RationalWiki:Kitzmiller v. Dover annotated transcript/P047

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Trial transcript: Day 14 (October 21), AM Session, Part 1

THE COURT: Good morning to all. We're in the middle of Dr. Nilsen's testimony, and we can resume that.

MR. MUISE: Your Honor, if we may, at this time we are prepared to move for Dr. Behe's exhibits.

THE COURT: All right. Let's do that.

MR. MUISE: If we could maybe address that now.

THE COURT: That's fine, sure, before we go too long. The typed version that I have, does that represent stipulated exhibits or not? They were not. Okay. Let's make sure that we have these. Then on defendants' ledger on direct, we have the CV that is D249. And I'll just go through the whole list and then we'll go back.

MR. MUISE: Counsel and I have discussed this. We'll just verify your list, but there are no objections to the Dr. Behe --

MR ROTHSCHILD: Assuming our lists are the same as yours.

MR. MUISE: Right. We'll just check the list, and then we can just move them all without objection.

THE COURT: That's fine. Let's just do it that way then. D249 is the CV. D203 is the article, the Behe article.

MR. MUISE: Your Honor, there's 203 and then there's --

THE COURT: There's A, B, C, E, G, H, and J under 203 is what I have. Is that correct?

MR ROTHSCHILD: A, B, C, G, H --

THE COURT: I have an E.

MR. MUISE: There's an E, yes, Your Honor.

THE COURT: I have a G and I have an H and I have a J. What have I missed under 203?

MR. MUISE: There's a 203-I, as well, Your Honor.

THE COURT: All right. So we'll include I, as well. Any other subparts of 203?

MR. MUISE: That should be all of them, Your Honor.

THE COURT: Okay. Then D220, which is Of Pandas and People, that, I guess, is already in under another number, perhaps.

MR. MUISE: We would still move that.

THE COURT: All right, you move that. 237 is the Saier article. 238 is the article by Saier and others. 266 is the Thornhill and Ussery article. 267 is the Knoll interview. 269 is the Wuethrich article. 270 is the Kondrashov article. 271 is the Pennisi article. 271 is the Doolittle article. 274 is the --

MR. MUISE: Excuse me, Your Honor, that's 272.

THE COURT: 272, that's correct, is the Doolittle article. Thank you. 274 is the DeRosier article. Those are the defendants exhibits I have. Tell me if you have others.

MR. MUISE: There was a 265, as well, Your Honor, Down with the Big Bang.

MR ROTHSCHILD: Stipulated.

THE COURT: Rapidly stipulated. All right, 265, as well. Any other defendants' exhibits?

MR. MUISE: That's all of them, Your Honor.

THE COURT: All right. Any objection?

MR ROTHSCHILD: No, Your Honor.

THE COURT: All of those named exhibits are admitted. And, Liz, you have the addition of 265 and 203-I. Is that right?

COURTROOM DEPUTY: Yes.

THE COURT: On cross, I have P140, which is The Wedge Strategy; P256, the Zhou article. P279 is the van Gent article. P280 is the Clatworthy article. P281 is the Messier article. P283 is the Kapitonov article. P602 is the Behe report. P621 is the Dembski report or a portion thereof. P718 is the Reply to My Critics article. P721 is the Behe-Snoke article. P722 is the Young/Edis book, Chapter 8. P723 is a Behe article. P724 is the Minnesota Daily article. P726 is the Tulips and Dandelions article. P742 is the Lehigh University statement. P743 is the Behe immune system articles. P747 is the Agrawal article. P748 is the Bartl article. P751 is the Paley book. P754 is the Muster Seeds article. P755 is the Vaandrager article. P756 is the Curtis/Sloan article. And P775 is the excerpt from the draft of the Design of Life. Any others, Mr. Rothschild?

MR ROTHSCHILD: We had marked the Buell testimony as 573, but we'll move that in as designations later. So we're not moving that in now. And then I think all the other ones that we used were ones that had been separately marked as -- had already been admitted.

THE COURT: All right. So all the exhibits that I named, you're then moving for their admission at this point?

MR ROTHSCHILD: No, Your Honor. We're not moving 621, which is the Dembski report; 602, which is the Behe report; 754, which is the Atchison Muster Seeds article; and 724, which is the Kirsinger article in the Minnesota Daily. Everything else we are moving in.

THE COURT: So we're eliminating 602, 621, 724 and 754. Is that correct?

MR ROTHSCHILD: That's correct.

MR. MUISE: And we have just one objection, Your Honor, with P742, the Lehigh statement on the basis of hearsay.

MR ROTHSCHILD: It's like the AAAS and NAS statements, which are statements of -- this is a virtually identical document, just on a smaller scale, of a statement of a smaller scientific community's position.

It's not entered for the -- it's entered for the fact that it is their statement, not for the correctness of whether intelligent design is or is not science, similar to the AAAS and NAS. I'm fairly confident Professor Behe acknowledged that it was what it was, not an authenticity issue.

MR. MUISE: Your Honor, first of all, it's not the same as the AAAS and the NAS. It's some of the biology members in the biology department, and it's clearly hearsay. He testified --

(Musical cell phone ring.)

MR. MUISE: He testifed as he did. It was, you know, obviously for purposes of cross-examination, but the document itself doesn't come in as a hearsay statement.

THE COURT: You had a musical background. I don't know if that was a significant point.

I think that, Mr. Muise, under the circumstances, since we had testimony, your objection at the front end might have vitality, but inasmuch as he did testify about the statement and he did admit during his testimony that the statement appears on the Web site and that it was a statement by his colleagues, I'm inclined to admit it.

It is a bench trial. I don't necessarily take it for the truth, that is, the truth as it relates to his theory and his work, but for the existence of the statement on the Web site. I think at this point it's a pretty cumbersome distinction to make, to say that it doesn't exist on the Web site for the purpose of the record.

MR. MUISE: That's not the point, Your Honor. It's an out-of-court statement. I'm making my hearsay objection, Your Honor.

THE COURT: Well, the point is that it's a bench trial.

MR. MUISE: Yes, I understand.

THE COURT: I understand that it's an out-of-court statement, but he did testify. And I say again, had it been objected to at the front end -- and I'm not faulting you for this -- but, you know, he testified in all candor that it does exist and that it is on the Web site. I take it for what it is, and I'll assign it whatever weight I think is appropriate in my determination.

MR. MUISE: For a point of clarification about how things have been proceeding here, I mean, I didn't object on the front end because it wasn't offered as an exhibit. I just want to make sure that we're -- you're not wanting us to be objecting on the front end when they haven't moved for it to be admitted.

THE COURT: I understand.

