RationalWiki:Kitzmiller v. Dover annotated transcript/P026

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THE COURT: The plaintiffs may call their next witness.

MR. SCHMIDT: Your Honor, plaintiffs call Jennifer Miller.

THE COURT: All right.

JENNIFER MILLER, called as a witness, having been duly sworn or affirmed, testified as follows:

THE CLERK: State your name for the record and spell it, please.

THE WITNESS: My name is Jennifer Miller, capital J-e-n-n-i-f-e-r, capital M-i-l-l-e-r.

THE COURT: You may proceed.

MR. SCHMIDT: Your Honor, Tom Schmidt for the plaintiffs.

DIRECT EXAMINATION BY MR. SCHMIDT:

Q. Are you employed by the Dover Area School District?

A. Yes.

Q. In what position?

A. Biology teacher.

Q. How long have you worked for the Dover Area School District?

A. This is my thirteenth year.

Q. What courses do you teach?

A. Currently I teach biology, honors biology, and anatomy and physiology.

Q. Do you have any seniority within the science department at the Dover Area School District?

A. Our department head, Mrs. Spahr, has been there for, I believe, 41 years, and I am next under her with 13 years.

Q. In connection with this litigation, did you produce documents in response to written discovery that was sent by plaintiffs to the defendant, Dover Area School District?

A. Yes.

Q. I may ask you some questions about documents.

MR. SCHMIDT: And, Your Honor, may I approach the witness with a binder of exhibits?

THE COURT: You may. And that reminds me, we did not take up any exhibits, my omission and yours, too, Counsel, with respect to Dr. Forrest. And I think that's probably a good thing so that we can move along, but I'll rely on you to pick that up at some opportune time. Principally, I'll rely on plaintiffs' counsel. There may be some defendants' exhibits. I think there are. You may proceed, Mr. Schmidt.

MR. SCHMIDT: Thank you, Your Honor.

BY MR. SCHMIDT:

Q. Ms. Miller, let me ask you a few questions about your own educational background. Where did you receive your own undergraduate degree?

A. Elizabethtown College.

Q. When did you receive the degree?

A. 1993.

Q. What was your major?

A. Biology.

Q. Did you attend any postgraduate courses?

A. Yes.

Q. Did you receive a degree?

A. Yes.

Q. In what?

A. I have a master's of education.

Q. From what institution?

A. Penn State.

Q. When did you get it?

A. 1999.

Q. What was the principal subject area of your master's?

A. A focus in teaching in the curriculum.

Q. Are you certified to teach by the Commonwealth of Pennsylvania?

A. Yes.

Q. When did you obtain your certification?

A. 1993.

Q. Must you be certified to teach in Pennsylvania?

A. Yes.

Q. How are you certified? I mean, what is the nature of your certification?

A. You have to have a degree in the area that you are going to teach, and then you have to have two examinations. They're called the NTEs. One is in your subject area. Mine was biology. And you also have to have an exam in general knowledge of education.

Q. Must you do anything after you receive your certification to maintain it?

A. Yes.

Q. And what have you done to maintain your certification?

A. Every five years you have to have so many credit hours or in-service hours or credits to maintain your certification.

Q. And have you done that since you became a certified teacher in Pennsylvania?

A. Yes.

Q. I'm going to ask you some questions now about events at the Dover Area School District.

A. Okay.

Q. First of all, I think you've indicated this in your testimony, but you have taught always in the senior high school. Is that right?

A. Yes.

Q. Do you remember a time in the spring of 2003 when you spoke to the department chair, Mrs. Spahr, about a board member and concerns about how biology is taught at the area high school?

A. Yes.

Q. What do you recall about that conversation?

A. Mrs. Spahr mentioned to us, I believe it was probably at a department meeting, that she had received a memo or had been speaking to administration about a board member's I guess wanting equal time with creation and evolution.

Q. Let me ask you a few questions about that conversation. First of all, you said she had spoken or had some communication with administration. Did she mention anyone in particular in the district administration?

A. I believe she said Mr. Baksa.

Q. And who is Mr. Baksa?

A. Our assistant superintendent.

Q. Is he the assistant superintendent now?

A. Yes.

Q. And did Mrs. Spahr identify the board member that was the subject of this conversation?

A. I don't remember at that time, no.

Q. Can you remember anything more that she said than that a board member wanted equal time for the teaching of creationism?

