Kitzmiller v. Dover Area School District
Trial transcript: Day 18 (October 31), AM Session, Part 2
THE COURT: Be seated, please. All right, Mr. Gillen, we resume direct examination.
CONTINUED DIRECT BY MR. GILLEN:
Q. Yes. Thank you, Your Honor. Mr. Bonsell, let me ask you, the first retreat for which documents have been produced is January of 2002. At the time of this retreat how long had you been on the school board?
A. Barely a month.
Q. And did you have an understanding concerning the purpose of the board retreats?
A. Like I said before, it was basically a get-together. It was more of a team building experience, because we had new board members on the board and all the new administrators, the principals and things like that, it was mainly a time to get together and talk and get to know each other more than anything.
Q. Do you have a recollection about the approximate length of the board retreat in January of 2002?
A. I think most board retreats ran two or three hours, and that included dinner.
Q. Did there come a time during that January of 2002 board retreat where Rich Nilsen solicited input from board members about thoughts on their mind or other matters? Do you recall that?
A. That's basically, you come to the retreats and basically anything that you might have, you know, any thoughts, questions, that's basically it.
Q. Do you recall approximately how long this session took where Rich Nilsen solicited input?
A. Well, I'm not sure of exactly the length, the total length. Like I said, the whole evening was two or three hours, and that included eating dinner, but each person, each of the board members I think was only given two or three minutes, something along that line, to discuss or say anything they had on their mind.
Q. Okay. Let me ask you to look at Defendant's Exhibit 288.
A. Okay.
Q. And just if you would first scan the document generally and tell me as you sit here today do you remember any specific discussions about any of the issues beneath each member's name?
A. Not a specific discussion, no.
Q. Well, let me ask you, under your name here there's a word that has a lot of is significance for this litigation. The first item is creationism. Do you recall using that term at this January of 2002 --
A. Believe me, I've been thinking about it, ever since we brought this paper forward I've been thinking about that, and to be honest I don't remember in what context I said anything about it, I'm sorry.
Q. Well, as you sit here today do you believe that you must have said that word at this retreat?
A. Oh, no, I believe I said it.
Q. And why do you believe that?
A. Well, these were notes that Dr. Nilsen took, and I do have the confidence in Dr. Nilsen and if he wrote that down, more than likely I said the word, you know, I don't deny that.
Q. Let's talk about that word and what it means to you. What does the term creationism mean to you?
A. My definition? My definition of creationism would be the literal interpretation of the Bible. Basically, you know, the first few books of Genesis. That's what I believe personally.
Q. Is that what you believe in terms of your religious convictions?
A. Yes.
Q. Well, there's another word there's been a lot of discussion about, which is intelligent design. Do you believe that is creationism?
A. Absolutely not.
Q. And why do you take that position?
A. Well, creationism is like I said the literal interpretation of the Bible. ID is a scientific theory made up by scientists. I mean, it's a science, it's science. I mean, it's two separately distinct things. I know this whole court is about that, but I mean, or this whole case is about this, but it's two separate entities completely.
Q. Well, let me ask you this. We'll get back to that later. Look at the second item under your name, "Prayer." As you sit here today do you recall anything you said specifically about prayer at this January 2002 meeting?
A. Not specifically, no.
Q. Well, let's get a little more general then about this topic. Do you remember after coming to the board any discussions by you about prayer, prayer in the schools?
A. I'm sure this could have been in context of asking questions about it, how does the school handle it. You read so much in the papers of, you know, some things you're allowed to do, some things you're not allowed to do, and some of the school districts allow you to pray, some you don't, if it's student led, I know we have meet you at pole at Dover every year. I mean, so it's probably if that was in that kind of context, probably how, that's the only thing I would think, but specifically I don't --
Q. Well, okay, that's fair enough. Let me ask you this. While you've been on the Dover area school district board have you ever taken any steps to require prayer in the schools?
A. None at all, no.
Q. Let's look, for the record we were looking at the portion of Exhibit 288 with the Bates stamp number 3968 in the lower right-hand corner. Alan, I'd ask you to turn to the page of Exhibit 288 with the Bates stamp number 3969 in the lower right-hand corner. Do you recognize that document?
A. It looks familiar. I mean, it's basically the agenda for the board retreat in March of `03.
Q. Do you recall anything specifically that was said about the items listed on this document?
A. No, I mean nothing specific about these items though.
Q. Okay. You'll see that the heading Roman VI is "Board feedback and items of interest." Do you recall a portion of the meeting that was given over to that at all?
A. Like I said, I don't really recall pretty much anything specific, specifics on these subjects or feedback from the people or questions or anything like that.
Q. Let's turn to the page of Exhibit 288 with the Bates stamp number 3970 in the lower right-hand corner, and again I want to ask you to look down that list and tell us whether you recall anything that was said specifically about any of these items. Do any of these issues in come to mind now?
A. The only thing that I can remember I believe it was at this, about I made some comments complementing the administrators, and I guess it sticks in my mind because I guess one of the few times this has ever happened is after the meeting Mr. Renwich came up and shook my hand and said he appreciated my kind comments, and that just stuck with me because I thought that was a very nice thing that he did and I guess it just stuck in my mind.
Q. Well, again if you look at this document that's been produced you'll see a number of subjects under your name and let me ask you, the first is mandatory ed line update schedule. Do you remember anything you said about that?
A. I mean, what it says here, more information on ed line.
Q. How about item 2?
A. Stress manners and dress, good behavior. I mean, there again that's something that's, you know, that's said quite often. I mean, I don't remember coming out at this particular meeting, I don't.
Q. Well, I mean that's what we're trying to get a since for here. The third item is creationism. Do you recall mentioning that?
A. No, I don't.
Q. Do you believe that you did as you sit here?
A. Again, Dr. Nilsen took these notes, so I have no doubt that I said it.
Q. The fourth item is emphasizing American history, there's some bullet points. Do you remember you said at this retreat about that?
A. I don't remember anything I said at the retreat about this, no.
Q. Okay, how about more generally, do you remember anything you had said to administrators or teachers?
A. I think I've had discussions already with Dr. Nilsen or possibly Mike Baksa concerning the founding fathers and how, you know, how I felt it was important that the kids knew about the founding of our country. It's one of those things where I looked at it, you can't fix problems of today if you don't know how the government is supposed to run, and these are the men who made it, put it together, told you how it works. It's like buying a car and having an owner's manual. If you don't listen to the owner's manual, these are the people who built the car, so if you don't listen to that the car isn't going to work that long, something along that line.
Q. In your tenure as a board member have you ever taken any steps to change the social studies curriculum?
A. No, I haven't.
Q. Are there other areas of the curriculum in the Dover area school district that the board has looked at while you've been a member?
A. I'm sorry?
Q. Are there other areas of the curriculum that the board members have look at while you've been a member?
A. Oh, I remember looking at namely consumer science, sex ed, I know we just basically put in a whole K through 12 language arts. We revamped the whole curriculum with the mandates from the state. I'm think there's, I'm sure there is more than that, but that's what comes to mind.
Q. Do you remember speaking with Mike Baksa about the biology text and evolution during the period?
A. Just the conversation being on the curriculum committee, looking at the book, that was a book that was up for, I believe that was one, the book that was up for to be purchased, and I had spoken to him concerning the evolutionary section of it and was wondering how the teachers or how the Dover school district did that section.
Q. Well, did you have a concern that you can remember about the presentation of evolutionary theory in the --
A. What runs in my mind is basically the, when you're teaching, this is a theory that they're teaching, and when they don't include, you know, problems with it or gaps in a theory I mean, and you teach it, it almost sounds like they're teaching it as fact, and that's what, you know, I was sort of concerned about and was just asking questions about.
