RationalWiki:Kitzmiller v. Dover annotated transcript/P028

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Trial transcript: Day 8 (October 12), AM Session, Part 1

THE COURT: Be seated, please. All right, good morning to all, and welcome back for our next day of trial. We have, we're mid-examination I guess, and we can have our witness back on the stand, and I believe we're on cross, is that correct?

MR. GILLEN: That's correct, Your Honor.

THE COURT: All right.

(Bertha Spahr was recalled to the stand.)

MR. GILLEN: Judge, may I approach the witness for the purpose of providing a separate binder?

THE COURT: You may.

CROSS EXAMINATION BY MR. GILLEN:

Q. Good morning, Mrs. Spahr.

A. Good morning.

Q. Pat Gillen, we met at your deposition. I'm going to ask you a few questions today about the trial testimony you gave last week. Before I do that, I'd just like to ask you have you consulted with anyone about your testimony last week in-between being released from trial?

A. No.

Q. Thank you very much. You did so at advice of plaintiff's counsel?

A. And my own counsel.

Q. Oh, good. I thank all of you for respecting that integrity of the process. Mrs. Spahr, I'd like to start my questioning of you with just a few questions about the 2003 year. It's correct, is it not, that during that year the science department learned that the purchase of the science text would be delayed due to fiscal considerations?

A. Yes.

Q. And there was a notion expressed in connection with that that the texts appeared to be in good and usable condition?

A. That's correct.

Q. We have had some discussion about a memo from Dr. Peterman that was created and it recounted a conversation that you and Dr. Peterman had, and I just want to make sure I have the details of that straight in the record. When you had that discussion with Dr. Peterman, it was about instruction in biology class?

A. That's correct.

Q. And you were the head of the science department at that time?

A. Yes.

Q. And Dr. Peterman was the principal for the high school, is that correct?

A. At that time, yes.

Q. And if I'm correct, you had brought to her your concern about a possible change to the biology curriculum?

A. Yes.

Q. And you told her it related to creationism, correct?

A. That's correct.

Q. Now, before you spoke with Dr. Peterman you had spoken with your science faculty?

A. Yes.

Q. And based on that you told Dr. Peterman that creationism per se was not taught because it was not within the state standards?

A. That's correct.

Q. You told her that the teachers mentioned that another theory of evolution was creationism, but they did not teach it, is that correct?

A. That's correct.

Q. And that's what the teachers had told you?

A. Yes.

Q. At this time Jen Miller was the veteran biology teacher?

A. Yes.

Q. And she explained to you that teachers would mention creationism as an alternate to Darwin's theory?

A. Yes.

Q. And she also told you that we tell the students if they want to talk about that they should talk to their pastors, correct?

A. Pastors or their families.

Q. That's right. And they did that because they knew that the subject was controversial and they wanted to treat it properly?

A. Yes.

Q. In addition the teachers would sometimes point students to books on the subjects, correct?

A. They referenced the reference section of the library if they had additional questions.

Q. Okay. And if I'm correct, at the end of that conversation with Dr. Peterman as reflected in the memo she told you to tell the science teachers just keep what they're doing, correct?

A. Continue what we had done in the past.

Q. Thank you for correcting my imprecise sentence. All right. Now, you discussed with Dr. Peterman some of the concerns you had about this notion of perhaps working creationism into the biology curriculum, correct?

A. Yes, I did.

Q. And one of those concerns was just a practical consideration of time constraints, the teachers were already pressed for time trying to present the state standard material, and how would another subject be worked in, correct?

A. That's correct.

Q. Now, at the board meetings in 2004, I'm taking you forward to -- well, actually let's look at 2003. Do you recall Barrie Callahan making mention of the notion that the students in biology didn't have books?

A. Yes, I do.

Q. And although she expressed that concern, I know it wasn't technically accurate that they didn't have books, correct?

A. They did not have books for one year, and there was a good reason for that, and the curriculum was basically realigned to meet the state standards, and we had in one year all of 9th grade and 10th grade taking biology, four hundred students with two hundred books.

Q. Right. So in a sense what she was getting at and what you're saying is that no text was assigned to each student?

A. That's correct.

Q. But they did have texts that they used as classroom texts?

A. There were classroom sets available, and there were also books available if any student wished to take a book home.

Q. And during the period when you were realigning instruction to meet the new state standards, two grades were taking biology?

A. That's correct.

Q. And that's what accounts for the practice of the classroom sets as opposed to assigning?

A. Yes.

Q. One other feature of the new state standards was that they redistributed in some ways some topics among different subjects, correct?