MR. MUISE: That hasn't been the procedure, I think, that we've been --

THE COURT: Well, I think if you see a statement -- it's hard to develop a hard-and-fast rule, if you will. But I think if you see a statement like that that comes up and you want to make a preventative objection at the front end -- and that may preclude even a reference to it. If you make the objection at the front end and I let him refer to it, then obviously that front-end objection is likely going to fail.

I can't go back and know at this point how I would have ruled on a front-end objection. I would have heard argument from counsel. And, again, no fault assigned at this point, but inasmuch as his testimony then established the accuracy of the Web posting, I'm not inclined to not admit it.

MR. MUISE: Your Honor, just the one last issue is with regard to the demonstrative exhibits. We've had --

MR ROTHSCHILD: We think we can take a simple issue and make it more complicated.

MR. MUISE: I'll let Mr. Rothschild do that.

MR ROTHSCHILD: There was some discussion a couple of days ago about what we were going to do with demonstratives, and I think the parties have absolutely agreed and the Court has accepted that we are going to provide the demonstratives and assign a number to them.

My view is that the demonstratives, as a general matter, are not necessarily evidence. A lot of times they're just cues to the witness's testimony. They're just, you know, words that they're going to read into the record, and it's really the testimony that's the evidence.

But we do think within the demonstratives there are some types of evidence. And one example that Mr. Walczak has raised is, for example, we have diagrams in Dr. Padian's testimony, in Professor Behe's testimony, for example, from the Voet book, that those would be evidence. And the slides of fossils, those would be evidence.

What I would suggest is we don't treat them all as admissible evidence and that the parties separately move in those portions, not this morning, hopefully, but later on move in what they think should be properly treated as evidence.

MR. MUISE: Your Honor, that was, I guess, the point I was trying to make yesterday, the difference between a demonstrative exhibit and -- or the day before, the difference between a demonstrative exhibit and an exhibit for evidence.

I mean, I think the Court should have all the demonstratives. And how you want to address and deal with the individual exhibits -- again, you made the comment it's a bench trial, but I do think there's a difference between a demonstrative exhibit and an exhibit that goes in as substantive evidence, as Mr. Rothschild just explained. So however the Court wants to deal with that.

THE COURT: Well, let me see if I can help. Whether they're admissible exhibits or they're demonstrative exhibits, as I re-review the testimony as I need to, I will tell you that in certain cases to not have the slide, be it demonstrative or be it admissible evidence, may place me at a disadvantage. I'm sure you understand that.

MR. MUISE: That's the point of doing that.

MR ROTHSCHILD: We're in agreement that you should have them.

THE COURT: Right. And you all have your eyes on a record which potentially could be for the purpose of an appeal, so you're going to have to decide what you want to do as far as the admissibility of the exhibits.

So if I understand you correctly, you're going to give them to me so that I have them. The distinction is simply going to be what you're going to want to be made part of the record in this case. Really, I'll abide by your stipulation in that regard inasmuch as you're going to give me the -- I hesitate to call them exhibits -- slides, whatever they are, whatever we want to call them, anyway.

So if you could reach a stipulation as to the admissibility of those that you want to have made part of the record, that's fine, and I can take that at a later point in the trial. That's certainly not urgent now, but we need to do it before we close the record. It wasn't that hard.

MR. MUISE: That's agreeable to us, Your Honor.

MR ROTHSCHILD: Thank you, Your Honor.

THE COURT: Anything else before we resume Dr. Nilsen's testimony?

MR. MUISE: That's it, Your Honor.

THE COURT: All right. Dr. Nilsen, you can retake the stand, and we will resume with your testimony.

DR. RICHARD NILSEN, having been previously duly sworn or affirmed, resumed the witness stand and testified as follows:

DIRECT EXAMINATION (cont'd.)

BY MR. GILLEN:

Q. Good morning, Dr. Nilsen.

A. Good morning.

Q. Good to see you this morning. I'd say it's a pleasure, but I don't want the Judge to call me a liar again.

THE COURT: It is Friday, Mr. Gillen.

MR. GILLEN: I know.

BY MR. GILLEN:

Q. Rich, when we left off, we were leaving this October 18th meeting and discussing the tape, and Mr. Rothschild asked me to make one point clear for the record, and I want to do that now.

With respect to the tape and the portion that you asked to be transcribed, it does not cover the public comment section. Correct?

A. That is correct.

Q. You asked the person to begin the task at the portion of discussion relating to the agenda item that dealt with the curriculum. Correct?

A. That is correct.

Q. Okay. Let me ask you just generally as we leave that meeting and the discussion among the board members, was there a back-and-forth between board members about this proposed curriculum change?

A. There was general discussion among board members about the change, yes.

Q. Can you remember any of the specific statements that specific board members made?

A. No, I cannot.

Q. Can you -- describe for us your perception of the tone of the exchanges between the members.

A. I think there was frustration on a number of members. In fact, at that meeting two of the members resigned.

Q. How about the way they approached the issue, can you tell us whether there were questions being asked, an exchange of information between board members about the curriculum item?

A. I think there were individuals talking among themselves on what it meant.

Q. And as the voting proceeded, was there questioning that related to the nature of the motion before the board at that time?

A. Yes.

Q. Was it difficult to follow in a sense?

A. Yes.

Q. Who was making the chain of motions?

A. Predominantly Mr. Wenrich.

Q. And, again, from your standpoint as the superintendent at the meeting, did you have an understanding as to his purpose in making those various motions?

A. Yes.

Q. Tell us what that was.

A. My understanding in listening to Mr. Wenrich, he -- his motion specifically was the fact that he wanted to have additional input from various committees on the proposed biology change.

Q. We've described a statement that was made as the meeting broke up. After the meeting, did you direct Mr. Baksa to do anything as a result of the board's decision?

A. Yes.

Q. Tell us about that.

A. The faculty, specifically the science department, had voiced concerns on the implementation. And I recommended to Mr. Baksa that he end up developing statements that would address their concerns, with the objective being advancing what the board had addressed in the change, as well as supporting the teachers, finding exactly what they would do in class to protect them.

Q. Well, with that in mind, I'd ask you to look at Defendants' Exhibit 65. Do you recognize that document, Rich?

A. Yes.

Q. What is it?

A. It's a memo from Mr. Baksa to the board of directors.

Q. Did you receive this document?

A. Yes.

Q. And when you received it, what was your understanding as to its purpose?

A. My understanding was that Mr. Baksa was developing draft copies dealing with the implementation of the biology curriculum.

Q. I'd ask you to turn to the portion of Exhibit 65 with the Bates Number 15 in the lower right-hand corner. And if you would, just looking at that statement, give us your understanding about this last paragraph here, which reads, The school leaves the discussion of origins of life to individual students and their families.

