RationalWiki:Kitzmiller v. Dover annotated transcript/P030

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

THE COURT: We'll pick up then with Mr. Muise's cross-examination of Dr. Alters.

MR. MUISE: Thank you, Your Honor.

CROSS-EXAMINATION BY MR. MUISE:

Q. Good afternoon, Dr. Alters.

A. Good afternoon.

Q. Sir, you're not a scientist. Correct?

A. Correct.

Q. And you've never actually taught biology in a public high school. Correct?

A. Correct.

Q. You have no specific training or experience with regard to the Pennsylvania standards for teaching science. Isn't that correct?

A. Correct.

Q. Sir, in your direct, you indicated that you coauthored a biology textbook, a college-level biology textbook entitled, Biology: Understanding Life. Is that correct?

A. Yes.

Q. And your coauthor was your wife?

A. Yes.

Q. And you and your wife hold Ph.D.s in education. Correct?

A. Correct.

Q. And neither you nor your wife are scientists. Correct?

A. Correct.

Q. Now, I gather from your testimony and what you've provided in your expert reports in this case that one of your principal concerns is with students bringing misconceptions to the science classroom. Is that accurate?

A. Yes.

Q. And you have studied students' misconceptions concerning evolution. Correct?

A. Yes.

Q. You haven't done, yourself, any studies as far as how students reach these misconceptions. Is that correct?

A. I've done studies in interviewing thousands -- well over a thousand students in how they report learning those misconceptions.

Q. But in terms of how they reach those misconceptions, you haven't done any studies on that?

A. It's a technical point here. It's a little complex. To be able to do a study on how they would learn those misconceptions, it might be done something as follows: You might have to take a couple hundred students, randomly assign them into two groups, a control group, a test group. The control group would be evolution only. The test group would be evolution and intelligent design, say.

And to be able to run that and then run it through and see what the difference is, most university professors that I'm aware of at most universities in North America that I'm aware of, certainly my universities, require you to go through a human subjects review board to approve your research ahead of time on human subjects.

They ask in there, is there any deception of the students, and I would have to respond, yes, we're going to teach that intelligent design in the treatment group is an alternative scientific theory and teach it as science to the students. They then respond, do you predict that the good of the experiment will outweigh the detriment to the deception of the students, and I'd have to respond, no, I don't think so.

So that type of research that you're requesting is pretty much considered unethical by ethical review boards for human subjects.

Q. So, again, sir, the answer is that you have not done any studies as far as how students reach misconceptions?

A. The type of experiment I just described, no, I haven't done any like that.

MR. MUISE: May I approach, Your Honor?

THE COURT: You may approach.

BY MR. MUISE:

Q. Sir, I'm handing you what is your deposition that you gave in this case on June 2nd, 2005, and I'd ask you to turn to Page 104, please.

A. Okay.

Q. Could you read the question beginning at Line 11 all the way through your answer at Line 14?

A. (Reading:) Have you done any studies as far as how students reach misconceptions? No. Mr. White: Why don't we --

Q. That's fine, sir. That was through Line 14. Correct?

A. Yes.

Q. Was that a truthful answer you gave in your deposition?

A. Yes.

Q. Thank you, sir. Now, sir, in preparation for the opinions that you intend to offer or that you offered in this particular case, you have not been to the Dover science class. Correct?

A. Correct.

Q. And you've never attended or witnessed a ninth-grade biology class at Dover High School?

A. Correct.

Q. You have not spoken to any of the teachers at Dover High School regarding the policy at issue?

A. I have not.

Q. You have not spoken to any of the parents at Dover High School regarding the policy at issue?

A. I have not.

Q. You have not spoken to any of the students at Dover High School regarding the policy at issue?

A. I have not.

Q. You have not been in the ninth-grade biology class when the four-paragraph statement which we saw here on the screens was read to the students. Is that correct?

A. That's correct.

Q. You have not witnessed any students' reaction to hearing this four-paragraph statement that you testified to. Is that correct?

A. That's correct.

Q. So, sir, you have no knowledge concerning whether this four-paragraph statement, which takes approximately one minute to read, is read with the tone, the inflection, the facial expression, and the gestures that you employed today in court to read the statement. Is that correct?

A. That's correct.

Q. And, sir, you haven't interviewed any students who have heard this one-minute statement to find out what their views are with regard to that statement. Is that correct?

A. Correct.

Q. And you haven't interviewed any of the school board members --

A. No.

Q. -- regarding the intention of this statement. Correct?

A. Correct.

Q. And you've never spoken with any of the administrators at Dover High School regarding this statement. Correct?

A. Correct.

Q. And, sir, you don't have any studies to show that the reading of this statement to students has been detrimental for their education. Correct?

A. I don't have studies to show that any pseudoscience being taught to students in this manner is detrimental, correct.

Q. And so the answer to that specific question with regard to the statement is a yes?

A. Yes.

Q. And you have also not spoken to any students or parents who have indicated that their education at Dover High School has been harmed by hearing this statement. Is that correct?

A. Correct.

Q. So you've never been to the Dover High School library. Correct?

A. Correct.

Q. You haven't witnessed any students reading the Pandas book. Is that correct?

A. Correct.

Q. You haven't interviewed any students regarding their reaction to the Pandas book. Is that correct?

A. Correct.

Q. And you don't even know, actually, if any students have even looked at the Pandas book. Is that correct?

A. Correct.

Q. Now, I believe you indicated already to my initial questions that you don't consider yourself an expert on state academic standards. Is that correct?

A. Correct.

Q. And with regard to this case, you were asked in your deposition whether you know what a school board's obligation is regarding standards in Pennsylvania, and you answered no. Is that accurate?

A. Accurate.

Q. And when you were asked, do you know in Pennsylvania how the school board would comply with the standards set forth in the State of Pennsylvania, you answered no. Is that correct?

A. Correct.

Q. And preparing your expert report in this case and prior to your deposition, you didn't compare the Dover curriculum with the state academic standards. Isn't that correct?

A. Correct.

Q. I believe you testified at your deposition that you just did a quick examination of the state standards concerning evolution and saw that there were some similarities between the Dover curriculum and the state standards. Is that accurate?

A. Accurate.

Q. So, sir, do you know if Darwin's theory of evolution will be taught in the ninth-grade biology class consistent with the Pennsylvania academic standards?

A. I have no way of knowing that.

Q. Sir, would it be fair to say that your expertise does not involve evaluating policy in the context of state academic standards?

A. Correct.

Q. Now, you testified regarding the state academic standards this morning, in particular, one of the sections your attorney pointed out to you where the standard indicates, quote, Critically evaluate the status of existing theories, end quote, and then they included a parenthetical with five theories, one of them being the theory of evolution. Do you recall that?

A. Yes.

Q. Do you consider that to be a valid educational standard?

A. Yes, as long as one understands what it means in education. And what it means in education, the word "evaluate" is used 54 times in the Pennsylvania state standards just in the science section.

And "evaluate" means two things for educators. One is to have the student hone their tools to be able to critically evaluate something. It doesn't mean trash something, it means critically evaluate. Two plus two equals four. We want them to critically evaluate and understand what are the mathematical reasons to come to four. So it's not just trashing. It's not saying, two plus two equals five and then the teacher lets that end up to be that way.