A. Yes. Classification was removed from what we now taught in the 9th grade biology curriculum book to the middle school in life science, that area.

Q. Okay.

A. And ecology went into a separate course, which was now part of the course for 10th grade.

Q. Right, and that would naturally affect the way you looked at the text also, correct?

A. Correct.

Q. Different texts have different strengths?

A. Yes.

Q. And I believe the 1998 Miller and Levine on biology was strong on classification, correct?

A. And ecology.

Q. Now, if we take that discussion with Dr. Peterman in April, or about April of 2003 until the fall meeting with Allen Bonsell, you don't recall any discussions relating to this issue?

A. Not specifically.

Q. Now, that fall meeting took place at the suggestion of the science department?

A. I believe that is correct.

Q. And you know it was suggested that if Mr. Bonsell had concerns, that the faculty was confident that they could address them, correct?

A. We felt that we had the scientific expertise to answer any questions he may have had, as opposed to Mr. Baksa, whose training we believe was not in science.

Q. Correct. So we have this fall 2003 meeting with Alan Bonsell, and you can't recall any specific questions that he asked?

A. The questions he had basically were directed to Jen Miller, who was the lead biologist. I was there more taking note as the department chair. She was answering the biology questions.

Q. Right, and you as department head it's kind of your role to facilitate that sort of interaction, correct?

A. I am not a first line supervisor.

Q. All right.

A. I am a facilitator.

Q. But you do recall as you say Jen Miller explaining the way she presented evolutionary theory in class?

A. Very clearly. She tried to make the differentiation between origin of life and origin of species. She emphasized that when evolution is taught in the biology classroom, it is taught as change over time.

Q. Right, and she used as an example the bird, the finches, Darwin's finch, and the change of one finch to another, correct?

A. Yes.

Q. We learned a lot about that Galapagos Islands.

A. The bird and the tree, yes.

Q. Now, the meeting as you recall was cordial, civil, collegial?

A. Yes.

Q. And you left the meeting believing that Mr. Bonsell had been satisfied?

A. We felt that we had answered his questions and his concerns at that time, yes.

Q. Now, as we've noted the texts weren't purchased in 2003, correct?

A. That's correct.

Q. And as the head of the science department you had some concern that if the science department missed its turn in 2003, it might have to go to the next seven years of the cycle before to get new books?

A. Yes, and I brought that concern to the appropriate attention.

Q. That's right, and instead what happened was the money was escrowed for next year to purchase science books, correct?

A. We were not certain of that, but we were led to believe that that was the case.

Q. Okay, and ultimately the book was purchased, the science books were purchased in 2004, not 2003?

A. That's correct.

Q. When we look now at 2004, I just want to get a sense again for this text purchase and how it unfolded, we're moving quickly, and I hope to do that, if I'm correct you recall a meeting with the board curriculum committee that occurred in the spring of 2004 prior to the June meetings, correct?

A. There were several.

Q. And one of them focused on a purchase of a family and consumer science text?

A. Yes. That was the one that was earlier in the spring.

Q. And at that meeting were present Mr. Buckingham, Mrs. Harkins, Sheila Harkins, and Casey Brown, correct?

A. Yes.

Q. Along with members of the faculty at the high school?

A. Members of the faculty, that's true, and Mr. Baksa I believe was present as well.

Q. Thank you, yes, the administration. And you recall Mrs. Harkins asking the teachers, "Do you realize that there's about five words difference between the old text and the one you're recommending for purchase," correct?

A. Yes, I do.

Q. You left that meeting somewhat uncertain concerning whether the family and consumer science texts would be purchased, correct?

A. That's correct.

Q. Then there was a later meeting in June of at which the science texts were the focal point of the discussion?

A. That's true.

Q. And you remember I believe Casey Brown complemented you on your selection of a new chemistry book?

A. Yes.

Q. The biology text was discussed again?

A. That's right.

Q. During that meeting, and during that meeting if I'm not mistaken that's the meeting where Mr. Buckingham expressed his conviction that teachers were addressing the origins of life, correct?

A. He had asked us more than once if we teach man comes from a monkey. In response to that in utter frustration I looked at Mr. Buckingham and I said, "If you say man and monkey one more time in the same sentence, I'm going to scream." He did not do that, and I didn't have to.