Did you have an understanding concerning why that language was included in this document?

A. Yes.

Q. Tell us about that.

A. The teachers never taught the origins of life. And the board specifically, on the curriculum approved on the 18th, had the note that said the origins of life will not be taught, and that statement reiterated both practice and adopted policy.

Q. With that in mind, did you have an understanding about the way in which the statement was designed to address the concerns expressed by the teachers in the lead-up to the curriculum change?

A. Yes. As referred to, the teachers had a concern that intelligent design would be taught, and intelligent design, in their minds, referred to the origins of life. So we reinforced the fact that we were not teaching the origins of life or intelligent design.

Q. If you direct your attention again to that last paragraph, in the last sentence of that paragraph on the portion of Exhibit 65 with Bates Stamp Number 15, you'll see the last sentence reads, As a standards-driven district, class instruction focuses on the standards and preparing students to be successful on standards-based assessments.

Did you have an understanding concerning why that language was included in this statement?

A. I think for two reasons. One, we were reinforcing that what the teachers were doing was following the state curriculum, specifically teaching the standards. We were focusing on the standards and the fact that all the assessments would be based solely on the individual state standards. The teachers were continuing to do what they were doing before, which is teaching the state standards, teaching evolution.

Q. Did the curriculum change that was put in place by the board on October 18th, 2004, elicit a response on the part of the science faculty?

A. Yes.

Q. Tell us about that, Rich.

A. They specifically requested direction on what they should teach.

Q. Let me ask you to look at Defendants' Exhibit 81. Do you recognize that document?

A. Yes.

Q. Did you receive this?

A. Yes.

Q. And did you have any discussion with Mr. Baksa about this document?

A. Yes.

Q. What was the nature of that?

A. Mr. Baksa communicated to me that he had received this memo and that he had followed through with their request and had taken their name off of the planned courses.

Q. I'd like you to look at the concerns expressed by the teachers in this memo. And look first at the first sentence, first two sentences, Rich, and read those for the record.

A. We request that our names be removed from the top of the biology curriculum. At the top of the curriculum it states, Written by Jennifer Miller, Robert Linker, and William Rickard.

Q. Please continue.

A. Since we did not write the portion of the curriculum under evolution that the board approved on October 18th, we do not want the document to falsely state that it was, indeed, written by us.

Q. When you read that language, Rich, did that seem to have connection to the objections the teachers had been voicing or was this something new?

A. It was consistent.

Q. Okay. Continue, please, with the last portion of that paragraph.

A. If there is any litigation, we do not want to be named as the authors of the curriculum in question.

Q. Again, did that assertion on the part of the teachers seem linked to concerns they had expressed in the lead-up to the curriculum change?

A. Yes.

Q. What was your reaction to this document?

A. Somewhat confused based upon the fact that they had written the majority, if not 99 percent, of the document, and the only difference was what the board had directed to be placed in the document. And since that was board directed, they would not be in litigation based upon an action of the board.

Q. And I'd like you to just explain that again briefly, your understanding as to litigation and the potential liability of board versus the teachers. What are you getting at?

A. Specifically, teachers, as well as administrators, are covered in state code, the fact that if a board has an action and the teachers and/or administrators are following the board directives, they're covered based upon the fact that they're following board directives.

Q. Did you direct Mr. Baksa to take any steps as a result of this memo?

A. I didn't have to. He told me that he had withdrew the names, and I supported him in that action.

Q. Was there any particular reason?

A. No, not really, not an issue of significant importance for me.

Q. Did you see the request that the teachers' names be withdrawn from the curriculum as significant?

A. No.

Q. And why is that?

A. Based upon the fact that in the scope of things, it really didn't matter one way or another. I, as assistant superintendent, had originated the concept of having teachers' names on the planned courses as a point of authorship and pride, and if they chose to withdraw their name, that was fine.

Q. Now, there's been some testimony in this case about the board's perception of reporting on their actual curriculum change. I want to ask you a few questions about that by way of background.

Were you aware of press coverage of the curriculum change after the October 18th meeting?

A. Yes.

Q. And did you learn or have an understanding concerning board concerns relating to that coverage?

A. Yes.

Q. And what was the nature of your understanding, Rich?

A. The board was concerned that the newspapers were reporting that the action of the board had the teachers teaching creationism, had the teachers teaching intelligent design, had the teachers teaching religion, and had the textbook Of Pandas as a -- or the book Of Pandas as a required text.

Q. With that in mind, Rich, I'd just like to ask you, do you remember the specific reports that were producing board concern during this period?

A. Not specific reports, no.

Q. I'd ask you to direct your attention to Defendants' Exhibit 84. Do you recall this article coming to your attention?

A. Specifically, no.

Q. Okay. If you look at -- what I'm looking for is, can you recall the specific items of reporting that were producing board objections?

A. Yes.

Q. Are those the ones you've just described?

A. Yes.

Q. With that in mind, I'd ask you to look at Defendants' Exhibit 83. Before we discuss that document, I'd like to ask you, did you personally, as superintendent, take it upon yourself to do anything about press coverage?

A. No.

Q. Why is that?

A. I didn't have the time of day to contact every incorrect newspaper article. It would have taken 12 hours a day contacting every media, every outlet that was inaccurately stating -- or stating inaccurate comments. And graduate school administrators are given an adage, you never take on individuals that buy ink by the barrel, and I knew it would be a losing proposition, anyway.

Q. Well, let me ask you, did there come a time when a board member thought that some steps should be taken to try and address perceived inaccuracies in the reporting?

A. Yes.

Q. And if you look at 83, is that related to what I've just described?

A. Yes.

Q. Do you recognize this document?

A. Yes.

Q. What is it?

A. Mr. Alan Bonsell, board member at the time, communicated to me that he continually, in the community, had people coming up asking him why he had supported teaching religion in school and why he had supported creationism being taught.

Q. Did Mr. Bonsell ask you to do anything?

A. Yes. He directed me to develop a press release to communicate what the board had accurately done.

Q. If you look at Exhibit 83, there are some handwritten notations there, Rich. Are those your notes?

A. Yes, they are.

Q. And why did you write those notes?

A. Prior to developing the press release, I wanted to make sure that we had developed specifically what was going to be noted in class, and that note is addressed to Mr. Baksa requesting an update on what his status was on developing the paragraphs.

Q. And for the record, Rich, if you'd just read that, please.

A. Mike, please see me, press review status of sentence, Rich.

Q. And did you speak with Mike about the statement?

A. Yes.

Q. I'd ask you, were there any other concerns that supported Mr. Bonsell's desire to have a press release or some sort of statement on the part of the board?

