RationalWiki:Kitzmiller v. Dover annotated transcript/P048

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Trial transcript: Day 14 (October 21), AM Session, Part 2

THE COURT: We'll commence with cross-examination by Mr. Rothschild.

MR ROTHSCHILD: Thank you, Your Honor.

CROSS-EXAMINATION

BY MR ROTHSCHILD:

Q. Good morning, Dr. Nilsen.

A. Good morning.

Q. Dr. Nilsen, you had your deposition taken four times in this case?

A. Yes, I did.

Q. You were the lucky winner of the most depositions taken?

A. What's the prize?

Q. And there were actually some reasons for that. The first deposition was taken in January of 2005 so that the plaintiffs would have an opportunity to take evidence to decide whether to seek a temporary restraining order. You understand that?

A. That's correct.

Q. And then after a more complete production of documents, the plaintiffs took your deposition again in April, 2005?

A. That's correct.

Q. And then you found -- in cleaning out your office, you found some additional documents you thought might be responsive to plaintiffs' document request, and you promptly turned them over to your counsel. And they provided them to us, and I took your deposition again in August of 2005?

A. That is correct.

Q. And then Mr. Baksa found some additional documents which he turned over to defendants' counsel and were turned over to us, and plaintiffs determined that they needed to take your deposition relating to those documents. Correct?

A. That is correct.

Q. I'm going to be asking you some questions, and we may need to refer to the depositions, so I'm going to give you all four copies of your transcripts.

Enjoying litigation so much, you've also attended a number of days of this trial?

A. That is correct.

Q. And I'm just going to go through the names of some of the witnesses and ask you whether you were at their testimony. Jennifer Miller?

A. Yes.

Q. Bertha Spahr?

A. Yes.

Q. Casey Brown?

A. Yes.

Q. Jeff Brown?

A. Yes.

Q. Christy Rehm?

A. Yes.

Q. Bryan Rehm?

A. Yes.

Q. Barrie Callahan?

A. Yes.

Q. And Fred Callahan?

A. Yes.

Q. In your capacity as superintendent, you regularly attend all the school board meetings. Correct?

A. Yes.

Q. And you also attend executive sessions when you're invited by the board?

A. Yes.

Q. And you testified yesterday that one of your responsibilities is to set the agenda for board meetings?

A. Yes.

Q. Does the board president have any responsibility for the agenda?

A. Yes.

Q. And is it basically a collaborative effort between you and the board president to set the agenda each month or each meeting?

A. Yes.

Q. And you're also the primary contact for the district with the school district's solicitor?

A. Yes.

Q. And the school district solicitor, for some time, other than in this litigation, has been the law firm Stock and Russell -- Stock and Leader? I apologize.

A. Stock and Leader.

Q. And the lead attorney for that representation has been Steven Russell?

A. I'll phrase it this way, during the time period he was one of two.

Q. Who was the other one?

A. Phil Spare.

Q. And Mr. Russell's wife actually served as the board secretary prior to her passing. Correct?

A. Yes.

Q. And she was the board secretary during the June, 2004 meetings that are the subject of so much discussion in this trial?

A. I don't remember specifically that. It would make sense, but I can't speak to that.

Q. You don't take front-line responsibility for developing curriculum and selection of textbooks?

A. That's correct.

Q. Mr. Baksa does that?

A. Yes.

Q. And you don't have any background in science education. Correct?

A. That's correct.

Q. And neither does Mr. Baksa?

A. That's correct.

Q. Fair to say that the people who have the most expertise on science education in your school district are, in fact, the science teachers?

A. That's correct.

Q. You're not aware that any member of the school board at -- members of the school board during the year 2004 have any background in science other than, you know, that we all took high school science or maybe some college science classes?

A. That's correct.

Q. And similarly, you're not aware of them having any background in science education?

A. That's correct.

Q. The board does have hiring and firing power for school district administrators?

A. Yes.

Q. You described a group of board members that emphasized or ran on a platform of fiscal responsibility. Can you tell us which board members that applies to?

A. During that election?

Q. Why don't we look at the composition of the board on October 18th, 2004, and tell me which of the members of the board ran on that platform.

A. Mr. Bonsell, Angie Yingling, Casey Brown, and I don't remember who the fourth member was that ran.

Q. What about Mr. Buckingham, did he emphasize, when he ran, a platform of fiscal responsibility?

A. Mr. Buckingham was appointed to fill a vacancy. When he was reelected, I don't remember what his platform was.

Q. You testified that the -- well, let me withdraw that for a moment. Did you -- from his time on the board, did you understand Mr. Buckingham to be an advocate of fiscal responsibility in the same vein that you described Mr. Bonsell or Ms. Yingling?

A. Yes. Mr. Brown, during one of his first years on the board, was looking at fiscal concerns. And he had tried to set up a county-wide taxpayer association. And, in fact, this taxpayer association met a number of times at North Salem, and one of only two members that attended was Mr. Buckingham.

Q. You testified that the curriculum advisory committee, their input on curriculum was not required by policy. Is that right?

A. That's correct.

Q. And by that you mean a written policy?

A. Yes.

Q. And counsel showed you one exhibit which was a version of a policy that said it was amended on August 2nd, 2004. But just to be clear, I think you also said that you looked at prior versions of policy, and that was your understanding for the time period prior to that?

That was a convoluted question. Is it your understanding that it was never written policy that the curriculum advisory committee give input on curriculum?

A. That is not my understanding.

Q. Your understanding there was no policy?

A. Let me answer your question this way because I think this is -- well, ask your question again.

Q. I'm asking, you said that you checked to see whether curriculum advisory committee input was required for curriculum by written policy. Right? You said you did that after you saw that complaint?

A. Yes. At 2004, when the curriculum was approved, we verified what was current policy at that time period, yes.

Q. And then a document that counsel showed you -- and I'm happy to find that again, if you'd like -- actually said that it was a version that was amended as of August 2nd, 2004. And what I'm trying to clarify is, did you also check policy in effect prior to August 2nd, 2004?

A. Yes.

Q. And it was based on that research you understood that even prior to August 2nd, 2004, there was no written policy requiring curriculum advisory committee input on curriculum?

A. That is incorrect.

Q. Tell us your understanding.

A. Our understanding was when we reviewed -- when Mr. Schaffer, the assistant principal, reviewed and subsequently communicated to us that there were a number of prior policies during the update procedure that did not have the requirement on them, but there were policies I believe in the '80s, if not early '90s, that did require it.

Q. In the 2004 year, it was not required?

A. That's correct.

Q. Okay. Thank you. I'm sorry I was unclear there. But the board did have a practice of getting curriculum advisory committee input on curriculum?

A. Yes.

Q. And it's a pretty good practice, isn't it, involving the community?

A. Sure.

Q. It's an example of consensus-building?

A. Yes.

Q. And, for example, we looked at Defendants' Exhibit 3. Let me show you a copy of that again.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

MR ROTHSCHILD: It's up on the screen, Your Honor.

BY MR ROTHSCHILD:

Q. Defendants' Exhibit 3 is an example of where this practice of involving the curriculum advisory committee, the citizens committee, was done?

A. Yes.

Q. And it looks like it's fair to say that administration communicated quite a bit of information to the community members. Is that fair?