The other aspect of it that educators appreciate when they see the word "evaluate," again, 54 times used in the Pennsylvania state standards just within the science section, is that "evaluate" also means so that the teacher can see how the student is thinking when they're critically evaluating something. So if the student then comes back and says, you know, there's good reason that two plus two equals five, the teacher then can dig in and try to diagnose the misconceptions that are either direct or underpin why the student thinks two plus two equals five.

Q. That's a valid educational objective?

A. Yes.

Q. Sir, is it your understanding that Dover is a standards-driven district?

A. That's my understanding.

Q. Do you know what a standards-driven district means?

A. I don't know what they mean by the term, no, but I can guess.

Q. We don't need you to guess here, sir. Let me ask you if you understand this, that as a standards-driven district, the class instruction focuses on preparing students to achieve proficiency in the standard-based assessments. Do you have that understanding?

A. Yes.

Q. Did you get that understanding from reading the statement?

A. I don't recall.

Q. Is it your understanding that because Dover is a standards-driven district, students will not be tested on intelligent design?

A. I don't know if it's because of that, but my understanding is they will not be, something I've read in the -- concerning the overall policy. I remember seeing that.

Q. Again, it goes back to, I guess, your lack of understanding fully of what it means to be a standards-driven district?

A. No, I think I just read it somewhere in the policy where it said that they'll not be tested on intelligent design.

Q. But you don't know if that has anything to do with the fact that they're a standards-driven district?

A. I imagine something could be a standards-driven district and not necessarily be examined on every subject that's within the standards. It would be an awful long exam.

Q. Is it your understanding that the biology book that was purchased and that is being used in the ninth-grade biology class is the Miller and Levine 2004 version of Biology?

A. Yes.

Q. Have you had a chance at all to review that book?

A. No.

Q. Dr. Kenneth Miller, who is also an expert in this case, who coauthored that book, seemed to be rather fond of it. Do you have any reason to question his opinions about his book and what's covered in it?

A. No special reason, no.

Q. Do you have any reason to doubt that this book provides thorough coverage of Darwin's theory of evolution?

A. No.

Q. Do you have any reason to doubt that this biology book presents Darwin's theory of evolution in a manner that's consistent with this theory's status or standing in the scientific community?

A. No.

Q. So you do understand that Pandas is not a required textbook for the Dover biology class. Correct?

A. Correct.

Q. And I believe at the time you formed your opinions in this case and at your deposition, you didn't know whether this book was going to be kept in the science classroom or in the library. Is that --

A. Correct.

Q. Sorry?

A. Correct.

Q. And have you come to learn that this book is being placed in the library?

A. I believe I heard that somewhere, but I don't recall where.

Q. Do you recall in your deposition you stated that if you lived in the area and sent a child to the Dover school, you would have no problem with Pandas being in the school library?

A. I have no problem with virtually any book being in a school library or a public library where the local people and/or school or school board, et cetera, determines that these books will be in there. No, I have no problem with that.

Q. That would include the Pandas book. Correct?

A. Correct.

Q. Sir, that statement that you read here today in court, are you aware that that statement was modified in June?

A. Which statement is that?

Q. That four-paragraph statement that you read that is being read to the students.

A. Yes, I heard it was changed, but I don't recall to what.

Q. Do you know if it was changed to indicate that Pandas was, in fact, going to be put in the library?

A. No, I don't recall that.

Q. Have you come to any understanding that the policy was changed to indicate that books in addition to Pandas are going to be placed in the library?

A. Any books?

Q. Books regarding intelligent design.

A. I'm not following your question. Sorry.

Q. Well, my question is regarding the revised statement. It was revised in June, as the evidence will demonstrate here. And I'm asking whether you, first of all, understood that it was revised to indicate that Pandas was going to actually be put in the school library, and I believe you testified you had heard something about that. Is that correct?

A. Heard, read.

MR. WALCZAK: I'm going to object. The witness already stated that he does not have a recollection of how the June statement was changed, and perhaps if Mr. Muise is going to continue to ask Dr. Alters questions, he could give him a copy of that statement.

THE COURT: Well, he has him on cross. He doesn't have to give him a copy of the statement. But he seems to be rather vague about that. So you can --

MR. MUISE: I just want to see the understanding or knowledge that he has. Obviously it's going to go to how he formed his opinions in this case.

THE COURT: Well, you may get some "I don't know" answers, but you don't have to show him the statement. So I'll overrule the objection to that extent. You can continue with your cross.

BY MR. MUISE:

Q. Do you have any understanding, sir, that the statement was modified to indicate that there were going to be books in addition to Pandas on intelligent design that will be placed in the library?

A. No.

Q. So it would be fair to say that you don't know whether or not any additional books are being placed in the library that might be critical of intelligent design. Is that accurate?

A. That's accurate.

Q. Sir, critical thinking is a legitimate pedagogical goal for science education, is it not?

A. It is.

Q. And education in the science classrooms in a public high school should encourage critical thinking?

A. Yes.

Q. It is good science pedagogy to encourage critical thinking?

A. Yes.

Q. And critical thinking includes being able to take a proposition, concept, and idea and be able to look at it from different points of view?

A. Scientific concept, proposition, if we're talking about science education. I'm not an expert in music education or art, but within the realm of science education, as long as you preference it with science.

Q. So critical thinking -- let me reask the question so we can have the record clear. Critical thinking includes being able to take a scientific proposition, concept, or idea and be able to look at it from different points of view?

A. Different scientific points of view, yes.

Q. A part of critical thinking is to question fundamental theories in science?

A. Not trash them. It depends on what you mean by "question."

Q. Sir, if you'd open your deposition to Page 175, please.

A. Okay.

Q. And if you'd read from Line 3 with the question down through and including Line 12, which is your answer to two questions.

A. (Reading:) Is a part of critical thinking to the question fundamental -- is a part of critical thinking to question fundamental theories? Answer: I think critical thinking can be applied to all areas of science. How far do you want me to go?

Q. Read the next question and answer, please.

A. Does that include questioning fundamental theories in science? Yes.

Q. Is that a truthful answer?

A. Yes.

Q. Would you consider the theory of evolution to be a fundamental theory in science?

A. Evolutionary theory is more than just the theory of evolution. You have the occurrence of evolution and the mechanisms of evolution. But yes.

Q. Sir, would you agree that critical thinking involves comparing equivalent ideas, scientific ideas, and comparing them with the evidence in some -- comparing them sometimes -- comparing sometimes misconceptions with the evidence?

A. Yes.

Q. You would agree that all things in science should be looked at critically?

A. It might be a waste of time, but, yes, in principle, if one had that amount of time.

Q. Would you agree that the purpose of a high school science course is not to train scientists but to contribute to the liberal education of students?

A. Yes.

Q. Now, we talked about misconceptions. You testified about it, and I had asked you about that being sort of a central focus of your testimony. Correct?

A. Yes.

Q. I want to explore a little bit more this idea of misconceptions. I believe on direct you indicated that you reviewed one of the 1990 versions of the Miller and Levine Biology textbook?

A. Late 1990s. I don't recall the year.

Q. Do you recall if it was the elephant book?

A. I don't recall.

Q. Well, sir, there's evidence in this case that the 1995 version of the Biology text coauthored by Dr. Miller stated the following: Quote, It is important to keep this concept in mind, evolution is random and undirected, end quote. Sir, is evolution random and undirected?

A. It would be my position that would be outside the realm of science. I would consider that philosophy.

Q. So if a student believed that this was a scientific claim, that would be a misconception?

A. I believe so.

Q. Would it be a misconception for a student in the ninth-grade biology class to believe that Darwin's theory of evolution is an absolute truth?