A. I think they were trying to make sure that everybody understood exactly what was going on and make sure the teachers understood what the board had implied, as well.

Q. If you would, Rich, direct your attention to Defendants' Exhibit 70. Do you recognize this document?

A. Yes, I do.

Q. Do you recall seeing it?

A. Yes.

Q. Was this in the mix, so to speak, when Mr. Bonsell asked you to prepare some sort of press release?

A. Yes.

Q. And why is that?

A. I think, again, Mr. Bonsell wanted to make sure that everybody, including parents of ninth-graders, understood exactly what was going to be happening.

Q. I'd ask you to look it over and just make plain the portion of this document which supported Mr. Bonsell's desire to have a press release.

MR ROTHSCHILD: Objection, Your Honor. He's characterizing Mr. Bonsell's state of mind in a way that isn't supported by the evidence.

THE COURT: The question as stated probably gets into what Mr. Bonsell's state of mind was. Why don't you rephrase the question. I'll sustain the objection.

MR. GILLEN: Certainly.

BY MR. GILLEN:

Q. Did you, as superintendent, see this document and the concerns expressed therein as converging with Mr. Bonsell's concern about the information the public had and its perception of the board's policy?

MR ROTHSCHILD: Objection, Your Honor. First of all, it lacks foundation. I'm not sure Dr. Nilsen has -- the foundation has been laid that he saw this. And, second, he's again speculating on Mr. Bonsell's mental state.

MR. GILLEN: The first is, he has testified that he saw the document. The second is, I'm asking for his understanding, his belief as superintendent as to whether this document, which he received, converged with Mr. Bonsell's concern that there was inaccurate information being disseminated to the public.

MR ROTHSCHILD: It's getting very speculative. I probably should have raised this objection a couple of questions earlier as we got into Mr. Bonsell's mental state, but --

THE COURT: I don't think it calls for Mr. Bonsell's mental state. And my recollection is he said he did see it, so I'll overrule the objection. He can answer the question.

THE WITNESS: Yes.

BY MR. GILLEN:

Q. And tell me how.

A. If you look in the e-mail, a parent is questioning if she can take her daughter out of the class when they're being taught this theory of intelligent design, and it refers, again, to a parent having the perception that we're teaching intelligent design.

Q. Did you ultimately prepare a press release as requested by Mr. Bonsell?

A. Yes, I did.

Q. With that in mind, Rich, I'd like you to look at Defendants' Exhibit 101. Do you recognize that document, Rich?

A. Yes, I do.

Q. Tell us what it is.

A. It's one of the drafts -- apparently looks like one of the first drafts of the biology curriculum press release.

Q. And then if you would, look at 102. Do you recognize that document?

A. Yes.

Q. What is it?

A. Again, it appears to be one of the drafts on the biology curriculum press release.

Q. And then I'd ask you, Rich, to look at Defendants' Exhibit 103. Do you recognize that document?

A. Yes. It's the final first posting, or posting of the biology curriculum press release.

Q. Did you show this document to anyone before it was -- well, let me ask you, did you post it?

A. Yes.

Q. Did you show it to anyone before it was posted?

A. Yes.

Q. Who?

A. Two individuals, specifically Mr. Baksa, the assistant superintendent for curriculum, and Dr. Butterfield, the language arts supervisor.

Q. Was the press release reposted at any time?

A. Yes.

Q. Tell us why.

A. It was reposted a number of days after it was originally posted because we came across the fact that there was a typo and a grammar error.

Q. Was there any change to the substance of the reposted press release?

A. No.

Q. Was it identical in substance to the initial posting?

A. Yes.

Q. Does Exhibit 103 contain the statement that was meant to be read to students in January of 2005?

A. Yes.

Q. Do you know the details as to how the language of that statement had been worked out, that is, the statement that would be read to students?

A. Specific details, no.

Q. Do you know the process which was employed to produce the statement that was read to students?

A. Yes.

Q. Tell us about that.

A. Mr. Baksa talked to the majority -- or at least my recollection the senior biology teacher on getting input, as well as, I believe, also talked to board members.

Q. Rich, I'd ask you to direct your attention to the portion of Exhibit 103 with the Bates Stamp Number 50 in the lower right-hand corner.

A. Bates Stamp Number 50?

Q. Correct.

A. Yes.

Q. And I want to focus your attention on the second-to-last paragraph, the full paragraph there, so we can get your understanding as to your purpose in drafting this. If you would, I'd ask you to read the first sentence.

A. The foregoing statements were developed to provide a balanced view and not to teach or present religious beliefs.

Q. What was your purpose in including that sentence in this press release?

A. The purpose for the press release overall was not to develop any instructional piece, was to communicate specific statements that were in the press that were inaccurate. And this specific statement addresses the fact that a lot of media outlets had reported that we were teaching religious beliefs and we were teaching religion.

Q. In that sentence, you referenced a balanced view. Was your choice of that language linked to information you had received from the board in the lead-up to the curriculum change?

A. Yes. All the way back to January of 2004, there were discussions about providing other theories and providing a balanced view.

Q. I'd ask you to look at the second sentence and read that.

A. The superintendent, Dr. Richard Nilsen, has directed that no teacher will teach intelligent design, creationism, or present his or her or the board's religious beliefs.

Q. What was your purpose in including that language in the press release?

A. First of all, reinforcing what I had said, and also stating for the press and the community that there would be no teacher teaching intelligent design, there would be no teacher teaching creationism, and there would be no teacher presenting his or her or anybody's religious beliefs.

Q. Let me ask you again, at the time you drafted this statement, you understood that this press release, you understood that the statement which is included would be read to students. In this sentence, you've said that no teacher will teach intelligent design. What was the basis for that language choice in light of the fact that the statement was going to be read?

A. Well, the statement made students aware. It did not teach intelligent design, as I had priorly defined teaching.

Q. If you would, I'd ask you to read the rest of that paragraph.

A. The Dover Area School District supports and does not discriminate against students and parents who have competing beliefs, especially in the area of origins of life debate. The school board has not -- has noted that there are opinions other than Darwin's on the origin of life. School districts are forums for inquiry and critical discussion. The above statement and the district's revised biology curriculum together provide an opportunity for open critical discussions, the real heart of the scientific practice.

Q. Okay. And forgive me, I got ahead of myself here. I want you to look at that second sentence again, and I note that you used the terms "intelligent design" and "creationism" in the alternative. Why did you do that?

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

Q. Sure. In the second sentence of that paragraph, Rich, if you look at it, it reads, The superintendent, Dr. Richard Nilsen, has directed that no teacher will teach intelligent design, creationism, or present his or her or the board's religious beliefs.