Q. And that's because you're Italian, Mrs. Spahr, is that right?

A. Sicilian.

Q. I'll remember that.

A. Let's clarify that.

Q. And there was this discussion that he said well, what about this, the mural came up again, correct?

A. The mural came up again because I finally said to him, "Does this go back to the mural that appeared in Room 217?" He did not acknowledge that question. I then asked him, "Could you please explain where you obtained the picture of the mural that you had at a board meeting earlier in the spring that someone had seen and brought to my attention?"

Q. Right, I got the picture of the mural. Now, if I'm not mistaken, Mrs. Spahr, Jen Miller explain again, "We don't address that portion of evolution theory," correct?

A. That's correct.

Q. Now, around this time, these are meetings in June, the faculty were given some videos and DVD's for review, is that right?

A. We were given one.

Q. Well, you were given three, but you looked at one, correct?

A. We were given one I believe, and we did view it. I believe there was a series of three. To my knowledge we only had the one.

Q. Well, you remember reviewing one, correct?

A. Yes.

Q. Okay. But there were three, correct?

A. That is my understanding, yes.

Q. And the teachers agreed upon reviewing that video that there was some validity to the information it contained?

A. Yes.

Q. And they indicated in fact that they'd be willing to point out gaps in evolution theory?

A. That's true.

Q. In fact, many teachers were already doing this --

A. Past practice we have, in the biology curriculum they had done that --

Q. Yes.

A. -- in the past.

Q. So kind of the notion that was discussed here was well, it will be consistency --

A. That's correct.

Q. -- that will ensure. Now, we have seen some documentation related to a text put out by Bob Jones University Text Press, but Mr. Baksa never asked you to review that text?

A. He handed us that piece of paper and said, "This may be a book that you would wish to consider while you're reviewing books for biology."

Q. But he never told you to look at that text, did he?

A. I never had a copy of the text. I just looked at the document he had handed me.

Q. And you came away from that meeting with the assurance that the text recommended by the department, which at that time was the 2002 edition of Miller and Levine, would be purchased, correct?

A. The last thing I said to Mr. Buckingham before we departed, because we were now all getting ready to leave for the summer, "Do I have your assurance that we will have the 2002 biology text in the hands of our teachers when fall begins?" He looked at me and said yes, and I took him at his word.

Q. Yes. And if we go into the, look at the school board meetings that are taking place in June, there was still mention of this notion that the kids don't have texts, correct?

A. That's correct.

Q. But for the reasons we've discussed that wasn't really accurate. It's more accurate to say the texts weren't assigned to each student?

A. I believe at the June 14th board meeting I made that statement during public comment to clarify that issue so that the public did not think we were asking for new books when in fact we didn't use the old ones which were there.

Q. Right. Now, you didn't attend the first board meeting in June of 2004?

A. That is correct I believe.

Q. But you did attend the second?

A. I did, June the 14th.

Q. Forgive me for cutting you off. And that's because you anticipated that the texts would be purchased, approved at that board meeting as per the assurance of Mr. Buckingham --

A. The chemistry textbooks and the family and consumer science textbooks were on the agenda for adoption. I went in case there happened to be any discussion as to why this particular chem book was being recommended over some other publisher.

Q. And Barrie Callahan was at that second meeting in June?

A. I believe so.

Q. And she also asked why the science books hadn't been purchased?

A. Yes.

Q. And former board members Lonnie Langione and Larry Snook were there?

A. I believe.

Q. And they spoke?

A. Yes.

Q. There were some heated exchanges between the public and the board members?

A. I believe that's correct.

Q. And you remember some comments by Bill Buckingham, but nothing that Alan Bonsell said?

A. That's true.

Q. Or that Heather Gessey said?

A. That did not occur at that meeting.

Q. Oh, I understand, and that's what I'm focused on, that second meeting in June --

A. June 14th.

Q. Your don't remember anything Heather Gessey said?

A. Not specifically.

Q. Right. Or Jane Cleaver?

A. No.

Q. Or Angie Yeungling?

A. No.

Q. Or Sheila Harkins?

A. No.

Q. Okay.

A. I remember things that pertained specifically to me.

Q. And I understand that, we all do. Now, up through June of 2004 the biology text was the edition of Miller and Levine biology?

A. That was the one we were proposing, yes.

Q. But subsequently the department received a more recent edition, the 2004 edition, correct?

A. I came in to school sometime either late in June or the beginning of July, and upon the desk was a box from Prentice Hall. I had the good fortune of opening it because I thought it might be teachers editions, which the staff would need over the summer in their preparations, only to find the 2004 edition of Miller and Levine.

