RationalWiki:Kitzmiller v. Dover annotated transcript/P033

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Kitzmiller v. Dover Area School District Trial transcript: Day 9 (October 14), AM Session, Part 1

THE COURT: Good morning to all. We are at the point of cross-examination, or are we still on direct?

MR. HARVEY: Yes, Your Honor, we just have some more direct.

THE COURT: I apologize. I thought we had finished him.

MR. HARVEY: No need.

DIRECT EXAMINATION (cont'd.)

BY MR. HARVEY:

Q. Good morning, Mr. Stough. Do you have in front of you the exhibit that's been marked as P671? You can take that binder and put that to the side, that one. Please open up P671. This exhibit consists of a chart and a series of letters to the editor behind it. Isn't that right?

A. That's correct.

Q. And these are letters to the editor from the York Daily Record?

A. That's correct, for the period June, 2004, through to September, 2005.

Q. And I want to focus on those letters to the editor for just a minute, and we'll talk about the chart after we talk about the letters. How many letters to the editor are there in this P671?

A. For the York Daily Record, there are 139 letters to the editor.

Q. And, I mean, what do these letters to the editor relate to, what subject matter?

A. These letters relate to the controversy in Dover.

Q. And when you say "the controversy," can you tell me what you mean by "the controversy"?

A. What I would mean is they deal with the biology textbook adoption, they deal with the appearance of the reference book Pandas and People, and they deal with the final adoption of the biology -- or revision of the biology curriculum of October 18th.

Q. And so they are letters to the editor that address any of those subjects. Do I understand you correctly?

A. Yes, yes.

Q. And are these, all of the letters to the editor, on those subjects between the period June, 2004, and September, 2005?

A. I think it's very difficult to say that it's all -- yes, it's all of them.

Q. Now, how do you know that it's -- or how do you believe that it's all of them?

A. Well, originally I read these letters contemporaneously with their publishing. However, Hedya Aryani of Pepper Hamilton assisted me and she did a sweep of -- a search of all of the articles and then did a second sweep to make sure that we had all of the articles.

Q. If you would just go to your other notebook which I promised you wouldn't have to look through, but now I'm going back on my word. And in there there's a document that's been marked as P670.

MR. HARVEY: Your Honor, just so you know, this P670 is an affidavit that the witness is about to explain. It's from one of our legal assistants. And the other side has indicated they have no objection to this affidavit, the use of this affidavit as opposed to calling our legal assistant to the stand.

THE COURT: All right.

MR. GILLEN: If I may, Your Honor, I have no objection to the affidavit and, for that reason, I believe it's rather pointless for the witness to explain the affidavit of another person.

THE COURT: So this is an affidavit, for the record, P670, which indicates -- and this is a paralegal employed, Mr. Harvey, by your firm indicating that this paralegal collected the letters after a search utilizing different search engines. If you would scroll down, please. And, in addition, collected editorials from the subject newspapers and that the trial exhibits, as listed on the affidavit, are all of the editorials and the letters found from the York Daily Record and the York Dispatch during the enumerated periods. Fair statement?

MR. HARVEY: That is exactly correct, Your Honor. And the purpose in putting that affidavit in is, the witness wasn't the one who actually went through and used the computer search engines to make sure that we had all of the exhibits, he relied on assistance from our legal assistant to do that actual function. So the affidavit is just intended to attest to that fact.

THE COURT: Then I would agree with Mr. Gillen that the affidavit speaks for itself as an exhibit and as summarized by the Court, and there would be no need then -- the import, I guess, of Mr. Gillen's comments is there's no need for you to further examine the witness on that point.

MR. GILLEN: Correct.

MR. HARVEY: Perfectly acceptable. We just did everything I intended to accomplish.

MR. GILLEN: Correct, Your Honor. He has no personal knowledge of what she did. She's attested to it. I told Mr. Harvey that I'm willing to accept that.

THE COURT: All right. Well, then having established that, let's move to the next area.

BY MR. HARVEY:

Q. Okay, Mr. Stough, so we've just established, I believe, that all of these letters to the editor were between the time period, and we believe that they're all of the letters to the editor that relate to the subjects that you mentioned.