A. We would never use the word "absolute truth." I don't agree with your statement. We don't use the word "truth" in science. Science is tentative. It's always open in principle to new corrections, new data coming in. I can't answer a question that has the word "truth" in it applied to science.

MR. MUISE: May I approach the witness, Your Honor?

THE COURT: You may.

BY MR. MUISE:

Q. Sir, I've handed you a copy that's been marked as Defendants' Exhibit 214, which is the Prentice Hall Biology book by Miller and Levine. I direct your attention to Page 15, please.

A. Yes.

Q. Can you see the beginning of the second full paragraph? If you could read for me the first sentence where it begins, A useful.

A. A useful theory may become the dominant view among the majority of scientists, but no theory is considered absolute truth.

Q. Do you agree with that statement?

A. I wouldn't have used the word "absolute truth," but in principle, I agree with it, yes.

Q. So in principle that statement --

A. The problem is that truth to most children who read this will think that means an absolute. It never changes, it will always be the truth forever. Science, in principle, is always open to new data coming in, and it changes. So I think the author here is trying to communicate to 15-year-olds. This isn't like the truth that you're used to where things stay the same all the time. Science is open to the new data coming in.

Q. Does that statement create a misconception?

A. I think possibly somewhere, maybe in the rest of the text or maybe with the biology teacher, they might talk about how "truth" is generally not used by scientists. The people who wrote this book are communicating and trying to teach children, 15-year-old children.

We probably wouldn't find the "T" word in their scientific writing and journals, but we find the "T" word here in how they communicate using the language that 15-year-olds understand. That's what I think the authors are trying to do. So it may create.

As you said before, we would have to do some experiments on this to see if it creates a -- I think it's reasonable to believe that it would not create a misconception among students. And I would hope that if a student started to use the word "truth" in the biology classroom, that is when the teacher could say, oh, but that's a misconception, we don't use that, and then explain why.

Q. Well, placing this in the context of communicating to your 15-year-old ninth-grade biology student, in principle, would it be a misconception for a student in a ninth-grade biology class to believe that Darwin's theory of evolution was the absolute truth?

A. Well, there are so many things wrong with that question. You have "believe," which you're going to have to define for me. And then we go back to the "absolute truth" again. "Believe" is defined various different ways. It's a level of confidence in most ways, is the word "believe." What level of confidence do you have in this? What level of confidence do you have concerning its absolute truth? That is one way. So if you reask your question, I'll try to do my best to answer it.

Q. What if we change the word from "believe" to "understands"?

A. Okay. Could you restate the question then?

Q. Would it be a misconception for a student in a ninth-grade biology class to understand that Darwin's theory of evolution was a fact -- excuse me, Darwin's theory of evolution is an absolute truth?

A. "Absolute truth," yes, used in the way a 15-year-old would understand it, that would be a misconception, yes.

Q. In keeping with our 15-year-old understanding, because we are talking about a ninth-grade biology class, would it be a misconception for a student in a ninth-grade biology class to understand that Darwin's theory of evolution was a fact?

A. No, it wouldn't be a misconception at all. It would be accurate.

Q. So you would disagree then with Dr. Miller's opinion on that issue?

A. I doubt we disagree, but you're stating that we do, so I imagine you'll point that out to me.

Q. Well, if a student understood that science has answered all questions regarding the theory of evolution, would that be a misconception?

A. Yes.

Q. If a student believed that science has solved the origin of life question, would that be a misconception?

A. Yes.

Q. Sir, you would agree that all scientific theories are tentative?

A. Yes.

Q. Including Darwin's theory of evolution?

A. Yes.

Q. And to say that a theory is tentative means that as new information comes in, scientists should accept that new information and, if necessary, modify existing theories?

A. Yes.

Q. And that, again, would include Darwin's theory of evolution?

A. Yes.

Q. If a student understood that Darwin's theory of evolution was not tentative, would that be a misconception?

A. Yes.

Q. Would it be good science pedagogy to tell students that Darwin's theory of evolution continues to change as new data are gathered and new ways of thinking arise?

A. If you're singling out evolution only and not saying that all of science does that, then that might be problematic, because what you might be engendering in students at the time is a misconception that somehow evolution is a special science, that it's not like the rest of science. So your question can be answered in two ways, yes and no, or I like better, maybe.

Q. Sir, if you could turn to Page 386 in Defendants' Exhibit 214. And there's a subheading entitled, Strengths and Weaknesses of Evolutionary Theory.

A. Yes.

Q. If you look at the second full paragraph, could you please read the first sentence?

A. (Reading:) Like any scientific theory, evolutionary theory continues to change as new data are gathered and new ways of thinking arise.

Q. And, again, that's a statement from out of the Miller and Levine Biology textbook?

A. Yes, within the context of the evolution chapter in the book, yes.

Q. Does that statement create a misconception of students?

A. Within the context of this chapter, within the context of reading this, I don't think so.

Q. Do you know if there are any other theories that are addressed in this book that have a subheading entitled, Strengths and Weaknesses?

A. I haven't read the book.

Q. So the answer is no, you don't know?

A. I don't know. I haven't read the book.

Q. Would it be good science pedagogy to tell students that the fossil record is incomplete?

A. That would be fine in the context of a discussion regarding the fossil record and evolution, yes.

Q. Would you agree that Darwin's theory of evolution is incomplete?

A. Darwin's theory of evolution is natural selection. Some parts of it, yeah, I'll go ahead and say yes.

Q. So it would be a misconception for a ninth-grade biology student to believe otherwise?

A. Probably. I would have to think about that one. That's a more complex question.

Q. But right now your answer is "probably"?

A. Yes.

Q. Sir, I'm going to ask you if you agree with this National Science Education Standard. I believe it's listed as 1996c. Quote, In the areas where data or understanding are incomplete, such as the details of human evolution or questions surrounding global warming, new data may well lead to changes in current ideas or resolve current conflicts, end quote. Are you familiar with that standard?

A. I'm not familiar with that quote, but I'm familiar with the National Science Education Standards, yes.

Q. Well, would it be a misconception for a ninth-grade biology student to understand that scientists completely understand the details of human evolution?

A. I don't know if scientists completely understand any area of science.

Q. And that would include the details of human evolution?

A. Of course.

Q. Now, in your deposition you indicated that you do not like the word "gap" because it sounds like something is missing that naturally should be there?

A. That was just a personal observation. It's not a word that I've thought about a lot.

Q. Do you recall testifying as such in your deposition?

A. I don't doubt at all that I did. I don't recall it, but I don't doubt it.

Q. Well, would it be good science pedagogy to tell students that the leap from nonlife to life is the greatest gap in scientific hypotheses of Earth's early history?

A. Could you repeat that?

Q. Would it be good science pedagogy to tell students that the leap from nonlife to life is the greatest gap in scientific hypotheses of Earth's early history?

A. I don't know if it is. I can't answer that question.

Q. Do you know if that is an accurate statement, the leap from nonlife to life is the greatest gap in scientific hypotheses of Earth's early history?

