A three-judge panel from the Fifth Circuit Court of Appeals heard arguments in Comer v. Scott on April 26, 2010. Chris Comer was forced to resign her post as director of science at the Texas Education Agency in November 2007 after she forwarded a note announcing a talk by Barbara Forrest; according to a memorandum recommending her dismissal, "the TEA requires, as agency policy, neutrality when talking about evolution and creationism." She filed suit in June 2008, arguing that the policy violates the Establishment Clause of the First Amendment. The case was dismissed on March 31, 2009, but Comer appealed the decision to the Fifth Circuit.
In a report from the Associated Press (April 26, 2010), Douglas Mishkin, one of Comer's lawyers, explained that the policy violates the Establishment Clause by in effect endorsing a religious belief: "It takes something that's not science and treats it as if it is." Fortunato Benavides, one of the judges on the Fifth Circuit panel, seemed skeptical, however, commenting, "I can see a free speech claim ... This looks like to me a First Amendment claim in the robe of an establishment claim." It is not known when the panel will issue its ruling. Documents from the case are available on NCSE's website, and a brief video about the case is available on NCSE's YouTube channel.