Q. And you knew that the board was going to have questions if you were recommending purchase of a 2002, and there was a 2004 edition?

A. And rightly so, because at that point the book would already be probably somewhere between two and four years old, and if the new edition is there it would sometimes appear it would be a waste of money to buy an older edition.

Q. And I believe you said that after receiving that, you had a get-together with Mike Baksa and Jen Miller and you went over the 2002-2004 text, correct?

A. I immediately called Mr. Baksa to inform him that the 2004 edition was there and thought that this could now be a new issue in all of the work that it took to get the 2002 edition approved.

Q. And you reviewed those two texts in light of the concerns that Mr. Buckingham had raised, correct?

A. The only chapter that we reviewed was the chapter on evolution.

Q. I got that, Mrs. Spahr, and what you were doing was looking to see if the presentation reflected changes in light of the controversy that had been seen in print for the last several years, correct?

A. That's correct.

Q. And it was around this time that the text Of Pandas and People came up as well, correct? July of 2004?

A. It was at that meeting that I first saw a copy of Of Pandas and People.

Q. And you started looking into that text, correct?

A. I did not, no.

Q. Well, didn't you learn that college professors were using it? Subsequently you started to look at the text?

A. At the July meeting the text was given to Jen Miller to look at.

Q. Right.

A. Okay? I left that meeting without a copy of the book, and did not see it until a later time.

Q. Okay, and subsequently though you did look into the text yourself?

A. Yes.

Q. You learned that college professors were using it?

A. In the front of the book there was one high school teacher and all of the rest were college professors that had reviewed it.

Q. But you thought it was not appropriate for use by 9th graders?

A. Indeed. The vocabulary was too sophisticated, the complexity of the material which was presented would never have been suitable for a 9th grade student. We had enough trouble reading it.

Q. Now, later then I believe you did not attend the August 2nd, 2004 -- I believe you did not attend the August 2004 board meeting because you were on vacation?

A. That's correct.

Q. But there was a board curriculum committee meeting in late August of 2004 that you did attend?

A. Yes.

Q. And that meeting featured discussion of the idea of using Of Pandas in connection with the Miller Levine text, correct?

A. Yes. That original idea came out of the board meeting where the adoption of the Miller and Levine book was being presented.

Q. And Dr. Nilsen and Mike Baksa, the assistant superintendent, were trying to find some sort of compromise position between the faculty and the board, correct?

A. That's correct.

Q. And essentially it's consisted in that the teachers didn't want the book Of Pandas used in the classroom, whereas the board was trying to find some way to work it in, is that correct?

A. That's correct.

Q. And what was proposed there was the notion of having the book Of Pandas available as a reference text, correct?

A. In each of the individual classrooms, yes.

Q. And the notion was essentially was it will be there if students want to reference it they can do that because it will be in the classroom, but we're not working it into instruction, correct?

A. That's correct.

Q. Now, if we end there at that August 2004 board curriculum meeting, there was really no discussion about this issue again until October, which was the start of the school year and everyone was busy, correct?

A. For the most part, yes.

Q. You later learned that Dr. Nilsen had accepted the donation of text Of Pandas, correct?

A. Yes.

Q. And then on or about, and I'm not going to hold you to the date, October 8th, 2004 you got a draft curriculum change from Mike Baksa, correct?

A. That's correct, and that is the correct date.

Q. Okay, and you received the draft because you were the head of the science department?

A. That's true.

Q. You passed it on to your biology teachers?

A. Yes.

Q. The draft language that you received at that time said that students would be made aware of gaps and problems in Darwin's theory, correct?

A. That's correct.

Q. And that was consistent with what had been discussed in June?

A. Yes.

Q. And it also said that students would be made aware of other theories of evolution, correct?

A. Yes.

Q. And again that was consistent with what the teachers had discussed in June?

A. Yes.

Q. But, you know, it also mentioned intelligent design, the teachers were not on board with that idea?

A. We were not.

Q. And it also listed the text Of Pandas as a reference, and again the teachers didn't want that listed?

A. True.

Q. So the science department sent back a revised draft?

A. That's true.

Q. And it essentially took those two things out, the mention of intelligent design, correct?

A. Yes. We had a period at the end of word "evolution," and the Of Pandas and People reference was removed.

Q. Right, and then it also deleted the reference to Of Pandas under the resource and materials column, correct?

A. Yes.

Q. And that's the column in the curriculum, proposed curriculum change that you had been given for review, correct?

A. Yes.

Q. Okay. Good enough. Now, the next thing I'd like to ask you a few questions about is the October 18th board meeting, and what I'd like to do is, I've put these up in the hope that they would be of some use to you. I'm going to ask you about the various versions of the curriculum change that were at issue on that evening, okay?

