RationalWiki:Kitzmiller v. Dover annotated transcript/P050

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

THE CLERK: All rise. p.m.

THE COURT: All right. We'll take the defendant's witness next.

MR. GILLEN: Your Honor, the defendants call Mike Baksa.

THE COURT: All right.

THE CLERK: Raise your right hand, please.

MICHAEL RICHARD BAKSA, called as a witness on behalf of the Defendants, having been duly sworn or affirmed according to law, testified as follows

THE CLERK: Please be seated. If you can state your name and spell your name for the record.

THE WITNESS: Michael Richard Baksa, M-I-C-H-A-E-L R-I-C-H-A-R-D B-A-K-S-A.

DIRECT EXAMINATION

BY MR. GILLEN:

Q. Good afternoon, Mr. Baksa.

A. Good afternoon, Mr. Gillen.

Q. Would you please state your current employment?

A. Currently I'm employed as the assistant superintendent in the Dover Area School District.

Q. All right. I would ask you to give us some idea for your family background. Are you married?

A. Yes.

Q. Do you have children?

A. I have five.

Q. Give us some sense for your educational background from your college years onward?

A. I did my undergraduate work at Moravian College and received a BA in education, a teaching certificate in English and communications. I received my master's in educational administration from Lehigh University. And I've completed doctorate work in all my courses at Widener University. Completed my doctorate. I received my superintendent's letter already, but I need to take my comprehensive exams and do my dissertation at this point.

Q. Would you please give your employment history for us?

A. I began teaching at Penn Ridge High School, secondary English. I taught there for six years in Perkasie, Pennsylvania. After that I took an assistant principal's position at Proctor Area Intermediate School, grades 5 through 8. I was there for four years. I then took an assistant principal position at Governor Mifflin High School in Shillington, Pennsylvania. I was there for four years. Then five years principal of Conestoga Valley High School in Lancaster County. And then I came to Dover and I'm starting my fourth year or in my fourth year.

Q. So when did you come to Dover?

A. 2002-2003.

Q. And in what capacity did you first come to Dover?

A. As the assistant superintendent.

Q. Okay. We know the facts that have brought you to the courtroom to provide your testimony, and I would like to begin unfolding the story from your perspective.

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

THE COURT: You may.

MR. GILLEN: Thank you.

BY MR. GILLEN:

Q. Mr. Baksa, I've placed before you a few binders with exhibits. I would ask you to open the slimmer one and take a look at Defendant's Exhibit 288. It should be at the beginning of the folder, Mike.

A. Got it.

Q. Okay. You'll see that those are notes relating to a meeting held on January 9th, 2002. Were you present at that meeting?

A. No.

Q. I would ask you to turn to the next page of Exhibit 288, the page with the Bate stamp number 3969 in the lower right-hand corner. Would you look at that document?

A. Yes.

Q. Do you recognize it?

A. Yes.

Q. What does it refer to?

A. That's the agenda for the administrative retreat.

Q. What's the date for that administrative retreat?

A. March 26th, 2003.

Q. Were you at that meeting?

A. Yes.

Q. Can you recall anything about that meeting?

A. Not specifically. But from the topics there, I probably know what was talked about.

Q. Okay. Well, before we get to the topics of this specific meeting, let me ask you. You say you came to Dover in 2002?

A. Correct.

Q. Did you have any discussion with any board member relating to evolutionary theory in the period between your arrival at Dover and this retreat held on March 26th, 2003?

A. Yes.

Q. Who did you speak with?

A. Mr. Bonsell.

Q. What was the subject of your discussion with Mr. Bonsell?

A. During this period when I came, I was new to the district and Mr. Bonsell was the chair of the curriculum committee. And he asked to meet with me, to meet me and then also to share some of his interests in some of the curriculum areas.

Q. Can you remember any specific curriculum areas that he discussed with you?

A. Early in the fall I remember sitting down with Mr. Bonsell and him talking a great deal about the importance of the founding fathers and that we give that due attention in our curriculum, that that would be important for our students to learn about their beginnings and foundation.

Q. Do you remember any discussion with Mr. Bonsell about evolution theory?

A. This was the year the science curriculum was up for review. So our teachers would be looking at textbooks and reviewing their curriculum for revisions for the purchase of new textbooks for the following year. As a part of that process it's typical that the textbooks would be given over to the board curriculum committee for them to review.

I do remember at one point giving the current textbook to Mr. Bonsell and him returning that book with a couple pages marked where he had questions or concerns about.

Q. Do you remember the nature of the concerns that he conveyed to you?

A. I did look at the books that -- or the pages that he had marked, and just reading the pages I was unable to determine exactly what his concerns are. So I do remember sitting down with him and speaking with him afterwards.

And primarily Mr. Bonsell was -- felt that -- was concerned with the presentation of Darwin in the current textbooks. He felt that Darwin was presented not as a theory but as a fact, that it overstated the evidence and really didn't talk about gaps or problems or leave students room to consider that any other theory might be considered.

Q. Was there mention of other theories with Mr. Bonsell?

A. I don't remember Mr. Bonsell talking about other theories. I do remember at some period of time him also conveying to me that he had read an article on carbon 14 dating which casts doubt on the dating of the earth. And that he had also -- he felt it highly improbable that species could turn into another species.

He talked to me about having seen a documentary video on TV that showed -- or was trying to explain and showing a bear turning into a whale. He found that highly improbable that such an evolution could occur.

Q. Let me ask you, Rich, to direct your attention to Defendant's Exhibit 283.

A. Okay.

Q. Do you recognize that document?

A. Yes.

Q. What is it?

A. It's an invitation to a workshop that Dr. Nilsen had given to me.

Q. There's a handwritten notation at the upper right-hand corner of the first page of Exhibit 283. Is that your writing, Mike?

A. Yes.

Q. What was the purpose of that notation?

A. To ask my secretary to register me for this seminar and to order the book from one of the books that the featured speaker had authored.

Q. Did you -- well, let's look at it. What was the title of that seminar?

A. Creationism and the Law.

Q. And did you attend that seminar?

A. Yes.

Q. Can you tell us from the Exhibit 284 who sponsored the seminar?

A. Messiah College and The Pennsylvania School Board Association.

Q. If would you, Mike, I would ask you to direct your attention to Defendant's Exhibit 284.

A. Okay.

Q. Do you recognize that document?

A. Yes.

Q. What is it?

A. These are my notes from the workshop.

Q. Can you tell from your notes who presented at the seminar?

A. Ted Davis facilitated the workshop and spoke a bit. The key speaker, though, was Dr. Edward Larson.

Q. Did you note the credentials of the persons who presented?

A. Dr. Larson was a -- had a degree from Harvard Law, I believe. And Ted Davis, I think, had a Ph.D. in history of science.

Q. Do you remember anything else about the seminar?

A. I remember it dealt with -- that the lion's share of the seminar dealt with kind of the history of evolution, its teaching and competing theories of evolution and how they kind of historically reviewed and presented throughout the past 50 years or so.

Q. Was there any discussion of the situation at the time that you attended the seminar with respect to this topic?

A. Yeah. At the end of the presentation, the discussion focused on what might be appropriate -- or in what manner might public schools handle some of the alternate theories other than Darwin's theory for evolution.

Q. Did the presenters express an opinion as to the subject of their seminar, Creationism and the Law?

A. The presenters for the most part presented that they didn't see why -- they thought that including discussion of other theories would make for a rich classroom discussion environment. They couldn't understand why public schools might be resistant to having that open discussion with students and thought it would be okay to simply present that there are other theories out there that are different than Darwin's.

Q. If you would, Mike, I would ask you to direct your attention to the page of Exhibit 284 with the Bates number 4013 in the lower right-hand corner.

A. Okay.

Q. Looking at that let me ask you, did you come away from the meeting with any -- I'm sorry, Mike. 284 at the prior page, 4012. There's a to-do up there. Did you come away from the meeting with a to-do?