Q. Well, you know, several witnesses have been asked, and I'm sure you will be as well, it's a fair question, what do you really know about evolutionary theory? What were you relying on when you looked at this biology text?
A. Well, over the years, I mean, I've gained a lot of knowledge through books and videos and TV, internet. I mean, there's a lot of information that I've come across with that that --
Q. Well, can you state anything more specific? I mean, if you're looking at this text were there things that you knew that you --
A. Well, one of the things I remember seeing, it was on TV I think that was through the National Geographic or Discovery, they had talked about the Piltdown Man and how the Piltdown Man in the early 1900's was basically this was the find of all finds and this was, this proved the evolutionary theory, and from I think from that point up to the 1950's that was viewed that way until they found out that it was a hoax or a fraud, that someone had taken, you know, orangutan teeth or something like that and filed them down, and that was one of the things that I've seen things on different subjects of how bears turn into whales, you know, this was a natural scientific theory which I just thought was absurd. There's also statistical things that I've read about how the statistical probability of life happening by itself was basically impossible, I mean statistically.
Q. Were these things that you knew when you looked at the biology text?
A. I believe so, yes.
Q. Were they things that you had just encountered in general reading or did you make a specific inquiry when the biology text was up for review?
A. Well, these are things that I just over the year have seen or read. Like I said, I don't really have specific, these are just different pieces of information I have gotten through all these different types of outlets.
Q. Did the information that you described bear on your review of the biology text in 2003?
A. I'm sorry?
Q. Did the information you described, did you see that as relating to the biology text when you reviewed it in 2003?
A. Yes.
Q. Tell us how.
A. Well, basically it sort of glossed over that, it didn't even mention any kind of problems or anything along those lines, and I thought it would be something I was curious about why that was.
Q. Did there come a time when you came to know that Mike Baksa had communicated your questions to him to the science faculty?
A. I believe so, yes, they did, and I at some point then in `03 I believe we had a meeting.
Q. Do you remember -- when was the meeting?
A. That would have been in the fall of `03.
Q. Do you remember anything from that meeting?
A. Yes, it was myself, Mike Baksa, I believe Bert Spahr, Jen Miller, plaintiff Brian Rehm. There was another, I believe there was Mr. Eshbaugh, and I believe there was, I think there was another science teacher there, but I'm not sure.
Q. Tell us what you remember about that meeting.
A. Well, it was a nice, cordial meeting, and we got together and basically they educated me on how they presented the biology curriculum and that section of it.
Q. Did you gain an understanding as to how they presented the biology curriculum relating to evolution as a result of this meeting?
A. Yes, I did.
Q. Tell us what it was.
A. Basically they said that they taught adaptation over time, or microevolution, and I remember one of the examples that sticks out in my mind, they talked about I believe the peppered moth and how they were showing that has how, I think it changed colors over time or something if I'm not mistaken.
Q. Did you come away from this meeting with an understanding concerning whether teachers addressed the origins of life in their presentation?
A. They told me that they didn't present origins of life.
Q. How about creationism? Was creationism discussed at the meeting?
A. Yes, it was discussed at the meeting.
Q. Well, let me ask you, did you come away from the meeting with an understanding concerning whether teachers addressed creationism?
A. Yes, I did.
Q. Well, tell us what that was.
A. Well, they told me in the meeting that basically they mentioned creationism in the classroom, but they didn't teach creationism in the classroom.
Q. Do you know how the subject of creationism was brought up? Do you remember who brought it up?
A. I don't remember, it could have been one of the teachers because they were doing most of the talking. But I'm not sure, I'm not sure.
Q. Okay. Well, what was your reaction to that information?
A. Well, I was happy in two respects about that information. Basically one is that they mentioned creationism in the fact that they didn't say, they didn't come out and say it's wrong or you can't believe that or whatever, but I was also happy in the fact that they weren't teaching it, because I don't think they should be teaching it.
Q. Well, explain that, because that's important. What is your position on it?
A. Well, I believe that's up to me and my wife or the other kids and their parents regarding --
Q. Do you recall receiving anything at this meeting?
A. I received, yes, Mrs. Spahr had given me a packet of information, and I believe it was information from an ACLU web site saying, given the, telling about I guess different things on creationism and you can't teach it or you can't do different things with it.
Q. What was your reaction to receiving that information?
A. Well, I was, you know, I was a little taken aback by it because nobody in the meeting was talking about teaching creationism. They said they didn't teach it, and --
Q. What was the tone of the meeting? Describe it as best you can.
A. The tone of the meeting was it was just a friendly meeting.
A get-together, you know, here's a board member came in who had some questions, and they basically talked and told us and everything was friendly. There was no arguments, no anything. I mean, I came away from this, it was a nice meeting.
Q. How about when you parted? Was it on good terms?
A. Sure.
Q. Or was it --
A. There were no problems whatsoever.
Q. Did you ever ask Mike Baksa to take any action with respect to the biology text or the biology curriculum as a result of this meeting?
A. No, I did not.
Q. Now, you mentioned reviewing the biology text in 2003. Was there a reason that you reviewed the text?
A. Well, the book was coming up to be purchased. I mean, it was then I believe in the cycle, if I remember correctly that was in the cycle to be purchased.
Q. And so what was your purpose in reviewing it?
A. Well, basically we were looking at the books to purchase the books.
Q. Were there any considerations that you brought to your consideration of the text in 2003? I mean, what factors are you considering when you're looking at books?
A. Well, I mean there's a cycle that Dr. Nilsen had put them on, like a seven-year cycle, but the board sort of looked at okay, we want to look at each one of these books in the cycle. I mean, that was a good idea that they had so that all these books didn't come up at one time, but we wanted to make sure that, you know, one, the books were worn out, and two basically I mean are the new books going to be different from the old books, or is it going to help in the mandating of the teaching or something along that line.
Q. Was there, do you recall there being a concern in this period about whether students had a biology text?
A. There was concern?
Q. Expressed at board meetings.
A. Oh, expressed at board meetings. Yes, Barrie, Mrs. Callahan, would come to board meetings quite often and basically complain about things, and this was one of the things that she was always asking about.
Q. Well, did you share Ms. Callahan's concern for whether teachers had a biology text in 2003?
A. I think she said something that the kids didn't have books. We had a set of books, but that wasn't, it wasn't true that the kids didn't have books.
Q. Were the texts purchased in 2003, the biology texts?
A. In 2003, no, they were not purchased in 2003.
Q. Did you prevent the purchase of the biology text in 2003 because you had some objection to the content of that text?
A. That never came into it at all. It was a fiscal thing. Plus the books I believe were 1998, so the books were only like four, five years old, something like that. They weren't actually seven years old.
Q. Did you take any other action with respect to the biology text or curriculum through the close of the year 2003?
A. No.
Q. That brings us to 2004. Did your position on the board change in 2004?
A. Yes, I was elected to be chairman or president of the board.
Q. In your capacity as chairman of the board did you have appointment power?
A. Yes.
Q. And did you appoint the head of the board curriculum committee?
A. The president appointed every person to all the subcommittees.
Q. Okay. Let's look at the board curriculum committee which figures largely in this litigation. Did you make Mr. Buckingham the head of the board curriculum committee?
A. Yes.
Q. Why did you do that?
A. There was a slot open. I mean, I was nominated as president, and he was available to fill the position.
Q. Does the curriculum committee chair have any more power on the committee than any other committee?
A. It doesn't matter what your position is. As far as power-wise, everybody only has one vote. So they really don't have any more power than anybody else.