A. I don't know. I suspect it is, but I don't know.

Q. You suspect that it's true?

A. I suspect it's true.

Q. If you suspect that it's true, would you suspect that it wouldn't create a misconception?

A. My level of confidence is very low on my suspection concerning that, so I wouldn't bet much money on it.

Q. Is there a reason why your confidence is low?

A. I would have to think about it for a while, maybe even consult some scientists.

Q. Well, maybe if you look at Page 425 in Defendants' Exhibit 214.

A. 425?

Q. Yes.

A. Yes.

Q. If you could read that first sentence under The Puzzle of Life's Origin on Page 425.

A. (Reading:) A stew of organic molecules is a long way from a living cell, and the leap from nonlife to life is the greatest gap in scientific hypotheses of Earth's early history.

Q. Are you more firm in your beliefs at this point?

A. My confidence level has increased, yes. I understand that Ken Miller is an excellent scientist.

Q. So, again, my question would be, is it good science pedagogy to tell students that the leap from nonlife to life is the greatest gap in the scientific hypotheses of Earth's early history?

A. My confidence level has gone up from what it was previous to reading this, but it's still not up -- I would like to have some more evidence.

Q. Is it proper science pedagogy to tell students that Darwin's theory is a well-tested explanation that unifies a broad range of observations?

A. Yes.

Q. Sir, you would acknowledge that there are weaknesses in the theory of evolution. Correct?

A. Could you repeat the question, please?

Q. Would you acknowledge that there are weaknesses in the theory of evolution?

A. There are weaknesses in the mechanisms, the understanding of the mechanisms for evolution. I do not know of any evidence against the occurrence of evolution.

Q. You've used that term "occurrence of evolution" quite a bit in your direct testimony. Correct?

A. Yes.

Q. Now, when you're referring to "occurrence of evolution," is that you're referring to the notion of change over time, that life has changed over time?

A. Roughly, yes.

Q. And you distinguish that from the mechanisms of evolution such as natural selection?

A. Correct.

Q. You would agree that we do not have overwhelming consensus yet on the mechanisms of evolution?

A. Correct.

Q. And so in your direct testimony when you were claiming that you weren't aware of any scientific organization or science textbook that indicated any controversy regarding the occurrence of evolution, you were referring to evolution in the sense of change over time. Correct?

A. That evolution occurred, yes.

Q. As opposed to the mechanisms of evolution such as natural selection. Correct?

A. Correct.

Q. Now, in your deposition, you claimed that the -- when you were asked questions about the strengths of the theory of evolution, you referred to the structural similarity in embryology as being one of the strengths of evolution. Is that correct?

A. Yes.

Q. When you were referring to the structural similarity in embryology, were you referring to the famous or infamous Haeckel embryos?

A. No, just in general.

Q. Are you familiar with the Haeckel embryos?

A. I've heard some things about it, yes.

Q. And those drawings have appeared in biology texts for many years?

A. That's what I understand.

Q. And also these drawings were later found out to be an actual fraud?

A. That's what I understand, yes.

Q. Should students be made aware of the fact that these drawings were a fraud?

A. That would be a judgment call on the individual instructors or school district or whatever. It depends on if they have been brought up, it depends on if students brought them up, if they're used in textbooks. There are too many factors to consider there. I can't make a blanket statement on that.

Q. Well, if students believe that those embryos were true, that would be a misconception, would it not?

A. From my understanding of this, yes. I'm not an expert in science, and I'm not an expert on the Haeckel embryo history.

Q. Sir, I want to explore a little bit your understanding of intelligent design as it relates to the opinions that you've offered in this case. Does intelligent design, from your perspective, require adherence to the claim that the earth is no older than 6,000 to 10,000 years?

A. Not necessarily.

Q. Does intelligent design require adherence to the six-day creation event, that is, a literal reading of the account in the Book of Genesis?

A. Not my understanding, no.

Q. Does intelligent design require adherence to the flood geology point of view advanced by creationists?

A. No.

Q. Is it your understanding that intelligent design requires the action of a supernatural creator?

A. Yes.

Q. Is it your understanding that intelligent design rules out all natural explanations for design?

A. In my view, yes.

Q. Sir, intelligent design does not depend on any religious faith. Correct?

A. Correct.

Q. Intelligent design is not dependent on the Bible to reach its conclusions. Correct?

A. Correct.

Q. Intelligent design is not dependent on sacred Scripture to reach its conclusions. Correct?

A. Correct.

Q. Intelligent design does not say who the designer was. Correct?

A. Correct.

Q. Is it your understanding that intelligent design disputes the occurrence of evolution as we just explored the definition of that term?

A. It certainly does in Pandas and People, Page 99 to 100.

Q. So it's your understanding of intelligent design that it disputes the claim that life has changed over time?

A. You've taken the definition from the occurrence of evolution to change over time. I'm going to direct it right back to the occurrence of evolution. The Dover policy states that there's an alternative to the occurrence of evolution, Darwin's theory of evolution, and it's called intelligent design. So intelligent design is considered to be something alternative to the occurrence of evolution.

Q. Well, let me ask you again then, how do you define "occurrence of evolution"?

A. That evolution has occurred.

Q. And what do you mean by "evolution"?

A. Descent with modification.

Q. Is that not the mechanism of evolution?

A. No, that the earth is very old and that ancestry exists among all organisms on the planet, descent with modification.

Q. You distinguish that from natural selection, though. Correct?

A. Natural selection is one of the possible mechanisms for evolution, yes.

Q. Was not natural selection Darwin's principal contribution to the theory of evolution?

A. Yes.

Q. So the fact that life has changed over time, meaning life as we see it today was not the same as life was in earlier stages of the earth's history, that understanding was known before actually Darwin offered the mechanism of natural selection. Is that true?

A. Correct.

Q. And so, again, when you're talking about the occurrence of evolution, you're not talking about natural selection, you're talking about this notion that life is not the same today as it was previously?

A. Correct.

Q. And it's your understanding that intelligent design refutes that aspect of evolution, the occurrence of evolution as you're claiming?

A. It conflicts with the -- yes, the scientific explanation of the change in life on the planet, as opposed to intelligent design that states that some supernatural cause came in and changed life on the planet.

Q. And, again, sir, I'm asking, though, is it your understanding that intelligent design refutes that life has changed over time on the planet?

A. Evolution -- the occurrence of evolution and how it preceded is -- could you repeat your question?

Q. We keep dancing around the occurrence of evolution, and I'm trying to just ask you if it's your opinion or your opinions are based on the understanding that intelligent design refutes the notion that life has changed over time, meaning life as it is today is different than --

A. Well, it's a tough question to answer because intelligent design posits that some life was inserted into along the history of life on the planet. Evolution has the history of life along the planet scientifically explained. Intelligent design inserts, by supernatural causation, life along the way. So that's why it's tough to answer that question, for me, at least.

Q. Well, you used the term "history of life." Is it your understanding that intelligent design refutes the notion that there's a history of life on this planet?

A. Well, when I read Page 99-100, for example, in Pandas, yes, it has a fish appearing with fins fully and birds with feathers and so forth, abrupt appearance. It's quite different than the history of evolution.

Q. Sir, is intelligent design falsifiable?

A. I have no idea. I'm not a philosopher of science. It's outside of my area of expertise.

Q. Do you know if any biology teachers in secular colleges are providing students with supplemental materials that discuss intelligent design?

A. I know of none.

Q. Do you know if any biology teachers in secular colleges are discussing intelligent design in their classes?

A. I've heard of some that have discussed it to point out that it's not science, to use it as a foil for the scientific method, scientific processes.

Q. Do you consider Brown University a prestigious university?

A. Yes.

Q. Do you remember Cornell University a prestigious university?

A. Yes.

Q. Sir, you testified today, and I believe it's consistent with your deposition, that you believe one of the fundamental reasons that Pandas is not a science book is because of the ground rule, as you described it, of methodological naturalism?