A. Yes.

Q. And what was that?

A. There was another workshop that was scheduled for history and science teachers and how they might present alternative theories of evolution in the public school classroom.

Q. And what did you intend to do with respect to that presentation?

A. Well, I did make -- usually when I have a to-do I'll follow up on that. Normally what I would do is I would present that workshop information to those teachers and offer them a chance to attend something like that.

Q. Did you do that?

A. No.

Q. Do you remember why?

A. I'm just guessing. But typically when I come back from a conference I'll have conference folders that get filed away. I believe I filed my notes away without going back to look if there was anything I needed to follow up on.

Q. There's testimony from Dr. Nilsen that there were projects moving large in this 2003 period. Tell us from your perspective what projects were important?

A. Certainly the high school building project was drawing the lion's share of attention in the district involving Dr. Nilsen and I. Also, I was involved in working with the high school and school board members in looking at bringing $110,000 tech ed. program that would be new to the high school. So we were visiting schools and doing research and getting budget figures, estimates for implementing that program.

In addition to that, we were looking at re-doing -- we had a transitional one, which was essentially a repeat of first grade. We were looking at making that a developmental one which would use the existing first grade curriculum with support. So I had to work closely with teachers to gather data for us to really support instruction of why we would do that move.

The science curriculum was up for review along with the family consumer science. And coupled with the science are technology standards. So even though on the curriculum technology was separated out, I did have to go address the technology K-12 to line it up with the science curriculum.

Q. Mike, I would ask you to look back at Exhibit 288 at the page Bate stamped 3969. That's the agenda for the March 6th, 2003 meeting.

A. Okay.

Q. I would just ask you to look down the items for discussion there.

A. In 2002?

Q. In 2003.

A. 288?

Q. 288 at 3969.

A. Okay.

Q. There's a number of items there. And I would just like to get whatever you can give us as general information for what was going on at this time.

A. Under Roman numeral five?

Q. Yes.

A. Okay. One of my items was PSSA. So I don't remember specifically, but I would typically update the board on student achievement and where we were with our PSSA scores.

Mrs. Grove was implementing a pilot ELM program, which is a support for students in second grade. So she would be reporting on student achievement there. Mr. Wiestling was in charge of public relations for the first time. So he would be reporting his activities. Mr. Walker was piloting an extended kindergarten. CTC, Mr. Riedel. I don't know what that is. Drug testing. I know Mr. Riedel had a committee working with the board. So they were looking at schools that required mandatory drug testing in some areas.

Mr. O'Donnell was chair of the Dollars for Scholars. I think he was a chair or a member. So he would be reporting on their activities. Don't remember a lot about the handbooks. Stadium lights, I remember the three year maintenance and stadium lights. I remember there was a lot of talk about getting Army engineers and how to pay for that because he didn't have all the monies for that. We had some.

Mrs. Russell was a chair or member of the safety committee. She would be reporting on them. K-6 elementary coordination, I don't remember anything on that. LS schedule, I don't remember that. Policy review. I was on that committee. So was Mrs. Grove.

We were kind of looking at rebuilding all of our policies in a very short period of time. So there were a lot of policies that were always under review.

Curriculum cycle update. At this point I don't have the year down here, but I'm guessing at some point we made a financial decision not to purchase some science books, family consumer science books. So it took and made our seven year curriculum cycle an eight year curriculum cycle. So I would have probably been giving that update.

Mrs. Hoppe chaired the K to 4 science committee. Mr. Hufnagel, 5 to 8. They would be giving reports for that. I don't remember anything about food service, special ed. Voyager for Dr. Butterfield, that was a grant program that would be piloted in kindergarten. She would have reported on that progress. Construction, we were always having reports on where we are. Technology, I don't remember. Transportation, I don't remember.

Q. Well, the next item on that agenda is board feedback and items of interest. There's been some testimony about that portion of the meeting, but I would like you to tell us what you recall about that portion of the meeting in 2003.

A. Can I look at the --

Q. Sure. Well, let me ask you before you look at that. As you sit here today, do you remember anything specific about the board feedback and the items of interest portion of the meeting? Do you remember about how long it was and how it occurred?

A. I think without -- what I'm not sure of now is having looked at the board concerns and seeing -- you know, I think I recall that I remembered from this meeting Mr. Bonsell talking about a 50/50 split in evolution. But now having looked at it, I'm not sure if that triggered my memory. But I'm pretty sure I remembered that before looking at the report.

Q. What I'm getting at, Mike, is something a little different. I want you to describe the way in which the feedback was solicited and provided.

A. Okay.

Q. How did it happen? What portion of the meeting? How long was it? Things like that. Tell us what you recall.

A. Typically what Dr. Nilsen would do is just ask boards for any concerns or issues or questions they have and then they would speak, you know, a minute or so. And he would -- we won't respond to those. He would just take them down or they were dealt with somebody's particular area. He would take those down and just went right around the room until we got to all of the board members.

Q. About how long did each board member have to convey their items of interest?

A. Well, nobody was cutting a board member off. But typically it would only be a few minutes.

Q. All right. With that in mind, Rich, turn to the next page of 288, the one with Bate stamp 3970 at the bottom right-hand corner. I would just like you to look at that and give us a sense for what you recall about these items that was discussed at the meeting. Look at Mr. Wenrich's concerns.

A. I do remember Mr. Wenrich talking about discipline. I know that was also Mrs.-- one of Mrs. Brown's concerns about double standards. So I remember him talking about consistency. Checklist review cycle, I don't remember. Alignment. He was on part of the committee that I was working on the high school to visit schools. So I'm thinking technology in the curriculum has to do with that, because we were coordinating the curriculum 7 through 12. I don't know what four is.

Q. How about Mrs. Callahan; do you recall anything that she said specifically at this meeting regarding those topics?

A. I don't remember one. Don't remember -- don't remember two.

Q. How about Mr. Brown, those two items listed under his name. Do you remember anything specific that Mr. Brown said at this meeting about those concerns?

A. I don't remember one or two, no.

Q. Let's skip down first to Mrs. Brown, item E. Do you recall anything she said at this meeting specifically?

A. Yeah. Again, that's the same issue that Mr. Wenrich was pointing out. Because I remember her talking about that.

Q. Let's look back up at Mr. Bonsell's concern there. There's a number of listed items. Do you remember anything that Mr. Bonsell said about the first item?

A. I don't remember that.

Q. How about the second item?

A. I don't remember that.

Q. How about the third item, which is creationism?

A. Don't remember that.

Q. How about the fourth item, which is emphasizing American history?

A. I know he talked about that a lot, but I'm not sure I remember him talking about it at this meeting. You know, nothing pops out that --

Q. How about the remainder of the items listed under his name?

A. Don't remember five, six, or seven.

Q. Now, I believe you said you had some discussion with Mr. Bonsell around this time about evolutionary theory. Is that correct?

A. Yes.

Q. What -- tell us what you recall about that discussion.

A. Just what I had stated before, that Mr. Bonsell had concerns about students being presented with Darwin's theory of evolution, and the way it appeared in the text he interpreted that as leaving no room for any other theories to have a chance to be examined side by side. And then he also expressed concern that if that's the way it's in our book and if our teachers are teaching it that way that students might have a conflict with evolution as it may be taught or understood in the home. He was concerned about that, what conflict there might be with that.

Q. Well, do you recall Mr. Bonsell using the term creationism at the March 26th, 2003 retreat?

A. No.

Q. Do you recall Mr. Bonsell using the term creationism in the discussion that you've just recounted?

A. No. Not when I talked to him.

Q. What was he talking about, so far as you can make it out?

A. Well, I mean, that's one of the things that I was never able to get a clear handle on from -- in this whole process through any board members. We -- I kept getting information about dissatisfaction with maybe the presentation in the text and the concerns about maybe how teachers are presenting it. But what was never clear is that if something else is going to be presented, what is that thing going to be.

Q. Well, let me ask you. Did you do -- let's look at some of these board concerns. For example, Casey Brown, she was talking about block scheduling. Did you do anything as a result of this March 26th, 2003 retreat that related to Casey Brown's raising the block schedule?