A. I have new glasses, but this could be an issue.

Q. Well, you know, if you look in that book --

A. That binder?

Q. Yes. And you will see that it's essentially Defendant's Exhibit 60, 61, and then 68 I believe.

A. I'm at 61.

Q. All right. What I want to just get into the record for my perspective is the documents that were at issue here as we approached this meeting, and if you look at 60, Mrs. Spahr, you'll see that that's billed as the board curriculum committee's recommended changes, correct?

A. 60 or 61? You referred me to 61.

Q. Oh, did I? I'm sorry. Look at 60, please.

A. Okay.

Q. Now, I just want you to take a look at that. You'll see it contains, the cover memo contains a reference to the board curriculum committee's proposed change. Do you see that?

A. Yes.

Q. And if you flip the page you'll see the proposed change there.

A. I see it.

Q. And that includes the reference to intelligent design, correct?

A. It does.

Q. And it also lists Of Pandas as a material resource?

A. Just like the document I was handed on October the 8th.

Q. Okay. So that's marked Roman XI, hyphen, capital A, correct? You know, that's fine. The record will take care of that, I'm sorry. Flip over to Exhibit 61.

A. Okay.

Q. And you'll see that that's billed as the staff administration recommended change?

A. This was the recommended change by the science department that we gave to the administration.

Q. And that we have just discussed, correct?

A. Yes.

Q. Now, then if you would, Bert -- I'm sorry, Mrs. Spahr, would you look at Defendant's Exhibit 68?

A. I have the cover letter.

Q. Okay. And you'll see that described as a second staff administration draft on the cover memo?

A. Yes.

Q. And then if you'll look at that, Bert, I want to ask you a few questions. First of all, you received this just prior to the meeting on October 18th, correct?

A. Probably about 6:25.

Q. Okay. And if you look at that, Mrs. Spahr, you'll see that there's some highlighted text, correct?

A. Yes.

Q. All right, and what's significant about that, and I'm going to ask you is this, first of all if you look in the second column of the proposed curriculum change under "Unit Concepts" and so on?

A. I'm there.

Q. You'll see that that lowest entry references other theories of evolution, correct?

A. It does.

Q. But it does not include the reference to intelligent design?

A. It does not.

Q. Now, if you turn to the, your attention to the right, materials resources column, you'll see however that it does retain the listing of the text Of Pandas as a resource?

A. Yes.

Q. So in these two respects it's somewhat dissimilar and somewhat different from the board curriculum committee's version. First, it omitted the reference to intelligent design, correct?

A. This one appears to, yes.

Q. The second change is the note that's added there in the lower left-hand corner?

A. Yes.

Q. And that says that origins are not taught, correct?

A. Origins of life, okay, is not taught, and that we were told was added by Mr. Bonsell.

Q. Right. I'm going to ask you a few things about that. Now, you've testified previously that the teachers could have settled for this particular version, correct?

A. Yes, we could have settled for that.

Q. And you had heard that Mr. Bonsell had the idea of attaching that note to the curriculum, correct?

A. That's correct.

Q. And it was an effort to allay the teachers' concerns about including intelligent design?

A. We were never told what his motivation was behind it. We were just told he contributed it.

Q. Let me ask you this. You understood that that note would mean that intelligent design wasn't taught?

A. We looked at this and thought that the origins of life is not taught, which it is not. And if origins of life are not taught, then there would be no reason for intelligent design, and furthermore we felt no reason for the reference of Of Pandas and People.

Q. And that's because you're looking right at the subtitle of the text and it says that it deals with the central question of biological origins, correct?

A. That's correct. The subtitle to the book.

Q. As we get up to that October 18th board meeting you remember Dr. Nilsen making a comment to you that you thought at the time -- well, you've never really understood it, correct?

A. That's correct.

Q. And it was something to the effect that whatever happens, don't clap?

A. That's true.

Q. And it gave you the sense that you thought the administration might thought a different document was going to be approved, something that the teachers would be happy with?

A. We were not exactly sure what that meant, but we sat there, waiting, to find out.

Q. You had a sense that comment indicated he wasn't certain and thought the outcome would be favorable to you guys?

A. That was our feeling.

Q. And by that colloquial expression "you guys," I mean the science faculty.

A. That's true.

Q. The science faculty had discussed the October 18th 2004 board meeting and agreed that it would be good to attend, correct?