Now I'd like to talk to you about the chart that's on top of Exhibit P671. Can you tell us what this chart is?

A. This is a chart that basically summarizes and answers some questions that I generated regarding these articles.

Q. Did you create the chart?

A. I -- the chart was my responsibility; however, I was helped by Pepper Hamilton in terms of its format and typing.

Q. So, in other words, you are responsible for the correctness of the information in the chart, but you didn't actually create the chart?

A. Yes.

MR. GILLEN: Your Honor, just for the record, to make sure -- this is a little twist on the hearsay objection and the personal knowledge objection I made at the outset of his testimony. I want to make it clear that although the chart reflects his reactions, I object to that evidence based on the underlying hearsay.

THE COURT: You're objecting to the underlying evidence being the articles or the -- I should say the editorials or the letters that he viewed?

MR. GILLEN: That's correct, Your Honor. As I've tried to state -- and I don't want to belabor it or hold up the examination -- my view is that Mr. Stough, if I'm saying it correctly, thank you, has no personal knowledge. He's offering a state of mind based on hearsay evidence. That state of mind is not admissible. That's my point. And this chart seems to be the way --

THE COURT: The state of mind is admissible.

MR. GILLEN: Well, it's admissible to show a state of mind but not to prove the facts that produced the state of mind.

THE COURT: I don't think it's being offered for that purpose.

MR. HARVEY: You are correct, Your Honor.

MR. GILLEN: Okay. Then I'm uncertain as to what purpose, but so long as --

THE COURT: Well, we've been -- and I understand you're preserving your objection, and certainly I'll grant you that, but we've been down this road. You believe that testimony of this nature on the effect prong necessarily implicates the truth of the matter asserted.

I'm not at all certain that it does. I'll grant you that you may have an argument that you may want to reserve at the conclusion of the case. I'm going to take the testimony on the effect prong based upon, in this case, this witness's examination or review, contemporaneous review, it would appear to me, of the letters and the editorials.

I understand your objection is that he's referring to something which colorably is hearsay if it's utilized for the truth of the matter asserted. I don't see that that's what they're doing, but go ahead.

MR. GILLEN: I understand. And that is my purpose right now, is to make clear that his state of mind is also like the underlying hearsay, not admissible to prove the fact that he's basing his state of mind on.

THE COURT: I'm not sure that I understand that.

MR. GILLEN: Let me try and be more precise, because it is difficult. We've gone around it. If you'd like to reserve discussion of that until after Mr. Harvey is done, I'll do that, or I'll give you more information now.

THE COURT: Are you going to cite to a case?

MR. GILLEN: Not a case, the rule, Your Honor.

THE COURT: Go ahead.

MR. GILLEN: Okay. The state of mind exception to hearsay is found in Federal Rule of Evidence 803(3), and it does provide a limited exception for state of mind, a statement of the declarant's then existing state of mind, and it provides for admissibility.

But it specifically provides "but not including a statement of memory or belief to prove the fact remembered or believed, unless it relates to the execution, revocation, identification, or terms of declarant's will."

So what I'm getting at is, his state of mind is not admissible to prove the facts, any facts, that support that state of mind, including the effect of the newspaper article.

MR. HARVEY: Your Honor, hearsay is a statement offered -- out-of-court statement of the declarant offered to prove the truth of the matter asserted. We are not offering these letters to the editor and the other letters to the editor and editorials that I'm going to discuss in just a few minutes for the truth of the matter asserted.

We are offering them, as you have correctly perceived, on the effects test. So they're not hearsay at all. They, I believe, would also be, even if they were hearsay, they'd be admissible as to this witness's state of mind, but we don't need to go down that road.

THE COURT: See, the problem that I think we're having here is that on the effects test -- and I'll say this to Mr. Gillen -- you make the assumption in citing me to 803 that necessarily, on the effects test, the truth has to be established. I don't think it does. I think it's a subjective test, and it's how he receives it.

I don't have to find, on the effects prong, necessarily, that the matters that were written about in the letters -- and, indeed, you know, they're opinion letters and they're editorials in this case -- that they have to be established on the effects prong.