A. Yes.

Q. What did you do?

A. Casey, on a number of occasions, had talked to me and Dr. Nilsen about her dissatisfaction with block scheduling at the high school. She brought it up again here. And I remember afterwards going over to the high school and talking to the assistant principal, Larry Redding, and saying hey, I just want you to know, kind of like a heads-up, that Casey is still talking about her dislike for block scheduling.

Q. And did anything ever come of Casey Brown's objection to block scheduling?

A. No. I remember down the road, in talking to me, she would throw a comment in here and there, but she never pressed any real formal action to have it evaluated or have it dismantled and something else put in its place.

Q. In your experience is it unusual for a board member to raise an issue like block scheduling and then nothing concrete to result at the end of the day?

A. No.

Q. Did you do anything with respect to the discussion you had with Mr. Bonsell about evolutionary theory in this period?

A. Yeah. I would have met with Mrs. Spahr and told her of Mr. Bonsell's concerns of the material in the textbook. I'm sure I would have told her about his -- his questioning of carbon 14 dating and his questioning species to species changes. So I'm sure I would have given her that information sometime during that year.

Q. Do you recall using the term creationism when you spoke with Mrs. Spahr?

A. No.

Q. Do you have a belief as to why she says you used the term creationism?

A. Well, the only thing I could -- I remember Mrs. Spahr in my conversations talking with her that I think the immediate assumption was that we -- that we -- the intent was creationism. While creationism wasn't -- I don't remember that being said to me, but I think if you -- if you look at some of Mr. Bonsell's concerns, particularly with carbon 14 dating and the age of the earth, you know, I don't think it's -- I think that's one of the tenants that might have led her to believe that that's, in fact, what he was talking about.

Q. But did you use that term when you spoke to her?

A. No.

Q. Did there come a time when you had reason to believe that Dr. Peterman had become aware of your discussion with Bert Spahr?

A. Yeah.

Q. And with that in mind, I would ask you to look at Defendant's Exhibit 1.

A. Did you want to ask me about pathways?

Q. No, I'm not going to go through all that. It's just -- I can see the judge is tired. I can see my fellow counsels are tired. And we're not going to belabor at this point.

THE COURT: I'm as chipper as can be.

BY MR. GILLEN:

Q. What I would like to ask you is this. You said you talked to Bert Spahr and not Dr. Peterman. Was there a reason you did that?

A. Yes.

Q. Tell us about that.

A. Dr. Peterman had a knack of overreacting to sensitive situations. In other words, if something -- if something comes up on the horizon and you want to start just being prepared for it, she would in many cases overreact to that situation when the actual situation didn't call for that level of action or that level of concern.

Q. Will you give us an example of that?

A. There's a couple I can give you. I do remember very early on when Dr. Peterman joined Dover, one of the things that Dr. Nilsen and I were working with the board on was securing air conditioning for the high school. It was a very sensitive subject. The board was discussing the pros and cons, the merits, and we were working with them to get them as much information as possible.

And very early on in Dr. Peterman's time with us, I remember at one of the board meetings she got up and really berated the board for them even considering other options and for them not acting immediately on the air conditioning.

Eventually bids were sent out and the high school did get air conditioning, but it made Dr. Nilsen's and my job a lot harder in trying to work with the board when somebody publicly is embarrassing them that way.

Q. Are there any examples of Dr. Peterman blowing things out of proportion that touch on policy making it difficult?

A. There was. Dr. Nilsen holds administrative team meetings, which all of the supervisors and principals and administrators attend. When I came to Dover there was a promotion and retention policy that did not allow for the grading of effort and homework, and the policy was being followed for 3 to 6 but not 7 through 12.

When I found that out, the next year I made arrangements to fully implement the existing policy. And the way it was implemented caused real upset on the part of the teachers 7 through 12.

So here's a policy that we have to follow the policy. So what I did is I did some research on how that policy came to be, how it was changed and went back a number of years to get the different versions. So I put together a history of this policy for us to be able to try to work with the staff to come to some understanding.

I gave those documents out at the A team meetings with explicit instructions not to share these, these are confidential, these are for only us to make sense of the stories so that we can figure out how we can move forward with the staff there. Dr. Peterman turned around the next day and shared those documents with her department chairs.

Again, now they had information that I had to now defend something else and try to explain to them. It just showed really poor judgment on her part.

Q. Is that why you went to Bert Spahr rather than Dr. Peterman?

A. Yes.

Q. And is that experience part of what shaped your reception of Defendant's Exhibit 1?

A. Yes. I think I heard that right.

Q. What did you think about this memo when you saw it?

A. Again, I thought Dr. Peterman totally overreacted to what was a two minute conversation with Bert in her classroom. Jut that a board member mentioned something 50/50, we might have to do something down the road here, I just want you to know that's still being talked about, Bert.

Q. How about in terms of the information reflected in the memo concerning what the teachers were doing in the classroom. Did you read this memo?

A. Yes.

Q. Did you have any reason to believe that part of the memo was inaccurate?

A. Where Dr. Peterman writes I advised them to continue?

Q. Well, I guess there is two portions here. I mean, she gives advice. Read that for the record, Mike.

A. Dr. Peterman writes, "I advised them to continue to mention that creationism is another alternative theory of evolution."

Q. How did you react to that statement?

A. Well, two ways. One, I felt Dr. Peterman was overstepping her bounds here. If there is going to be a curriculum piece that teachers are going to preface a unit of study with, it ought to be I sitting down with the teachers to work that out. I did not direct her to do that. No other administrator directed her to do that. That's her acting entirely on her own directing teachers. It really should be handled in a curriculum committee or something like that.

Q. Well, when you got this memo, did you have the concern that the teachers were engaged in unlawful activity?

A. No.

Q. Why not?

A. It does mention in here that -- she's saying that they had mentioned that creationism started in the unit. I don't believe that mentioning something is teaching something. I think teaching it would be illegal but not -- certainly not mentioning it.

Q. Well, when you create this distinction between teaching and mentioning it, how do you understand that, Mike?

A. Well, I think teaching in our profession has a very distinct definition with components. I mean, when we talk about the art of teaching, it involves specific instructional objectives, instructional goals for the students. It involves materials that the teachers would use and that the students would use in using the materials. It involves assessments to measure that, so teachers are able then to give feedback grading those to the students. I think all of that makes the process of teaching.

Q. All right. We're looking at a memo, Defendant's Exhibit 1 that's dated April 1st, 2003. Let me ask you before we go forward. Up until this point, do you recall any board member mentioning a desire to teach creationism 50/50 to you?

A. I remember Mr. Bonsell saying 50/50. But I don't connect that with creationism. So I remember that piece, but I don't remember specifically creationism and 50/50 together anywhere.

Q. Okay. How about any board member mentioning teaching creationism, period?

A. No. No.

Q. Well, with that in mind, I want to ask you to look at Defendant's Exhibit 286.

A. Okay.

Q. Do you recognize that document, Mike?

A. Yes.

Q. What is it?

A. This is a document that I found during the summer when I was cleaning up my office.

Q. And what did you do when you found it?

A. I turned it over to counsel.

Q. Okay. And it's -- I can tell you it's right here front and center in this litigation. So I want to ask you some questions about it. What is it?

A. This would be a copy from the biology curriculum guide on the unit that deals with evolution.

Q. And did you create this document?

A. I don't remember creating this document, but I believe I did. I'm the only one who has access to this curriculum. So if changes were to be made, I would be the one doing that.

Q. Did the way in which you found the document give you some sense for the time period in which it was created?

A. The document itself wasn't dated, but papers on either side place it, you know, in August 2003.

Q. Well, you know, there's a -- if you look at the unit content concepts column of this document and look down to the bottom entry, you'll see there's a reference to creationism. Do you know how that got there?

A. No. But I'm -- I believe I probably put that in there.

Q. I think that's a good guess. Do you have an idea for why you may have put this in a document generated around August of 2003?

