Evolution, courts, and Texas--perpetual motion?

Once the Texas Board of Education voted on science standards in the spring, most folks figured the evolution front would be quiet for a little while. But the federal court system finds itself chewing on TWO different cases about evolution and creationism in science education. Either case's success would represent a watershed event in the ongoing Evolution wars...

The cases are, in some ways, mirror images of each other. In one, an evolution supporter is suing a state agency, claiming it unconstitutionally allowed friendliness to religion to influence public policy. In the other, a creationist institution is suing a different state agency, claiming that it unconstitutionally allowed hostility to religion to influence its public policy.

In the former case, Chris Comer is suing her former employer, the Texas Education Agency. Her employment there ended abruptly, shortly after she forwarded an e-mail announcing a lecture by a prominent anti-creationist lecturer. I've blogged about the case once before here.
, when it was first dismissed by the Federal Court. Now, she's appealing to the Fifth Circuit (New Orleans).

Most of the documents around her firing indicate that this "implied endorsement" (forwarding an e-mail with the notation "FYI" to several groups of science teachers) violated an Agency policy that employees are to remain neutral about matters that will come before the Board of Education. Comer alleges that such a policy as applied to creationism and intelligent design is unconstitutional because both have been ruled in the courts to be based in religion and not science.

She's got a point, but the agency does, too. Really, it's a blanket policy about curriculum, and doesn't single out creationism or intelligent design--it applies to whole language vs. phonics and a bunch of other issues. As such, the policy does have a genuinely secular purpose--to make sure the political maneuvering stays in the Board's arena, and maintain the Agency as a neutral advisor. And it's kinda iffy that she never tried any other recourse, if the policy was such a big concern for her.

Pundits in the blogosphere have pointed out that she may have had a better case if she didn't try to get all constitutional, and argued on very limited terms related to getting her job back, and not to larger issues. Those who fired her claimed that creationism might come up as an issue before the Board of Education. However, every single Board member (yes, even former chair Dr. McLeroy) was vociferously on the record as insisting that neither creationism nor intelligent design was at issue or would be influencing the standards. While some doubt the sincerity of these denials, it seems odd that the Agency brass would decide to act as if they doubted them as well. But that's not the case she's making, and if it was, it wouldn't be a potential "watershed" event...

As for the second case, a few years ago, the Institution for Creation Research (ICR) moved from California to Dallas. They want to offer graduate degrees in science education that involve training in "creation science." The Texas Higher Education Coordinating Board, which has the authority to grant or deny such applications, offered to grant it authority for degrees in "Creation Studies," "Christian Apologetics," "Biblical Studies," and others, but not in "Science Education." So ICR sued in federal court

The first filing the ICR made in this lawsuit in April 2009 was a single-spaced 66-page document that was (to put it as kindly possible) a bit disorganized and a little over-the-top. The judge rejected it, and their next try, and established a 20-page limit for a re-revised reply, which arrived in late July. In the latest document, many legal issues are raised (from the equal protection clause of the Constitution to alleged interference with interstate commerce). The main complaint is that the government is unfairly discriminating against the academic viewpoint of creation science.

The state of Texas made reply within 4 weeks, saying, in part: "The Plaintiffs’ second amended complaint fails to comply with the Rules
and the Court’s order. Specifically, the complaint is replete with
argument but contains very few factual allegations to which Defendants
can respond."

So the ball's in the judge's court on this one. Stay tuned...