Q. When you appointed Bill Buckingham to be the chair of the curriculum committee, did you tell him that you wanted to work intelligent design into the biology curriculum at Dover?
A. No.
Q. When you appointed Bill Buckingham to the chair of the board curriculum committee in 2004 did you tell him that you wanted creationism worked into the curriculum at the Dover?
A. Absolutely not.
Q. Let's look at the beginning of 2004, from January through the end of May.
A. Okay.
Q. And let me ask you, do you remember any developments touching on either the biology text or the biology curriculum during this first portion of 2004?
A. Can you repeat that again?
Q. Sure. Let's look at the biology text, the biology curriculum. Let's look at the year 2004 from the beginning of January through the end of May.
A. Okay.
Q. I'm asking you to remember what you can. Do you remember any information or developments touching on the biology text or curriculum during this period?
A. What I remember I believe of that is that's when the, there's some information came out, I believe it was either books or videos or, I think it was videos, I don't know if it was books, too, on the, I believe it was Icons of Evolution and Unlocking the Mysteries of Life. I guess that's the name of it.
Q. Did you review those materials?
A. I had looked, at some point I had looked at Unlocking the Mysteries of Life, and I believe it was later, I don't know the exact times on this, of later I believe I reviewed, I know I reviewed, specific times on that, I believe it was later I reviewed Icons of Evolution.
Q. Well, you're not on the board curriculum at this time. Why are you looking at these materials?
A. Why am I looking at them?
Q. Yes.
A. It came out as something I guess that interested me. I looked at the information.
Q. Do you remember any other materials or discussions of the biology text or curriculum during this period?
A. I really, I don't believe so.
Q. How about you mentioned the Unlocking the Mysteries of Life and looking at that. Did you look at Icons of Evolution?
A. Yes.
Q. Do you know generally what that deals with?
A. The Icons of Evolution?
Q. Yes.
A. That I believe basically talks, I think there's basically two different areas it goes into. It goes into I believe gaps and problems of the evolutionary theory, and it also looks into, I believe there was a teacher somewhere out west that wanted to introduce other theories and things like that into the system, into the school system, and how badly he was treated by the scientific community and people, you know, people around him.
Q. Did you make a decision as a board member in 2003 concerning whether the biology texts would be purchased in 2004?
A. I believe what we had said, because the teachers were concerned I believe, the teachers were concerned that if they didn't get their book because of the cycle they'd have to wait another seven years to get their book. So we told them that next year we would look at the book and more than likely purchase a book next year, and I believe we even earmarked some money into the budget so that it would be there to show them, you know, here's the money, we're earmarking this money, so more than likely we would be purchasing the books next year.
Q. Let's look again at this period from the beginning of January to the end of May of 2004, and let me ask you did you attend any board curriculum committee meetings during this period?
A. What were the dates?
Q. January through the end of May of 2004.
A. No.
Q. And why not?
A. Well, I was board president and I wasn't on the committee.
Q. Let's look at June 2004. Actually before we get there let me ask you, was the biology text or biology curriculum discussed at all at the board meetings from January through the end of May of 2004?
A. Which was discussed?
Q. The biology texts. Do you remember concerns being expressed at the board meetings about the biology texts?
A. I don't believe so. Not at that time, no.
Q. Okay, let's look at June, and let's look at the first board meeting in June. Do you have the sense that there were two meetings?
A. There's normally, there's normally two meetings each month.
Q. Do you remember attending the first board meeting in June?
A. Yes.
Q. Okay. Do you remember anything that occurred at that meeting?
A. Yes. Yes, I do.
Q. Tell us what you remember.
A. I remember I believe it was during public comment period I believe, Barrie Callahan, Mrs. Callahan came up to the board again, as she usually does, and basically was complaining to the board and wondering what's going on in the books, and I believe it was Mr. Buckingham was of telling her, you know, that books were being reviewed, and she kept at him and at him, basically harassment, but you know, we sort of got used to her after a while, that I think he blurted out something or something, he had like laced with Darwinism I believe he said.
Q. Do you remember Mr. Buckingham making that statement at this meeting?
A. I believe I do, yes.
Q. What was your reaction to that statement?
A. Well, it was like what? I mean, I didn't exactly know how to take it to be honest.
Q. Well, what do you mean by that?
A. Well, I don't know what the, laced with Darwinism, what does that mean exactly, and why would he say that? It doesn't make -- I was sort of taken aback by it, where does this come from.
Q. Do you remember intelligent design being discussed during this board meeting?
A. Just in general. I believe it was mentioned in it, but specifically or how it was mentioned, it could have been in response to Mrs. Callahan. I'm not sure which person or if there was more than one, but I can remember that the intelligent design, I believe that was basically the first meeting it was brought up at.
Q. Well, let's look at the meeting as seen through your eyes and then the reporting of it. Did you read the daily papers during this June period?
A. Yes.
Q. Which ones?
A. Well, the York Dispatch is a paper that I had delivered to my home, and the York Daily Record I would buy a lot depending on, you know, it wasn't delivered to my home, but I would buy that periodically also, and the Sunday paper.
Q. Did you have an opinion concerning the accuracy of reporting relating to board meetings in these papers?
A. Yes, I did.
Q. Well, explain what that opinion is.
A. I'm trying to think of the words to say. It's got to the point where the accuracy of the press in the local papers was so terrible that, you know, it's just here we go again, just more inaccuracies, more biases, more half truths or half a story.
Q. Well, let me ask you this. You have a complaint here, does it relate to the reporting of the board meeting in June of 2004?
A. I'm sorry, say that again?
Q. You've got a complaint about accuracy. Sitting here today do you remember having that complaint about the way these reporters discussed the board meeting held in June?
A. I mean, this has been going on since two years, this has been going on since before I was even on the board, the inaccuracy of the press.
Q. How do you know that?
A. How do I know it? From reading the articles. I mean, you go to a meeting and then the next day you read the paper and it's like, well, where were they at? They weren't at the meeting I was at. And this is just another case of they take words and mix words around. They'll put in creationism for intelligent design. They did that for months and months and months and months and months.
Q. Is your grievance or your complaint about the accuracy of the reporting something that is limited to the reporting of this incident, or more broadly?
A. No, if there's one thing other than saying, you know, intelligent design and creationism aren't the same thing, this is another thing that the court needs to know. This has been going on since before I was ever on the board. The two years that I was involved before I ran for the board in 2001 and ever since then, you know, just it came to a point where you couldn't trust what was said. I'm not saying every single word was wrong. I'm just saying it came to a point where it wasn't a trustworthy piece, it wasn't a trustworthy document to look at and see, and I heard it all the time from people all over the place, other board members from different school districts. I mean, township people --
MR. HARVEY: Your Honor, objection. Hearsay as to what was said by other people from other townships or school districts.
THE WITNESS: It was my understanding --
THE COURT: Hold on, sir. When there's an action, wait until I rule.
MR. GILLEN: I guess he can gain a generalized impression from what he hears, but it's --
THE COURT: No, he was about to repeat what clearly is hearsay, so I'll sustain the objection. Strike that portion of the answer to the extent he got into it. You can proceed with the next question.
Q. Thank you, Your Honor. Let's look at this period from when you got on the board up until this first meeting in June of 2004. Up until that time had you gone to reporters and expressed complaints about the reporting?
A. During this time or during all my --
Q. From the time you got on the board through June of 2004, did you personally talk to reporters and --
A. I personally talked to reporters. I personally talked to editors of both newspapers. So the answer is yes, absolutely.