So you take it, I think, a step too far. You're arguing, I think, in effect, that they're getting back-door hearsay in, but I don't think that's the case. For the effects prong -- I firmly believe that it's his subjective impression which fits, I think, squarely within 803, and I think he can testify under 803.

I recognize that, for example, for the purpose prong, it could be back-door hearsay if I utilize that to establish a fact on the purpose prong. But I don't think the effect prong militates or the analysis of the effect prong, as I've seen in the various cases, that analysis doesn't militate in favor of the interpretation that you're putting forth.

MR. GILLEN: You've said, Your Honor -- and I don't mean to belabor the point -- that you're turning in that direction. I know we're going to have a ruling here at some part. And as we approach that, you know, I'd like to have maybe a sidebar and discuss how we could best approach that from the standpoint of helping you reach the right decision.

THE COURT: No, and I understand that, but I would ask you this question before we do it, and then we'll move ahead with the examination. If my interpretation isn't correct -- and it's evolving, certainly, and we'll talk about it further -- then how do you ever get to the effects prong? I think that places almost an untenable burden on the effects prong.

People, lawyers and judges, have struggled with the Lemon test, as you well know, and will struggle further with it in this case as we grapple with this issue. But on the effects prong, I believe it is a highly subjective portion of the Lemon test. And --

MR. GILLEN: And I don't want to revisit all the issues here. I mean, from our perspective, as you know, we think that the primary effect of curriculum change is the effect on instruction. That we think is the appropriate effects test.

With respect to what you're looking at now, I think that it's what the objective observer, we think in a classroom -- if you decide to go broader, that is your decision -- the objective, reasonable person reasonably informed, if you go that way. Now, Your Honor, but there's still -- that has to be demonstrated through admissible evidence.

I think -- and I agree with you entirely that when you look at the cases, it's not clear, but what I believe the better reading of the cases is, is that they're looking at things about which they can take judicial notice. And that is essentially what they have done in many instances. So far as I can make out, they're looking at legislative history, which is a public record, and they're also looking at facts surrounding a forum about which they can take judicial notice.

I don't see -- and I don't want to put it too strongly because it is a sensitive issue. The Lemon test to the establishment clause is not a wholesale repudiation of the Federal Rules of Evidence. I think that the effects have to be shown by evidence that is admissible under the rule.

THE COURT: I understand your point, but I would say, just to close this off or end this portion of the discussion, that legislative history could, in itself, be hearsay.

MR. GILLEN: I agree. Unless it fits within one of the exceptions, you are right.

THE COURT: How do you fit it within the exception? How do you fit a statement by a legislator on the floor of the House of Representatives or the Senate or in this case a member of a school board, how do you fit that -- and it may be an admission here, of course, because they're party defendants, but in the case of another legislative history. And that's what I struggle with in this case. And when you use the word "objective observer," that's not the way it's described in every case, and I know you're aware of that.

MR. GILLEN: I agree with you entirely, Judge. When you start to look at this sea of case law -- and you know and I both know there's language from the United States Supreme Court saying don't read these opinions as if they're a piece of legislation because we use words variously in different cases.

It does create a problem for us trying to find out where the line is here. And I don't want to rehash it, but I would say, I think, that the proof of effects has to be proved via admissible evidence.

THE COURT: I understand that, and the objection is noted on the record. We'll take the testimony subject to the objection, and we'll revisit that at a later point in time.

Mr. Harvey, who properly has been on the side lines while we've had that interesting dialogue, quitting while he's ahead, can proceed now with his examination.

BY MR. HARVEY:

Q. Mr. Stough, you told us when we were together on Wednesday that you are an avid reader of the local newspapers. Is that correct?

A. Yes.

Q. Remind us, please, what are the local newspapers for the Dover community?

A. The York Daily Record and the York Dispatch.

Q. How often do those papers come out?

A. They come out daily. The York Daily Record is the morning paper, and the York Dispatch is the evening paper.

Q. So is that --

A. I'm sorry, no, they don't come out -- they come out daily throughout the week. There is one paper on Saturday, a morning paper, and then there's the Sunday News which is published by the York Daily Record.