A. Yes.

Q. And, again, you said that you agreed this is conducive to consensus-building?

A. Yes.

Q. And you said that was a priority for Mr. Bonsell when he was president during 2004?

A. Yes.

Q. You also testified that it was policy to destroy tapes of board meetings after the minutes were prepared. You really meant to say "practice." Correct?

A. Yes. My apologies if I said "policy." That's incorrect. It was "practice."

Q. There's no written policy?

A. No, there is not.

Q. Speaking of practices, when you became the district's superintendent, you started a practice of holding a retreat for board members and administrators. Correct?

A. Yes.

Q. And one of the things you did at that retreat, as you explained on your direct testimony, was to have each board member take a turn communicating what issues were important to them. Is that right?

A. Yes.

Q. And while they did that, you took notes of what they were saying?

A. Yes.

Q. And you did your best to accurately record the issues identified by each board member?

A. Yes.

Q. And you had your secretary type up those notes after the meeting?

A. Yes.

MR ROTHSCHILD: Matt, would you pull up Exhibit P21. May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. And what we've marked as P21, which we looked at as a defendants' exhibit yesterday, these are the typed-up versions of the notes you took at the January 9th, 2002 board retreat on board issues?

A. Yes.

Q. And this document, again, was not produced with the majority of the document production, but you did produce it when you found it later in your office?

A. That is correct.

Q. And on January 9, 2002, you were acting superintendent. Correct?

A. That is correct.

Q. And that was your first year in the position of superintendent, no matter how qualified?

A. First week.

Q. First week. And this was also actually Alan Bonsell's first year on the board. Correct?

A. That's correct.

Q. And this was basically the first week for him, too?

A. No.

Q. First few weeks?

A. Yes.

Q. Okay. And as we looked at yesterday under his name, the first two issues listed are creationism and prayer. Correct?

A. Yes.

Q. And sitting here yesterday, you claimed that you had no independent memory of Mr. Bonsell saying those words. Correct?

A. That's correct.

Q. But you also have no reason to doubt you correctly recorded what he said?

A. That's correct.

Q. You also testified yesterday that Casey Brown was opposed to something called pathways. What is pathways?

A. Pathways is a curriculum at the high school that categorizes certain curriculum to allow students to specialize in areas.

Q. The next year you held another board retreat?

A. Yes.

Q. And by this time you were no longer acting superintendent, you were the full-time superintendent?

A. That's correct.

Q. And Mr. Bonsell was, by this time, the chair of the curriculum committee?

A. Yes.

Q. And before that meeting, before that meeting, you had sent Mr. Baksa to that seminar at Messiah College on the subject of creationism?

A. I recommended he go, yes.

Q. And Messiah College is an Evangelical college in the area?

A. I can't define what Messiah is or is not. I know it's a college.

Q. You're familiar with the college?

A. Yes.

Q. And you know it has a religious mission?

A. Yes.

Q. In fact, an Evangelical mission?

A. I can't speak to that.

MR ROTHSCHILD: Matt, can you pull up Exhibit 785. May I approach, Your Honor?

THE COURT: You may.

MR. GILLEN: For the record, Your Honor, in light of your comment this morning, I'm just going to object to this document as hearsay.

MR ROTHSCHILD: It's being used for impeachment and to add context to the mission he sent Mr. -- or what he sent Mr. Baksa to.

MR. GILLEN: There's no evidence that the witness has ever seen this.

THE COURT: Well, it's not impeachment. I think he answered your questions, Mr. Rothschild. If it's to establish the truth of what the mission of Messiah College is, then it's a hearsay document, isn't it?

MR ROTHSCHILD: I'll withdraw, Your Honor.

THE COURT: The objection then is sustained.

BY MR ROTHSCHILD:

Q. Returning to the retreat in 2003, that was in March of 2003. Correct?

A. Yes.

Q. And at that retreat, each board member in attendance again had the chance to identify the issues that were important to them?

A. Yes.

Q. And you took notes?

A. Yes.

Q. And, again, you did your best to accurately record what the board members said?

A. Yes.

Q. And you had those notes typed up?

A. Yes.

MR ROTHSCHILD: Matt, could you pull up Exhibit P25. May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. And these are the typed-up notes from the March 26th meeting?

A. Yes.

Q. And, again, these were produced in July of this year?

A. Yes.

Q. And on this document you again recorded Mr. Bonsell listing creationism as one of his issues. Correct?

A. Yes.

Q. And also, as you testified about yesterday, he had a big emphasis on American history. Correct?

A. Yes.

Q. But on the subject of creationism, again, you have no independent memory of him saying that?

A. No.

Q. But you have no reason to doubt that you correctly recorded that Mr. Bonsell did, again, bring up creationism?

A. That's correct.

MR ROTHSCHILD: Your Honor, may I approach?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. What I've presented to you is Defendants' Exhibit 288. It's Bates stamped 3968 through 3971. And the first page of that is your typed-up notes from the January 9th, 2002 board issues. Correct?

A. Yes.

Q. And behind that you have the agenda for the March 26th, 2003 retreat. Correct?

A. Yes.

Q. And on Section 5, you have an opportunity for district accomplishments?

A. Yes.

Q. And that's when administrators describe what they have done during the year?

A. Yes.

Q. And one of the people who gets to make a presentation, in fact, two presentations, is Mr. Reeser. Correct?

A. Yes.

Q. He gets to do it on maintenance, three-year plan, and stadium lights and also high school construction?

A. Yes.

Q. Again, that's Mr. Reeser. What was his position?

A. He's the director of buildings and grounds.

Q. And he was the -- that's the same Mr. Reeser who burned the mural the year before?

A. Yes.

Q. And that was a mural painted by a former student?

A. Yes.

Q. And you were aware of that at the time of this board retreat?

A. Yes.

Q. And you let him make a presentation in this retreat?

A. He was an administrator, director of a department.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

MR ROTHSCHILD: Matt, could you pull up Exhibit P26.

BY MR ROTHSCHILD:

Q. This is the memo you received from Trudy Peterman on or around April 1st, 2003?

A. Yes.

Q. And in that memo Dr. Peterman reports on a conversation that -- and Dr. Peterman was the principal at Dover High School at the time?

A. Yes.

Q. And she reported on a conversation that she had had with Bert Spahr, the head of the science department?

A. That's what it says in this memo.

Q. And she reports that Mrs. Spahr told her about a conversation that Mrs. Spahr had had with Mr. Baksa on March 31st?

A. That's what this memo says.

Q. And that was just five days after the board retreat. Correct?

A. Yes.

Q. And what the memo says is that Mrs. Spahr had reported that Mr. Baksa had told her that a board member wanted creationism taught in biology class. Correct?

A. That's what the memo says.

Q. And that this board member wanted 50 percent of the topic of evolution to involve the teaching of creationism?

A. That's what this memo says.

Q. And when you got this memo, you didn't immediately have a conversation with Mr. Baksa about it, did you?

A. No.

Q. But he did tell you some time later that the board member being referred to here was Mr. Bonsell. Correct?

A. Yes.

Q. And you didn't tell him right after you got this memo, Mike, you know, what you're telling Bertha, that's dead wrong, that didn't happen. Right? You didn't have that conversation with him?

A. Could you ask that question again?

Q. I asked you whether you had spoken to Mr. Baksa when you received this memo. You didn't speak with him and say, Mike, you know, why did you tell Bertha this, this didn't happen?