A. Well, not -- that's hard to answer. Not remembering creating the document, it's hard to say why. I mean, I do know that from Dr. Peterman's memo, she referenced teachers mentioning creationism. And I do know from the Messiah workshop they talk about that it might be -- add to a rich discussion in the classroom. And certainly Mr. Bonsell was looking for alternative theories to be mentioned alongside Darwin's evolution.

Q. Well, did Mr. Bonsell mention teaching creationism to you?

A. No.

Q. Was this document passed out?

A. No.

Q. How do you know that?

A. On the document when I found it there's a note for my secretary to make copies for the meeting with science teachers. When I found the document the note was still on it and all the copies were still attached. So I do not believe I ever shared this document with anybody.

Q. You've referenced two sources of information that you had at the time regarding creationism and the legality of teaching creationism. Before we go forward, let me just ask you.

Apart from the seminar at Messiah College and apart from the information you had in the Peterman memo at this time, did you have any other information bearing on the teaching of -- or the mentioning of creationism?

A. Other than Dr. Peterman's memo --

Q. And the Messiah seminar, the seminar held at Messiah College.

A. I don't remember additional.

Q. If you look at that draft curriculum change you had worked on, it says students will be able to demonstrate an awareness. Was there a discussion of students being made aware of other theories around this time?

A. That was -- you know, from my initial conversations with Mr. Bonsell, that was, you know, I think the thrust. The presentation of Darwin and where's the balance; can we present other theories.

In looking at this document, I mean, I could -- I could -- I remember my thinking earlier on if we are going to address these concerns, one of the things that had happened earlier on is Dr. Nilsen had requested a copy of the curriculum page, this page, and had given me some language that talked about alternative -- other theories of the origins of life. I remember -- I don't remember getting language that had creationism in it, but I remembered getting language that had other theories of origins of life.

So earlier on, I'm thinking we might be able to address Mr. Bonsell's concerns with a mention of something from Dr. Nilsen that looked like maybe a curriculum change would address those concerns. But it was -- you know, there was nothing specifically being brought forward to the table to say, you know, do this, look at this, you know, check this unit out. So it was kind of hard to address it when we didn't know what the target was.

Q. All right. Well, let me ask you. You didn't -- you said you didn't pass this document out. Why?

A. I had met with Bert -- one of the concerns was how we might be addressing teaching origins of life. I remember I had a meeting with Bert Spahr, and Bert told me the teachers didn't address origins of life. What they taught was they taught the change over time within the species. After I learned that then really this becomes a moot point because you don't need to balance other theories of the origins of life if we're not presenting any.

I know I remembered Mr. Bonsell saying that he was in full agreement with what the teachers were doing in the classroom when he learned that they were just teaching change over time within the species.

Q. Let me ask you about that. Did you do anything as a result of your conversation with Bert Spahr?

A. Yes, I met with science teachers.

Q. And can you recall about when that meeting took place?

A. September, I believe. September.

Q. And the meeting did occur?

A. Yes.

Q. I would ask you, Mike, to look at Defendant's Exhibit 287. Do you recognize that document?

A. Yes.

Q. What is it?

A. Those are my notes for the meeting with the science teachers in September.

Q. And looking at those notes, can you tell us what you learned during that meeting?

A. The teachers reported that, as Mrs. Spahr had told me, that they don't teach the origins of life, that they teach the origins of species, in other words, species within species are changing into different species, that we teach change within species, that they --

Q. Did they have any discussion of origins of life as it relates to change within species? Did they differentiate the two?

A. Yeah. I believe when they mentioned origins of life, it was life from the very beginning and totally different species becoming different species. But they simply dealt with -- I know Mrs. Miller uses Finch's as an example. But they simply dealt with a single species developing and a change over time and evolution in that single species.

Q. I would like you to look at Exhibit 287, Mike, and look at the fourth entry down on that page. Can you make that out?

A. We teach change within species.

Q. What's beneath that?

A. We don't teach ape turning into man.

Q. Let me ask you, Mike. Did you have a discussion with Mr. Bonsell about that subject prior to coming to this meeting?

A. No.

Q. Did you raise that issue with the teachers during that meeting?

A. I don't remember raising it. To me it looks like these are the notes of what the teachers were reporting back to me.

Q. Is that what you were taking notes on?

A. Yes.

Q. Well, what was the result of this meeting from your perspective?

A. After we confirmed this, then the teachers and I both thought it was a good idea to -- Mr. Bonsell was concerned about teaching origins of life and not doing that, so let's sit down and have the teachers explain exactly what they are doing in the classroom for him to hear firsthand from them.

Q. Were the teachers amenable to that idea?

A. Yes.

Q. Was it their idea?

A. I think -- from what I remember, it was suggested and I know they were agreeable to it. They wanted to do that. I know Mrs. Spahr was certainly eager to sit down.

Q. Did that meeting take place?

A. Yes.

Q. Tell us what you can recall about that meeting.

A. The science teachers were there along with Mr. Bonsell and myself. And it was -- I think I remember Mrs. Miller speaking, Mr. Linker speaking and pretty much they just explained here is what we teach. Here is what we say before we start teaching the unit. Here is what we don't teach. Mr. Bonsell had a couple of questions for them.

The meeting didn't last real long. At the end of it Mr. Bonsell was satisfied and all of his concerns were kind of allayed from that meeting. The teachers had answered all of his questions.

Q. Do you remember anything that Mr. Linker said at that meeting?

A. I remember Mr. Linker talking about when he introduces the unit that he -- on the board he puts creationism in a line on the chart.

MR ROTHSCHILD: Objection, Your Honor. He's testifying to hearsay.

MR. GILLEN: I guess I will clarify the question for the witness.

THE COURT: All right. We'll sustain the objection. Strike the answer. You can move on or ask it a different way.

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

BY MR. GILLEN:

Q. Did you gain an understanding concerning whether the information contained in the Peterman memo was accurate based on Mr. Linker's comments?

A. My understanding is that some of the teachers mentioned creationism before.

MR ROTHSCHILD: Objection, Your Honor. We're getting right back into the hearsay.

MR. GILLEN: No, he's not.

MR ROTHSCHILD: His understanding is going to be based solely on hearsay.

MR. GILLEN: That's different between hearsay. The way you have ruled throughout, Judge, he can testify to his understanding of the teachers' practice.

THE COURT: That's not what he said, though. He said -- he used the word mentioned. That does implicate hearsay. So the objection is sustained on that basis. It's his understanding, as you know, that's permissible. But if the answer involved what someone said, that's objectionable. So the objection is sustained. The answer is stricken. Try it another way.

MR. GILLEN: Okay.

BY MR. GILLEN:

Q. Did you have an understanding concerning whether teachers mentioned creationism in the biology classroom as a result of this meeting?

MR ROTHSCHILD: Your Honor, I really think even with this change in the question this way, it's just a way of getting in hearsay as to what the teachers communicated. Mrs. Miller was here. Mr. Linker has been subpoenaed. And it seems to me that this evidence has to come in through them. I think even just putting the words understanding, he's still going to just bring it in for the truth of how they taught --

MR. GILLEN: No.

MR ROTHSCHILD: -- the class.

THE COURT: Give me an evidentiary reason that it's objectionable.

MR ROTHSCHILD: Hearsay.

THE COURT: No. Give me one more. Give me one more.

MR ROTHSCHILD: Relevance would be another. His understanding --

THE COURT: No. I think his understanding is relevant. He was at the meeting. I think his understanding is relevant. Your point is that their testimony is more reliable than his. That's for me to weigh and to determine. He was at the meeting. His impression is relevant.

MR ROTHSCHILD: I think what they are trying to prove with bringing this in is the way the science teachers actually taught the class. They are doing it for more than just his understanding. Now, so it is for the truth of the matter asserted. That's the evidentiary weight that they want to give to this.

