comer’s case was the one answer that the Darwin-lobby had to Expelled in the spring of 2008 when Expelled came out. Now their rhetorical rebuttal has gone belly up, and their martyr has been shown to more an unruly employee with baseless legal claims than a victim of discrimination.


Casey Luskin

Associate Director, 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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