Q. Can you be more specific? Do you remember, again let's look at the period from when you get on the board or before, up until June of 2004, do you remember specific individuals that you spoke to up until this time?
A. Well, I mean, you go in, when they start changing words around, you say you can't be right, this isn't what was said, you know. You need to write what we say and not put in your interpretations of it. On the building projects I know they would tell these stories about different things on, or they'd only tell half a story, they'd tell this side but they wouldn't tell the other side. The biasness just shows through. I mean, the biasness, it just drips with biasness.
And one thing I remember in particular is that, and this goes back to the building project, we had an article in the paper that basically said the auditorium, I think the roof was leaking in the auditorium, and if you read the article, nothing in the article says anything about a roof leaking, and the thing was that we never talked about a roof leaking in the meeting, there wasn't a roof leaking, and I had had a phone conversation about this with Heidi Bubb, and it was my understanding through the conversation that I told her, you know, papers are inaccurate, and she said --
( REPORTER NOTE: REMAINDER OF ANSWER STRICKEN PER INSTRUCTION OF THE COURT.)
MR. HARVEY: Your Honor, objection. Hearsay as to what Ms. Bubb said.
MR. GILLEN: That's true. Alan --
THE COURT: I'll sustain that. Strike that last answer as to what the response was, and you can proceed.
THE WITNESS: What can I say as far as my understanding --
MR. GILLEN: Well, you cannot say what someone said.
THE WITNESS: Okay. It was my understanding that she agreed with me, and it was my --
MR. HARVEY: Objection, Your Honor. He's getting directly back into hearsay.
MR. GILLEN: He's just giving his impression of the results of the conversation. He's not attributing words to it.
MR. HARVEY: This is not an area where I think his understanding of it is directly relevant to the case sufficient to warrant him testifying about his understanding and bringing indirectly what is clearly a hearsay statement.
THE COURT: So is your objection hearsay or is it relevance?
MR. HARVEY: It's hearsay, Your Honor.
THE COURT: Then I'll overrule it on a hearsay basis.
Q. Let's look at the second board meeting in June. Do you have any recollection of the second board meeting in June of 2004?
A.
A little bit of it.
Q. Well, I understand that they can blur together. Do you remember a young man coming to the podium during that meeting?
A. Yes, I believe Pell was his name.
Q. Did you know his name at the time?
A. At the time -- well, when you come up to speak you're supposed to state your name and address and where you live before you speak. I believe he had talked about bringing creationism in school and it wasn't right to do that sort of thing.
Q. Do you recall any statements by board members in response to the young man's address to the board?
A. From what I can recall, the specifics is hard to recall, but basically we weren't teaching creationism and intelligent design, probably because he was reading the papers and, you know, creationism is creationism and that's not what we were talking about.
Q. What were you talking about, Mr. Bonsell?
A. Well, intelligent design. We weren't talking about creationism.
Q. Did you ever come by an understanding concerning whether certain people attending the board members, including reporters, saw intelligent design and creationism as the same thing?
A. I had a conversation -- well, yes, I mean that's why we're here I guess, but there was definitely people there that thought it was all the same thing, and my understanding from conversations is that Joe Maldonado thought it was the same thing.
Q. Let me ask you, there's been discussion about an address of Charlotte Buckingham to the board. Do you recall that?
A. Yes, I do remember that.
Q. Well, tell us what you remember about her address.
A. She came forward at a public comment session and she started, I don't know what you want to call it, she started a comment during that point where she went on and on, and it was basically religious, very religious in nature.
Q. And there's been some thought that she went on for more than the ordinary period, and you were a board chairman. I want you to describe how long she went on. What was your reaction to her discussion?
A. That's true, she did go on longer than normal, there's no doubt about that. Here's the situation that I had myself into. I'm the board president, and here's a lady who's the wife of a board member comes up and starts talking, and it's like you don't want to be rude, you don't want to do that to her, because it got to the point where, and the thing is I thought she was going to stop two or three different times, but she would start to talk, and then she would stop and it's like okay, she's done, and then she'd start talking again, and then it was like she stopped and okay, she's done.
It got to the point I picked up my, I had the gavel in my hand, because I remember I had the gavel, if she would have spoken one more word that would have been it, because I mean it did go on longer than normal, I do admit that, and if I had to do it over again I would have gaveled her sooner.
Q. Well, let me ask you, before Charlotte Buckingham spoke at this board meeting had you spoken to her about what she was going to say?
A. Oh, no.
Q. Had you spoken to Bill about what she was going to say?
A. Absolutely not.
Q. Had Bill Buckingham told you anything about what Charlotte was going to say?
A. No.
Q. Did you see Mrs. Buckingham as addressing board business when she addressed the board at this meeting?
A. No, not at all.
Q. What was your reaction to her statement?
A. Really, I mean everybody is entitled to come up in public comment, but I didn't really think it was appropriate, but you know, she's a citizen of Dover, so I mean it wasn't something that I would really say was something that was the time and place for.
Q. Well, did she mention creationism during her address?
A. She probably did.
Q. At the time that she did so were you considering a policy change that would require the teaching of creationism in Dover area schools?
A. There was never a consideration of a policy change to make creationism part of the school curriculum.
Q. Let me ask you about these meetings here in June in terms of their turnout and get a sense of their turnout relative to other meetings. Did the turnout for these meetings in June far exceed ordinary turnout?
A. Well, that can be answered two different ways I guess. One is is that usually a board meeting there's usually a couple of people there. So was it more than normal? Maybe a little bit more than normal. But was it like a lot compared to other board meetings I've been at? It doesn't even compare to some of the board meetings I've been at.
Q. Okay, let's get a sense for that. If you compare the attendance at these board meetings to attendance at other meetings, were there other issues that brought out a larger turnout?
A. The building project.
Q. And give us a sense for the numbers and the duration of that kind of turnout as it relates to the building project.
A. Well, there was many, many meetings that I remember coming through where the cafeteria was where we hold our meetings in the 5th and 6th grade school basically was filled with people. I mean hundred, hundred and fifty, I think one time more, there could have been at least two hundred people there, and I know there was at the high school we had a meeting that there was probably hundreds of people at that.
Q. Let's just compare the turnout at all the meetings relating to the biology text or curriculum throughout this 2004/2005 period. Is it in any way larger than the building project turnout you've referenced?
MR. HARVEY: Objection, Your Honor. I think he's asking the witness to speculate. No foundation.
MR. GILLEN: Speculate? He's entitled to his opinion based on the facts he observe at the meetings he attends. It's lay opinion about a matter that may have some relevance in the case.
THE COURT: No, I'll allow the answer. The objection is overruled.
THE WITNESS: Can you repeat that, please?
Q. Sure. I'm just trying to create a sense for how the turnout at these board meetings relating to the biology texts or biology curriculum compares to the turnout you've described with reference to the building project.
A. With all the community members, I mean there really was no comparison I don't believe.
Q. How about from the standpoint of the tone of the meeting? There's been some testimony indicating that there was some unedifying conduct at some of these meetings related to the biology text or biology curriculum. Was that an unusual feature of these meetings, or were there other meetings that were similar?
A. There was many meetings where there was heated discussion among board members, among board members and some constituents. I can't recall specifics, but I know as far as the divisiveness or meanness, I mean none of these compared to the one I recall with a meeting that we had when we were voting on a football coach.