THE COURT: And that would be a fair objection if what Mr. Gillen was attempting to elicit -- and we are going at this in fits and starts -- but if he elicits hearsay, that's certainly a good objection and it does go to the truth. But for Mr. Baksa's impression to be stated, relevancy would be a plausible objection. But I think in the context of his testimony and at this meeting as a fact witness, I'll take his impression. I understand your point it goes to weight, but I think it's relevant.

MR ROTHSCHILD: I want my objection on the record that it not now or later be construed as for the truth of how Mr. Linker and Mrs. Miller was teaching biology.

THE COURT: Their testimony is certainly better evidence of that.

MR ROTHSCHILD: What I'm trying to raise, it's the only evidence of that. This is the only evidence of his impression.

THE COURT: That's a fair argument. But now we're getting into argument and we're not arguing the objection. So I'll overrule the objection. You can state your impression.

Do you remember the question, sir? If not, we can read it back. Or restate it. Why don't you restate the question?

MR. GILLEN: Yes, Your Honor.

BY MR. GILLEN:

Q. Did you get an understanding concerning whether the teachers were presenting creationism as a result of this meeting?

A. As a result of this meeting, I got the impression that some teachers were presenting creationism.

Q. Let me ask you about the tone of the meeting. Was the meeting civil?

A. Very.

Q. When the parties departed, were they on good terms?

A. Yes.

Q. Did Alan Bonsell -- did you ever get a sense for Alan Bonsell's impression of the meeting, whether it was constructive?

A. After the meeting I did stop in the parking lot and talk with Mr. Bonsell.

Q. And did you have a sense that he was pleased with the outcome?

A. Yes, very.

Q. Did Alan Bonsell ever ask you to take any action with respect to the biology curriculum in 2003?

A. No.

Q. Did Alan Bonsell ever ask you to take any action with respect to the biology text in 2003?

A. Yes.

Q. What was that?

A. The text for biology and chemistry and some family consumer science tests were postponed for a year.

Q. Okay. Apart from that, did he ever ask you to take any specific step relating specifically to the biology text?

A. No.

Q. Okay. You've referenced some overall direction he gave you with respect to texts. Was that text purchased?

A. The following year, yes.

Q. Well, tell us what you mean. Describe what you're referencing.

A. The texts for science and family consumer science, those texts were used for one additional year. So they were not purchased for the 2003-2004 school year, but then they were purchased for the 2004 and 2005 school year.

Q. Let me ask you. Let's just look at that issue of text purchase, Mike. In your capacity as assistant superintendent, did you have a sense for a series of consistent concerns that the board brought to each text purchase?

A. Typically the board looked at a couple of things. One they would always inquire and I would always present the -- ask the teachers to send over a copy of the old text and the new that they are looking at. The board was interested in the copyright of the existing text and the new text and the implementation year to see how many years we had used the text.

They also looked at the condition of the text to see if it warranted being replaced. And if the condition looked fairly good and the teacher's still advocating different texts and they then they ask for justification of content and that it's substantially different from the old text to warrant the purchase.

Q. Do you recall whether there was some concern that texts weren't being used?

A. Yes.

Q. Tell us what you remember about that one.

A. I remember Mrs. Harkins said on a number of occasions that she didn't think -- she kept saying that the teachers weren't using the science texts, so why are you even thinking about buying new ones for them.

Q. Do you recall a concern that students didn't have texts?

A. Yes.

Q. Biology texts?

A. Yes.

Q. Who voiced that concern?

A. I had heard on that -- I remember at least on one or two occasions Mrs. Callahan bringing that concern up that students don't have science texts.

Q. Was it accurate to say that they didn't have science texts?

A. No.

Q. Let me be more specific. Was it accurate to say they didn't have biology texts?

A. No.

Q. Did you check on that?

A. Yes.

Q. Did you gain an understanding concerning whether students had a biology text at this time?

A. Yes.

Q. And was it a text assigned to them or used in some other way?

A. What happened is in the year I came, 2002-2003, we had moved our biology curriculum from 10th grade to 9th grade to align the standards. So that year we had to teach biology in two grades and didn't have enough textbooks to go around. So that year the teachers used the textbooks and students had them, but each student wasn't individually issued a textbook.

Q. So were they using classroom sets?

A. Yes.

Q. I would like you to look at Defendant's Exhibit 2. Do you recognize that document?

A. Yes.

Q. What is it?

A. This is a budget sheet from the high school that is budgeting for 220 biology textbooks and assorted materials.

Q. This document is dated January 5th, 2004?

A. Yes.

Q. At this time was there a concern expressed that the science department wouldn't get its texts because the purchase had been delayed in 2003?

A. Mrs. Spahr was concerned about that. She was worried, since it was delayed once.

Q. Did you receive Defendant's Exhibit 2?

A. I would have seen this. Dr. Nilsen and I review all of the building principal's budgets page by page. So I would have seen this page, and I possibly could have had this page forwarded to me in preparation for meeting with the board curriculum committee to talk about the purchase of new textbooks.

Q. I would ask you to look at Defendant's Exhibit 3 and further direct your attention to Roman numeral four, that item.

A. Okay.

Q. And ask you to look that over.

A. Okay.

Q. Do you recognize this document, Mike?

A. Yes.

Q. What is it?

A. These are minutes that I created after meeting with the curriculum advisory council on April 15th, 2004.

Q. We have had some testimony about what that council is. Let me ask you, what does item four reflect?

A. I remember Mrs. Wideman bringing up a concern that we had not purchased the remainder science and family science consumer books, and I believe Dr. Peterman also addressed that concern. They felt that what needed to happen is the teachers needed to get together with the board curriculum committee so we could make sure that we get textbooks this year.

Q. Did you speak to their concern for getting textbooks this year?

A. Yes.

Q. And what did you say?

A. Well, two things. One, that I would follow through and get the teachers and the board curriculum committee together and that Dr. Nilsen had already made sure that we had monies that were escrowed from last year so that we wouldn't have any budget shortfall to purchase the books.

Q. Was there a board curriculum committee meeting as indicated by this item?

A. Yes.

Q. Was there more than one?

A. Yeah, there were a few.

Q. Tell us about it. When did the first one occur?

A. I believe in May.

Q. Do you remember anything about that meeting?

A. At that meeting the science teachers would be there, the family consumer science teachers, I believe Dr. Peterman, myself, the board curriculum committee. I remember asking teachers to be prepared to justify -- I think I did this beforehand. I think they had already given me justifications for the purchases. I prepared that as a handout and I gave that out at the meeting. So the meeting really was for the board, if they had any questions of the teachers why they were advocating these purchases, they could get answers at that time.

Q. Do you remember any specific comments made at that May meeting about a text?

A. The science teacher spoke. The family consumer science teacher spoke. The only thing I really remember is I remember Mrs. Harkins pointing out that one of the family consumer science books, it had the same picture as the old text. She questioned whether there were substantial changes in them enough to warrant purchase of a new book.

Q. Mike, I would ask you to take a look at Defendant's Exhibit 164.

A. Okay.

Q. Do you recognize that document?

A. Yes.

Q. What is it?

A. It's an E-mail from Mrs. Spahr.

Q. I would ask you to just look it over, Mike.

A. Okay.

Q. Does that document reflect the concerns that the science faculty was expressing to the -- to you at this time about purchase of their texts?

A. Yes.

Q. There's a reference in there to a justification. What kind of justification were -- were you looking for a justification?

A. No.

Q. Was -- who was?

A. The board curriculum committee.

Q. What kind of justification were they interested in?

A. Again, they were interested in the age of the books, how many years they've been in use, their condition, and if there is substantially different content in the old and new editions.

Q. Looking at -- you talked about some concerns expressed during the 2003 period about text usage and so on. Was there a concern that texts were not being used that carried into the 2004 period?

A. In biology?

Q. Yeah.

A. Could you ask that again?

Q. Sure. Well, we know -- you've said Barrie Callahan was saying that students don't have a book. Do you remember that issue coming up in 2004?

