In a decision issued on July 2, 2010, the United States Court of Appeals for the Fifth Circuit upheld a lower court's decision that the Texas Education Agency's policy requiring "neutrality" of its employees when "talking about evolution and creationism" is not unconstitutional. The case, Comer v. Scott, was filed by Chris Comer, the former director of the Texas Education Agency, who was forced to resign from her post in November 2007 after she forwarded a note announcing a talk by Barbara Forrest. In June 2008, Comer filed suit, arguing that the agency's neutrality policy violates the Establishment Clause. Her lawsuit was dismissed in March 2009, but she appealed the decision, and oral arguments were heard in April 2010.
Writing for a three-judge panel of the Fifth Circuit, Fortunato Benavides explained (PDF, pp. 11-12), "Upon review of the record and applicable law, we cannot conclude that TEA's neutrality policy has the 'primary effect' of advancing religion. The fact that Comer and other TEA employees cannot speak out for or against possible subjects to be included in the curriculum ... does not primarily advance religion, but rather, serves to preserve TEA's administrative role in facilitating the curriculum review process for the Board. ... Thus, we find it hard to imagine circumstances in which a TEA employee's inability to publicly speak out for or against a potential subject for the Texas curriculum would be construed or perceived as the State’s endorsement of a particular religion."