In this sentence, you have used "intelligent design" and "creationism" in the alternative. Why did you do that?

MR ROTHSCHILD: Objection, Your Honor. Leading the witness.

MR. GILLEN: I'm asking why. It's not a yes or no answer.

THE COURT: I'll overrule the objection. He can answer the question.

THE WITNESS: I did not see intelligent design as creationism. I saw them totally separate.

BY MR. GILLEN:

Q. And why is that?

A. Creationism specifically references Genesis or, at least my definition, the origins of life debate, and intelligent design does not reference a biblical context at all.

Q. Did you see intelligent design as religion at the time you drafted this press release?

A. No, I did not see it. In fact, the teachers' acceptance of the Of Pandas and People book in the August meeting as a reference reinforced that concept.

Q. Well, forgive me again, but now I'm going to ask you to discuss the remainder of that paragraph that you've read. And I want you to give the Court a sense for what was your purpose here as you finished this paragraph.

A. The paragraph, again, was directed to address the inaccurate comments in the community. It was not done as a curricular outline or a directive of what is taught in individual classrooms, just specifically relating to the inaccurate media comments.

Q. If you look at the last sentence on that page, with Bates Stamp Number 50, Rich, did you author that?

A. Yes.

Q. And what was your purpose in including that language in this press release?

A. Any graduate student in administration appreciates the debate on religion and the Lemon test, the second and third prong, and I wanted to reinforce the fact that we were not involved in inhibiting or promoting religion as it related to past court cases.

Q. Now, Rich, I'd ask you to turn back to Page 103, which has the Bates Stamp Number 49, and direct your attention to the first -- well, actually, the last full paragraph immediately above the indented portion, which is the statement, and read that first sentence.

A. The Pennsylvania academic standards?

Q. No, I'm sorry, the paragraph above that.

A. Students will be made --

Q. The paragraph above that, Rich, In coordination.

A. In coordination with the science department teachers, the district solicitor, and the school board, Mr. Michael Baksa, the assistant superintendent in charge of curriculum, developed the following procedural statement that will be read to all students as the new biology curriculum is implemented beginning in January of 2005.

Q. Did you write that language?

A. Yes.

Q. And what was your purpose in doing so?

A. My purpose in doing so was to end up communicating the fact that Mr. Baksa incorporated individuals, teachers, our solicitor, and the school board in developing the implementation.

Q. Did the press release elicit a response on the part of the science faculty?

A. Yes.

Q. With that in mind, I'd ask you to look at Defendants' Exhibit 106. Do you recognize that document, Rich?

A. Yes.

Q. Tell us what it is.

A. It's a letter from the high school science faculty and the local area union president to me.

Q. And what is the -- what is your understanding as to the purpose of that memo?

A. A letter basically stating that they had an argument or a concern with, I believe, two words in the press release.

Q. And what were those two words?

A. "In coordination with."

Q. Did you have a reaction to this statement, Rich?

A. Yes.

Q. And what was that?

A. I didn't understand what their concern was.

Q. Did you -- what do you mean? Please be more specific.

A. They had a concern with the comment "in coordination with," and my usage of that term reflected the fact that Mr. Baksa did sit down with science teachers and get input from them on the statement.

Q. Did you do anything in response to this document?

A. Yes.

Q. What did you do?

A. I told Mr. Baksa that I wanted to fully understand what their concerns were and requested for him to schedule a meeting on an in-service day, November 24th, that included all the science teachers so I would understand exactly what their concern was.

Q. Okay. Now, before we move to that meeting, I'd like you to look at Defendants' Exhibit 172. Do you recognize that document, Rich?

A. Yes.

Q. What is it?

A. It's a memo I sent to Mrs. Spahr after the board meeting requesting time for us to get together and talk about the implementation of the board action.

Q. Okay. And let me ask you this. You sent this memo. Was there a meeting close in time to October 19th, 2004, with respect to the curriculum?

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

Q. Well, you've indicated that this document, Defendants' Exhibit 172, is dated October 19th, the day after the board meeting. Was there --

MR ROTHSCHILD: I'm sorry, if we could just clarify for the record, this has actually many communications, and I just want clarity, are we just talking -- is Exhibit 172 intended to be the entire group?

THE COURT: You're referring to Bates 341. Is that right?

MR. GILLEN: You're correct, Your Honor. And I thank Mr. Rothschild for that point of clarification.

THE COURT: Is that the issue, Mr. Rothschild?

MR ROTHSCHILD: Yes. What makes it a little more confusing is there's a cover page that says "Communications" that's Bates stamped 338, and then it skips a few pages and then goes on -- the first page is 341.

MR. GILLEN: Well, let me clarify the record on that point, Your Honor. At this time I'm directing Dr. Nilsen's attention to the portion of Defendants' Exhibit 172 with the Bates Stamp Number 341 in the lower right-hand corner.

THE COURT: All right.

BY MR. GILLEN:

Q. With that in mind, Rich, let me ask you again, do you recognize this document?

A. 341, yes.

Q. Okay. What is it?

A. It's a memo from me to Bert Spahr, Robert Eshbach, Jennifer Miller, and Leslie Prall.

Q. And what was your purpose in sending that memo?

A. My purpose was to meet with the science teachers to discuss the implementation of the board action on the bio curriculum.

Q. Did you meet with them personally?

A. No.

Q. Did you direct Mr. Baksa to meet with them?

A. Yes.

Q. Did you have an understanding concerning whether Mr. Baksa met with them?

A. I'm sorry?

Q. Did you have an understanding concerning whether Mr. Baksa met with them?

A. Yes, I have an understanding he did.

Q. Okay. Looking back at 106, tell us again what you did in response to that document.

A. I convened a meeting on November the 24th at 1 o'clock in the administrative office.

Q. Did that meeting take place?

A. Yes, it did.

Q. Do you remember anything from that meeting?

A. Yes.

Q. Tell us what you remember.

A. The meeting began with the science department showed up, as well as the local union president and the two past presidents. And it began with the past president, Mr. Miller --

Q. Let me ask you, you say the science department showed up. Do you remember which science teachers were present?

A. I remember Bert Spahr, Jennifer Miller. Those are the only two I remember.

Q. Was Rob Eshbach there?

A. Yes.

Q. Was Bob Linker there?

A. I don't remember Mr. Linker.

Q. You've mentioned some union representatives. Do you remember who was there?

A. Yes, Mr. Miller and Mr. Neal and Mrs. Bowser.

Q. What happened?

A. We began the meeting by asking if they would convey to me what their concern was concerning the prior, aforementioned letter. Mr. Miller answered that the faculty had a concern with the press release that was sent out, that it said "in coordination with."