Q. And is that all of the newspapers that serve the Dover community in addition to whatever national or statewide papers there may be?

A. Beyond the local -- like, we have a Community Courier that really doesn't carry any kind of newsworthy material. It's just things that are happening in the community, advertising. Beyond that, those are the two.

Q. Now, these letters to the editor that are contained in P671, have you read them?

A. Yes, sir.

Q. When did you read them?

A. I read them contemporaneous with their publishing, and then I was given a stack of them after the first search, and I read through all of them at that point in time. And then when we finally got everything put together in the notebooks, I read through them again.

Q. So you've read most of them three times?

A. I've read every one of them two times, most of them three.

Q. Now, please tell us how this chart, P671, was put together. What did you do to be responsible for the information on this chart?

A. Okay. The letters to the editor are, first off, arranged chronologically, numbered. And as you move across the chart, you'll see that they are dated. The next column would be the title of the article, and beside that would be the author, if the author's name was available.

Then the next column says, Subject of letter relates to the controversy at issue, and you'll find that every one of these says "yes." Because what I was looking for was, did this deal with the controversy as I described it earlier.

Q. So you noted that -- you made sure the date of the article was reflected correctly on the chart, you made sure the title of the article, the author, that all of that was correct. Do I understand you?

A. Yes, sir.

Q. And then in addition, you made sure that every single one of these related to what you referred to as "the controversy"?

A. Right.

Q. And then did you do anything else?

A. I also then, during the reading of the article, tried to determine whether it discussed religion. And I looked for key words. I looked for "creationism," I looked for "religion," I looked for "theology." And I also looked a bit at -- I looked at the content of the letter to see if it really dealt with religion.

Q. What if it just discussed intelligent design, did you treat that as discussing religion?

A. Well, first off, so I can be clear, I do believe that intelligent design is religion. However, you would get letters that would say -- they would treat intelligent design as science. They would say it's science because of this, and it would cite scientific evidence. There would be no mention of religion. And if I did find something like that, you would find in the column "no."

Q. Now, for the ones that you determined discussed religion, did you put down a quote in your chart just to illustrate why you considered it to discuss religion?

A. Yes, I did. And sometimes I actually put two quotes down.

Q. Give us an example of a -- pick one off your chart, one that discusses, in your mind -- of a quote that illustrates that it discusses religion.

A. Number 2, Buckingham wrong on text. Creationism is religion plain and simple. Or, Number 1, Creationism is not science. Religious beliefs have no place in public, government-funded classroom. Creationism is nothing more than faith.

Q. And so you did that so somebody could check your chart and see that you had, indeed, correctly determined that these articles discussed religion?

A. Yes.

Q. Now, the final thing, did you note whether it was pro or con the Dover Area School District Board of Directors policy?

A. For my own curiosity, I was wondering if the writer -- and this was very subjective at times -- if the writer was in favor of what the school board had done or if they were against it. If they were, I noted that as being pro, and if they weren't, I noted that as being con.

Q. And can you tell us, did you count up the number of letters in this chart, this P671, that discuss religion in the context of what you referred to as a controversy?

A. Yes, I did.

Q. And of the 139 letters to the editor from the York Daily Record that are in this binder, how many of them discuss religion?

A. 86.

Q. And then were there, in fact, some letters that were pro-Dover Area School District Board of Directors?

A. Oh, yes, yes, absolutely.

Q. And were there some that were con?

A. Yes.

MR. HARVEY: Your Honor, that's all I have for that exhibit. We have three other binders I'll try to move through quickly.

BY MR. HARVEY:

Q. You have with you P674. Please tell us, what is P674?

A. P674 would be a collection of the editorials from the York Daily Record for the period June, 2004, through to September, 2005.

Q. And do these -- are these editorials that discuss what you called "the controversy" before?

A. Yes, they are, yes.

Q. And, again, did you make sure that you had all of the editorials for the York Daily Record that discuss the controversy for the time period you mentioned by using the services of our legal assistant?