A. I think she was unsure as to what that meant. And I think she may have mentioned something, you know, that we need to be on our guard or something to that effect.

Q. Let me ask you a few questions now about how you teach evolution within your biology classes.

A. Okay.

Q. Let me go back to be sure it's clear. You teach two biology classes or two sorts of biology. Is that right?

A. Yes.

Q. Biology I?

A. Yes.

Q. Is there another biology course that you teach?

A. Just honors biology, which is still the same students, just a higher level.

Q. Both classes are taught in the ninth grade at the present time?

A. Yes.

Q. How do you go about teaching evolution to your biology students?

A. Day one I ask them for their definitions of evolution because I think there are a lot of misconceptions as to what evolution means. So we get their definitions. And I basically state that evolution means change over time, and that's how we're going to approach evolution.

And then we give -- I have the students come up with examples of how things changed over time. And most of them can give me examples that things have changed over time. So I, you know, tell them that basically there is a lot of controversy over beliefs, I guess, how life began.

And I basically say that we're not going to touch on how life began. I think I basically say, I don't care how you believe life began, we're going to look at what has happened to life since it got here, however it got here, and move on from there.

Q. There's a phrase that I'll ask you questions about as we go forward, but it has certainly come up in this litigation, the phrases "origin" or "origin of life." Is that something that you teach in the ninth-grade biology class?

A. No.

Q. Do you teach something about the origin of species in ninth-grade biology?

A. Yes.

Q. Can you tell me a little bit about that?

A. The origin of species, sometimes called speciation, for example, would be -- and I'll use Darwin's finches as an example, that they were finches and now are isolated on different islands, the Galapagos Islands, and have become different species of finches, still a finch but different species of finches. To me that's speciation.

Q. Are you familiar with state standards for teaching biology in the public schools in Pennsylvania?

A. Yes.

Q. Would you turn in your book to Plaintiffs' Exhibit 210. There are tabs on the side. Can you identify what's been marked as Plaintiffs' Exhibit 210?

A. Yes. Those are the state standards in science and technology.

Q. If you look at the first page, is there a date on the bottom?

A. January 5th, 2002.

Q. When did you become aware that there were state standards for the teaching of biology in Pennsylvania's public schools?

A. They went through several revisions, but I believe somewhere around summer of 2001 is when we got our final copy of the state standards in science.

Q. And in your work as a teacher at Dover, do you refer to or rely on the state standards?

A. Yes.

Q. In what way?

A. We are required to teach to the standards. In each subject area, we must make sure that students are competent in those standards in the area that we teach. We also, when these came out, we made sure our curriculum was aligned to the state standards. And at that time we did some changing and rearranging of some things because of the state standards.

Q. Let me ask you a few questions about that. You said that "we" made some changes to the curriculum. Were you personally involved in that process?

A. Yes.

Q. Tell me what you did.

A. Looking at the state standards and their emphasis, I guess you want to say, we -- at that time we taught biology to tenth graders, and we had an earth science class in ninth grade. And we also saw that the standards were -- there's a whole other set of standards on environment and ecology, so we felt that students needed environment and ecology, so we moved our biology classes to ninth grade to then offer an environment and ecology class in tenth grade.

We also looked at, again, where our emphasis was in biology to make sure that we -- I remember taking some things out that we currently taught in biology and making sure we hit things that were in the standards.

Q. At the time the standards came out in 2002 or somewhere in that neighborhood -- you can correct me if you can -- did the Dover Area School District participate in a field test of an examination in high school biology?

A. Yes.

Q. Tell us about that.

A. Currently we have standardized tests in math and English. And it's to eleventh graders. And the proposal at that time was to take a standardized test in science in the tenth-grade year, and they were field testing the examination, and we were involved in that field test. Several of our classes took the field test, I guess to look at data and that kind of thing.

Q. And in teaching to the standards, is it anticipated that at some time public school students in Pennsylvania will be tested against the standards in biology?

A. Yes.

Q. When do you anticipate that that test will first be used?

A. I believe 2007.

Q. Did your experience with the field test of that assessment examination affect how you taught biology at Dover High School?

A. Yes.

Q. In what way?

A. We felt that the field test that our students were given -- we had a chance to, you know, look over some questions, and we thought that especially some of the essay questions were very heavy in evolution.