Q. And just describe that meeting in contrast.
A. It was a meeting that we were voting on whether or not to keep, to rehire basically our old football coach for next year, and there was a lot of people there and when we voted not to rehire him, I mean, I've never seen anything like this. I mean, the people got up and started swearing and cursing at the board and kids and adults were flipping chairs, taking chairs and actually flipping them on the floor, and it got to the point I think it was the same meeting that the ladies on the board were afraid to go out and get in their car at night. I'm not sure if we escorted them out or they actually called the police to make sure that they weren't, you know, somebody wasn't going to damage their car or they would be accosted or something like that outside. That's the worst I've ever seen. I mean, nothing else in this whole issue I mean pales in comparison to that.
Q. Well, I don't want to linger too long, but can you give us a sense for a few other meetings or issues that have produced meetings that are contentious, you know, well attended.
A. Well, that was -- the building project, the building project went on for was going on for years, and there was many, many building project meetings that were like that. I think there was an issue of pay for play where we were discussing pay for play as an option maybe down the road or something like that where there was, I believe there was a lot of people that were, you know, they didn't want to pay for play.
Q. Okay. We've talked about board meetings in June. Did you attend any meetings of the board curriculum committee in June of 2004?
A. No, not that I recall.
Q. Why is that?
A. Again I wasn't on the committee. I was the board chairman at the time.
Q. All right. That brings us to July. Do you recall a board meeting in July of 2004?
A. Yes.
Q. All right. You know, I'd ask you to look at Exhibit 22.
A. 22? All right.
Q. Do you recognize that, Alan?
A. Yes, that's the, I believe the board agenda for July 12th, 2004.
Q. Okay. I'd ask you to look at the page with the Bates stamped number 101 in the lower right-hand corner.
A. 101? Okay.
Q. And look under the item for curriculum. What do you see there?
A. There's a notation that the Prentice Hall Miller and Levine biology book will be ordered, approved for order.
Q. Was it your understanding that that book was going to be approved at this meeting?
A. Yes, I was.
Q. Okay. Was the book approved?
A. In July, no, it was not.
Q. And do you know why?
A. Well, between up until this point I believe the teachers found out that there was a new edition that came out. I believe it was a 2004 edition of the Miller and Levine book, and so I believe they had asked us to postpone the buying of the book until August so they had a chance to review it and see if this was even a better book than the `02 version.
Q. Okay. We're looking at July. Did you attend any board meetings of the board curriculum committee -- excuse me, let me strike that question and ask a better one. Did you attend any meetings of the board curriculum committee in July of 2004?
A. I don't believe so.
Q. Why not?
A. Again I wasn't on the committee and I was president of the board.
Q. Okay. Did there come a time around this period, July of 2004, when you became aware that Bill Buckingham was obstructing approval of the science, more specifically biology text, that had been recommended for purchase by the science faculty?
A. I believe somewhere around that time is I believe Dr. Nilsen and myself had a conversation, I mean, we had about that fact.
Q. And tell us what you recall about that conversation.
A. From what I can recall is that I believe Mr. Buckingham had another book that he was talking about putting, you know, putting along with this book to be purchased or to be used as textbook I believe.
Q. Did you learn the name of that text?
A. Yes.
Q. And what is the name of that text?
A. That was the Of Pandas and People book.
Q. Prior to this time had you heard of the Of Pandas and People book?
A. Not that I can recall.
Q. Did you speak with Mr. Buckingham as a result of the information you received from Dr. Nilsen?
A. Well, I spoke, I believe I spoke to him at a later date before the meeting because the books needed to be purchased.
Q. Well, tell us what you told Mr. Buckingham.
A. Well, I mean I called him because I believed it was going to be the books, the Miller and Levine books were going to be put on for August once the teachers got to look at them, we were going to purchase those in August. Yes, in August, and I believe I called him I think it was right couple of days before the meeting to make sure that the books were on, there were no problems here, and he told me that yes, that the books, he was going to bring them up for approval.
Q. All right. As you left this conversation did you believe the text recommended by the science faculty would be approved for purchase at the August meeting of the board?
A. That's what I thought, yes.
Q. With that in mind, Alan, look at Exhibit 28.
A. 28?
Q. Yes. Do you recognize that document?
A. That is the agenda for the first meeting in August.
Q. Okay. I'd ask you to turn to the page that deals with the curriculum. It's Bates stamped number 116.
A. 116?
Q. Yes, and I'll ask you what you note there as it relates to the Miller and Levine text.
A. Noted here, we'll be voting on approval of the following text. That was in the agenda.
Q. Do you see a reference to Of Pandas?
A. There is no reference to Pandas.
Q. And was that consistent with what Dr. Nilsen had told you about his attitude towards placing the Of Pandas text in the August agenda?
A. That was my understanding from every, you know, yes.
Q. Well, do you recall proceedings at the August 2nd, 2004 board meeting that relate to the approval of the biology text recommended by the science teachers?
A. I'm sorry, say that again.
Q. Do you recall anything that happened at the August meeting that touched on approval of the biology text?
A. Yes.
Q. Tell us what you recall.
A. Well, I believe at the time, I believe this is the first meeting Mr. Buckingham brought up the subject again of purchasing 220 he wanted to buy, because we were purchasing 220 Miller and Levine books, and he wanted to purchase I believe 220 of the Of Pandas and People book I believe.
Q. Okay.
A. But there again we took a vote on, we took a vote on, we took a vote on this subject though.
Q. Okay, and do you recall the nature of that vote?
A. Yes.
Q. Tell us what you remember.
A. From I remember when we put this up for a vote it was a 4-4 tie, and I guess under Roberts Rules a 4-4, if it's a tie it's a no vote.
Q. And what was the purpose of the vote? Was it to approval the text or not?
A. The purpose, the only purpose of that vote from what I can recall is to purchase these biology Miller and Levine books.
Q. And what was the result of the 4-4 tie?
A. Well, a 4-4 tie means no.
Q. Did you vote with Mr. Buckingham?
A. No, I did not.
Q. Why not?
A. Because I wanted to approve these books for the kids to be put in the class.
Q. What about Of Pandas? What was your attitude towards approving Of Pandas at this meeting?
A. Well, I mean I was just starting to hear about it. I believe I probably wanted to review the book before I would say anything one way or the other.
Q. Was the vote changed?
A. Yes. There was some heated discussions and some questions I believe like okay, now what? You guys voted no, what do the no votes want to do here, and we had a heated exchange. I know Mr. Brown was upset. We were all upset because this was supposed to be voted and done and that was the end of it. After this discussion Angie Yeungling, who was one of no votes, decided to change her mind, and under the rules when you vote on things, only a no vote person can call another question up for a vote. So she called the question again, and we revoted and we approved the books 5-3.
Q. So was the outcome of this meeting approval of the text recommended by the science faculty?
A. Yes, it was.
Q. Well, that leaves another text you mentioned in contention. Do you remember attending any meetings in August relating to Of Pandas?
A. I believe there was a meeting sometime, I believe the end of August we had a meeting.
Q. With that in mind here let me ask you to go to Defendant's Exhibit 30.
A. 30?
Q. Yes. Do you recognize that?
A. Yes.
Q. What is it?
A. It's just a memorandum to teachers and board members concerning a curriculum committee meeting scheduled on Friday, August 27th.
Q. Did you attend this meeting?
A. Yes, I did.
Q. Well, let me ask you, this is a meeting of the board curriculum committee. You haven't attended any meetings of that committee up until this point in 2004. Why are you attending this one?
A. Well, the reason I did, I mean I have a capacity as board president to sort of I guess, what's the technical term, ex officio, of all the curriculum committees. So when this came out and I started to hear these rumblings about this, and I believe there was probably a conversation between Dr. Nilsen and myself at some point, I thought that if I could come, maybe I could try to build a consensus or try to help, you know, bring people together and take care of it.