A. Yes.

Q. Now, you described it as a ground rule. Is this a rule written somewhere in a science rule book?

A. No. But when it's broken, you hear a lot about it.

Q. Do you know if philosophers of science actually debate whether or not methodological naturalism is an appropriate way or appropriate gloss to apply on science?

A. Again, to repeat, I'm not a philosopher of science, and I understand philosophers argue about everything.

Q. Now, you said you reviewed the book Pandas and People, and, in fact, you put up a few select quotes up on the display here in court. Correct?

A. No, no, that's not what I said. I probably received the book about ten years ago. I looked at it then. I haven't looked at it since until this trial came up. I pulled it off the shelf. I had a page marked, 99 to 100, with a Post-It note, I assume ten years ago. I read the note to the teachers recently as preparation for this and may have looked at the glossary.

Q. That's all you looked at in preparation for your opinions today?

A. Yes.

Q. So you didn't look at the section that discusses the blood clotting system, for example?

A. No, I didn't.

Q. So you have no way of knowing whether that's an accurate scientific account?

A. No.

Q. And you also didn't look at the section dealing with the molecular clock problem?

A. I didn't look at any other section in the book other than Page 99 and 100 concerning the abrupt appearance and the supernatural causation right in the middle of it. That was enough of the book for me.

Q. So, again, you wouldn't have any reason to refute the scientific validity of the molecular clock claim made in the Pandas book. Correct?

A. I haven't read it, so, yes, I can't comment on that.

Q. Now, you referenced several statements that were made by various organizations, one by the National Academy of Sciences, another by the AAAS, a board resolution, a resolution by the NSTA, a resolution by the NABT, and a resolution by the AAUP, which were addressing the teaching of evolution, as well as intelligent design. Do you recall those various resolutions that you went through?

A. I don't have them memorized, but I recall going through those, yes.

Q. Now, is it accurate to say that those resolutions are policy statements?

A. I don't know.

Q. Well, do you know if any of those statements provide any experimental evidence to refute intelligent design?

A. I don't know.

Q. Have you read the entire statements or just those select portions that you displayed and testified to today?

A. Some of the statements I read completely. Possibly other ones just sections. I don't recall.

Q. So you don't recall the ones you read whether they cite any experimental evidence?

A. I don't recall any.

Q. Now, a focus of your research from your testimony, I gather, is on this perceived conflict between religion and evolution. Is that correct?

A. Yes, the problems that students perceive that they have in learning evolution concerning primarily their religious faith.

Q. And I take it from your testimony that there isn't a conflict between evolution and religious beliefs. Is that correct?

A. No, what I said, the majority of religions that I'm familiar with have accommodations for evolution or don't seem to have much problems. Some sections of some religions certainly do have a direct conflict.

Q. Would it be a misconception for a student to enter a science class with the understanding that science has disproven the existence of God?

A. That would be a misconception about nature of science.

Q. And for scientists to say otherwise would engender a misconception?

A. I don't know if it would necessarily engender a misconception, but it is a misconception.

Q. Would it create a misconception for students to conflate the strength of scientific evidence for the occurrence of evolution with the scientific evidence for the mechanism of evolution, specifically natural selection?

A. They're two different things. One is the occurrence and one is the mechanisms.

Q. And would it be a misconception for a student to conflate the evidence between the two?

A. I don't think there's an exact wall between the two of them. I don't --

Q. Let me ask you this then, sir. Is there a difference in terms of the consensus within the scientific community regarding the evidentiary support for the occurrence of evolution compared with the evidentiary support for the mechanism of evolution, natural selection?

A. Yes.

Q. Would it be a misconception for the students to conflate those two?

A. Yes. There are technical aspects involved in that that might be able to be parsed out with 15-year-olds. Part of it is extraordinarily complicated and far above my level.

Q. So, for example, if a student believed that there was overwhelming scientific consensus for natural selection, that would be a misconception?

A. Yes. That's natural selection being the only mechanism for evolution. I assume that's what you meant by the question.

Q. That wasn't the point of my question. The point of my question was, you testified that the evidence, the scientific consensus for the occurrence of evolution -- I believe one of the terms you used was "overwhelming" or something along those lines.

A. Sounds good.

Q. Would you also agree that the scientific consensus for the evidence for natural selection is not overwhelming?

A. The question is poorly put. The debates, as I understand them in the scientific community, are over what's the play of natural selection versus some of the other mechanisms, founder effect, genetic drift, you know, all these, what role do they play and what percentages and so forth and complex issues concerning them. So it's not just confidence level in natural selection, it's confidence level in what role does natural selection play in the mechanisms of evolution.

Is it -- this is not how the scientists would put it, but is it the major, is it more minor, is it more in the middle involved, that sort of a question, not just do they have a high confidence level in natural selection.

Q. But the debate over the mechanism of evolution is not the same as scientists debating the occurrence of evolution?

A. Scientists don't debate the occurrence of evolution. That was put to bed long ago. They're debating the mechanisms and what interplay the various mechanisms have.

Q. So if a student believes that the consensus for the mechanism of evolution was the same as the consensus for the occurrence of evolution, that would be a misconception?

A. Yes.

Q. Sir, you're a member of the National Center for Science Education?

A. Yes.

Q. I believe you're a member of the board?

A. Yes. Just recently I was appointed, I believe in February.

Q. I want to ask you a few more questions about methodological naturalism. Is it accurate to say that methodological naturalism is a convention that's imposed upon scientific inquiry?

A. Imposed? What do you mean by "imposed"?

Q. It's one that places limitations on scientific inquiry.

A. This is how scientists do their work, as I understand it. When I pick up a science journal and look into it, I don't find supernatural causation in the scientific articles. I don't find it in the college textbooks. I don't find it in the high school textbooks. The most prestigious scientific organization, NAS, says no, AAAS says no, and NSTA, NABT say no. So I have a very high confidence level on this issue concerning that supernatural causation is not part of the ground rules of science and that methodological naturalism is.

Q. And so, for example, it would impose a restriction on relying on a supernatural explanation for a particular question?

A. I don't know about the word "restriction." I don't know if anywhere it's posted, Scientists, please do not use supernatural causes in your work. I don't know if that exists anywhere. The word "imposed" is -- I'm still having troubles understanding.

I think scientists watch how science is done. They're trained in their universities, and then they go out, they probably postdoc under somebody, and then they carry on their scientific work. And in their journals and in their conferences it's all about methodological naturalism, it's all about not inserting supernatural causation into it.

I don't know any federal funding source that funds -- or state funding sources that fund scientists to do work in supernatural causes in science. So from that extent, maybe there's some sort of implicit imposition of that rule. But other than that, you know, I don't think there's science police, if you will.

Q. Are you aware that NASA is doing a -- is involved in a program for the search for extraterrestrial intelligence?

A. SETI?

Q. Yes.

A. Yes.

Q. Does that fall within the restrictions of methodological naturalism, that scientific inquiry?

A. My understanding is it's very much scientific, and the American Association -- no, the American Astronomical Society came out, I think it was in August, I think it was in August, with a resolution condemning intelligent design and saying that supernatural causation should not be a part of science.

I don't understand the SETI project. I haven't followed it whatsoever. Just what I've read in the paper a little bit. But I trust that their society, the American Astronomical Society, understands that very well.