And he ended up communicating that the teachers had input based upon the fact that they were directed to do so because they did not want to be insubordinate and then the fact that they had not agreed with what the board had done. And he also requested an additional press release from me verifying that they had not agreed on what was being done.

Q. Did you say anything to the teachers in response to their concerns?

A. Yes.

Q. Tell us what you said.

A. Once again reiterating, I told them the press release was done predominantly for a way to convey that the teachers had been cooperative throughout the whole process, and in no way did the press release say that they agreed or, for that matter, the administration agreed with what was done. It was just that they were included in on the process.

Q. Did you offer them anything else by way of a show of support?

A. Yes. Predominantly through the meeting, they continually voiced that they had been cooperative throughout the whole process, that they had met with board members, they had met with administrators. They had agreed, through the process, to include gaps and problems in the curriculum. They had agreed to include the Of Pandas as a reference.

And I communicated to them that I would support that comment and thought they had been very agreeable, I guess. And I communicated to them that I would be willing to go on a local radio talk show and communicate to them -- communicate to the community that the teachers had been very positive in this whole experience. And I requested them to give me what they wanted me to say in the radio show.

Q. With that in mind, Rich, I'd ask you to turn back to Defendants' Exhibit 172 and direct your attention to the pages of Exhibit 172 which have the Bates Numbers 359 and 360 in the lower right-hand corner.

And if I could direct your attention first to the portion of Exhibit 172 with the Bates Number 359 and ask you, Rich, do you recognize that document?

A. Yes.

Q. What is it?

A. It's a memo to me from the science department, a carbon copy to Mrs. Bowser, for the suggestions for the Gary Sutton Show.

Q. Did you receive that document?

A. Yes, I did.

Q. I'd ask you to turn to the portion of 172 with Bates Number 360 in the lower right-hand corner and ask you if you recognize that document.

A. Yes, I do.

Q. And what is that?

A. That's my transcript of what I said on the Gary Sutton Show.

Q. Was there -- and did you express the sentiments you had stated in this meeting on the Gary Sutton Show?

A. Yes.

Q. Was there anything else regarding the curriculum change or its implementation discussed at this meeting?

A. Yes.

Q. Tell us about that.

A. First of all, the teachers continually asked what are we supposed to do on various aspects. And I told them as superintendent, I understood their concern and would sign off on any procedural or anything that they had a concern with, that all they needed to do was send me a list of all the concerns that they ended up having, and I would sign off to give them administrative approval.

Q. You've mentioned concerns expressed by parents. Was there any discussion of an opt-out at this meeting?

A. Yes.

Q. Tell us about that.

A. At the time period Mr. Baksa began discussing with the science teachers the implementation. And I believe there were two or three items he discussed with them, the implementation of the Pandas book, if a student asked to take a book out, how long would he or she have the book, as well as a discussion of a procedure on parents, if they so chose to opt out of the unit.

Q. You've mentioned a statement to students in the press release. Was there any discussion about the reading of the statement?

A. Yes. Jen Miller repeatedly, at least, I believe, two times, asked me specifically what happens at the end of the statement if a student follows up and asks a question concerning what was read.

And I answered to her, you would answer the same way you would answer anything else that was not specifically in the curriculum or as it relates to a standards-driven curriculum, that that is a good question, we appreciate your interest, please research that on your own behalf or talk to your parents about it.

Q. Just if you would, Rich, what was your impression about the tone of the meeting?

A. Honestly, it was strained.

Q. And did you have an understanding concerning why?

A. I think the teachers were concerned about two things. One, they were concerned that they did not see the press release prior to it being sent out. Secondly, they were concerned about their own liability, legal concerns.

Q. As you lead this meeting, what was the general nature of your response to the teachers' concerns? Did you offer them assurances?

A. Yes.

Q. What kind?

A. Once again, as stipulated in my prior comments, I told them if they had any specific issues, to communicate to me, and I would end up telling them what they were to do as it related to any actions.

We also agreed that any future communications we would share, in my behalf with the science teachers and the association on their behalf. Anything that they disseminated, they would share with me.

Q. Did the press release elicit another response on the part of the science faculty? Did they respond to this meeting?

Well, let me ask you, Rich, a more specific question. Perhaps I'll help you out here. Was there more than one press release relating to the curriculum change?

A. Yes. After the meeting, at the next board meeting a newspaper reporter came to me and asked me what I thought of the teachers' press release, because apparently they had disseminated a press release the next day.

Q. With that in mind, Rich, I'd ask you to look at Defendants' Exhibit 105. Had the teachers shared this document with you prior to its dissemination?

A. No.

Q. How did you learn about it?

A. At the board meeting a newspaper reporter asked me what my reaction was to the teachers' press release. I had to say I didn't know what they were talking about.

Q. Did this document later come to your attention?

A. Yes.

Q. How is that?

A. I contacted the union president asking her what they were talking about as it related to the press release.

Q. What was your reaction to this document?

A. Initially frustrated based on the fact that I thought we had left the meeting with the understanding that we would communicate prior communications with each other.

Q. And did they respond to that concern on your part?

A. Originally they had communicated that they would convey to me prior to any dissemination, much like I had subsequently promised them.

Q. But did they do that?

A. No.

Q. At the meeting that you've described in November of 2004 was there discussion of how Of Pandas could be used or placed in the classroom?

A. Yes.

Q. And tell us about that.

A. I think Mr. Baksa continued the conversation of where the book would be placed in the respective classroom.

Q. And you spoke with Jen Miller about that?

A. Yes. When I had met with her on or about before the October 18th board meeting, we had an extended conversation.

Q. With that in mind, I'd ask you to look at Defendants' Exhibit 127, Rich, and also direct your attention to Defendants' Exhibit 137. Look at 137 first. Do you recognize that document?

A. Yes.

Q. What is it?

A. It's a memo from the high school librarian, Cora Kunkle, to Mr. Baksa, subject, reference books, carbon copied to me.

Q. And if you would read that communication.

A. As per your directive on December 22nd, 2004, 58 copies of the book Of Pandas and People have been processed and are ready for student use. Twenty copies have been placed in the reference section of the library as per your request.

Q. Did you direct that the book Of Pandas be placed in the library?

A. Yes.

Q. Why did you do that?

A. Mr. Baksa and I were in the library on or about December 22nd, 2004, for a student council function. And after the function, we were talking to the librarian about a number of items. And then she had communicated to us that she had a reference section on the topics of creationism and evolution. And at that time period I was pleased to hear that and still struggling with where to put the textbooks and then directed the textbooks to be placed there, because I thought as a reference book, I now knew there was a reference section in the library on that subject.