Q. And you recall attending. Do you recall who was there?
A. Well, it was myself and I believe it was Mr. Buckingham, Mrs. Spahr, I believe Jen Miller, I believe Sheila. Well, the curriculum committee, Sheila Harkins, and I believe Casey Brown. There might have been somebody else there, I'm not sure all the people that were there.
Q. How about administration?
A. I believe Dr. Nilsen might have been there, and Mike Baksa is usually -- I mean Mike Baksa, that's what his job is. He's usually always at those meetings.
Q. Do you remember Mr. Buckingham taking a position on the Of Pandas text at this meeting?
A. What I can recall is that he basically still wanted to use it as a supplemental textbook, and --
Q. Do you recall the science faculty's reaction to that desire on his part?
A. Well, they didn't want to use it as a supplemental text. I don't believe they wanted to teach it. I think they still thought it was creationism, and I believe this is, I'm not sure, this might have been the first time that the subject broached of, you know, they didn't want to be sued.
Q. Well, let me ask you, did Mr. Buckingham attend this whole meeting?
A. I think this was the one where he wasn't at the whole meeting.
Q. Do you recall anything that you said to the teachers and administration after Mr. Buckingham left?
A. You know, Bill Buckingham is one person on the board, and not everybody agrees with, always agrees with what he's saying or when.
Q. Did you think that this meeting produced any progress in terms of your goal of trying to build consensus?
A. Well, I think it did. We brought the teachers around to the fact that I believe it was through here that I believe it was this meeting they had about looking at gaps and problems and using, a possibility of using that book as a reference book, but not a textbook.
Q. Did you come away from this meeting giving any direction to Rich Nilsen or Mike Baksa that related to the curriculum?
A. I think, I mean Mike being in the curriculum end of it and being an assistant superintendent, probably he took this information, worked on things from there.
Q. Well, let me ask you to look at Defendant's Exhibit 44.
A. 44? Okay.
Q. Do you recognize that, Alan?
A. It's a memorandum and a draft.
Q. Do you recall receiving this?
A. More than likely. I mean, I'm sure I did.
Q. Were you surprised when you got this document?
A. Was I surprised?
MR. HARVEY: Objection, Your Honor. Lack of foundation for that. He just testified that he doesn't remember getting it.
MR. GILLEN: Well, look it over, Alan, and see if you did or not.
THE COURT: Well, the objection is sustained for the record because he's not sure if he got it.
THE WITNESS: Okay, the draft was to me, being aware of, yes.
Q. Were you surprised when you received this?
A. Surprised?
Q. Yes. In light of what you had worked out at the August meeting.
A. Surprised?
Q. Well, this is what I'm getting at. Look at the first page of Exhibit 44 and focus on what the memo is about.
A. The memorandum?
Q. Yes.
A. Okay. It's basically to the board of directors, and it's showing recommended curriculum change for biology that the science department had reviewed.
Q. Now, look at this document in light of the discussion you just described for the August 27th meeting of the board curriculum committee. Did you see them as related?
A. Well, they were related, sure. I mean, that's what he had talked about. Mike Baksa went back obviously and worked with the teachers and came up with some sort of draft, a first draft, rough copy or a rough draft of what I believe the science department, reviewed by the science department and what they reviewed, and obviously this was acceptable to them.
Q. All right. If you look at the first page of Exhibit 44, you'll see that it's addressed to the board of directors. Did you know why it was addressed to the board of directors?
A. Basically to the board of directors to keep everybody in the loop on this, let them have the information on this. Instead of just going to the curriculum committee it went to everybody.
Q. Okay. Was that your idea?
A. Was it my idea? I can say in this particular memorandum it was either my idea or Dr. Nilsen or Mike Baksa's idea I'm sure.
Q. And what was the purpose of addressing it to the board of directors so far as you understood it?
A. There again to keep everybody apprised of this. So it wasn't just two or three people, it was everybody that saw this, I mean, and had the time to look at it and take a look at it.
Q. All right, as we go forward I want to focus right now on the Of Pandas text and how it came into the Dover school system, and I'd ask you to look at Exhibit 48.
A. 48?
Q. 48, and go to the page that has the Bates stamp number 135 in the lower right-hand corner.
A. 135?
Q. Yes.
A. Okay.
Q. Look at the item Roman XIII, heading "Curriculum." Do you see a reference to Pandas there?
A. Yes, I do.
Q. And what does it say?
A. "Superintendent has approved a donation of two classroom sets of Of Pandas and People, and they will be used as references."
Q. Well, let's talk about the donations. Did you have a role in that donation or were you aware of it?
A. Yes.
Q. Tell us how.
A. Well, the story goes back again to Mrs. Callahan. She was at another one of the board meetings, I believe at the time what I can recall of this is again complaining about something. She was I believe saying, criticizing because we shouldn't use Pandas and People as we shouldn't spend public money on it.
Q. Well, at the time of the August meeting were you willing to spend public money on Of Pandas?
A. At that time I don't know. It was never brought up.
Q. Did the board ever consider using public money on Of Pandas?
A. It was never considered.
Q. Did it not get that far?
A. It was never brought up for a vote or put on any kind of agenda for us to vote on, no.
Q. If you look at the portion of Exhibit 48 to which I direct your attention, you'll see there are two classroom sets mentioned, 25 each. That's a lot different from the 220 Mr. Buckingham had sought approval for. Do you know why?
A. Well, sure. I mean this is what the teachers said, they didn't have a problem with using the books as a reference. It wouldn't be a textbook. It's not side by side. It's not going to be read or required to be read or anything. It's just a reference book. So I guess because there's two classrooms that have this at the same time, I guess that's why we came up with the possibility of two classroom sets using it at the same time, I mean if anybody wanted to look at it there again.
Q. Did you have any sense for why your dad volunteered to donate?
MR. HARVEY: Your Honor, objection. Lack of foundation that he had any conversation with his father about that.
THE COURT: Sustained.
Q. Did you have any discussion with your dad about why he volunteered?
A. We had conversation. There was nothing, I don't remember specifics per se other than the fact, you know, Mrs. Callahan was complaining, my father had previously been a school board member and sat on the board with Mrs. Callahan, so he knew, you know, he knew about Mrs. Callahan, and this was some of the things, from the complaints and things and something take off the table as a political -- I mean, it was always something, this is always political with Mrs. Callahan, trying to make the board look bad.
Q. At the time that your dad volunteered to donate these books, had he made other donations to the school district?
A. Yes, yes. Yes, he had.
Q. Tell us about those.
A. Well, he had, I know he had donated I think a truck full of lumber to the school district already. I believe he also had donated some windows if I'm not mistaken, some windows to the administration office or something along that line, some new windows, and he also, he had offered the school district water fountains, there were brand new water fountains that he had purchased, and he offered them to the school district just for what he paid for them. The district would have saved thousands of dollars if they would have done that.
Q. Did you tell others that your dad had volunteered to donate the books?
A. Yes.
Q. Did you personally contribute any money to the purchase of the books?
A. No, I didn't.
Q. Prior to this had you ever donated books to the Dover area school district?
A. Yes, I have.
Q. Tell us about that.
A. I believe it was around 75, they were new, they were a little like 1st grade, I think 1st or 2nd grade reader books on being a bunny, or I want to be a bunny or something along that line.
Q. Why did you do that?
A. Well, the books I gave to, you know, I didn't have to pay taxpayers money for, I gave it to them and hoped the kids, you know, help them to read. Just improve education. That's why I was there.