A. No, because I had the belief that Dr. Peterman exaggerated constantly, and this reflected another exaggeration.

Q. You didn't have a conversation with Ms. Spahr about this either, did you?

A. No.

Q. You didn't tell her that the facts you're reporting to Dr. Peterman are wrong?

A. That was up to Mr. Baksa to follow up on.

Q. And you didn't go to Mrs. Spahr and say -- ask her, you know, to clarify whether she, in fact, even said that to Dr. Peterman. Correct?

A. No. That's Mr. Baksa's responsibility.

Q. And Dr. Peterman has a number of questions here. Correct?

A. Yes.

Q. And you didn't answer any of those questions. Correct?

A. No, this memo is not directed to me.

Q. You didn't instruct Mr. Baksa to answer those questions?

A. He would have under his responsibility.

Q. But you didn't instruct him to?

A. I don't micromanage Mr. Baksa.

Q. You're not aware that he did answer them?

A. I'm aware that he had a conversation with Dr. Peterman.

Q. But you're not aware that he answered these questions here?

A. No, I don't micromanage Mr. Baksa.

Q. And you also didn't tell Dr. Peterman that any of her instructions to the teachers about how they teach science class should be changed. Correct?

A. No, that's Mr. Baksa's responsibility.

Q. You were here for Jennifer Miller's testimony?

A. Yes.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. Dr. Nilsen, I'm handing you an excerpt of Ms. Miller's testimony in this trial.

MR. GILLEN: Your Honor, I'm going to object to the use of this testimony unless a legitimate purpose can be established.

MR ROTHSCHILD: First of all, he heard the testimony, and it's for purposes of impeachment and to ask him about his own knowledge and understanding.

MR. GILLEN: Asking about his own knowledge and understanding I understand. That's proper. Impeaching Dr. Nilsen on something that Jen Miller said is not appropriate.

THE COURT: Well, it's not impeachment. I guess the proper mechanism, Mr. Rothschild, would be to ask him if he recalls a particular statement by the witness, and if he doesn't recall exactly or if he's vague on it, then I think it's proper to direct him to the transcript.

MR ROTHSCHILD: I will direct him to the transcript. It can't be hearsay. I mean, it's testimony in this trial.

THE COURT: I don't say that it's hearsay. The substance of the objection seems to be that you go right to the testimony, and I guess the precursor needs to be, does he recall it independently of the transcript. If I understand you correctly, Mr. Gillen, or do I?

MR. GILLEN: Perhaps I was too brief. No, my understanding of impeachment is it's got to be a prior statement by this witness. Otherwise, he can ask the questions to see if he agrees.

THE COURT: It isn't impeachment. Is it?

MR ROTHSCHILD: I think it's just questioning the witness about whether something that someone else said is what he understood.

MR. GILLEN: I have no objection to that.

THE COURT: I don't see it as impeachment. Do you withdraw the objection under those circumstances?

MR. GILLEN: To the extent that it's not going to be used for impeachment purposes, yes, Your Honor.

THE COURT: You can't impeachment him with somebody else's testimony, which Mr. Rothschild agrees.

MR. GILLEN: Yes.

THE COURT: All right. Proceed.

BY MR ROTHSCHILD:

Q. Dr. Nilsen, if you start on the page of -- on Page 14, Mr. Gillen asked whether -- asked Ms. Miller about -- and I'll paraphrase until we get to the important aspects here -- but whether she gave instructions on teaching evolutionary theory in class. That's in the middle of the page. Do you see that starting on Line 14?

A. Yes.

Q. And the upshot here is that Ms. Spahr told Ms. Miller, keep teaching as you teach it. Right?

A. I'm not sure I understand the question.

Q. We can read aloud, Dr. Nilsen, but all I'm asking is, does this testimony indicate that Ms. Miller was testifying that you -- that Ms. Miller continue to teach evolution as she taught it?

A. Again, what's your question?

Q. Is that what this says, Dr. Nilsen?

MR. GILLEN: Objection, Your Honor. The transcript of this trial speaks for itself.

MR ROTHSCHILD: We can do it more methodically.

BY MR ROTHSCHILD:

Q. Mr. Gillen asked, starting at Line 23, Did Bert Spahr tell you, Ms. Miller, to essential continue teaching evolution as you taught it? And Ms. Miller said, Correct. Right?

A. Yes.

Q. And then Mr. Gillen asked Ms. Miller, Now, I want to ask you, did she continue to -- did she tell you to continue teaching creationism in the classroom? And Ms. Miller answered, No. And then Mr. Gillen asked, But you mentioned creationism. Correct? And Ms. Miller said, No, not specifically, no.

And then Mr. Gillen asked, Is it your testimony that you had no discussion with Bert Spahr about teaching creationism in connection with your presentation of evolutionary theory? And she answered, Yeah, I -- I know that somewhere in here it says -- I remember reading -- let me see if I can find it. She explained to Mr. Baksa that all biology teachers state that another theory of evolution is creationism, but creationism, per se, is not taught since it's not addressed by the standards. So when I saw this memo for the first time, I had some misgivings about that because I disagree that we state that another theory of evolution is creationism, but I do agree that creationism is not taught.

You have no reason to doubt that that is, in fact, how Ms. Miller acted in her own classroom. Right?

A. I would believe Mrs. Miller would be telling the truth.

Q. And you certainly have no reason to believe that Ms. Miller was telling the students at Dover that creationism is another scientific theory on the development of life. Correct?

A. I'm sorry, could you ask that question again?

Q. Sure. You have no reason to believe that Mrs. Miller was ever telling the students in her Dover High School biology class that creationism is another scientific theory on the origin or development of life?

A. That's correct.

Q. And, in fact, if she was doing that, that would bother you, correct, because you think creationism is a religious proposition?

A. That's correct.

Q. You testified yesterday that you did not punish Dr. Peterman for the content of the memo. Correct?

A. I don't remember specifically saying that, but the emphasis on the evaluation was not the content, it was the process. But not drawing a fine line on it, the process does impact on the content.

Q. But you, in fact, gave her a negative evaluation for being untruthful in the April 1st, 2003 memo, didn't you?

A. No.

Q. Dr. Nilsen, could you turn to Page 59 of your April deposition. And, Dr. Nilsen, at all four of these depositions you understood you were under oath. Correct?

A. That's correct.

Q. And you were required to tell the truth. Correct?

A. That's correct.

Q. All right. If you could turn to Line 15 on Page 59. I asked you, Did you believe when you saw this memorandum that it raised -- or, I'm sorry, Mr. Schmidt asked you, Did you believe when you saw this memorandum, referring to the April 1st memorandum, that it raised important issues that required some attention by the administration? And you answered, Yes, but not in the direction you're heading. Mr. Schmidt asked, What attention do you think it required -- it required to?

A. Excuse me, what line are you on?

Q. I'm on Line 19. Are you with me?

A. On 60?

Q. On 59.

A. Thank you.

Q. And you answered, To make sure the principal was telling the truth. And Mr. Schmidt asked, What part of what is in this exhibit did you think was untruthful? And you answered, The third line, the third sentence, Mr. Baksa mentioned that a board member wanted creationism taught in Biology I class.

Mr. Schmidt asked, What was untruthful about that statement? And you answered, I am not aware of that, nor is Mr. Baksa aware of that conversation, nor did I ever hear a board member mention that in any capacity. Neither did Mr. Baksa.