A. Yes.

Q. Do you remember Sheila Harkins saying teachers aren't using the book? Do you remember that concern being expressed in 2004?

A. Yes.

Q. I would ask you to look at Defendant's Exhibit 8. Before we move on, let me ask you this. Was Bert Spahr in charge of interacting with you as assistant superintendent on these budgetary issues?

A. Yes.

Q. How would you describe Bert's attitude towards that process?

A. Well, Bert liked to do things once. And you know, she was frustrated with not getting everything and having to reproduce some of those materials. But it was very hard to console Bert. Even though I assured her money was escrowed, that, you know, we're going through a very normal process of reviewing the books, Bert was still a little panicky that all of this might not happen.

Q. Did you come to believe that she was concerned that she would have to wait a whole other cycle to get her book?

A. Yeah, she's saying eight years. That would be -- I mean, the textbooks would be some 16, 17 years out. So I mean, that couldn't possibly happen.

Q. And did it happen?

A. No.

Q. I would ask you to look at Defendant's Exhibit 7 and 9.

A. Okay.

Q. Look first at 9, Mike.

A. Okay.

Q. Do you recognize that document?

A. Yes.

Q. What is it?

A. This -- when I asked for justification, this is what the science department sent over to me.

Q. Is Exhibit 9 related to Defendant's Exhibit 7?

A. Yes, it's -- I put it together and incorporated it into this -- into 7 as a board handout at the board curriculum committee.

Q. All right. I would ask you to look at Defendant's Exhibit 8.

A. Okay.

Q. Do you recognize that document?

A. Yes.

Q. What is it?

A. That's the amount that was in the current budget for textbook purchases and the textbooks that were remaining that we needed to purchase that year.

Q. Why was that document generated?

A. To show to everybody involved, including the board curriculum committee, that there were funds available.

Q. If you would, Mike, look at Defendant's Exhibit 10.

A. Okay.

Q. Do you recognize that document?

A. Yes.

Q. What is it?

A. It's a five year average of actual textbook expenditures for the district.

Q. And why was that document created?

A. Mr. Bonsell was interested in learning typically, you know, what did we spend on textbooks a year.

Q. Was it generated for his information?

A. And the rest of the board curriculum committee.

Q. We've been focusing increasingly on biology texts here. So I would like to ask you, can you recall -- we're in the May period. Before we go on, I want to ask you, do you recall considerations being raised about the family consumer science text?

A. Concerns?

Q. Yes.

A. Yes.

Q. And what were they?

A. Again, Mrs. Harkins felt that the text was not sufficiently different to warrant the purchase of a whole new series.

Q. All right. If we turn our attention to the purchase of the biology texts, and realize that we're in the April/May period, can you recall what happened next relating to the purchase of the biology texts?

A. After the meeting in May for biology I think the next thing I remember is getting a list of concerns from Mr. Buckingham about the proposed biology textbook.

Q. And with that in mind, I would ask you to look at Defendant's Exhibit 15. Do you have that?

A. Yes.

Q. Do you recognize that document, Mike?

A. Yes.

Q. What is it?

A. This is the list of concerns that I got from Mr. Buckingham.

Q. When you got this document, did you understand the nature of Mr. Buckingham's concerns?

A. No. I -- when I got the document I did go to each of these pages in the sections he referenced and read that, but I was unable -- from doing that I was unable to determine the specific nature of his concern.

Q. Did you do anything as a result?

A. Yes.

Q. What did you do?

A. I asked Mr. Buckingham to meet with me to be more -- help me fully understand his concerns and needs on these pages.

Q. Did that meeting occur?

A. Yes.

Q. I would ask you to look at Defendant's Exhibit 4. Do you recognize that document, Mike?

A. Yes.

Q. What is it?

A. That's my notes from my meeting with Mr. Buckingham.

Q. Was anyone else present at this meeting?

A. No.

Q. Did the meeting take place, as indicated, on June 4th, 2004?

A. Yes.

Q. Give us a sense looking at this document as to the nature of Mr. Buckingham's concerns.

A. The first one, Mr. Buckingham was concerned that there was lots of mention of Darwin throughout the book.

MR ROTHSCHILD: Objection, Your Honor. Hearsay.

MR. GILLEN: He's testifying to what's reflected in his notes, which he created as assistant superintendent in the course of his duties.

THE COURT: I don't think that cures the hearsay objection. Tell me why it cures the hearsay objection.

MR. GILLEN: Because what he's conveying is based on his notes, not on what Mr. Buckingham said.

MR ROTHSCHILD: That's then using the notes to bring in hearsay. I mean --

MR. GILLEN: The note is a business record.

MR ROTHSCHILD: It's for the truth of what Mr. Buckingham --

MR. GILLEN: The note is a business record. That's a document that's admissible as such. He's taking it down. In his capacity as assistant superintendent he's taking notes to collect input from a board member.

THE COURT: Is the note a business record? What do you say about that?

MR ROTHSCHILD: I don't think it's necessarily a business record. There hasn't been foundation laid. Let me just be a little more specific about my concern. He's talking about Mr. Buckingham's concerns. It's not just simply the statements made, but he's characterizing what Mr. Buckingham's concerns are. So it's a -- you know, it's clearly hearsay. I don't think he's laid any foundation that this is a business record. We certainly don't have a record that this was regularly done. We haven't seen the notes from all of the different types of meetings Mr. Buckingham participated in. We've seen some.

THE COURT: If, in fact, it's a business record, and I don't know that it is, you haven't laid a foundation to make it a business record. That would have to do with the admissibility of the exhibit itself. I don't think that that would allow you, even if the exhibit itself were admissible, to go beyond the four corners of the exhibit. And I think that's the objection, an objection, a part of the objection.

You can't in my opinion use the note, business record or not, as a pretext to elicit hearsay testimony which is outside the four corners of the note. And it sounds like that's what you're attempting to do.

MR. GILLEN: And if that's --

THE COURT: It does indeed go to the truth.

MR. GILLEN: I would say this, Your Honor. You're correct. And let me lay a foundation, that he took this in connection with his duties as assistant superintendent.

THE COURT: Again, even if you do, even if it's conceivably admissible on the business record grounds, and I don't know that it is, he can't go outside the four corners of what's in the note. It's not a springboard to elicit other testimony outside of the note which would be hearsay.

MR. GILLEN: No. He -- well, I guess, Your Honor, unless I'm mistaken, he can -- I'll lay a foundation that he took this in the course of his duties. Then he can testify to what he recalls based on the notes he took. Correct?

THE COURT: Not if it's hearsay. Not if it's hearsay.

MR. GILLEN: Well, if it's what -- if he purports to testify as to what Mr. Buckingham said, I agree, that would be hearsay. If he purports to testify to what he learned as a result of the exchange and note it, that's his personal knowledge.

THE COURT: Well, we're back to the old impression versus hearsay statements. And we all understand what the distinction is, I think. But again, to be clear, if you were going to utilize this to refresh his recollection and get him to state his impressions, if those impressions do not implicate hearsay statements, that may be fair. The admissibility is another issue. I don't know if you want to lay the foundation and attempt to admit the note under -- or on that basis. Do you want to say something?

MR ROTHSCHILD: Yeah. I think there's another fine distinction here, which is if Mr. Buckingham said something, and we can call it a verbal act that Mr. Baksa reacts to that I think may result in some hearsay, but I think the way the question was asked it was really for the truth of what Mr. Buckingham's concerns are.

THE COURT: I agree with that. The objection is sustained on that basis. Now, be guided by what I said and you can -- you can proceed accordingly. Or do you need clarification?

MR. GILLEN: I am having some difficulty understanding the precise nature of Mr. Rothschild's concerns.

THE COURT: The question itself as originally objected to was, in my view, quite evidently designed to elicit a statement and that statement would be what Mr. Buckingham said, and it would go to the truth. That's hearsay. The objection was sustained on that basis.

You then got into a discussion about the admissibility of the note based on your contention that it's possibly a business record. Mr. Rothschild's further objection is that you did not lay a foundation to take this as a business record. That's correct. Now, I don't know if you want to do that.