Q. How about Mr. Buckingham? There was a check here that he passed on. Do you know if Mr. Buckingham himself contributed any money to the purchase of the text?
A. As far as I know he didn't.
Q. Did Bill Buckingham give you a check to pass on to your dad?
A. Yes, he did.
Q. Did you understand the check was his funds or someone else's?
A. No, that's why I said I don't believe it was his money, because he said these were donations that he had gotten and passed a check on to my father.
Q. Did you ask Mr. Buckingham who gave him the money?
A. No.
Q. Is there any particular reason you didn't?
A. There was no reason to ask. I mean, if people were willing to give money to buy reference books for the school, hey, that's great.
Q. All right. Let's turn back to the curriculum language. We've looked at the document Mike Baksa sent you reflecting review by the teachers, and I'd ask you to look at Exhibit 46.
A. What was that again, I'm sorry?
Q. 46.
A. 46? Okay, 46, yes.
Q. Do you recognize that document?
A. Yes.
Q. Do you remember receiving it?
A. Yes.
Q. What is it?
A. It's basically a memorandum from Mike Baksa to the curriculum committee and myself, excuse me, talking about a board curriculum meeting scheduled for October 7th.
Q. Did that meeting occur?
A. Yes, it did.
Q. Did you attend?
A. Yes, I did.
Q. Do you know who else attended?
A. It was Mike Baksa, Sheila Harkins, Bill Buckingham, and myself.
Q. Casey Brown, did she attend?
A. No, she had called and left a, talked to Mr. Baksa.
Q. Okay. Did you have an understanding of Casey Brown's position with respect to the activities?
A. My understanding was from Mr. Baksa that she couldn't make the meeting and that she was sorry, she couldn't make the meeting, whatever we come up with would be okay with her.
Q. Again this is now the second meeting of the board curriculum committee that you're attending, although you haven't attended others earlier in the year. What is your purpose in showing up at this meeting?
A. It's the same thing. I mean, I'm board president, there's a problem here, I'm -- there's some discussion back and forth and I'm trying all I'm trying to do is help. I'm trying to bring some sense is what I'm trying to do.
Q. Okay. I'd ask you to look at Defendant's Exhibit 50.
A. 50?
Q. And I want to discuss your understanding of these various positions that are mapped out here on this document.
A. Okay.
Q. If you look at the first recommendation under A, with the number 1, attributed to the administration and staff, did you see that as related to the document we've already looked at that Mike Baksa sent you --
A. That looks pretty much like what the draft said, yes.
Q. Now, I want you to look at the language under your name.
A. Yes.
Q. And there's a couple of things I want to ask you about.
A. Okay.
Q. There's no mention of intelligent design there. Why is that?
A. Well, basically what I said and what the teachers said I didn't really have a problem with because it mentions other theories of evolution, which ID is another theory.
Q. Was there -- if you look here at this language you'll see that the teachers' version says gaps. Your says gaps and problem. Was there a specific reason that language is in your version?
A. Yes. Yes.
Q. Tell us about your thinking on that.
A. Well, the way I look at it, gaps and problems are sort of two different things. Gaps could be okay, we have evidence for A and we have evidence for C, but we're missing B to connect the two together. So there are the gaps.
A problem I would consider what I think I talked about earlier, a problem for say evolutionary theory is that it's statistically impossible for it to happen. That's a problem. That's not a gap. So that's the only reason I thought it would be better and it would enhance the statement.
Q. Well, let me ask you for your understanding of Mrs. Brown's opinion. How did you see her position reflected on this document, Defendant's Exhibit 50 at A-3, relative to yours. Did you see a big difference?
A. There really wasn't, I didn't really see a difference. The only thing I see, you know, what I see is that it was wordier, that's all, and mine was a little more short and the other recommendation was a little bit more short and more concise.
Q. And how about Mr. Buckingham's version?
A. Well, Mr. Buckingham's version basically says the same thing, too, being aware of other theories of evolution, including but not limited to intelligent design, really the only difference between the two as far as I see is that it's saying the words intelligent design.
Q. Well, let's turn to the next page of Defendant's Exhibit 50 with the Bates stamp number 36 in the lower right-hand corner, and you'll see a handwritten notation there. Do you know why that notation is there?
A. Well, we discussed this and went over it, and being that, you know, Mr. Buckingham says we have books, we have the Of Pandas and People book as reference books, and here again intelligent design is a theory, another theory of evolution, and so we just sort of took my statement and just added "including but not limited to intelligent design," which, you know, still is saying the same thing. It just is a little more specific. Like it says those two words, that's basically all it's adding to it.
Q. Well, in all of these versions there's this use of the term "made aware of" that's being used. Did you have an understanding concerning why that language was used?
A. Well, sure, because we weren't going to teach it.
Q. Why was that?
A. Well, teachers had --
MR. HARVEY: Your Honor, objection, no foundation as to there was any discussion on this subject, as opposed to his own idea. I mean, if he wants to testify about what his own understanding of that is, that's fine. Without foundation he can't testify about, it's a collective understanding.
MR. GILLEN: He's just testified that he was at an August 27th meeting with the teachers in which they voiced objections.
THE COURT: You might be a question or two ahead of yourself. I'll sustain the objection on that basis. Why don't you lay a foundation for whatever it is the question was.
Q. I will. Thank you, Your Honor. Mr. Bonsell, we're talking about the use of language "made aware of," and I want you to consider that use of language in contrast to the term "teach," and I wanted to ask you, you've mentioned attending an August 27th, 2004 meeting of the board curriculum committee that was attended by teachers. Did you come away from that meeting with an understanding concerning whether the biology teachers at Dover were willing to teach intelligent design?
A. My understanding was that they did not want to teach intelligent design.
Q. Okay. So is that understanding related to the use of the phrase "made aware of" as it appears here in these proposed changes?
A. Well, absolutely, yes.
Q. Tell us your understanding of the relationship.
A. Well, again, students will be made aware of gaps and problems and other theories of evolution. They're not going to get into teaching it. You know, it's just going to be basically mentioned.
Q. Let me ask you this.
MR. HARVEY: Objection, Your Honor. Move to strike the last testimony. There was no testimony that he had that understanding as a result of anything in particular, and so it's, the record is quite unclear as to whether that's just his understanding, and if that was clear that would be one thing, but whether that was based on something that was discussed at a meeting.
THE COURT: I'll take it as his understanding and I'll overrule the objection.
Q. And with respect to the use of the term "made aware of," this document is generated in connection with a meeting of the board curriculum committee on October 7th, 2004, is it your understanding that this document and its use of that phrase "made aware of" reflects a consensus that was worked out by the members of the board curriculum committee in attendance at this meeting?
A. That was my understanding.
Q. Okay. Did all the members of the board curriculum committee who were present at this meeting have an opportunity to review curriculum language that reflected this revised entry under your name on Defense Exhibit 50, page 36?
A. Yes, I believe from here it was sent out again after this.
Q. Well, let's look at that process. We're moving towards the October 7th -- October 18th board meeting now, and I want to look at the documents that were generated in preparation for that meeting. With that in mind I'd ask you to look at Defendant's Exhibit 60.
A. Sorry, 60?
Q. 60.
A. Okay.
Q. Do you recognize that document?
A. Yes.
Q. What is it?
A. It's basically a memorandum about the, there's another draft of changes to the biology curriculum from the board curriculum committee --
Q. Okay.
A. -- that was sent to all the board directors.
Q. And I'd ask you to turn to the page of Defendant's Exhibit 60 with the Bates stamp number 18 in the lower right-hand corner.