Q. Based on your understanding of SETI, is it accurate to say that ruling out intelligent -- the search for intelligent causes doesn't necessarily violate methodological naturalism?

MR. WALCZAK: Your Honor, objection. I just heard the witness say he really doesn't know much about the SETI at all.

MR. MUISE: And my question, Your Honor, was based on what his understanding was. He obviously has some understanding of it. He testified --

THE COURT: Well, his answer was that he knew of it, had heard of it. But I think it was quite clear to me, at least, that he didn't know anything more than the fact that it existed. I'll overrule the objection to that question, but I'm not going to let you press because I don't think he --

MR. MUISE: I'll move on, Your Honor.

THE COURT: It's pretty clear that he doesn't know.

MR. WALCZAK: Your Honor, we're also beyond the scope of his direct exam. We're beyond the scope of his expert report.

THE COURT: That's arguably true. I'll give you latitude on this question, but we ought not go too far into this area. It's right on the borderline, I think, and I want to give you some latitude. Do you remember the question, sir? Probably not.

THE WITNESS: I'm sorry.

THE COURT: After all that dialogue.

THE WITNESS: I'm sorry.

THE COURT: Could we read it back, please.

(Previous question read back.)

THE WITNESS: My understanding of what SETI is doing is looking for radio waves from possible extraterrestrials and radio waves that we can manufacture and understand extraordinarily well all the time. I think that's quite different than intelligent design where it's some supernatural cause that we don't understand whatsoever.

BY MR. MUISE:

Q. Sir, are you aware of a theory that was advanced called directed panspermia?

A. I heard of it in years past. Wasn't it Francis Crick came up with that?

Q. Do you know if the hypothesis was that life was scattered here either intentionally or unintentionally by other planets?

MR. WALCZAK: Your Honor, I'm going to object. We're outside not only the scope of his expert report and his testimony, but outside his expertise. Professor Alters has testified that he is not a scientist, he's a science educator, and all these questions are going to science.

MR. MUISE: Your Honor, he said the fundamental reason why he believes that Pandas is not a science book is because it violates the ground rule of methodological naturalism. Methodological naturalism is very much at the core of his testimony, and I am exploring what his understanding of methodological naturalism is and how it might or might not apply in other areas which I think are very relevant to the case.

THE COURT: Why don't you rephrase and make that clear, because I don't think that was clear from that question. So I'll sustain the objection to the form of the question. I think that's a fair area of inquiry, I agree with you, and I'll let you rephrase.

BY MR. MUISE:

Q. Sir, based on your understanding of this hypothesis of directed panspermia, does it violate this ground rule of methodological naturalism that you've been referring to?

A. I don't know. I recall so little of that. It's a distant memory so many decades ago, I can't recall.

Q. Are you familiar with the big bang theory?

A. Yes, heard about it.

Q. Your understanding of the big bang theory, does that violate the ground rule of methodological naturalism?

A. I would assume not. The national academies talk about the big bang, and they talk about how supernatural causation should not be in science, so hopefully the right hand knows what the left hand is doing in all these national academies, national education academies. And in reading small things here and there about the physics of the big bang, I've never seen supernatural causation in anything I've read concerning it.

Q. Sir, do you know who Nobel laureate Steven Weinberg is?

A. Yes.

Q. And he explained that his career in science was motivated by a desire to disprove religion. And I want to read you a quote that he made. Quote, I personally feel that the teaching of modern science is corrosive of religious belief and I'm all for that, exclamation point. One of the things that, in fact, has driven me in my life is the feeling that this is one of the great social functions of science, to free people from superstition, end quote. Do you agree with that statement?

A. I think it's a very unfortunate statement. No.

Q. And I take it then you would agree that he is not promoting good science pedagogy?

A. Many scientists don't know much about education. They might be great scientists in their specific field, but they're not necessarily great educators.

Q. Is it accurate to say that you should not conflate a scientific theory with a nonscientific idea?

A. Could you repeat it?

Q. Is it accurate to say that you shouldn't conflate a scientific theory with a nonscientific idea?

A. A scientific theory is an explanation. What you said was a scientific explanation with a --

Q. Nonscientific idea.

A. With a nonscientific idea. Yes, I think that would be bad.

Q. Sir, scientists have made nonscientific claims about the theory of evolution. Correct?

A. Scientists make -- they're humans. They make claims about a lot of things, yes.

Q. Do you know who Richard Dawkins was?

A. Is.

Q. Is.

A. He's still alive.

Q. Yes.

A. Yes, I know who he is.

Q. Are you aware he made this comment, quote, Darwin made it possible to become an intellectually fulfilled atheist, unquote?

A. Yes. It's an unfortunate statement.

Q. And that was in the Blind Watchmaker?

A. Is that where it's from? I don't know where the -- I read the Blind Watchmaker. If that's where it's from, I believe you.

Q. That's a nonscientific claim. Correct?

A. Yes.

Q. Are you aware of anyone -- of any scientists claiming that trajectory allowed them to become a intellectually fulfilled atheist?

A. No.

Q. You've testified on direct that you knew fairly well the late Stephen J. Gould?

A. I don't know if I would say I knew him fairly well, but I did know him.

Q. He was a colleague of yours?

A. Well, he was a fellow university professor.

Q. And I believe he endorsed one of your books?

A. Yes.

Q. Now, in a book called Ever Since Darwin, Dr. Gould stated, quote, Before Darwin, we thought that a benevolent God had created us, unquote. Are you aware that he made that statement?

A. No, I'm not aware that he made that statement, but subsequent to that book, he wrote a book on science and religion and said one doesn't answer the other's questions and they should live in mutual respect, that science doesn't take away anything from religion.

Q. With regard to the quote that I read to you, sir, "Before Darwin, we thought that a benevolent God had created us," that would be a nonscientific claim. Correct?

A. It sounds like a history of science claim to me, which, again, is outside of my expertise.

Q. Have you ever heard a scientist make such a claim about the wave theory of light, for example?

A. What's the statement again?

Q. "Before Darwin, we thought that a benevolent God had created us."

A. Not about a wave theory. Many other areas of science, though. Only God could make a tree.

Q. Well, by making that statement, wouldn't Dr. Gould be contributing to the misconceptions that you've been trying to rid, it appears, in your career?

A. Occasionally scientists contribute to students' misconceptions, yes.

Q. And this was the scientist that endorsed your particular book?

A. Oh, I'm not saying that that statement is necessarily a misconception. I'm just stating that if it is a misconception, that scientists commonly make misconceptions and conflate nonscience with science when they're speaking or writing in books.

Q. Do you know who the late George Gaylord Simpson was?

A. Yes.

Q. An evolutionary biologist?

A. Yes. Did a lot of work on tempo and mode of evolution.

Q. He wrote a book called, The Meaning of Evolution, and in this book, he said this quote: Man is the result of a purposeless and materialistic process that did not have him in mind. He was not planned, end quote. Is that a scientific claim?

A. Could you read it one more time, please?

Q. Man is the result of a purposeless and materialistic process that did not have him in mind. He was not planned.

A. To me that's not a scientific statement.

Q. Did you ever hear a scientist make such a claim in the context of discussing trajectory?

A. No.

Q. Is it your testimony that intelligent design is being taught to the students because the statement is being read to them?

A. During the mini lecture that they receive, yes, it's being taught in the Dover curriculum, and it's even -- the word "lecture" is even there.

Q. If the statement was handed out to the students for them to read on their own, would it still satisfy the teaching definition that you've used?