Q. Were you advised to place the book in the library by anyone --

A. No.

Q. -- before you made this decision?

A. No.

Q. Let me ask you a few more questions about the opt-out you've described. Did you believe the opt-out applied in the case of this curriculum change?

A. The opt-out applies to any curriculum in Dover.

Q. Did you believe the opt-out applied because intelligent design was religion?

A. No.

Q. Are there other areas in which the opt-out policy has been applied?

A. Yes. We have a custom of where any parent can opt out of any curriculum. The No Child Left Behind, the NCLB requirement, stipulates that a parent can opt out for any religious purposes.

They also have the requirement in NCLB that the parents have an option of having their students' names eliminated from the recruiter's list. We also send an opt-out letter anytime we have a dissection of animals. We provided an opt-out letter at the intermediate school when we sent home booklets that containing Planned Parenthood, as well as we provide opt-out letters when we have units on sexuality.

Q. We've talked about the reading of the statement, Rich. With that in mind, I'd like you to look at Defendants' Exhibit 138 and 139. Looking first at Defendants' Exhibit 138, do you recognize that document?

A. Yes.

Q. What is it?

A. It's a draft of Mr. Baksa's notes concerning a meeting he had with the science department.

Q. There are written notes. Did you have an understanding concerning why they were written?

A. Those written -- I directed Mr. Baksa to memorialize all communications dealing with the science department.

Q. And why did you do that?

A. Based on our prior conversations on the 24th, we thought we would provide clear directions and clear communications so everybody understood what to do.

Q. I note that on 138 there are handwritten changes. Are those changes in your hand?

A. Yes, they are.

Q. And what was your purpose in making those?

A. There are a number of purposes. First of all, I wanted it structured in an outline format. Second of all, I ended up eliminating some pronouns for specificity. And I also, on the third one, wanted to make sure that there was a clear understanding that anything associated with intelligent design was not being taught, and I specified nothing discussed during a student absence will be assessed, which reflects the teaching strategy.

Q. What do you mean by "reflects the teaching strategy"?

A. As mentioned prior, we define teaching very specifically as a component with assessment. And in this case, the fact that it was only mentioned, it would not be assessed.

Q. Was there a specific reason that that issue came to your attention?

A. Again, reinforcing the fact that the teachers were not teaching intelligent design.

Q. How about with respect to the opt-out, did you make notes relating to the opt-out?

A. On the document to the opt-out?

Q. Yes, on Exhibit 138. Look at Exhibit 138, Rich, and tell me if you made notes relating to the opt-out on that document.

A. As it relates specifically to the opt-out, there are notes that I end up talking about as per prior procedures.

Q. Rich, I'd ask you to look at Defendants' Exhibits 133 and 134 and 135. Looking first at 133, do you recognize that document?

A. Yes.

Q. Did you receive this document?

A. Yes.

Q. What is it?

A. It's Mr. Baksa's letter he developed for the parents concerning the opt-out.

Q. If you'd look at Exhibit 134, do you recognize that document?

A. Yes.

Q. What is it?

A. It's Mr. Baksa's letter he developed dealing with the form attached with the opt-out.

Q. And what is the purpose of that form?

A. The purpose of the form is to communicate to the school district from the parent that they are choosing their student not to be in the class during the reading of the statement.

Q. And I'd ask if you look at Defendants' Exhibit 135. Do you recognize that document?

A. Yes.

Q. What is it?

A. I believe that's the final form.

Q. With respect to this opt-out procedure, Rich, did you have a plan for how these documents would be distributed?

A. Yes.

Q. What was that plan?

A. Mr. Baksa coordinated with the high school administration and I also believe the science department that on the Friday prior to the unit or the four statements of the unit on evolution, that the parents would receive these letters with the opt-out.

Q. Did the teachers distribute the forms?

A. No, they did not.

Q. How did that come to your attention?

A. I got a call Saturday from a board member asking why the opt-out letters had not gone out to the parents as I had said they would.

Q. Did anyone ever explain to you why the opt-out forms were not distributed by the teachers?

A. Yes.

Q. Who was that?

A. Two individuals. After receiving that phone call, I contacted the high school principal and asked him why they had not been disseminated, and he wasn't aware that it was not. So we further contacted other individuals in the science department to find out what had happened. And later on the next day, Sunday, Mrs. Bowser returned my call and communicated to me what had happened.

Q. Did you gain an understanding from that communication concerning why the teachers did not distribute the opt-out forms?

A. Yes.

Q. Tell us about that.

A. The teachers had decided that they did not want any part of the dissemination of the opt-out letters and therefore had an individual Friday going around collecting all of the letters that were to be sent out that day with the purpose of giving them all back Monday morning.

Q. What was your reaction to that information, Rich?

A. Twofold. One, I was somewhat frustrated based upon the fact that information that I had disseminated that the opt-out would be sent on Friday was not followed through and that I was not even aware that it was not being followed through and, secondly, somewhat of a confusion based upon the fact that administratively, we had supported the teachers and their request not to be involved in the curriculum and yet they were not sending home information that allowed the students the same option.

Q. Well, explain a little more, Rich. You said you supported the teachers with respect to their desires concerning the statement. What do you mean by that?

A. During this time period, the teachers had communicated to the high school principal and therefore the administration that they did not want to read the four-paragraph statement, that they thought that there was an ethics issues associated with it.

Q. Did you see a rather ironic connection between that request and their conduct here?

A. Yes.

Q. What was that?

A. Again, the issue of they did not want involvement, but they wouldn't disseminate information that allowed the students the same option.

Q. I'd ask you to go to Defendants' Exhibit 142. Do you recognize that document, Rich?

A. Yes.

Q. What is it?

A. It's the statement that was read in class.

Q. At the time this statement was prepared did you have a plan with respect to the reading of the statement?

A. Yes.

Q. What was it?

A. The plan was the teachers would communicate to us when the unit on evolution was to begin, and then Mr. Baksa and I would come in and then read the statement after we had given the students who had, by parents and by their own request, had opted out.

Q. Did the teachers read the statement?

A. No, they did not.

Q. Was the statement read?

A. Yes.

Q. Who read it?

A. Mr. Baksa and/or myself.

Q. Rich, why did the administration come into the science classroom to read this four-paragraph statement?

A. The same reason we wrote the statement. Through this whole process, it was never our intent to develop a statement, it was never our intent to read the statement. In both instances, it was done solely for the protection and request of the professional staff.

Q. Did you have something in mind when you initially saw that the curriculum change had been approved?

A. Sure. My understanding of what would have happened is the fact that the teachers would still teach evolution. Through this whole conversation and process, no one had ever said we would modify or ignore the state standards on evolution.