A. Indeed.

Q. And other teachers turned out to show their support for the science faculty?

A. They did.

Q. The meeting began with public comment?

A. As always.

Q. And that's the point at which you stood up to read the statement that you read into the record?

A. Yes.

Q. Now, with that statement you began by noting that the science faculty did not agree with the inclusion of intelligent design, correct?

A. Very true.

Q. And you felt that there was a need to make that plain in public because the you felt at least the newspaper coverage made it look like the science teachers were on board with that aspect of the curriculum change, correct?

A. There were two factions in the community at the time. Many people thought that we, the science department, agreed with what the board was doing, which we did not. And the other half believed that if we did not support it, then we had to be atheists. That offended my science department because two members of the science department are sons and daughters of ministers.

Q. And your basis for that is essentially, you know, rumor or what you were hearing sort of second or thirdhand, correct?

A. Well, in some instances it was a little more direct than that. If we were out in a drugstore or the food store people, would come up and make comments.

Q. Well, I mean you didn't hear anything firsthand accusing you of being an atheist?

A. Not correctly, no.

Q. And you made this statement in public because you had the sense that the newspaper coverage was creating impression that the science faculty was supporting the curriculum change?

A. There had been some coverage in the newspaper, not necessarily by reporters, that gave the idea that we had been involved in the implementation of certain statements, and that was not necessarily true.

Q. When you made your statement you also pointed out that the teachers had tried to compromise with the board curriculum committee?

A. Yes, I did, in four different areas.

Q. Exactly. And they were the science faculty had agreed to point out problems with Darwin's theory?

A. That's true.

Q. They had agreed to make students aware of other theories of evolution?

A. Yes.

Q. They had agreed they would assist students if they wanted to seek other reference material on the subject?

A. Yes.

Q. They had agreed to have Of Pandas in the classroom as a reference text?

A. As a reference text.

Q. And you also observed that the teachers did not teach origins of life.

A. That is correct.

Q. Okay.

A. And that was for the clarification of the community.

Q. Okay. In addition you asserted in this statement at the public meeting that teaching intelligent design would be unlawful, illegal, and unconstitutional?

A. That's how we felt, yes.

Q. And the basis for that was your opinion that intelligent design was creationism?

A. Was a synonym for.

Q. Okay.

A. And I got that idea when I looked at the catalog from which the book had been ordered and it was listed under creation science.

Q. Speaking of that catalog, Mrs. Spahr, you didn't pass that on to Dr. Nilsen, did you? You kept that in your files?

A. Yes, as I do all other book catalogs that I receive.

Q. And you didn't pass it on to Mr. Baksa either?

A. No.

Q. You had in your statement you also expressed the concern that the inclusion of intelligent design would possibly open the teachers to a lawsuit?

A. We were concerned over that issue, yes.

Q. I understand. And part of that related to the untenured teachers in the district, correct?

A. That's correct.

Q. In fact, if I'm not mistaken you asked Bill Buckingham in the middle of your statement whether or not the teachers would be required to teach intelligent design?

A. That was part of my statement.

Q. And you asked for a delay to work out some sort of compromise?

A. I gave them a challenge.

Q. There was a heated discussion after Mr. Buckingham responded to your comments, correct?

A. When I finished my statement Mr. Buckingham looked at me and wanted to know where I had received my law degree. There was a gasp that went through the audience, I looked at him, I remembered what a former principal had told me, and I did not dignify it with a comment, and sat down.

Q. And the gasp was from the audience?

A. It was.

Q. And you know, Bert, that's because you've been teaching at Dover for forty years?

A. I have.

Q. So there's a lot of people in the community who know you?

A. That's true.

Q. And respect you?

A. I hope so.

Q. And when that comment was made there was a negative reaction on the part of the crowd, and in fact Lonnie Langione got up and -- well, you described in your deposition I believe practically jumped out of his chair and took issue?

A. And came to my defense, yes.

Q. There was a lot of heated discussion in the aftermath of that comment, correct?

A. Yes.

Q. And as things wound down, Mr. Langione asked what does it mean in the classroom, correct?

A. He did.

Q. And there was a notion expressed that well, a statement might be read in the classroom, correct?

A. Yes.

Q. Now, later stepping back from that October 18th, 2004 board meeting there was another meeting on or about October 28th, 2004, correct, Mrs. Spahr?

