Firing over creationism e-mail leads to appeal

[April 27, 2010]  NEW ORLEANS (AP) -- The former director of the science program for Texas' public schools asked a federal appeals court Monday to revive a lawsuit over her firing for forwarding an e-mail about a forum opposed to teaching creationism.

The agency that runs Texas public schools argued that Christina Castillo Comer's e-mail broke its policy of neutrality toward any potentially controversial issue, including creationism. A lawyer for Comer says the agency has an unwritten, unconstitutional policy of treating creationism as science.

A three-judge panel from the 5th U.S. Circuit Court of Appeals in New Orleans heard arguments Monday in Comer's lawsuit against Robert Scott, commissioner of the Texas Education Agency.

A federal judge in Austin, Texas, dismissed her claims in March 2009. Comer is appealing that decision. The 5th Circuit panel didn't indicate when it will rule.

Comer says she was told to quit or be fired in 2007 after forwarding an e-mail about a presentation by a Southeastern Louisiana University philosophy professor viewed as opposed to teaching creationism in schools. Her only comment on the forwarded e-mail was "FYI."

The agency says Comer violated her employer's "neutrality" policy by airing her personal opposition to creationism.

Douglas Mishkin, a lawyer for Comer, said the agency's neutrality policy violates the First Amendment's establishment clause because it endorses a religious belief.

"It takes something that's not science and treats it as if it is," he said.

Judge Fortunato Benavides pressed Mishkin to explain how the agency violated the establishment clause.

"I can see a free speech claim," the judge said. "This looks like to me a First Amendment claim in the robe of an establishment claim."

James Ho, Texas' solicitor general, said Comer doesn't dispute that her e-mail violated the agency's neutrality policy.

"This is a policy of employee neutrality, and neutrality is the touchstone of the establishment clause," Ho said. "It's certainly not a violation of it."

The agency says Comer was fired for "repeated subordination." Besides violating the neutrality policy, she allegedly attended meetings and presentations without agency approval and disclosed details of the school board's deliberations to non-board members.

"What makes this case unique is that there is a pattern of misconduct," Ho said.

Comer's lawyers say no other agency employee has been warned, reprimanded or fired for failing to remain neutral on an issue before the board. Mishkin said the neutrality policy requires teachers to "pull your punch" if students ask about the relationship between creationism and evolution.

"They said, 'You must do your job with one hand tied behind your back,'" he said.

Creationism is the belief that the Earth and its creatures were created by a deity. It's an alternative to the origin of life explanation taught in public schools under the theory of evolution, which puts forth that all living organisms descended from a common ancestral gene pool.

[Associated Press; By MICHAEL KUNZELMAN]

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