Mr. Schmidt asked, When you read that, if you thought it was untrue, what did you do? And you answered, The germane area was directed to Mr. Baksa. It is his responsibility to take care of that additional quote. It is my responsibility to deal with the principals, the behavior.

And he asked, What did you do with it? And you answered, It reflected in her evaluation. And he asked, In what way? And you answered, Her behavior was evaluated, her conversations were evaluated negatively.

So there was a consequence for the content of that memo, wasn't there, Dr. Nilsen?

A. No, let me give you a fine line. If you would give me a minute, because I think we continued in our conversations where I clarified that.

Q. There is more testimony in this deposition asked by -- in response to questions by your counsel, so maybe we can turn there and you can see if that will help.

If you could turn to Page 95 of that same deposition. And on Line 3, you can see that there are questions started by Mr. Gillen. Correct? Do you see that?

A. On which page?

Q. 95.

A. Yes.

Q. And his question was, Mr. Schmidt asked you a few questions. One set of them related to Plaintiffs' Deposition Exhibit 9, which is that memo from Dr. Peterman. Tom asked you, Did you take action in light of that, and you said, No. Just to be clear on this point, at that time that you received this memo, did Dr. Peterman have a lot of credibility with you? And you answered, Zero.

And he asked, Was it in large measure because this memo came from Dr. Peterman which explained your inaction? And you answered, Two things. One, first of all, I knew no one was discussing, either from the administrative standpoint or the board standpoint or Mr. Baksa's standpoint or my standpoint, any discussion of creationism. So a memo that generated and stated that there was a discussion of creationism had absolutely a non-starter.

That was your testimony up to that point. Correct?

A. Yes.

Q. And you said that even though this was a memo received five or six -- less than a week after the March 26th, 2003 board retreat. Correct?

A. Correct.

Q. In which you had recorded Mr. Bonsell saying the word "creationism"?

A. Correct.

Q. For the second straight year in board retreats. Correct?

A. Correct.

Q. You heard Bertha Spahr testify in court?

A. Are we skipping the questions you asked before?

Q. I'm not skipping anything, Dr. Nilsen. Is there anything you need to say?

A. Yes. You ended up asking me on the evaluation of Mrs. -- or Dr. Peterman. Again, answering that question, the evaluation reflected process. And it's a fine line when you end up communicating process with what is in a content.

She was evaluated on the process that she developed a memo that did not include -- or she did not communicate with the individual she was memorializing in the memo.

Specifically, she ended up saying Mr. Baksa said something to someone without asking Mr. Baksa whether he had said that or not. So she was evaluated on the process because she continued to send out memos without incorporating the individuals that ended up saying it.

If it reflected specifically on the content, it reflected on the content due to the fact that her memos constantly stated inaccurate information because she did not talk to people before she ended up doing the memo.

So the emphasis of the evaluation was clearly on the process. Did it reflect on the content? Yes, because the process, unless you talk to people about what you're saying they're saying, it is going to end up being inaccurate.

Q. But, Dr. Nilsen, here you're not just saying process, you're saying it was inaccurate. You're pretty much saying Dr. Peterman was lying in this memo. Correct?

A. I'm saying that I talked to the assistant superintendent that said that did not happen.

Q. You didn't do that immediately after the -- after you got the memo. Correct?

A. No, not on that individual day, but subsequent to that, yes.

Q. And you never went to Ms. Spahr, who would have been a natural person -- she was the source of Dr. Peterman's information. You never went to her and said, Bertha, what did you tell Dr. Peterman?

A. Again, that's not one of my responsibilities. That's Mr. Baksa's.

Q. And nevertheless, you negatively evaluated her because she was untruthful, she said something that was a non-starter, that a board member could be teaching -- could be talking about creationism?

A. I think the reference was a board member was talking about creationism as 50/50. And, again, I go back to my comment, I evaluated her based on the process.

Q. Dr. Nilsen, let's reread your answer on Page 95. I knew no one was discussing, either from the administrative standpoint or the board standpoint or Mr. Baksa's standpoint or my standpoint, any discussion of creationism. So a memo that generated and stated that there was a discussion of creationism had absolutely a non-starter. That was your testimony. Correct?

A. That's correct.

Q. Dr. Nilsen, as I asked you a few minutes ago, you were here to hear Bertha Spahr testify in this trial. Correct?

A. Yes.

Q. And she actually backed up the Trudy Peterman memo, didn't she? She said that Baksa did tell her that there's a board member who wants to teach creationism 50/50, or I think she used the expression "equal time" with evolution?

A. She said that, yes.

Q. She's also being untruthful?

A. I can only speak to what I was told from Mr. Baksa, that he said he did not say that. Whether it's her interpretation of what he ended up saying or not, I can't speak to.

Q. And you also heard Barrie Callahan testify?

A. Yes.

Q. And she was actually at that March 26th, 2003 board retreat, wasn't she?

A. Yes, she was.

Q. She was still a board member at that time?

A. Yes, she was.

Q. And she took notes about what Mr. Bonsell said, didn't she?

A. Yes.

Q. And what she testified was that Alan Bonsell did say 50/50 creationism and evolution. Correct?

A. She testified to that, yes.

Q. Was she untruthful, too?

A. No, to her ability. I don't know whether he did or did not say that.

Q. Just don't have a memory?

A. That's correct.

Q. You testified that sometime in the spring of 2004, Mr. Buckingham gave you two DVDs and a book?

A. Yes.

Q. And you had trouble remembering the book yesterday, but was that a book called, Icons of Evolution?

A. Sounds familiar.

Q. And you understood these were all from the Discovery Institute?

A. At the time I didn't know where they were from.

Q. You eventually developed that understanding?

A. Yes.

Q. And that was an understanding you developed from Mr. Buckingham?

A. I don't know who gave me that understanding.

Q. And your understanding is that Mr. Buckingham required the teachers to watch at least one of those DVDs?

A. No, he did not.

Q. Did he give it to the teachers to watch?

A. No.

Q. Did he give it to Mr. Baksa to have the teachers watch it?

A. No.

Q. Your understanding is Mr. Buckingham didn't give it to anybody in school administration or faculty?

A. No, I think I'm on record yesterday saying that he gave them to me, and I gave them to Mr. Baksa.

Q. And is it your understanding that Mr. Baksa gave them to the teachers to watch?

A. My understanding is the fact that the teachers watched it on one day, on an in-service day.

Q. An in-service day, that's a working day for teachers?

A. Yes.

Q. And you're aware, also, that Mr. Buckingham had conversations with the Discovery Institute?

A. I'm aware of that, yes.

Q. And you also talked to the Discovery Institute on several occasions about the biology curriculum?

A. Yes.

Q. You attended the board meetings in June of 2004. Correct?

A. Yes.

Q. And there were quite a few newspaper articles reporting about statements made in relation to the discussion of a proposed new biology textbook. Correct?

A. Yes.

Q. And it was your practice to read news clippings of all educational related articles relating to the Dover Area School District. Correct?

A. Correct.

Q. You would have your secretary clip them for you, and then you would read them?

A. The building secretary does, yes.

Q. And that includes articles about the biology curriculum issue that was quite dominant in 2004?

A. Yes.

Q. And including the biology textbook discussion?

A. Yes.

Q. You personally never asked for a retraction about anything said about the biology curriculum or textbook?

A. Yes, as testified before, it wouldn't have meant anything.

Q. And you never communicated to the newspapers that you personally had been misquoted regarding the subject of the biology curriculum?