A. Yes, we used the same process.

Q. And have you read these editorials?

A. Yes, I've read every one.

Q. And when did you read them?

A. Again, I read most of them contemporaneously with their publishing. I read them after the 10th of September. I don't know if earlier I said the 10th or the 20th. And then I read them once more once we had the notebooks put together.

Q. And did you do with these articles -- these editorials, excuse me, what you did with the letters to the editor that we just discussed, in other words, verify the information that's on the chart that's been marked as P674?

A. Yes, I did.

Q. And did you, as with the letters to the editor, did you identify quotes to show that where you indicated that it did discuss religion, that somebody could look at it and see that you were right, that it was discussing religion in the context of this controversy?

A. Yes, I did.

Q. Can you give us an example, please?

A. Sure. Number 4, What do you think, creationism and evolution? Yes, I believe that creationism should be taught in schools because evolution is only a theory, and the Bible is God's word, which has stood the test of time. Remember, God created all things.

Q. And how many editorials were there for the York Daily Record that discussed what you've called "the controversy" for the period June, 2004, to September, 2005?

A. 43.

Q. And of those 43 editorials, did you make -- did you count up how many discussed religion?

A. Yes, I did.

Q. And how many was that?

A. There were 28.

Q. Now, if you turn to Exhibit P672. Now, we've got to give equal time to the York Dispatch. Did you -- what is P672?

A. P672 would be the letters to the editor for the York Dispatch for the period June, 2004, through to September, 2005.

Q. And this is very similar to what was done with respect to the letters to the editor for the York Daily Record?

A. Yes.

Q. How many letters to the editor were there that related to the controversy for the period June, 2004, to September, 2005?

A. 86.

Q. And did you --

A. I'm sorry, Mr. Harvey, did you ask me related to the controversy?

Q. Yes.

A. 86, yes.

Q. And have you read these letters?

A. Yes, I have.

Q. When did you read them?

A. Again, I read them as they were being published. I read them when I got a stack of them after September 10th, and I read them again once we had put the notebooks together.

Q. And did you verify the information on the chart and follow the same protocol that you did for P671?

A. Yes.

Q. And did you -- can you give us an example of a statement that you quoted to prove that the letters to the editor were, in fact, discussing religion as you indicated?

A. Sure. Number 5, Wilson would not approve. Creationism and its cousin, intelligent design, are devoid of scientific facts.

Q. And, again, you treated the word "creationism" as a reference to religion?

A. Correct, yes.

Q. And of these 86 letters to the editor, how many did you count up that discuss religion in the same context?

A. 60.

Q. And please, finally, turn to what's been marked as P675. P675 is a very similar exhibit except it's for the editorials for the York Dispatch from the period of June the 1st, 2004, to September the 1st, 2005.

A. That's correct.

Q. And did you follow the -- did you read these editorials?

A. Yes, in the same fashion.

Q. And how many editorials are there?

A. There are only 19.

Q. And these are 19 editorials that relate to the controversy, as you described it?

A. That's correct.

Q. And you believe this is all of them for the same reasons?

A. Again, yes, we followed the same process.

Q. And of these, did you follow the same protocol for determining whether they discussed religion in the context of the controversy?

A. Yes, I did.

Q. And of these 19 editorials, how many discussed religion in the same context?

A. 17.

Q. Now, Mr. Stough, I would like you to just put those aside. We're done with that. And I'd like you to tell us, please, whether you believe that you have been harmed by the actions of the Dover Area School District Board of Directors as it relates to the change to the biology curriculum.

A. Yes, I believe I have been harmed. And I believe, by extension, my daughter has been harmed, also.

Q. Tell us how you believe you've been harmed.

A. I believe that the actions of the school board in adopting this policy including intelligent design have usurped my authority to be the one in charge of my daughter's religious education.

Intelligent design posits an intelligent designer, which for me they're talking about God. It is a more literal translation of the Bible than I would accept and I plan on teaching my daughter, that type of non-literal interpretation.

And even if it didn't hurt me, if I didn't have a problem with the intelligent design, there are other individuals in the community that I think it does affect. I think it's an affront to the Constitution. I think their actions and their comments --

MR. GILLEN: Objection, Your Honor, to the extent he's offering his opinion about how it hurts others in the community.