A. Would you please refresh my memory on what that meeting was? Because we attended many.

Q. Yes, and once more my question was imprecise. It was a meeting with Mike Baksa.

A. Concerning?

Q. Concerning the, what the curriculum change would mean for instruction.

A. Okay. Thank you.

Q. No problem. You remember that meeting?

A. Yes.

Q. And he presented a draft statement to the science faculty?

A. I believe it was four paragraphs.

Q. And Jen Miller has already testified there was some back and forth between the science faculty and Mr. Baksa over this statement, its accuracy?

A. I delegated her as the veteran biology teacher to be in charge of tending to that particular thing since it did not affect me and my subject.

Q. Right. Because you're a chemistry teacher, correct?

A. That's correct.

Q. And Jen Miller was the veteran biology teacher. Good enough. Now, Mrs. Miller, she solicited input from the faculty about the proposed changes --

A. The other biology teachers --

Q. Mrs. Miller solicited input from the other members of the science faculty regarding her proposed revisions to the statement that had been presented to her by Mr. Baksa?

A. That's true.

Q. Okay. Now, we know that ultimately the teachers refused to read the statement for the reasons you've expressed, correct?

A. Yes.

Q. All right. You felt that if, the science faculty, that is, felt that by reading the statement they would give credibility to the notion that intelligent design was a scientific theory?

A. That's true.

Q. And they were opposed to that notion?

A. They were.

Q. The basis for your particular opinion, Mrs. Spahr, is that you think intelligent design cannot be proven scientifically?

A. That's correct.

Q. Therefore, in your opinion it doesn't belong in a science class?

A. That's true.

Q. When you say it can't be proven, it's with reference to your understanding of the notion of testability?

A. In science we have a very defined pattern of behavior to test anything. We observe and gather data, we propose a question, we formulate a hypothesis, we go into the laboratory to test the hypothesis and draw a conclusion. After many people have done the same experiment we are now prepared to propose a theory.

A theory is a confirmed explanation, and from that we develop models.

Q. And I do understand your view of the matter. Just in contrast you think that evolutionary theory is testable according to the criteria you've just described?

A. My biology teachers feel that way. That is their field of expertise.

Q. Okay, and that's based on their training as science teachers, correct?

A. That's correct.

Q. Now, ultimately, Mrs. Spahr, I just want to look at the current situation so far as you can speak to it, the 2004 edition of Miller and Levine was purchased as recommended by the science faculty?

A. Yes, it was.

Q. The text Of Pandas and People is a reference text in the library, correct?

A. In the library.

Q. Yes. Not in the classroom?

A. That's true.

Q. Okay. The curriculum change has resulted in a statement that's read in class?

A. Yes.

Q. Biology, however, as taught in the classroom is taught according to state standards, correct?

A. Yes.

Q. Dr. Nilsen has directed that creationism is not to be taught, correct?

A. That you would have to deal with the biology teachers. That is my understanding, yes.

Q. Okay, and religious beliefs of teachers are not to be taught?

A. Yes.

Q. And the teachers never taught that, correct?

A. To my knowledge.

Q. They referred students with those sorts of questions to their pastors or their family?

A. To their pastors and/or their own family.

Q. Okay, good enough. And the religious beliefs of the board are not to be taught, correct?

A. I am assuming so.

Q. Okay. So far as you know teachers comply with those directives?

A. To my knowledge, yes, although I am not a first line supervisor. So I do not have the opportunity to go into the classroom to see exactly what they are teaching. I have a full teaching load of my own.

Q. Okay. I've got one last question I want to ask you, Mrs. Spahr, and it's just for the purpose of putting things in context and being fair. As I've told you, I understand that you're well respected in the community and you have taught there for forty years. But do you recall in your statement that you accused Mr. Buckingham of operating from a personal agenda?

A. I do.

Q. Did you ever give any thought to how he felt when you accused him of that at that public meeting?

MR. SCHMIDT:: Your Honor, I think that strikes me as argumentative and certainly beyond the scope of direct examination. Mrs. Spahr is not a party.

THE COURT: Do you care to respond?

MR. GILLEN: Well, Your Honor, I mean she has testified, and I have tremendous respect for this witness, who I've deposed, that she felt deeply insulted and so on. What I'm -- and I understand that, but what I'm trying to get across for the court so you can see the context of the meeting is that prior to that unedifying comment, you know, Mr. Buckingham had also been accused of operating from a personal agenda, not with the best interests of the students at heart and --

THE COURT: Well, if Mr. Buckingham testifies and if he says that he was and he was insulted, and if that prompted comments by him, then I think that's relevant. Her impression as to whether or not he was insulted I'm not sure is in any way relevant to the proceedings, so I'll sustain the objection.