A. That's correct.

Q. Or that anyone else had been?

A. That's correct.

Q. Now, we discussed before that -- I took your deposition in early January of this year. Correct?

A. Correct.

Q. And on that same day, the depositions of Mrs. Harkins, Mr. Buckingham, and Mr. Bonsell were taken. Correct?

A. I know they were taken. I don't remember what day.

Q. It was right around that time, if it wasn't that day?

A. Yes.

Q. And that deposition was taken so that the plaintiffs could decide whether to seek a temporary restraining order. Correct?

A. That's correct.

Q. It was the plaintiffs' chance to take evidence to determine whether they could stop the district from implementing the change which did go into effect in the middle of January of 2005. Correct?

A. That's correct.

Q. And as you know, the depositions were taken, the plaintiffs decided not to seek a temporary restraining order, and, instead, we went out to develop the remainder of evidence that's being presented at this trial?

A. That's correct.

MR ROTHSCHILD: Matt, could you pull up P752. May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. And, Dr. Nilsen, am I correct that you read the depositions -- your own deposition from that day after it was given, after you got a transcript?

A. Yes.

Q. And you also read the depositions of the other people who were deposed in January, Mr. Bonsell, Mr. Buckingham, and Ms. Harkins?

A. No, not all of them, no.

Q. Which ones did you read?

A. I don't remember. I don't believe I read Mr. Bonsell's.

Q. If you could turn to your April deposition, Page 5, and if you could turn to Line 17. Mr. Schmidt asked you -- are you there Dr. Nilsen?

A. Yes.

Q. Mr. Schmidt asked you, Have you reviewed the transcripts of other depositions that have been taken in this litigation? You answered, Yes, I have. He asked, Which ones? You said, Mr. Baksa's, Ms. Geesey's, Mr. Bonsell's, Alan Bonsell's, and I'm not sure, but my recollection may be also, in fairness of disclosure, Mr. Buckingham's.

So at least Mr. Buckingham's and Mr. Bonsell's, it looks like?

A. Yes.

Q. If you could now return to Plaintiffs' Exhibit 752. Do you recognize this document?

A. Yes.

Q. What is it?

A. It's a document I submit to the board on a weekly basis.

Q. Does anybody else get it?

A. No. On certain occasions, certain administrators.

Q. Does Mr. Baksa get it regularly?

A. Yes.

Q. And this is -- this document is dated January 7th, 2005, and it's titled, Dr. Richard Nilsen, Dover Area School District, Superintendent's Weekly Update?

A. Yes.

Q. And you have a listing of meetings and activities?

A. Yes.

Q. And the first one you list is, As you are by now aware, the time and effort put in over the holidays has produced a positive impact. The plaintiffs, ACLU, could not find anything to file an injunction on our biology curriculum. In conjunction with the Thomas More lawyers, Mr. Baksa, Mr. Buckingham, Mr. Bonsell, and Mrs. Harkins did a great job. The ACLU is doing a great job of putting a positive spin, in quotes, quote, positive spin, close quote, on the situation, but I cannot help but feel gratified that they could not stop the implementation, and you know if they could, they would have. That's what you wrote to the board?

A. Yes.

Q. And when you're talking about the great job here, you're talking about the great job that the individuals from Dover, Mr. Baksa, Mr. Buckingham, Mr. Bonsell, and Mrs. Harkins, and I assume yourself, did preparing for the depositions with the lawyers. Correct?

A. Yes.

Q. And the great job that the witnesses did testifying?

A. Yes.

Q. And just so the record is clear, Mr. Baksa didn't actually testify in that January period, but there were other individuals who did. Is that your understanding?

A. I can't speak to when they did or did not specifically testify.

Q. Now, in terms of the preparation, you all met together the night before the deposition, Mr. Baksa, Mr. Buckingham, Mr. Bonsell, Mrs. Harkins, and yourself, with the lawyers?

A. Yes.

Q. And you remember when I took your deposition in January, I asked you a number of questions about statements that had been reported in the newspapers about the June meetings. Correct?

A. Yes.

Q. And one of the statements I asked you about was attributed to Mr. Buckingham.

A. Yes.

Q. 2,000 years ago a man died on a Cross, can't someone stand up for Him now. Right?

A. Yes.

Q. And that was a statement that was in the newspaper articles from that time period. Correct?

A. Yes.

Q. Two different newspapers. Correct?

A. I can't speak to whether it was in both. I know it was in at least one.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

MR ROTHSCHILD: Matt, could you pull up Plaintiffs' Exhibit 53, please.

BY MR ROTHSCHILD:

Q. Plaintiffs' Exhibit 53 is an article by Joseph Maldonado on June 15th, 2004, in the York Daily Record. Is that correct, Dr. Nilsen?

A. That's what it says here, yes.

Q. Okay. And going a little bit more than halfway down the page the statement, 2,000 years ago someone died on a Cross, can't someone take a stand for Him, that's attributed to Mr. Buckingham?

A. Yes.

Q. And then if we turn to Plaintiffs' Exhibit 54, that's a June 15th, 2004 article in the York Dispatch by Heidi Bernhard-Bubb. Correct?

A. Yes.

Q. It's titled, Church/State Issues Divides Creationism, Draws A Hundred to Dover Meeting. Correct?

A. Yes.

MR. GILLEN: Your Honor, just for the record, I interpose a hearsay objection, as per a motion in limine.

THE COURT: Well, the objection is overruled inasmuch as we're taking it subject to testimony that we have yet to hear.

MR. GILLEN: Okay.

THE COURT: So the objection is noted, but it's overruled.

BY MR ROTHSCHILD:

Q. And if you turn to the second page of the document and go about, I guess, the fourth full paragraph, the reporter attributes to Mr. Buckingham the statement, Nearly 2,000 years ago someone died on a Cross for us, shouldn't we have the courage to stand up for Him. Right?

A. It says that, yes.

Q. And it actually says, After that, Board Members Alan Bonsell and Noel Wenrich agreed with Buckingham saying creationism should be taught to balance evolution. Correct?

A. It says that, yes.

Q. So that was being reported about the June 14th meeting in two different newspapers by two different reporters. Correct?

A. Yes.

Q. And I showed you those articles in your deposition, correct, and asked you whether you remembered Mr. Buckingham making that statement at a -- at that June board meeting. Correct?

A. I don't remember you showing me the articles, but I remember the question.

Q. Okay. And you said that you didn't remember him making that statement at that board meeting. Correct?

A. That's correct.

Q. And, in fact, in court yesterday you were quite specific it was at a meeting the year before regarding the pledge controversy. Correct?

A. In the fall of the year before, yes.

Q. Fall of 2003?

A. Yes.

Q. Okay. And let me show you what Mr. Buckingham said in his January deposition. Matt, if you could pull up Pages 44 and 45.

MR. GILLEN: Your Honor, for the record, I'd make the same objection to the extent it appears that Mr. Rothschild --

THE COURT: And the objection is overruled for the same reason.

MR. GILLEN: Okay.

BY MR ROTHSCHILD:

Q. And Mr. Buckingham was asked -- if we start at Line 14, it says, 2,000 years ago someone on the Cross -- someone died on a Cross, can't someone take a stand for Him. Do you see that, Mr. Buckingham? Answer: Yes, I do. He was asked, Did you make either of those statements? Not at this time.