THE COURT: Mr. Harvey.

MR. HARVEY: Your Honor, he's testifying about the harm to himself, and if he perceives that this is a harm to other people in the community and that, in turn, harms him, I think he can testify to that.

THE COURT: Why?

MR. HARVEY: Because it's relevant to the harm that he has suffered here.

THE COURT: How is that relevant to the harm he suffered? It's his own claim. He's a party plaintiff. How does that help your case if he talks about how he perceives that it's harmed others?

MR. HARVEY: If he believes that there's another member of the community that's being subjected to someone else's religious views by a governmental authority and that bothers him because as a citizen he believes in the Constitution and he says, that really bothers me when I see somebody who's a member -- who doesn't share the views of the religious majority in this community and is being singled out and made to feel that they're not a part of this community based on their religious beliefs, I think he can testify about that.

THE COURT: Is that actionable?

MR. HARVEY: I believe that's a sufficient basis for standing, yes, Your Honor.

THE COURT: I don't think it is. I'll sustain the objection. I'll stand corrected if you can give me some authority, but I don't think that's actionable. He couldn't bring a claim independent of his own claim on behalf of others who he perceived to be harmed. I don't see that.

MR. HARVEY: Your Honor, we've looked at P127, and we see that the school district published its intelligent design policy to the entire community and is advocating intelligent design to the entire community, and on that basis, I believe that he does have standing.

THE COURT: You're conflating two things, though. My analysis would be, again, back to the Lemon test, how it was disseminated and how it was received. And when we get into the reasonable observer, I understand that. But when we're talking about -- you're into harm to him of a constitutional nature, and I just don't believe for that purpose -- you've gotten testimony in as to things that were received in the community generally, and those things will be utilized for that purpose. But when he gets into others in the community who he perceives to have been harmed, I just don't see it.

MR. HARVEY: Well, I will make one more comment without belaboring the point, Your Honor, and that is, if I was a member of the majority in the community and I believed in the -- I was a member of the religious majority and I had the same religious views but I was offended because it was being forced upon my neighbor who was not the same member of that same religious majority, I believe that I could have a claim on that basis.

THE COURT: What's the religious majority?

MR. HARVEY: In this case, Your Honor, the religious majority is the people -- is the school board's advocating a position here and endorsing a message that is held by, presumably, the majority in the community because they're the elected officials.

THE COURT: Well, you have numerous plaintiffs. All the plaintiffs were found to have standing by my prior orders, so you have plenty of plaintiffs. I just don't see it. I'll sustain the objection to that portion of the testimony.

If you can cite me to some authority that I'm not aware of as to his ability to testify to harm that he perceives has befallen others, I'll stand corrected. But for the moment, I'll sustain the objection.

MR. HARVEY: Understood.

BY MR. HARVEY:

Q. Mr. Stough, you testified on Wednesday that your daughter is in ninth grade right now at the Dover Area High School. Isn't that correct?

A. Yes.

Q. And she's taking biology right now?

A. Yes, she is.

Q. Have you considered how you are going to deal with the board's curriculum -- the biology evolution policy, the intelligent design policy, when it comes up again in, I believe, January?

A. Well, at this point -- and this has been a subject of discussion among -- between my daughter and I. We're going to wait and see what happens here in the court. It may not be an issue. However, I think at this -- I believe at this point she will probably step out with the teachers while the statement is being read.

Q. If she's going to step out of the classroom, or that's your view, how are you harmed by that?

A. I'm harmed by that, she's harmed by that because she's no longer part of the accepted school community. She's being told that she's being removed from the classroom.

Q. Mr. Stough, do you have in front of you P702?

MR. GILLEN: Your Honor, this is a fresh piece of hearsay not subject to our standing objection.

THE COURT: What is 702?

MR. HARVEY: Your Honor, it was something that was sent to Mr. Stough in the mail, and it's not offered for the truth of the matter asserted, Your Honor.

THE COURT: Let's have him identify it, and then I'll take any objection that you have.

MR. GILLEN: Okay.