But in any case, you can't go outside the four corners of the note. The fact that he took this note or took these notes does not provide -- I'll say this again and for the last time, it does not provide a springboard for you to elicit statements, extrajudicial statements, by Mr. Buckingham which go to the truth.

MR. GILLEN: And certainly I agree with that, Your Honor. And I -- it's not my intention to do that. I'm trying to get at what Mr. Baksa believed he learned as a result of this exchange and noted and took with him to go forward. To the extent that it's demonstrating his understanding, his belief and what he's trying to do as assistant superintendent, that's his own knowledge.

THE COURT: Without repeating what Mr. Buckingham said.

MR. GILLEN: Right.

THE COURT: Let's proceed.

MR. GILLEN: All right.

BY MR. GILLEN:

Q. Mike, just to be clear and to move this along, you can testify to your understanding but you cannot testify, and the judge will tell you if you try it, to exactly what Mr. Buckingham said.

A. Okay.

Q. So with that in mind, let me ask you about this document. This is a set of notes.

THE COURT: I didn't make the rules of evidence, but we must live by them.

MR. GILLEN: As the judge said yesterday, we could be here all day.

THE COURT: We're working on it.

BY MR. GILLEN:

Q. Mike, let's talk about how you created this set of notes. Did you call the meeting with Mr. Buckingham in your capacity as assistant superintendent for the purpose of learning his concerns relating to the biology texts?

A. Yes.

Q. Did you create this set of notes in your capacity as superintendent in an effort to facilitate the purchase of the biology text?

A. Yes.

Q. Did you create this document in the ordinary course of your duties as the superintendent of Dover Area School District?

A. Yes.

Q. Is it your practice to keep notes of this kind in meeting with board members on issues relating to district business?

A. Yes.

Q. Thank you. Then looking at this note and being careful not to try to sort of repeat what Mr. Buckingham said, let me ask you, does this document reflect your understanding as to the nature of Mr. Buckingham's concerns?

A. Yes.

Q. If you would, look at item number two. Does that reflect your understanding of the nature of Mr. Buckingham's concerns relating to the biology text?

A. Yes.

Q. Explain, if you will, exactly what your understanding was.

A. Well, I don't remember what he said but --

Q. And you couldn't say it if you did.

THE COURT: After all that. Why didn't you tell us that before?

BY MR. GILLEN:

Q. Tell us what you understood.

A. What I understand is number two, that his concern would be that the theory is treated like a fact, a reality and that it's mentioned so many times in the book that that by itself kind of biases students to accept it as a fact.

Q. And let me just ask you, generally speaking, does this document reflect the nature of your -- the concerns as you understood them of Mr. Buckingham?

A. Yes.

Q. Well, did there come a time when Mr. Buckingham gave you additional materials to consider in connection with the biology curriculum, or did there come a time when you received materials that you understood came from Mr. Buckingham?

A. Yes.

Q. What were those materials?

A. I received two DVDs and a book. I'm not sure that I received them all at once.

Q. You mentioned two DVDs. Do you remember which ones?

A. I remember Icons of Evolution was a DVD and also a book, and then I remember there was another DVD.

Q. Did you say that the title of the book was the same as the DVD?

A. Yes.

Q. What was that title?

A. Icons of Evolution.

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

THE COURT: You may.

MR. GILLEN: Thank you.

BY MR. GILLEN:

Q. Mike, I have handed you two DVD's. Do you recognize those?

A. Yes.

Q. Are those the materials Dr. Nilsen passed on to you?

A. Yes.

Q. There was also a book, and I just want to confirm again, was it -- what was the title of the book you received?

A. Icons of Evolution.

Q. Given that Mr. Bonsell has -- I mean Mr. Buckingham has expressed concerns, what happened next as a result? Did you do anything?

A. Yes.

Q. What did you do?

A. I took the notes that I had from my meeting with Mr. Buckingham and made a copy of those, and then I met with Mrs. Miller and went over those with her.

Q. Let's look at Exhibit 19 and 20. Looking first at Exhibit 20, Mike, do you recall that document?

A. Exhibit 20?

Q. Yeah. Do you recognize it?

A. Yes.

Q. What is it?

A. Those are my notes from the board curriculum committee meeting with the science teachers on June 24th, '04.

Q. Again, let me ask you, did you take this -- these notes in connection with your duties as assistant superintendent of Dover Area School District?

A. Yes.

Q. And did you take it as a result of the meeting that was had on this date?

A. Yes.

Q. Did you take it for the purpose of performing your duties as assistant superintendent?

A. Yes.

Q. Do you regularly take notes of meetings with staff or board members relating to district business?

A. Yes.

Q. Does this document, Exhibit 20, reflect, at least in part, your understanding of the outcome of the meeting that was held on this day?

A. Yes.

Q. And I would ask you to look at Exhibit 19.

A. Okay.

Q. Do you recognize that document?

A. Yes.

Q. Now, what is it?

A. These -- on this document I do have more notes from that meeting. But at the top of the document is survey results from biology books used in some Parochial schools.

Q. Did you create this document in your capacity as assistant superintendent?

A. Yes.

Q. To further the duties of assistant superintendent of the district?

A. Yes.

Q. Are the handwritten notes on that document your own?

A. Yes.

Q. Did you make those notes at your meeting with the science faculty held on June 24th, 2004?

A. Yes.

Q. Did you make those notes in your capacity as assistant superintendent?

A. Yes.

Q. Did you make those notes for the purpose of performing your duties as assistant superintendent relating to curriculum?

A. Yes.

Q. Do you ordinarily take notes of this nature when meeting with the faculty or board members for the purpose of board business?

A. Yes.

Q. District business?

A. Yes.

Q. Okay. Do you recall specifically what occurred at the June 24, 2004 meeting?

A. Yes.

Q. Tell me what you can recall.

A. At the meeting we already had one meeting in May where the science teachers presented the textbooks that they wanted and the rationale for that. Between that we got the list of Mr. Buckingham's concerns. We did meet with Mrs. Miller for us to be able to address it at the next meeting.

And then in the meantime the other thing I did is our teachers had already previewed texts that are typically used in public schools. I went out and looked for other organizations to look at other textbooks that might have a different treatment of Darwin that would be more acceptable to the board curriculum committee. So I do have this and -- this from Parochial schools and what some of our home-schoolers used.

So I brought those documents to the meeting. At the meeting there was an exchange. Our teachers tried to address Mr. Buckingham's concerns at this meeting, did explain to him clearly what they were teaching in class. And Mr. Buckingham was okay with that. But he -- he kept bringing up -- Mr. Buckingham was concerned that teachers taught origins of life in the past even though they're saying that they're not doing it now.

There was a mural that showed the descent of man which would speak to the origins of life as far as he was concerned. And so as a consensus in this meeting because we're -- the teachers are asking for the Miller-Levine book. Mr. Buckingham is expressing concerns. So as a result of this meeting, there were some assurances put in place for Mr. Buckingham to give his approval for us to move forward and purchase the book.

That was that Mrs. Brown, as the chair of the policy committee, would revise two policies. One was a gift policy to assure that any gift that comes into the classroom matches the curriculum and supports it. Another was the curriculum policy to make sure that our curriculum always aligns with our standards.

Q. You referenced some discussion of the mural. Did you have an impression concerning the nature of the significance of the mural to Mr. Buckingham?

A. I believe the mural showed the descent of man, of ape to man. And Mr. Buckingham, I would describe him as objecting to that. I can only believe that he did not believe in that type of evolution.

Q. Did he tell you anything about -- relate the mural -- or did you have an impression that he related the mural to the teachers' assertion they didn't teach origins of life?

A. I think Mr. Buckingham felt that by having that mural displaying that image and that species to species evolution displayed in the science classroom that, in fact, that was advocating that school of thought.

Q. Well, did he -- I mean, Bert Spahr has been here in court. What did Bert Spahr say in response to that?

A. I think she said like if you mention that mural one more time I'll something or other, and we stopped talking about the mural at that point actually.