A. Sure. The authors who wrote it are teaching the students that.

Q. I believe you testified that prior to hearing this statement, it's your opinion that students would probably have no idea what the word "intelligent design" means?

A. No, I think what I said was that most students probably wouldn't. I have no idea that -- there could be five or ten students who learned it in church, came into the classroom and then hear intelligent design again in the science classroom.

Q. Do you have any reason to believe that the concepts of intelligent design are being taught in the classroom?

A. Well, yes, there certainly was, the concept that it's an alternate scientific theory. And intelligent design's claim is that somehow evolution is insufficient, has gaps and problems, and, ergo, that supernatural causation has to come in and be inserted in that point is implicit in that four paragraphs. There are gaps and weaknesses or gaps and problems with evolution theory and that the alternate theory comes along and that's intelligent design.

The bashing happens with evolution. It's in that four paragraphs. It's evolution that's only a theory, it's evolution that has the gaps and problems. And then you go down to intelligent design, it doesn't mention any of intelligent design's gaps or problems or that it's just a theory.

So, yes, I think they're learning a lot from that mini lecture, or potentially could learn a lot from that mini lecture.

Q. They also learn that because Darwin's theory is a theory, it is a well-tested explanation that unifies a broad range of observations. Correct?

A. I think that's the best sentence out of the four paragraphs, as I stated previously.

Q. Sir, a science classroom in a public school is a forum for inquiry. Correct?

A. Sure.

Q. I'm sorry?

A. Sure.

Q. That would be a yes?

A. I'm sorry, yes.

Q. Now, you testified on direct about the -- I believe you described it as a special opt-out policy.

A. I don't remember using those words, but I remember we talked about the students can opt out from hearing the statement.

Q. Is it your understanding that the Dover School District has a very broad opt-out policy that would allow a student to opt out of the entire section on evolution if they wanted to?

A. Well, that's unfortunate, but I was not aware of that, no.

Q. Was it your understanding that they only had a special opt-out that dealt just with this one-minute statement?

A. I hadn't given it any thought.

Q. Would you agree that there's a genuine scientific debate regarding the mechanisms of evolution?

A. That's what the scientific community reports.

MR. MUISE: No further questions, Your Honor.

THE COURT: All right. Thank you, Mr. Muise. Redirect, Mr. Walczak.

MR. WALCZAK: Just a couple of areas.

REDIRECT EXAMINATION

BY MR. WALCZAK:

Q. Dr. Alters, Mr. Muise asked you a few questions, and you seemed tentative in your answers. For instance, he asked you about the origin of --

A. I'm having trouble hearing you. Sorry.

Q. I'm sorry. Mr. Muise asked you some questions, and you seemed tentative in your answers. For instance, he asked you about the origin of life, and you seemed uncertain about that answer.

A. Well, there's definitely a scientific explanation and various scientific explanations concerning the origin of life.

Q. He also asked you about some of the science contained in Pandas. Do you recall that?

A. Yes.

Q. You're not a scientist?

A. No.

Q. And you don't claim to be a scientist?

A. No.

Q. Your expertise is in science education?

A. Correct.

Q. And so whether it's good or bad science, you take your cue from the scientific community?

A. Absolutely. I would hope all science educators do.

Q. So you don't make these independent determinations on whether it's good or bad science, that's done by the scientific community?

A. Correct.

Q. And science educators simply want to report accurately what the scientific community is discussing at the time?

A. Correct.

Q. And the positions taken by the scientific community?

A. Correct.

Q. Matt, could you put up Plaintiffs' Exhibit -- I believe it's 131. Mr. Muise asked you about a change to the four-paragraph statement, and you weren't quite sure what the changes were.

A. Correct.

Q. So the statement I showed you on direct exam was the one read to students in January.

A. Okay.

Q. What we've put up here, Plaintiffs' Exhibit 131, is the statement that was read to students, I believe it was in June whenever students were being taught evolution in the second semester. Could you, Matt, highlight the four-paragraph statement.

Now, Dr. Alters, let me just represent to you that as best I understand it, the only change made from the January to the June statement is in the third paragraph. And I don't know, Matt, are you in a position to pull up that paragraph from January?

So I believe the top statement highlighted is from Exhibit 124, the January statement. That same paragraph highlighted below is from the June statement. Do you see the changes made between those two statements, Dr. Alters?

A. Yes. Apparently what's been inserted is "in the library along with other resources," yes.

Q. Does this change to the statement in any way alter your opinion that this is poor pedagogy and misleads students about science?

A. I think it makes it worse.

Q. Why is that?

A. Well, now the sentence reads, The reference book Of Pandas and People is available in the library, along with other resources for students who might be interested in gaining an understanding of what intelligent design actually involves.

It sounds like now there's even more books for this nonscience that was read in the science classroom to go check out, apparently to improve their understanding of science, even though they're not science. It makes it worse.

If I read that and I think if a 15-year-old heard that -- it's right in between -- the previous sentence is talking about intelligent design. The following sentence is talking about intelligent design. And what's squeezed in between is, The reference book Of Pandas and People is available in the library along with other resources for students who might be interested, blah, blah, blah.

So I think it made it worse. I think it makes it sound like there are lots of resources the students should go seek out concerning intelligent design.

Q. So regardless of what books may actually be in the library, they don't identify anywhere in the statement what those books are?

A. No.

Q. And you're saying that the reasonable interpretation of this is that, oh, there are lots of books now to support intelligent design?

A. That's how it reads to me.

Q. I want to clarify one last -- what seemed to be a little point of confusion. Mr. Muise was asking you about consensus in the scientific community about the occurrence of evolution and the theory of evolution, and I think one of the things that Mr. Muise was trying to get you to say is that there is not overwhelming support in the scientific community for the mechanism of natural selection.

Do you believe that there is overwhelming support in the scientific community that natural selection is one of the mechanisms of change?

A. Yes, there is. The discussions, as I understand them in the scientific community, are among natural selection's relative role compared to other mechanisms of evolution.

Q. And natural selection was really the innovation, if that's the right word, that Darwin brought to the science?

A. Yes. Darwin used the word "theory" correctly. It's an explanation. So it's evolution, and what's the theory, what's the explanation? Natural selection is what he posited.

Q. And is it your understanding that science, in the 150 years since Darwin, has built upon his findings and has really confirmed that natural selection is one of the evolutionary processes?

A. That's what I understand the scientists reporting to me, yes.

MR. WALCZAK: I have no further questions.

MR. MUISE: Recross, Your Honor?

THE COURT: Recross.

RECROSS-EXAMINATION

BY MR. MUISE:

Q. Dr. Alters, the other resources --

A. Yes.

Q. -- that are referenced in the second version of the statement, do you see that, sir?

A. Yes.

Q. If I represent to you that some of these other resources are actually books written by experts who have testified in this case on behalf of plaintiffs, would that change your opinion?

A. Change my opinion of what?

Q. Well, you offered an opinion, you thought that this actually made this statement more detrimental.

A. Yes, but what you just told me isn't being read to the students.

Q. So it makes no difference to you then what the resources are in the library that the students are directed to?

A. Okay, now I have two problems with the sentence. The first problem is what I just stated, that now the students think there are more resources. Now I have another problem with it that apparently you're going to have resources arguing that the other resource, Pandas and People, is not science.

So now we've said there's this alternate scientific theory, and now you're sending them, I guess, to the -- yes, to the library to reference books that will say it's not science, even though an administrator at the school has said it's science by reading and giving this mini lecture to them.