BY MR. HARVEY:

Q. Do you have P702?

A. Yes, I do.

Q. What is P702?

A. On September 29th, when I went back to my school, I went to my mailbox, and there was a letter addressed to me at my school address, and this is a copy. I have the letter with me. It was basically half sheets. That's why it appears the way it does on the paper that I copied it on.

But this is a letter that I received in the mail. There was no return address on the envelope, and there was no signature on the piece of mail.

Q. And you received this in the mail at your home or your work?

A. At my work.

Q. And I noticed that the bottom right-hand corner is cut off. Do you actually have a better copy of this?

A. I have the letter.

MR. HARVEY: Your Honor, we'll substitute a better copy of this after he's done testifying, if that's okay with you and defendants' counsel. And I have no further questions on that document.

THE COURT: Do you want to interpose an objection?

MR. GILLEN: Yes. It's along the lines of what I've discussed with you, Judge, and I don't want to belabor the point, but, again, it's --

THE COURT: It might be different. We don't know who wrote it.

MR. HARVEY: That's correct. It was, I believe, an anonymous letter received by him.

THE COURT: Are you going to seek to have it made part of the record?

MR. HARVEY: Yes, Your Honor.

MR. GILLEN: Your Honor, I object. It's not admissible evidence.

MR. HARVEY: Mr. Gillen keeps using the word "admissible." It certainly is admissible if you offer to show the harm to this plaintiff here. It's not offered for the truth of the matter asserted, so it's not admissible for that purpose, but it is admissible for another purpose.

THE COURT: I think this is a little different, and perhaps we're being more clinical here. But to the extent that he read editorials and letters which it appears beyond dispute were printed in the local paper, that's fine. I understand that he has testified, the witness, that he read this.

I am concerned that we have an article, we don't know the source of the article, we don't know what it was published in. It's got handwriting that appears to be of different types on it. That raises a flag with me.

I understand why you're presenting it, but I am -- you have the testimony on the record that he received something in his mailbox. I'll let you ask additional questions, if you want, on this, but I'm loathed to admit this. I may not admit this. I'm not so sure that I want to admit this.

MR. HARVEY: I was just going to ask the witness his reaction to the letter.

THE COURT: And that's fine. I'll allow you to do that.

BY MR. HARVEY:

Q. Can you please tell us your reaction to this letter that you received, Mr. Stough?

A. That's a tough question. I was amazed that it came to my work. I thought someone had crossed a line. If you want to say that this isn't a religious issue, this says it all. There's a lot of emotion in here. I don't know if this applies at all, but this certainly to me doesn't -- a person that is professing to be a Christian, you don't only have to talk the talk, you've got to walk the walk.

MR. HARVEY: I have no further questions, Your Honor.

THE COURT: All right. Thank you, Mr. Harvey. Mr. Gillen, are you going to cross-examine?

MR. GILLEN: Sure.

THE COURT: You may proceed.

MR. GILLEN: Brief cross, Your Honor.

CROSS-EXAMINATION

BY MR. GILLEN:

Q. Good morning, Mr. Stough.

A. Good morning, Mr. Gillen.

Q. We met at your deposition. I've got a few questions just for the record. To be clear, you did not attend any board meetings prior to December, 2004?

A. December 1st, 2004 would have been the first.

Q. So you have no personal knowledge of what occurred at these meetings?

A. No, I do not.

Q. You've indicated you talked to your daughter Child1. You think at this point that she will opt out?

A. Yes, sir.

Q. You recognize she'll have a choice, to opt out or not?

A. I assume. As it stands now, yes, I assume.

Q. You understand that Child1 is using the Miller and Levine text in her honors biology class?

A. Yes.

Q. And that she'll be taught evolutionary theory in her honors biology class?

A. Yes.

Q. You understand that apart from the mention of intelligent design in the statement that would be read, if she chose to attend the class while it was read, intelligent design will not be mentioned at all?

A. Beyond that statement, yes, I understand that.

Q. You understand, I believe, that the book Of Pandas is in the library?

A. Yes, yes.

Q. And you have no objection to the book being in the library. Correct?

A. I don't feel that I can object to the book being in the library because that would be short of censorship, but I certainly don't think it's an appropriate book to be in a high school library for several reasons.