Q. Let me ask you. You've got a note here that says not teach origins of life. Did you have an understanding at the meeting concerning whether teachers did that?

MR ROTHSCHILD: Can we just clarify which document?

MR. GILLEN: Oh, sure. Defendant's Exhibit 20.

MR ROTHSCHILD: Thank you.

THE WITNESS: I think that's the note that's a concern of Mr. Buckingham's that we not do that.

BY MR. GILLEN:

Q. Let me ask you to look at Defendant's Exhibit 20.

A. Okay.

Q. I would ask you to -- can you remember the specific things that were said at this meeting, Mike?

A. I can remember in general kind of what the results were that we all intended to do when we left the meeting.

Q. Okay. Well, tell me about that.

A. Again, that the teachers assured Mr. Buckingham they are teaching that origin of species has changed in time with the species. Mr. Buckingham said that he was fine with that but he wanted assurances that they weren't teaching the origins of life.

Mr. Buckingham brought up an incident that referred to -- it was my understanding that he thought that we did do that and had reports that we did do that from our teachers.

Q. How about, there's a reference to Icons -- I'm sorry, Mike. Go ahead.

A. So the --

Q. There's a reference to Icons of Evolution. Did that come up during the meeting?

A. Yes.

Q. Did you direct teachers to do anything with that video?

A. The teachers, I believe at this point, already had looked at it. And they agreed to review it again. And if there were any pieces that did match up and align to their curriculum, they would consider using the video.

Q. If you look down further beneath that note there's an entry teachers will review tape. Did you take that note as a result of your discussions at the meeting?

A. Yes.

Q. Beneath that there's a notation intelligent design instead of creationism. Tell us what you can recall about that notation.

MR ROTHSCHILD: Are we back now on Exhibit 19?

MR. GILLEN: Yes. Exhibit 19, page 55.

BY MR. GILLEN:

Q. Tell us what you can recall about that item, intelligent design instead of creationism.

A. At the -- I believe one of the things we talked about, the curriculum -- that was written in the curriculum. I think one of the things we talked about and I might have suggested this that instead of us talking about intelligent design or creationism that we -- that we talk about intelligent design and not creationism. I mean, one of the things that I understood is way back in October I had in my pocket an opinion from the solicitor on the teaching of creationism.

MR ROTHSCHILD: Objection, Your Honor.

MR. GILLEN: Yeah. Don't -- you can't --

THE COURT: The objection is sustained. The answer is stricken. You may proceed.

BY MR. GILLEN:

Q. Mike, for the purposes of this examination, do not reference any of that matter that you've discussed with your solicitor. Just the one document that was provided but that's it.

You are speaking to this note you made, intelligent design instead of creationism. And I would ask you to explain what you can recall at this meeting about that.

A. Well, I thought one of the other agreements we had that we would include some language in the curriculum and it wouldn't be creationism. It would be intelligent design instead.

Then on 20 at the very bottom I started drafting language that might be included in the curriculum guide. It was my understanding that -- I mean, I thought I read this language back, and we were in agreement at that meeting that that would be okay to include.

Q. And when you say we were in agreement, who were you referring to?

A. The teachers and Mr. Buckingham and the rest of the board curriculum committee.

Q. Did you come away from this meeting with any sense for whether you had managed to bring together Mr. Buckingham and the science faculty in some sort of consensus?

A. I thought when we were done with this meeting with what we had understood that Mrs. Brown was going to do with the policies, with what the teachers were going to do with reviewing the video, and I was going to do with the curriculum language that Mr. Buckingham would be satisfied, we would move forward and purchase the Miller-Levine textbook.

Q. And did you have a sense for whether Mr. Buckingham was on board with the purchase of the text?

A. Yes.

Q. And I would ask you to look at Defendant's Exhibit 21. Do you recognize that document?

A. Yes.

Q. What is it?

A. This would be a memo from my secretary to Dr. Nilsen's secretary to place on the board agenda the purchase of the Miller-Levine textbook in July.

Q. And did you believe that was consistent with what Mr. Buckingham had agreed to at this meeting?

A. Yes.

Q. Let me ask you to look at Defendant's Exhibit 5. Do you recognize that document, Mike?

A. Yes.

Q. Was there any discussion of this document at the June 24th meeting?

A. No. This was handed out but not discussed.

Q. And did you believe this text was a viable candidate as a possible text for Dover Area School District?

A. No.

Q. And was that based on your review of the document?

A. My review of the description of the text, yes.

Q. There was some -- has been some reference to information you collected about books used by other schools. Tell me how that came about.

A. In -- after receiving objections from Mr. Buckingham and sharing those with teachers, then we looked at -- we were going to show the board curriculum committee and Mr. Buckingham all of the texts that we had looked at. I thought of other places and public schools where we might be able to get some additional books that maybe we hadn't typically looked at.

So I had one of the secretaries in the office survey Parochial schools and also had my secretary look at what Bob Jones was using.

Q. When you looked for texts, did you understand the teachers had already reviewed some texts?

A. Yes, they had.

Q. Why did you select the areas of inquiry that you looked into?

A. Well, pretty much what our teachers, and the main stream publishers that they would get pilot books from or samples from, pretty much what they receive are what all of the local public schools are using.

Q. Focusing on the text purchased, we have just looked at a memo to Barb Holtzapple. Who is she?

A. Dr. Nilsen's secretary.

Q. She was instructed to put it on the agenda?

A. Correct.

Q. I would ask you to look at Defendant's Exhibit 22.

A. I don't have that one.

Q. It's not in the folder?

THE COURT: It may be out of order. In my book --

THE WITNESS: I got it. I'm sorry. Okay.

BY MR. GILLEN:

Q. And I would ask you to direct your attention to the page with the Bate stamp number 101 in the lower right-hand corner.

A. Okay.

Q. The item under Roman 13, curriculum.

A. Okay.

Q. What do you see reflected there?

A. There's -- the first two items are the approval of the Miller-Levine textbook and the second item is the purchase of the books.

Q. And what is the copyright of the text reflected for purchase there?

A. 2002.

Q. Now, you were instructed that Barb place this on the agenda. Did you have a belief whether Mr. Buckingham was prepared to approve purchase of the text for this board meeting?

A. Yes.

Q. What was that?

A. That he would approve it.

Q. I would ask you to turn to Defendant's Exhibit 23 and look at the page with the Bate stamp number 110 in the lower right-hand corner.

A. Okay.

Q. And further direct your attention to the item six, curriculum.

A. Okay.

Q. And do you see approved the text reflected there?

A. No.

Q. And do you know why?

A. Yes.

Q. Why is that?

A. Just before the -- this July meeting Mrs. Spahr called me and said that she had just discovered that Rob Eshbach had received the 2004 biology text and she just opened it by accident and asked that we postpone the approval of these books so that they could take a look at that book, because they thought pretty much they would probably want the 2004 edition instead.

Q. Who made that request?

A. Mrs. Spahr.

MR. GILLEN: Judge, I suggest it's a good time and high time to adjourn for the day. Are you amenable to that?

THE COURT: Any objection from the plaintiffs?

MR ROTHSCHILD: Not at all, Your Honor.

THE COURT: We'll call it a week and we'll reconvene and continue with direct examination of this witness at 9 a.m. on Monday. And of course we'll have a full trial day on Monday. And I wish you all a pleasant weekend. We'll see you Monday.

THE CLERK: All rise.

MR. GILLEN: Your Honor, if I may, one housekeeping matter. We have an expert coming in from Great Britain which we would like to begin with on Monday, if that's okay.

THE COURT: Any objection?

MR ROTHSCHILD: No objection.

THE COURT: So we'll suspend Mr. Baksa's testimony and we'll pick it up after the expert.

MR. GILLEN: Thanks, Judge.

THE COURT: All right. We'll start with that on Monday. Thank you.

(The proceedings were adjourned at 4:34 p.m.)