And then if we go over to Page 45, he's asked again on Line 8, 2,000 years ago someone died on a Cross, can't someone take a stand for Him, did you say? And he says, That goes back to taking it out of the pledge. That's what he said. Right?

A. That's what I said. I thought you said this was from --

Q. That's what Mr. Buckingham testified to. Correct?

A. I'm sorry, is this mine or --

Q. This is Mr. Buckingham's.

A. So your question is? I'm sorry.

Q. That's what Mr. Buckingham testified to in these January depositions taken so the plaintiffs could decide whether to seek a temporary restraining order. He said, It didn't happen in June, it happened at the pledge meeting. Correct?

A. I can't speak to the transcript, but I would expect it to be true.

Q. That's what it says. Correct?

A. That's what it says, yes.

Q. Matt, could you pull up Ms. Harkins' deposition, Page 51.

MR. GILLEN: Your Honor, for the record, same objection.

THE COURT: Understand. The objection is overruled.

BY MR ROTHSCHILD:

Q. And if you could look -- and this is Ms. Harkins' deposition of January 3rd, 2005. And she was asked, 2,000 years ago someone died on a Cross, he said, can't someone take a stand for that -- for Him? Ms. Harkins said, He never said that. And she was asked, He didn't say that at a board meeting? And she said, He only said that the year before, he never said that again. That's what Ms. Harkins testified to?

A. I can only speak to what is ahead of me based on the fact that I wasn't at the deposition. But if the deposition reflects that, yes.

Q. And, Matt, if you could pull up Mr. Bonsell's deposition. This is also his January deposition. If you could turn to Page 49. And he was asked, The statement that's attributed to Mr. Buckingham, Nearly 2,000 years ago someone died on a Cross for us, shouldn't we have the courage to stand up for Him, did Mr. Buckingham make that statement? Mr. Bonsell said, I'm not sure he said that. I'm not sure he said that at this meeting.

He was asked, Do you recall him saying -- making that statement at any school board meetings? It's a pretty powerful statement to say at a school board meeting. Mr. Bonsell answered, I don't think it has to do with what we're talking about. He was asked, Do you think he made that statement at a meeting? He said, I'm not positive. I think he said something along those lines, but I don't believe it was -- it had to do with this.

He was asked, What do you believe it had to do with? Mr. Bonsell's answer was, There was -- a year ago before this there was another discussion on the pledge, but this was the year before. And to be fair to Mr. Bonsell, he was asked then, Do you think he made a statement along those lines regarding the pledge? And he said, To be honest, I'm not sure when he said it or if this is exactly what he said. I'm just not sure. That's what Mr. Bonsell said. Right?

A. That's what the deposition in front of me says.

Q. Yes. And you read that transcript some time ago. Correct?

A. Yes.

Q. And that was true for Mr. Buckingham's, as well. Correct? You read Mr. Buckingham's transcript, as well, prior to today?

A. I believe I read one. I don't know if I read both. My recollection is at least one.

Q. So you all were in agreement that Mr. Buckingham did not make this highly provocative statement at the June meeting, but rather at this earlier period regarding the pledge. Right?

A. I believe that's what the record shows.

Q. And therefore the newspapers, two newspapers, got it all wrong?

A. Yes.

Q. And we talked about the witness's that you heard at this trial. You heard Jen Miller testify, and she said that this comment was made at the June meetings. Correct?

A. I remember her testimony at that point.

MR. GILLEN: Your Honor, again, I object because it appears to be an attempt to impeach Dr. Nilsen based on what other people have remembered or testified, which is not proper.

MR ROTHSCHILD: He witnessed this testimony. I think it's fair to ask him, you know, he heard it and whether it's true.

THE COURT: Well, the question is -- it's not an impeachment question, I don't think, Mr. Gillen. The question is, did he hear another witness say that statement. How does that impeach him?

MR. GILLEN: Well, and that question I guess I can understand, but what's the purpose?

THE COURT: Well, the purpose is, he's got your witness on cross-examination, and he may have an additional question that flows from that question where he asks whether a particular individual was heard to have said that Mr. Buckingham said the statement. So I think it's proper cross. I'll overrule the objection.

BY MR ROTHSCHILD:

Q. So, Dr. Nilsen, you heard Jennifer Miller testify?

A. Yes.

Q. You heard Bertha Spahr testify?

A. Yes.

Q. You heard Casey Brown testify?

A. Yes.

Q. You heard Jeff Brown testify?

A. Yes.

Q. You heard Christy Rehm testify?

A. Yes.

Q. You heard Bryan Rehm testify?

A. Yes.

Q. You heard Fred Callahan testify?

A. Yes.

Q. They all testified that this 2,000 years ago statement was made at the June meetings in the context of discussing the biology textbook. That's what they testified to, didn't they?

A. Is that a question or a statement?

Q. That's a question. You heard it?

A. I don't remember if all of them stated that. I do remember some of them did.

Q. Okay. And so they're all wrong, too?

A. I can only speak to what I remember. Whether they are wrong or I'm right, I can't speak to that. I can only speak to my recollection.

Q. Now, you testified about Charlotte Buckingham reading from the Bible at a board meeting or stating Bible passages?

A. Yes.

Q. It was pretty unforgettable?

A. Yes.

Q. And just to clarify the record, I think you testified yesterday or you may have been asked did that happen on July 14th, and I think you meant to say June 14th?

A. It was June 14th.

Q. And you said you were sympathetic to the board president who was waiting for it to end?

A. Yes.

Q. And that board president was Mr. Bonsell. Correct?

A. That's correct.

Q. And, as a matter of fact, he waited until the end. Correct? He let her finish?

A. Yes.

Q. He didn't gavel the table or call a recess because a public comment went too long or was inappropriate?

A. He didn't gavel it down, no.

Q. Or call a recess to stop it?

A. No.

Q. But both of those are practices engaged in by the Dover board now. Correct?

A. It has been done, yes.

Q. Including by the board president, Sheila Harkins?

A. Yes.

Q. And you remember I asked you at your January deposition whether members had expressed an interest, members of the board had expressed an interest in teaching creationism as was reported in the newspapers. Do you remember that?

A. Yes.

Q. And you testified that you couldn't remember that occurring. Correct?

A. That's correct.

Q. And I actually asked you the question, Dr. Nilsen, Do I understand you correctly that notwithstanding the fact that there are many articles during this June period about discussion about teaching creationism, you have no recollection of the subject of creationism at any school board meeting? And you answered, That's correct. Does that sound right?

A. Yes.

Q. And I expanded my question to ask whether they had made any references to creationism at any time in a board meeting, and you testified you couldn't remember that occurring, either. Correct?

A. That's correct.

Q. And then I expanded my question to whether any board member had ever discussed teaching creationism in any setting, and you denied that, as well. Correct?

A. That's correct.

Q. But we know from the two board retreat issue summaries that you prepared that that's not true. Correct?

A. That's correct.

Q. And, in fact, in one newspaper article -- and why don't we actually pull up Exhibit 44.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. Exhibit P44 is a June 8th, 2004 article in the York Dispatch written by Heidi Bernhard-Bubb. Correct?