A. Okay.
Q. Or actually I guess if looked at properly it's the lower left-hand corner, and direct your attention further to the last entry in the column headed "Unit content and concepts."
A. Yes.
Q. Would you read that language for the record?
A. "Students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution, including, but not limited to, intelligent design."
Q. Okay. Is this consistent with the consensus worked out at the October 7th meeting of the board curriculum committee?
A. Yes, it is.
Q. If you look in the right-hand corner of that document, the lowermost entry in the column headed "Materials and resources," you see a reference to Of Pandas?
A. Yes.
Q. Was that discussed at the October 7th meeting of the board curriculum committee?
A. Yes. I mean using that only as a reference.
Q. I'd ask you to turn next to Defendant's Exhibit 61. Do you recognize that document?
A. Yes.
Q. What is it?
A. Here again it's a note from Mr. Baksa to the board directors for the recommended change of the biology curriculum from the staff and administration.
Q. I'd ask you to turn to the page in Defendant's Exhibit 61 with the Bates stamp stamped in the lower left-hand corner, and again direct your attention to the lowermost entry in the column headed, "Unit content concepts."
A. Yes.
Q. And I want to ask you did you understand this to be the position of the staff and the administration on the proposed curriculum language?
A. Yes.
Q. I'd like you to look at the column "Materials and resources" and tell me whether you note any difference about this document and the board curriculum committee's proposed curriculum change.
A. I believe this one doesn't have the reference Of Pandas and People in it.
Q. Now, just for the record I want to make clear your understanding as to the differences of these two versions that we've discussed. If you look at 60, the board curriculum committee, where do you see points of diversion from, or divergence from the suggestion of the teachers? What's at issue at this time?
A. Well, mainly as far as wording, basically "including but not limited to intelligent design," I mean that's the wording that's not in this version. That's in the other version.
Q. Well, look at the teachers' --
A. And gaps, slash, I mean the problems aren't in there. It just says gaps.
Q. Okay, and then how about with respect to the listing of reference material?
A. Then the reference is not included also.
Q. Okay.
A. Reference book.
Q. Okay. If you look at these two memos, Alan, they're dated October 13th, and I want to focus your attention on the period between October 13th and the board meeting on October 18th, 2004. Did you do anything in your capacity as board president that was designed to address the conflict between these versions in the period between October 13th and October 18th?
A. What I can remember is that I believe I talked to Dr. Nilsen concerning trying to get this worked out, because I wanted everybody to get together on this if this was possible to do. That was my objective as board president, and I believe because the concern was again teaching ID or teaching origins, that type of thing, I said what about coming up with something that, possibly putting in a note or something that origins won't be taught.
Q. Do you remember suggesting that to Rich Nilsen?
A. To go and see, yeah, trying to come up with something like that to be put in that we could come up with something that we could get everybody together on.
Q. Did there come a time when you had reason to believe that your effort to create a consensus had produced some results?
A. Yes, I believe after this there is another draft that came about.
Q. With that in mind I'd ask you to look at Defendant's Exhibit 68.
A. 68?
Q. Do you recognize that document, Alan?
A. Yes. Yes, I do.
Q. Okay, what is it?
A. This is another of the drafts for the curriculum, a memorandum from Mike Baksa to the board, attached is a second draft for recommended changes to the biology curriculum for the administration and staff.
Q. And I'd ask you to direct your attention to the portion of Defendant's Exhibit 68 with the Bates stamped number 22 in the lower left-hand corner.
A. Yes.
Q. And just tell me what differences do you note between this document and the two versions of the curriculum change that we have looked at thus far?
A. Well, now we have the Pandas as a reference book. The teachers, administration, put the reference book in this draft as using it as a reference book that they didn't have before, and they also added problems to the concepts and added a note at the bottom that origins is life is not taught.
Q. And what was your purpose in suggesting that note?
A. Well --
MR. HARVEY: Objection, Your Honor. There's been no testimony that he did suggest that note.
MR. GILLEN: He just testified that he suggested a note.
MR. HARVEY: Perhaps a misstep, I don't believe that's the case.
THE COURT: I didn't hear that testimony. I thought that the questions went to the fact that this was received as a compromise from the administration and staff. I think I missed that, too.
MR. GILLEN: Well, it's understandable, but let me go back for a second and clarify if needed.
Q. Alan, the two memos that we looked at earlier, Defendant's Exhibit 60 and 61, are dated October 13th, 2004. Did you do anything in the period between that date, October 13th, 2004, and the board meeting held on October 18th, 2004 in an effort to reconcile the conflict between the two proposed curriculum changes?
A. Like I said --
THE COURT: That was asked and answered. I understood the answer to that question. That precise question was asked, and he gave a general answer that he continued to try to move them towards a consensus. The objection by Mr. Harvey went to the fact that there was no specific question on whether Exhibit 68 was his product, because by its --
MR. GILLEN: It's not his product, Your Honor.
THE COURT: Well, that's what the question sounded like, and that it's his language.
Q. Okay, let me ask you, Alan, looking at Defendant's Exhibit 68 and the note you have just read, did you suggest this language?
A. Well, the origins of life, the origin of life will not be taught was something that was suggested, that I suggested, you know, go back to the teachers and see if that could be used or not as a, you know, as a way of bringing the teachers in.
Q. Okay, and what was your purpose in suggesting that language? How did you think it might satisfy the teachers?
A. Well, again two things, because they're still saying about, you know, creationism and ID are the same thing and I didn't want to teach it, that would take care of all that because origins of life is not taught.
Q. Well, how do you see that relating to their objections concerning teaching intelligent design?
A. Well, intelligent design deals with the origins of life. So it won't be taught, so they won't have to worry about it.
Q. Let me ask you, as we lead up now into the October 18th board meeting, did you call any board members to discuss these conflicting versions?
A. Leading up to the --
Q. Yes, in this period between October 13th, and October 18th did you call any board members with the concern about this conflict?
A. Yes, I did.
Q. Tell us who you called.
A. I called Mrs. Casey Brown.
Q. Why did you call her?
A. Well, a couple of reasons. One is I called her because she is on the board curriculum committee and didn't make it to the meeting. I wanted to make sure she got everything, she looked at it, she was okay with that, because it was my understanding per our conversation that she was. I spoke to her, you know, how did Jeff Brown feel about this, and my understanding was she didn't know --
MR. HARVEY: Objection, Your Honor. Hearsay. He was about to testify --
MR. GILLEN: He's testifying to his understanding he got from a telephone conversation. I mean --
THE COURT: No, that was a direct quote. I'll sustain the objection. Strike the hearsay reference to what Mr. Brown said.
MR. GILLEN: Did you ask Casey --
THE WITNESS: Well -- I'm sorry, go ahead.
THE COURT: Don't respond to an objection and try to explain an answer.
THE WITNESS: I'm sorry.
THE COURT: Wait until he asks a question and then you answer the question, please.
Q. Thank you, Your Honor. Did you say anything else to Casey Brown related to her husband?
A. I asked her to have him call me.
Q. Did he ever call you?
A. He never did.
Q. Okay. Let's look at the October 18th, 2004 board meeting.
THE COURT: Any time you have a break point, too, Mr. Gillen, you can -- I don't want to stop you in the middle --
MR. GILLEN: It's actually a logical point, judge.
THE COURT: All right, why don't we, because we've been after it for some time, we took a rather early break, we'll break now. We'll return at 1:20 and pick up the direct examination by Mr. Gillen at that time. We'll be in recess until 1:20.
MR. GILLEN: Thank you, Your Honor.
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