The teachers at one time, prior to the updating, had taught it 19 days. Through the current process, they had taught it for two days. And I'm aware now that they have a new draft that has it five days. The teachers would continue to teach evolution as it related to the standards and as it related to what they thought was professionally accurate and appropriate.

I was also under the understanding that they had mentioned -- and the reinforcement of the fact is the Dr. Peterman memo -- that they had mentioned creationism as an alternative theory. It was my understanding that the board procedure would have ended up having a five- or ten-second additional comment that they end up saying, creationism is another theory, as past practice, as well as there is another theory called intelligent design. They would then reference a book in the library and then move on.

Q. Why didn't that happen?

A. The teachers requested that it not happen and requested that there end up being a four-paragraph statement reflective of what the board did and they requested not to do the statement.

Q. So, again, I ask you, some weight has been placed on the fact that the administration has read this statement. Why did the administration read the statement to the students?

A. Solely based on the fact that the teachers ended up requesting it. Mr. Baksa and myself long for the day when we don't have to do that.

Q. Was there a -- let me ask you next, what happened in terms of steps related to this curriculum change? Before I do that, Rich, forgive me, was Defendants' Exhibit 142 the statement you read in the class?

A. Yes.

Q. Now, let me ask you next, was there another effort to reach out to the public with information about this curriculum change?

A. Yes.

Q. What was that?

A. Mr. Bonsell came to me and said that the press release that we had posted on the Web was not good enough because they didn't communicate the information to all the constituents, that even though we periodically accessed our Web page, that not everybody in the community accessed the Web page, so he wanted to make sure that everybody was getting the information.

Q. Did you participate in the drafting of that document?

A. No, I did not.

Q. Did there come a time -- we've mentioned Of Pandas being in the library. Did there come a time when Dover Area School District received another donation of books?

A. Yes.

Q. And did those books touch on the subject matter of this dispute, evolutionary theory and other theories, the controversy surrounding evolutionary theory?

A. Yes.

Q. When did that happen?

A. Sometime in the spring of '05.

Q. How did the books come to your attention?

A. I read about it in the newspaper. There was a front-page article asking, I guess the organization that donated it, asking what the administration was going to do with the books.

Q. At this time did you have the books?

A. I don't know.

Q. What do you mean by that?

A. I didn't -- no one ever communicated to me when the articles came out -- in fact, I think the newspapers ran two or three days asking what the district was going to do with the textbooks, and we never knew where the textbooks were.

The first time we found out about the textbooks was subsequent, a few days afterwards. The union president, in a meeting I had, asked us what she should do with the books that are in the high school library. And my answer was, okay, now I know where the books are.

Q. What did you tell Ms. Bowser in response to that information?

A. I directed her to send the books over to Mr. Baksa.

Q. And why did you do that?

A. Two reasons. One, we were curious on what the books were, and, secondly, we wanted to review exactly what was sent.

Q. When the books were received, did you ask who sent them?

A. No.

Q. Did you care?

A. No.

Q. Why is that?

A. Anytime you end up getting information, things that you can end up using that's appropriate, I think it's more important to look at what was sent, not who sent it.

Q. Were the books reviewed?

A. Yes.

Q. Were they placed in the library?

A. Yes.

Q. Did you direct the librarian to place those books in any specific location?

A. No.

Q. Who determined where the books were placed in the collection?

A. Librarian.

Q. Did the receipt of the books have any impact on the implementation of the curriculum change?

A. Yes.

Q. What was that?

A. After understanding that there was more than just one textbook for reference in this conversation, I directed Mr. Baksa to reword the statement that there would be other books besides the Panda book in the library for students to review.

Q. With that in mind, Rich, I'd ask you to direct your attention to Defendants' Exhibit 193. Do you recognize that document?

A. Yes.

Q. What is it?

A. It's the statement that was read to the students in 2005.

Q. Would you read the portion of the document that reflects the change you've described?

A. I'm sorry, I couldn't hear you.

Q. Would you read the portion of the document that reflects the change you've described.

A. Intelligent design is -- it's the third paragraph. Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book Of Pandas and People is in the library, along with other resources for students who might be interested in gaining an understanding of what intelligent design actually involves.

Q. And what was your purpose in including that additional language?

A. To convey that there were other resources for students.

Q. Did you have an understanding concerning whether that addition was consistent with the board's purpose, as you understood it, in adopting the curriculum change on October 18th, 2004?

A. Yes. The board referenced other theories, not just intelligent design.

MR. GILLEN: Your Honor, may I approach the witness?

THE COURT: You may.

BY MR. GILLEN:

Q. Rich, I've placed before you three books. I'd ask that you read their author and title for the record.

A. Tower of Babel by Robert T. Pennock; Finding Darwin's God, Kenneth Miller; Intelligent Design Creationism and Its Critics, edited by Robert Pennock.

Q. Do you know whether these books are in the Dover Area School District library?

A. They are.

Q. Do you believe that the placement of these books in the Dover Area School District library was consistent with the intent of the board when it enacted the curriculum change on October 18th, 2004?

MR ROTHSCHILD: Objection, Your Honor. Calls for speculation.

MR. GILLEN: No, I'm asking for his understanding.

MR ROTHSCHILD: An understanding based purely on speculation.

MR. GILLEN: It's based on his role as administrator, the personal knowledge he received from communications with them. It's not hearsay.

THE COURT: Well, no, I don't think the objection is hearsay, is it?

MR ROTHSCHILD: It's speculation and doesn't -- I'm not sure that there's any basis other than his guess.

THE COURT: To know whether it was consistent with the board policy, he would have to have consulted the board. Now, he could state what his impression was, what his interpretation was. But the way the question was phrased might assume that he knew from a contact with the board or having consulted the board, so why don't you rephrase. I'll sustain the objection.

MR. GILLEN: Okay. I believe I can ask him for his understanding, Your Honor, as to whether what he did was consistent with district policy?

THE COURT: That would be my opinion.

MR. GILLEN: Okay. Thank you, Your Honor.

BY MR. GILLEN:

Q. Dr. Nilsen, do you have a view concerning whether your placement of these books in the Dover Area School District library is consistent with the board's policy approved by the board on October 18th, 2004?

A. Yes.

Q. Has anyone from the board ever asked you to remove those books from the library?

A. No.

MR. GILLEN: No further questions, Your Honor.

THE COURT: All right. This will be an appropriate time then to take a break. We'll take a 20-minute break and we'll resume then with cross-examination by the plaintiffs' counsel. We'll be in recess.

(Recess taken.)