Q. But you have no objection?

A. I don't think I can object.

Q. Now, you've testified that you believe the intelligent designer is God.

A. Yes, sir.

Q. Would your opinion as to intelligent design change if I could demonstrate that intelligent design theory does not rely on reference to God to prove its claim of design?

A. I'm not sure I can answer that hypothetical. I'm not sure how you could prove that one way or the other.

Q. I understand that.

A. I know what your question is. I just am really -- I've heard that question before. I just --

Q. Sure. It's not a trick question. What I'm saying to you is, for you the intelligent designer is God. Correct?

A. I think that it's assumed that it is. I know what you're saying. They do not say it's God.

Q. Right. In fact, do you have any understanding concerning whether they insist that it's a supernatural cause?

A. You mean in terms of --

MR. HARVEY: I'm going to object, Your Honor, on the grounds that it's quite ambiguous as to who the "they" in that statement is.

MR. GILLEN: I'm simply asking him his knowledge of intelligent design theory.

THE COURT: He used the word "they," and I think we ought to probably establish who "they" are. I think his question parroted the answer that he got. Let's ask the question.

MR. GILLEN: All right.

BY MR. GILLEN:

Q. Mr. Stough, for the purposes --

A. Stough.

Q. Stough. Again, forgive me. For the purpose of this question, I want the "they" -- you and I to come to an understanding that the "they" are proponents of intelligent design theory.

A. I understand.

Q. Good enough. And what I'm saying is, would your opinion of intelligent design theory change if I could demonstrate that the proponents of intelligent design theory do not insist that the source of design is God?

A. No.

Q. Why is that?

A. Because it is not a well-tested theory. The testing is based on -- or the tests that they point to, the hypotheses that they point to are simply used to negate evolution. They don't provide support for intelligent design as a theory.

Q. That's your understanding of intelligent design theory?

A. That's my understanding of the concept of intelligent design.

Q. You've referenced a notion of testability.

A. Yes, sir.

Q. Based on that criteria of testability that you've described in brief, you believe intelligent design is not science. Is that correct, Mr. Stough?

A. Yes, because it does not allow for falsifiable hypotheses to be generated.

Q. So, again, my question is, based on that notion of testability that you've advanced, is that the basis for your understanding that intelligent design is not science?

A. That's correct.

Q. Would it change your opinion if I could demonstrate or it could be shown that intelligent design is testable in the same way that evolutionary theory is testable?

A. If you were to show me valid and reliable testing that supports intelligent design as opposed to negates another theory.

Q. That's a yes, I take it, if that could be shown?

A. Given those conditions, yes.

Q. Okay. And in truth, you don't know whether all of the theses advanced by evolutionary -- or the proponents of evolutionary theory are testable in the manner you've described. Correct?

A. Only because my knowledge of that is limited.

Q. So you don't know?

A. I don't know.

Q. Now, you're also not familiar with work that's being done in the area of intelligent design theory. Correct?

A. If there is work being done, no, I'm not aware of it.

Q. But you believe that the evidence will never point to design. Is that correct, Mr. Stough?

A. "Never" is one of those absolute words that I avoid. So would you ask me the question again, please?

Q. Sure. I'm asking you, and you can -- I'm asking you if your testimony today is that you believe the empirical evidence could never point to design.

A. I can't say that I believe it will never point to design.

Q. Okay. You have testified to at least reading about the use of the term "creationism." Correct?

A. Yes, yes.

Q. And you associate creationism with Genesis. Correct?

A. Yes, creationism with Genesis 1, yes.

Q. Do you understand intelligent design to be creationism?

A. I understand it to be special creation, yes. It calls for an abrupt beginning, it calls for some supernatural causations.

Q. And in your judgment, that's creationism?

A. I believe that's special creation in the form of creationism, yes.

MR. GILLEN: No further questions, Your Honor.

THE COURT: Any redirect?

MR. HARVEY: No, Your Honor.

THE COURT: All right. Sir, that concludes your testimony. You may step down. Thank you.