07/22/2010 01:00 pm ET Updated May 25, 2011

How Three Letters Can Get You Fired in Texas

With recent good news in the evolution/creationism culture wars coming out of both Texas and Oklahoma, it was almost possible to have a sense of optimism about the future. Perhaps the world was finally coming to its senses and people were beginning to understand the different roles that science and religion play in modern society.

Perhaps people were beginning to understand that creationism in all its guises -- from young earth creationism to intelligent design creationism -- is nothing more than biblical literalism dressed up to look like something it isn't by folks who seem to have a bad case of science envy.

Perhaps people were beginning to understand that the struggle isn't between religion and science as much as it is between those who are attempting to force their narrow religious views down the throats of everyone else, disparaging the religious beliefs of others and trashing science in the process.

Perhaps pigs could fly.

Unfortunately, a recent ruling by a three-judge panel representing the US Court of Appeals for the Fifth Circuit should bring us all back to reality. Their ruling was as disconcerting as it was sad.

On one level, the case is actually quite straightforward. Chris Comer, the Director of Science for the Texas Education Agency (TEA) for nine years, from 1998 until 2007, was fired for violating TEA's "neutrality" policy. That policy requires TEA employees not to take a public position on any curricular issue to be addressed by the Texas State Board of Education.

So what did Comer do? TEA claims she violated the "neutrality" policy by taking a position in favor of teaching evolution over creationism. Remember, she was TEA's Director of Science at the time, so it does seem odd that she's not supposed to have an opinion about something so very central to science education. Indeed, even the terribly politicized statewide curriculum in Texas requires students to study evolution.

But the story gets even weirder than that. According to court documents, the action that led to Comer's dismissal was her sending of an e-mail to "thirty-six science teachers in the Austin area and leaders of science teacher organizations." What did she say in that e-mail that was so terrible that she deserved to be fired?

Comer wrote exactly three letters: FYI. Her e-mail simply forwarded an announcement of an upcoming talk in Austin by Barbara Forrest. As the original e-mail from Glenn Branch of the National Center for Science Education explained:

In her talk, Forrest will provide a detailed report on her expert testimony in the Kitzmiller v. Dover School Board trial as well as an overview of the history of the "intelligent design" movement. Forrest is a Professor of Philosophy in the Department of History and Political Science at Southeastern Louisiana University; she is also a member of NCSE's board of directors.

Indeed, Judge John E. Jones, III, the judge in the Dover case, relied heavily on Forrest's testimony when he reached his decision that demolished intelligent design. He noted, "She has thoroughly and exhaustively chronicled the history of ID in her book and other writings for her testimony in this case."

So, Comer was fired because she passed information along to science educators that someone of this stature would be speaking in their community. In the eyes of TEA, Comer's FYI was just too much.

Comer went to court claiming that TEA's "neutrality" policy, in her situation, violated the first amendment to the US constitution by privileging religion. The three-judge panel basically acknowledged that settled case law would make it unconstitutional for the state to require the teaching of creationism, but they came to the astounding conclusion that there was nothing wrong with the state "considering" adding creationism to its curriculum! So, since the state was within its rights to consider bringing creationism into the science curriculum, there was no first amendment problem, and thus, TEA could fire Comer for passing along information about a nationally renowned speaker. I suspect that you're as confused as I am!

On the positive side, the panel went further and implied that had Comer argued that her freedom of speech rights were violated, she might have prevailed. Similarly, the panel implied that had Comer argued that her actions didn't actually violate TEA's "neutrality" policy, she might have prevailed. But since she only argued that the policy effectively promoted religion, they had to rule against her.

Their ruling hinges on their view of what action brings the Establishment Clause ("Congress shall make no law respecting an establishment of religion") in the first amendment into play. They explained it this way: "Mere consideration of such a requirement does not trigger the Establishment Clause."

Perhaps the Fifth Circuit panel came to the conclusion that, given the bizarre educational history in Texas in recent years, the actions taken by the State Board of Education have been completely divorced from meaningful thought. With that interpretation in mind, it's harder to fault the judges.