A. Yes.

Q. And early in the article she reports on some question and answer she had with you or statements you made?

A. Yes.

Q. And I'll read that into the record. Dover Area Superintendent Richard Nilsen said he is bound by state law to abide by the board's decision. He said the board votes on all textbooks and has the final say. And then a quote is attributed to you, The teachers cannot teach from a book that is not board-adopted, he said. It continues, He said the district will always look for textbooks that have a balanced approach to all topics. And then the article goes on, When asked what that means for the evolution versus creationism debate, Nilsen said Dover will, quote, present all options and theories.

And you never asked that anything that was attributed to you be retracted?

A. No.

Q. Or communicated to the York Dispatch that there was anything wrong with that story?

A. No.

Q. Now, you testified yesterday that Mr. Buckingham brought up the Pandas book in July, 2004. Correct? That was the first time he made you aware of it?

A. Yes.

Q. And he wanted to purchase it?

A. He wanted the district to purchase it.

Q. The district to purchase it. Better answer. Thank you. And have it used in the classroom. Correct?

A. Yes.

Q. Matt, could you pull up Page 99 of Pandas, 99 to 100, and highlight the passage beginning, Intelligent design means. That statement reads, Intelligent design means that various forms of life began abruptly through an intelligent agency with their distinctive features already intact, fish with fins and scales, birds with feathers, beaks, and wings, et cetera.

You understand that passage to be a tenet of creationism, don't you?

A. Yes.

Q. Yes?

A. Yes.

Q. And, Matt, if you could now turn to Page 85 of Pandas and highlight on the right-hand side column the first full paragraph. It says, in the middle of the page, This strong analogy leads to the conclusion that life itself owes its origin to a master intellect.

When I asked you what you understood that to be referring to at your deposition, you said it could only mean God or aliens. Correct?

A. I remember something along those lines, yes.

Q. Would you like to look at your deposition on that?

A. No, I think you're pretty close to the statement.

Q. Is that your idea of good pedagogy, to make students aware that an alternative scientific theory to evolution is that biological life was made by God or aliens?

A. I think it's good pedagogy to give them the understanding that people believe that that is true and that there are other options.

Q. You first heard of intelligent design in July of 2004. Correct?

A. I heard of intelligent design sometime in the summer of 2004. I can't speak whether it was June, July.

Q. Could you turn to your January deposition, Page 19. And if you'd look at Line 21 on Page 19.

A. I'm sorry, which line?

Q. 21, please. I asked you, When was the first time you heard about intelligent design? And you answered, July of 2004. Correct?

A. Again, that would be about that time, yes.

Q. No reason to believe that isn't an accurate recollection?

A. Correct.

Q. Matt, could you pull up Defendants' Exhibit 26.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. This is the memo or request by Mr. Buckingham to you for the district to purchase -- to purchase the Pandas books?

A. Yes.

Q. And at this time he's asking to purchase 220, not just the 50 or 60 that were donated. Correct?

A. That's correct.

Q. And the cost that he communicated here was almost $4400?

A. That's correct.

Q. And by comparison, the standard biology textbook, the Miller and Levine textbook that was ultimately purchased was approximately $14,000?

A. That's about right.

Q. So this frugal board member was willing to add to the textbook budget by more than 30 percent?

A. You're better at math than I am, but that sounds about right.

Q. And you testified at some length about your communications with Mr. Buckingham and Mr. Bonsell leading up to the August 2nd meeting. Correct?

A. Yes.

Q. And you testified that Mr. Buckingham communicated that he didn't have the six votes necessary to accomplish the purchase of a supplemental text that was not approved by the administration. Correct?

A. Correct.

Q. Did you understand him to have five votes?

A. No. I didn't know how many votes he had.

Q. Good enough. In any event, you told him that you wouldn't delay approval of the biology text at the August 2nd, 2004 meeting. Correct?

A. I can't make approval or delay approval. All I can do is put it on the agenda for approval.

Q. And that's an activity that you and the board president would do. Correct?

A. Yes.

Q. And the board president at that time was Mr. Bonsell?

A. That's correct.

Q. And he was in agreement with you, we're not delaying this?

A. That's correct.

Q. So it didn't get delayed?

A. It was placed on the agenda.

Q. And this was pretty important because you knew you were already late in approving a biology text for the upcoming school year. Right?

A. Correct.

Q. And you offered a compromise to Mr. Buckingham after the Miller and Levine book was purchased, you would go to the teachers to discuss bringing in Pandas as a reference text?

A. Correct.

Q. And that was with the prospect of purchasing it as a reference text, wasn't it?

A. I don't think we ever discussed the financial aspects.

Q. At this point you had had no offers of a donation, had you?

A. No.

Q. And your understanding was that he would go along with that, bring on the biology textbook, get that voted on, and then we'll revisit the Pandas issue?

A. Correct.

Q. But he reneged on that agreement, didn't he?

A. Correct.

Q. He voted against the approval of the Miller and Levine book?

A. Correct.

Q. He voted to deprive the students of the biology textbook they needed to learn about evolution as required by state standards?

A. At that time.

Q. And he wasn't alone in voting against that, was he?

A. No.

Q. Mrs. Geesey, Ms. Harkins, and Mrs. Yingling all voted with him in the first vote. Correct?

A. Correct.

Q. They were all willing to deprive the students of their textbooks?

A. They were willing at that time to vote no for those textbooks.

Q. And a no vote, if there were enough votes on that side, would result in depriving the students of their textbooks. Correct?

A. At that time.

Q. With less than a month before the school year starts?

A. Correct.

Q. And you expressed your displeasure about this?

A. Yes.

Q. Because you knew the students and the teachers needed the book. Right?

A. Yes.

Q. And you were able to convince Mrs. Yingling to switch votes?

A. Yes.

Q. By your view of things, she did the right thing for the students, didn't she?

A. Yes.

Q. But Mr. Buckingham, Mrs. Harkins, and Mrs. Geesey didn't. Right?

A. Correct.

Q. They held firm against that biology book that teaches evolution?

A. Correct.

Q. They were not going to let the students have that book if their votes could control?

A. Correct.

Q. Mrs. Geesey and Mrs. Harkins are still on the board, aren't they?

A. Yes.

Q. In fact, Mrs. Harkins has been elevated to president. Correct?

A. Yes.

Q. And those two and Mr. Bonsell are actually the only remaining members of the board -- that are currently on the board that were ever elected to a school board position. Correct?

A. No. Ms. Geesey was elected.

Q. Ms. Geesey, Ms. Harkins, Mr. Bonsell, they were elected, the other six members were not. Correct?

A. That's correct.

Q. They were handpicked by the other members of the board. Correct?

A. They were appointed by the other members of the board, yes.

Q. They had full authority to select them?

A. Yes.

Q. And the other thing you testified about the August 2nd meeting was that no one said creationism on August 2nd. Correct?

A. I testified that I don't remember anybody saying creationism.

Q. Okay. So you just don't remember?

A. I don't remember people mentioning creationism at the August 2nd meeting, no.

Q. You testified about the October 18th meeting. You didn't just say, I don't remember, you said no one said creationism. So which is it today, is it no one said creationism or I don't remember?