MR. GILLEN: Okay.

THE COURT: It doesn't move the ball as far as the case is concerned.

MR. GILLEN: Okay. Thank you, Your Honor. With that in mind, no further questions.

THE COURT: All right.

MR. SCHMIDT:: No redirect.

THE COURT: Thank you, Mr. Gillen. No redirect? Ma'am, you may step down. That completes your testimony. We have some exhibits that we must take up, starting with the direct examination last week. We have the notes by the witness, that is P-90, and we have the catalog, which is P-144. Are you moving for the admission of both of those exhibits?

MR. SCHMIDT:: I apologize, Your Honor. Yes.

THE COURT: That's all right. I lost you there for a minute. Any objection, Mr. Gillen?

MR. GILLEN: Well, P-90 I would object to. It's been read into the record and it's a statement that she prepared in anticipation of the meeting.

MR. SCHMIDT:: Your Honor, she has read the exhibit into the record. So rather than tussle about that, the contents of it are part of the record.

THE COURT: How about P-144, Mr. Gillen?

MR. GILLEN: If you'd give me a moment, Your Honor?

THE COURT: All right.

MR. GILLEN: I'd object to that, Your Honor.

THE COURT: On what basis?

MR. GILLEN: It's hearsay. It doesn't really have any bearing on -- she's testified that showed up in a box when the book was ordered. It's not a business record or anything of that nature. It was never passed on to the administration. They didn't know it existed until she produced it. So it's hearsay and not relevant.

MR. SCHMIDT:: Your Honor, she received the catalog with the book. She received them as the designated employee of the defendant school district, who was the person who received the books. She unpacked it. There's no challenge to the authenticity of the document, and it is the publishers' or distributors' description of the nature of the text that's highly relevant to this case, so it seems to me that it comes in.

THE COURT: Well, she's the designated recipient. She is an agent of the school district. You know, I didn't hear an authenticity challenge. I don't think there is one. Her testimony was that it was in the box when she opened it. I'm inclined to let it in, unless you have another argument you want to make, Mr. Gillen.

MR. GILLEN: Well, I've made my argument. I don't think it's a business record. It's something that she basically received in the mail. I mean, it's not a business record in the sense that it's not her job to keep the catalog, there's no testimony to that effect, and she didn't pass it on to the administration, so they didn't even know it existed.

MR. SCHMIDT:: Your Honor, on the second issue, there was no reason for her to pass it on to the administration because she received it as an employee of the district and kept it as part of her files as the head of the science department, which was her testimony.

THE COURT: Yes. I don't see her failure to pass it on to the administration as being necessarily fatal.

MR. GILLEN: I guess what I'm saying, Your Honor, is if she would have received the catalog any number of ways, her mailings or mailings she received, solicitations from any number of sources.

THE COURT: Well, you could cross her on how she received it. I mean, then you're expanding your objection to say conceivably she got it another way than in the box that was sent, but I didn't hear that.

MR. GILLEN: No, you did not. I have no reason to believe it didn't show up in the box with the book.

THE COURT: So the box was designated, to the extent she was the duly appointed agent to receive it, it was within it. The purpose of the exhibit is to show that within the box there was a brochure from the publisher that had other books and the books were under certain, under a certain designation. I'll allow it for that purpose, the purpose offered by the plaintiffs, and nothing more. So we'll overrule your objection in that regard and we'll admit P-144. P-90 has been withdrawn, so there's no ruling on that.

Now, on cross we have D-60, D-61. D-60 is the memo and change curriculum guide. D-61 is the memo and planned curriculum guide, D-61 is, and D-68 is the memo and the second draft. Now, some of those may have gone in under plaintiff's designations I think.

MR. SCHMIDT:: They already have.

THE COURT: Were all three of them admitted, Mr. Schmidt?

MR. SCHMIDT:: Yes.

THE COURT: So we don't need to dispose of those in any way. They just had the plaintiff's exhibit numbers, and we'll do those. I think that's everything. Tell me, gentlemen, if I'm wrong, if I've missed everything.

MR. SCHMIDT:: I believe you're right, Your Honor.

MR. GILLEN: I believe you're right.

THE COURT: All right. Then we'll take your next witness.