Chris Comer appealed!

Like practically everyone else, I thought that Chris Comer did not appeal the federal district court decision rejecting her wrongful termination lawsuit against the Texas Education Agency. Now -- out of the blue -- the National Center for Science Education announced that Comer filed an appeal! The appeal was timely filed on April 30 and here is Comer's opening appeals brief, dated Aug. 7. All of the important documents in both the district court and the appeals court are listed and linked here (the list was originally created before the appeal was filed and the appeal documents were added later). I am especially surprised that the appeal was not previously announced by either or both the NCSE and/or Steven Schafersman of the Texas Citizens for Science, who was also very close to Comer. Also, I feel that the TEA was obligated to report to the media that Comer had appealed. It is especially disturbing that now the TEA must prepare its sole appeals court answering brief in a few days without the opportunity to consider input from the general public.
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Chris Comer has her own post-label group of articles on this blog (the post-label groups are listed in the sidebar on the home page).

Comer's opening brief asked for a de novo appeals court review of the lawsuit. A de novo review would mean that the lawsuit would be treated as though it were a new lawsuit, i.e., with no prior review of the lawsuit by a court. I know that the 9th Circuit appeals court's policy is to make de novo reviews of lawsuits that were dismissed for lack of standing. However, Comer's lawsuit is in a different appeals court circuit and though the TEA challenged Comer's standing, the district court decision appears to be based on the merits, not on lack of standing. If a de novo review is granted, then completely new issues and arguments may be introduced in the appeals court.

As I said before, Chris Comer has an extremely weak, virtually non-existent case. Here are my arguments against her lawsuit:

(1) The Texas Education Agency had a right to have a policy of neutrality regarding issues that are subjects of upcoming hearings of the Texas Board of Education.

(2) The TEA's neutrality policy was created for the purpose of making the Texas BOE hearings more fair and was not created for the purpose of promoting or advancing religion or creationism. The judge ruled (page 18),

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.

Deciding on a case-by-case basis when an exception to the neutrality policy is justifiable would be an excessive burden on the TEA. Furthermore, Chris Comer took it upon herself to decide to make an exception to the neutrality policy. Also, there is no evidence that she had constitutional issues on her mind when she decided to make an exception to the neutrality policy -- at the time, she said that her reason for sending out the email was that she found the speaker's credentials to be impressive.

(3) Constitutional issues that could arise in upcoming Texas BOE hearings deserve the same TEA policy of neutrality as other kinds of issues that could arise in upcoming Texas BOE hearings. The judge ruled (page 16),

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.

Constitutional issues are especially sensitive here because of claims that terms like "strengths and weaknesses," "analyze and evaluate," and even "theory" are "code words" for teaching creationism. There is a lot more involved here than just the issue of openly teaching creationism. Also, neither Chris Comer nor Barbara Forrest -- the speaker whose lecture Comer announced in her email -- are attorneys and so they should not be considered to be qualified to officially give or endorse legal advice on constitutional issues in public education. Comer's "FYI" announcement of Forrest's lecture could be considered to be an official endorsement of legal advice and hence an unauthorized practice of law. "FYI" means "for your information" -- it doesn't mean "for your information or possibly misinformation."

(4) Court decisions concerning actual teaching do not apply here because no actual teaching is involved. Comer's lawsuit ridiculously equates (i) a neutrality policy concerning upcoming public hearings and (ii) endorsement of teaching creationism in the public schools.

(5) The maxim "silence means consent" would mean that the TEA's silence on the issue of teaching creationism means that the TEA consents to the various court decisions on teaching creationism. However, one source says,

This is not a principle accepted in modern English law. However, Sir Thomas More (1478-1535) is said to have riposted with the Latin maxim when asked at his trial why he kept silent when asked to acknowledge the King's supremacy over the Church. Cf. L. qui tacet consentire videtur, he who is silent seems to consent.

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