A. I can only speak to what I can remember. I don't remember anybody saying creationism.

Q. The next thing you testified about was the late August meeting about Pandas?

A. Yes.

Q. And you testified that the teachers voiced concerns about the book?

A. Yes.

Q. It was dated?

A. Yes.

Q. Had faulty science?

A. Yes.

Q. And had readability issues?

A. Yes.

Q. And by "readability issues," they thought it was above the reading level of ninth-grade students. Correct?

A. It was above some of them, yes.

Q. They actually did a readability study, didn't they?

A. Yes.

Q. And found that it was at least grade 12, maybe grade 13?

A. Yes.

Q. And these are the district science education experts. Right?

A. Yes.

Q. And you also talked to Thomas More about Pandas, didn't you?

A. At some time. I don't remember when.

Q. And you called them and you actually asked whether Pandas was being used in any other school district. Right?

A. Correct.

Q. And Mr. Thompson told you he was not aware of any school district that used the book. Correct?

A. Correct.

Q. And nevertheless, you agreed to accept the donation of the books?

A. Yes.

Q. And you were made aware of this opportunity from Alan Bonsell?

A. Yes.

Q. And you said at that time you didn't ask who was donating?

A. Correct.

Q. You did subsequently find out that his father, Donald Bonsell, was one of the people donating?

A. Yes.

Q. And you said you're always happy to accept donations. Right?

A. Appropriate donations, yes.

Q. Fair enough. But as you said, you didn't read Pandas before accepting the donation. Correct?

A. Correct.

Q. And so all you knew was that the district science education experts had told you that it was dated, it had faulty science, and it had readability issues. Right?

A. I also knew that on the August 27th meeting, the science department chairperson was willing to take the book as a reference in the classroom. So with the understanding that the science department was willing to accept the book, that was good enough for me.

Q. They acquiesced to that?

A. Use whatever words you want, but they accepted the book. Knowing Mrs. Spahr's backbone, if she didn't think it was an appropriate book, she wouldn't have acquiesced.

Q. Well, she certainly had communicated or the science department communicated it was dated, had faulty science, had readability problems. Correct?

A. Yes.

Q. And so far as you knew from the questions you had asked the Thomas More Law Firm, nobody else was using it. Correct?

A. That's correct.

Q. And so based on that, you decided it was appropriate to put in the science classroom?

A. Yes.

Q. And typically when you get donations from other sources, they're not added to the official school curriculum, are they?

A. No.

Q. But Pandas has been?

A. Yes.

Q. And you testified near the end of your testimony that the statement read to students has been modified to refer to other books in the library. Correct?

A. Yes.

Q. Those books aren't mentioned. Correct?

A. No.

Q. And Pandas has now been placed in the reference section of the library?

A. Yes.

Q. And none of those other books about intelligent design are in that section, are they?

A. I don't know.

Q. And when you refer to these other books, you're primarily referring to these books donated by the group you referred to in your direct testimony?

A. No. I'm also aware that the librarian had additional books on the subject matter prior to this whole situation.

Q. And the books that you did get donated more recently were from a group called Debunk Creationism?

A. That's my understanding, yes.

Q. But you have no knowledge whether they're actually placed anywhere near Pandas. Correct?

A. No. It's up to the librarian to decide where she wanted them.

MR ROTHSCHILD: Could I have Exhibit 753. Could you pull that up, Matt. May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. Do you recognize this document, P753?

A. Yes.

Q. What is it?

A. It's my superintendent's weekly update for April the 1st, 2005.

Q. And this is something that goes to the board?

A. Yes.

Q. And if you could go down to -- Heading A says, Meetings and Activities?

A. Yes.

Q. And under Heading 2, there is some discussion about the legal activities. Correct?

A. Yes.

Q. And then there's a discussion about these donated books. Right?

A. Yes.

Q. Could you read that paragraph beginning, The board committee?

A. The board committee has finished reviewing the 23 donated books and will now give to the administration to review. Thomas More Center has stated and the board president, Mrs. Harkins, and curriculum chairperson, Mr. Bonsell, all recommend we take the issue off the front page and accept the donation of the books. As much as it makes me mad to have an outside organization dictate our library collection, I understand the political and legal implications. Anyone know of a pro-ID group that wants to donate books? I've even received a call from plaintiffs, Mrs. Callahan, asking about the status of the books. My response was, this issue is part of a legal matter and an item I cannot discuss with you. Her response was, Oh, I forgot.

Q. This is an example of your "happiness to accept any book that's appropriate"?

A. It's my reflection of the politically charged aspect of people going on the front page on issues without communicating directly with me. This is an attempt of an individual or an organization to embarrass the district. That's my frustration with this.

Q. And you're referring to the Debunk Creationism group trying to embarrass the district?

A. Yes.

Q. Now, you also testified that at the late August meeting you gave Jennifer Miller a memo from the city solicitor -- the school district solicitor relating to the issue of Pandas?

A. I gave it to everybody at that meeting.

Q. And that was the members of the board curriculum committee?

A. And the science teachers, yes.

Q. And I think you testified that it dealt with the constitutionality of Pandas?

A. Yes.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. Dr. Nilsen, this is Plaintiffs' Exhibit 70, and do you recognize this as the advice from counsel that you distributed at that late August meeting?

A. Yes.

Q. And if you go through the text of it -- and just take your time to read it -- but the word "Pandas" doesn't appear anywhere in the text, does it?

A. No, it does not.

Q. And let me represent to you that this is the only legal advice document that's been produced to plaintiffs in this litigation. This is a memo from Steven Russell, the school district solicitor. Correct?

A. Yes.

Q. And let's look at what is reported here, if we could highlight the first paragraph. What Mr. Russell reports to you, Dr. Nilsen, is that I talked to Richard Thompson, president and chief counsel for the Thomas More Law Center. There is some talk about why it took awhile to get back to him. And then if you go down after the parentheses, Mr. Russell reports that they refer to the creationism issue as intelligent design. Is that right?

A. That's what it says there, yes.

Q. That's what Mr. Russell reported to you about his conversation with Mr. Thompson?

MR. GILLEN: Objection, Your Honor. Mischaracterizes the thrust of the e-mail.

THE COURT: Well, it speaks for itself. I'll sustain the objection to the extent that I can read it and it speaks for itself.

BY MR ROTHSCHILD:

Q. And then going on in the document, it indicates that Thomas More has indicated they would represent the district pro bono, for free?

A. Yes.

Q. But it also points out that they would not pay any attorneys' fees to plaintiffs if the plaintiffs were to prevail in this lawsuit. Correct?

A. Yes.

Q. And he explains how that works?

A. Yes.

Q. And then in the last paragraph, he expresses some concerns, doesn't he?

A. Yes.

Q. And if we could highlight where it begins, I say this because. I realize it's a little hard to read. He says, It could be difficult to win -- it could be difficult to win a case. I say this because one of the common themes in some of the U.S. Supreme Court decisions, especially dealing with silent meditation, is that even though something is voluntary, it still causes a problem because the practice, whatever it may be, was initiated for religious reasons.

And he describes another case, and then he says, My concern for Dover is that in the last several years, there's been a lot of discussion, newsprint, et cetera, for putting religion back in the schools. In my mind, this would add weight to a lawsuit seeking to enjoin whatever the practice might be.

That's what Mr. Russell told you giving his legal advice in this e-mail he sent to you?

A. Yes.

Q. And you knew exactly what he meant, didn't you?

A. Yes.

MR ROTHSCHILD: This would be a good time to break, Your Honor.

THE COURT: All right. Let's take a break until 1:20 for lunch, and we'll return and pick up Mr. Rothschild's continued cross-examination at that time. We'll be in recess.

(A luncheon recess was taken.)