Now I'm even more confused. I'm confused as an educator, and I think the teachers will be confused, and I think the students will be confused. So, yes, it's worse.

MR. MUISE: No further questions.

THE COURT: All right. This will be an appropriate time for us to break after we take the exhibits. Let's do the exhibits before we adjourn. Plaintiffs' 182 is -- Dr. Alters, you may step down. Thank you.

THE WITNESS: Thank you.

Exhibits Alters
THE COURT: We have Dr. Alters' CV. P212 is the Defending Evolution text. P192 and P198 are already in. P183 is the NSTA statement on teaching evolution. P186 is the NSTA position statement on teaching evolution. P700 is teaching evolution. P210 is already in. So we have P182, P212, P183, P186, and P700. And, Mr. Walczak, your pleasure with respect to those?

MR. WALCZAK: We would move all of those exhibits.

THE COURT: Mr. Muise?

MR. MUISE: No objections, Your Honor.

THE COURT: All right. Then all those are admitted. On redirect we have P131, which is the revised statement. That may be in. I'm not sure. I don't show it as in, though. Mr. Walczak, do you want to move P131 in? I don't show it as being in, but it may be. That is the revised statement that you just referred to that you put up.

MR. WALCZAK: If it's not in, this seems like an opportune time to move it in.

MR. GILLEN: It should be in, Your Honor.

THE COURT: I'm thinking it is, but we didn't show it as --

MR. WALCZAK: I'm being told it was moved in on September 27th.

THE COURT: That memory is better than mine, and I'll accept it. So we'll note that it's in, and if it's not in, it will go in with this witness, we'll stand corrected. I don't have any other exhibits, and I don't have any exhibits on cross. Mr. Muise, any exhibits that I'm not aware of?

MR. MUISE: Your Honor, the only thing we referenced was the Biology book.

THE COURT: Which is already in, I think. Well, I don't know if it's in, but it was referred to. You don't want to move that in, do you?

MR. MUISE: Not at this time.

MR. WALCZAK: Your Honor, we'd just clarify that 212, we'd move the entire book into evidence.

THE COURT: That was the sense of what I thought you were doing. You don't object to that, do you?

MR. MUISE: No, Your Honor.

THE COURT: The entire book is in because I don't have an excerpt noted. All right. Anything further before we recess from counsel?

MR. GILLEN: No, Your Honor.

MR ROTHSCHILD: One more thing I wanted to raise, Your Honor, if this is a good time. We had requested last week that Dr. Forrest's two reports and what I'll call the extra exhibits that she didn't testify about be moved into evidence for the purposes of the record on the motion in limine, both qualifications and methodology.

MR. GILLEN: Your Honor, we've given it a lot of thought, and I think for the record we're going to object, for the simple reason that the whole scope of that material -- as you know, we tried to work out the presentation of the witness through the plaintiffs and then voir dire. Essentially it seems like it creates the risk, from our standpoint, of vastly expanding the amount of material that can be relied on for her expertise and qualifications, whereas the questioning didn't reach all of those and in some points would have.

THE COURT: Well, let me ask you this. If you have an appellate issue with respect to her testimony as an expert, how are you going to argue it if you don't have the report in?

MR. GILLEN: Well, it would seem like the proffer is the typical way in which it's done. This is rather unusual to try and get in the reports, which are generally hearsay, to buttress that. And that's my concern at this point, which is, there's a whole bunch of additional material that's going to be added to support the proffer that was not --

THE COURT: Well, as I said last week, I assure you that if I would admit it, I'm not admitting it for my consideration. I'll take her testimony on the record as I allowed it over some objections.

I think, Mr. Rothschild, that it is more helpful to the defense, conceivably, under most circumstances I can think of, to have the whole report in. But if it's only for appellate review and in the event of a determination it's adverse to the defense, in that situation I can't see where it necessarily helps the plaintiffs in an event that there's a determination adverse to the plaintiffs because she testified. And I don't think that's going to be necessarily an issue in that event.

You might want to give that some more thought. And as I said, I will accept a stipulation, if you want to craft a stipulation to protect yourself. To be fair, you might not have had enough time to think about a stipulation. If you want to -- and I'll accept if you don't want to enter a stipulation and you want to object to it. That's fine, and I'll make a ruling. But give it a little bit more thought, because with a stipulation that it is not for the Court's consideration at this level, you know, you might want it in there.

Your appellate record is what it is. I understand you say you're limited to the proffer, but your argument went beyond the proffer. Your argument went to what's in her record or what's in -- not what's in the record, what's in her report, excuse me. You might give that some thought.

MR ROTHSCHILD: Your Honor, I mean, it seems like the way they have characterized their argument is, look, she's just picking out a few quotes that are supportive of her viewpoint, and what we want to show is her methodology which is reflected in the book, which is already in evidence, and the report, which encompasses quite a bit of information --

THE COURT: Well, but that could be problematic, too. That may go too far. I think, to respond to what Mr. Gillen is saying, the one thing that you're going to have to be careful about is, you know, your lips are sealed and you've estopped any argument that you're going to make based upon what's in that report if you don't let it in the record. You are, indeed, restricted to the proffer. Now, maybe you've thought about that and that's what you want to do.

MR. GILLEN: No, actually, Your Honor, the way you've put it to me today, it does warrant further consideration. Let me see if I grasp your mind on this. What you're saying is, for the purpose of your decision to admit her, your understanding is that that decision is based on the proffer and the voir dire and cross. Am I correct?

THE COURT: Yes, and not the report itself. The report was considered by me for the purpose of ruling on the motion in limine. Once we got beyond that --

MR. GILLEN: Okay. Thank you, Your Honor. Let me give it a little more thought in light of what you suggested, and perhaps we can reach an accommodation.

THE COURT: Again, as I've reminded you, and it's not to insult your intelligence, you all know this, but it's a bench trial, and I'm perfectly capable of setting that aside for the purpose of my ruling in this case, and you're simply making it a part of the record for whatever you may want to do.

I mean, we can postulate, you know, to the end of the day about who might need it for what, but if I'm not going to use it and if you have a stipulation that I'm not going to use it for my determination, I don't know why it creates a problem. And it leaves both sides free to argue on another day and another time and another court, if that's necessary, with respect to what's in the report. There's not such urgency that we have to make this determination now.

MR ROTHSCHILD: Your Honor, I just want to make clear that what we're proposing is not simply the admission of the report, but also the support for her report, meaning that there were many exhibits, many of which have been already admitted through her direct testimony, but there are also other exhibits that were the corpus that she based her opinion on.

THE COURT: Well, and again, if you've got to argue in another tribunal that there were, for example, erroneous rulings as it related to letting hearsay in, which is certainly an argument that you made, a timely objection, then I don't know how you're going to do that if you don't have at least some part of the report, if not all of it, and the documents. You're going to argue in a vacuum. And it seems to me you may want to think about that.

MR. GILLEN: You have given me reason for thought, Your Honor, and I'd like another opportunity to revisit that issue with plaintiffs' counsel.

THE COURT: That's fine. And I'll just rely on you to -- either of you or any of you to bring that up at a later point in time. We'll tie up the loose end. I'm sure somebody will remind me.

I have some matters I have to attend to. Let's take about a 25-minute break at this point so I can do some things I need to do, and we'll reconvene at 3:25. We'll be in recess.

(Recess taken.)