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← Comer loses appeal

MEM's Avatar Jump to comment 26 by MEM

Comment 12 by noimspartacus :

I wonder if Ms Comer is using the wrong part of the 1st Amendment to make her case. Does it not violate her free speech rights to have an opinion on the TEA's neutrality policy? . . . I However, I don't think the TEA, a government entity, is excluded from the purview of 1st Amendment's free speech clause. Any lawyers on this board care to chime in?

Hi noimspartacus - very good catch. As a US attorney, albeit not one who specializes in constitutional law, I can offer the following observations. The appeals court raised the exact same point that you did in their opinion in the footnote on page 12, and agrees that government employees have a 1st Amendment right to freedom of speech. In the words of the court:

"As a public employee, Comer’s “speech is protected by the First Amendment when [her] interests . . . ‘as a citizen commenting upon matters of public concern’ outweigh the interests of the state ‘as an employer, in promoting the efficiency of the services it performs through its employees.’” Charles, 522 F.3d at 512 (quoting Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692 (5th Cir. 2007)). Comer, however, has raised no free speech claims, and consequently, we decline the occasion to surmise her chances of succeeding on claims she has not raised."

Reading a bit into this footnote, the court seems to be asking Comer's attorney's why this issue was not raised on appeal. In the US court system, judges will not raise and decide issues for the litigants, that's the job of their attorneys. (Perhaps because Comer was not acting in the capacity of a private citizen, but rather sent out her emails as a government employee - although this is speculation on my part.)

The appeal court found that as an employee of TEA, Cormer should not have been expressing her opinions on any subject matter that could be part of the school curriculum, whether or not it was religious. Again in the words of the court:

"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. "

Not really knowing very much about the case, I'm not giving my own opinion on the court's decision, only trying to explain the reasoning of the judges. (Although it is a bit interesting that their examples included Islamic art and Christian crusades.) If you want read the court's opinion in whole, it is one of the links above, entitled "Court filing" (although a title "Court opinion" seems more appropriate.)

Thu, 08 Jul 2010 02:05:34 UTC | #487213