Q. Could you turn to Page 13 of Exhibit 210.

A. Okay.

Q. If you look at the subsection that starts with the capital letter D --

A. Yes.

Q. -- is that section that carries on to the next page the state standard for the teaching of evolution in high school biology?

A. Yes.

Q. Now, I noticed that the standards, if you look back to the beginning, appear to be focused on teaching biology in tenth grade.

A. Yes.

Q. Is that right?

A. Yes.

Q. Was the Dover School District free to move the biology course to ninth grade?

A. The test was in tenth grade, so as long as they covered this material before the test in tenth grade, yes. At that time that's what the test was supposed to be.

Q. When you, at the Dover High School, separated biology and environmental sciences, you devised two curriculums, one for each course. Is that right?

A. Yes.

Q. Did the curriculum that you worked on after the standards came out include material on evolution for ninth-grade biology?

A. Yes.

Q. Do you know if the curriculum for environmental science, which is to be taught to tenth graders, includes information or material on the subject of evolution?

A. That I'm not sure of, no.

Q. When you structured the curriculum for ninth-grade biology, did you put the unit on evolution at any particular time?

A. It's currently at the end. We're on semesters, so we work from August to January, and then again we teach it from January to June. So it would have been at the end of our studies.

Q. Why did you put it at the end of the biology course?

A. I would say two reasons. One, because of where it fell in the textbook and you need some of the other -- for example, if you look at the standards, it says that they're to analyze DNA studies and look at some -- somewhere it says about mutations and gene recombination, and we wouldn't get to that. You need the background in DNA and genetics before you get to that, so it's after those units.

We also thought that it made sense to be at the end also because I think evolution is -- bears heavily on environment and ecology and how populations change and how they compete for resources and things like that. So it lent itself to be at the end because then the next step that they would have would be their environment course.

Q. Now, you said a moment ago that you worked on the changes to the high school curriculum once the standards were published?

A. Yes.

Q. I want to ask you for the details of the changes, but in that process, was there any involvement by board members in changing the biology curriculum?

A. No.

Q. What happened to the changes you proposed?

A. We wrote up a curriculum of studies and then submitted them to the administration. And I believe they are voted upon or approved by the school board.

Q. Do you know whether the board actually voted to approve the changes?

A. I'm assuming so, yes. I wasn't at the meeting where it was done.

Q. To be clear about my question so there's no confusion, whether or not the board voted to approve them, was there any involvement of a board member or board curriculum committee in developing those changes?

A. No.

Q. Did you continue to teach from that biology curriculum from whenever it was approved, I gather in 2002 until -- or through the year 2004?

A. Yes.

Q. Now, I'm going to go back to the chronology.

A. Okay.

Q. You've mentioned a conversation with Mrs. Spahr in the spring of 2003?

A. Yes.

Q. Do you recall any meeting in the fall of 2003 involving a board member who expressed concerns about how evolution was taught at the Dover High School?

A. Yes.

Q. Who was the board member?

A. Mr. Bonsell.

Q. What was his position on the board at that time?

A. At that time I believe he was head of the curriculum committee.

Q. Did you have a meeting with Mr. Bonsell?

A. Yes.

Q. Who else was at the meeting, if you recall?

A. I believe Mr. Baksa, and I can't remember if Dr. Peterman, who was our principal at the time, was there. She may have been. But I remember most, if not all of the science department was there, also.

Q. Was Mrs. Spahr there?

A. Yes.

Q. Were there any other board members besides Mr. Bonsell?

A. No.

Q. To your knowledge, at that time were there other board members who were members of a curriculum committee?

A. At that time I wasn't aware of what the curriculum committee was, no.

Q. Did you know, at the time of the meeting, whether Mr. Bonsell had a child who was attending the Dover High School?

A. Yes.

Q. What do you know about the child, what grade?

A. He was in ninth grade that year.

Q. Had that child taken a biology course at the time of this meeting?

A. No.

Q. Was that something the child would have taken in the course of the ninth grade?

A. Yes, I believe he was scheduled to take it in the spring.

Q. Did Mr. Baksa or anyone else say anything to you to prepare you for the meeting or that you at least understood to be preparation for the meeting?

A. Yes.

Q. Who said what?

A. I believe at this time is when we mentioned about the statement earlier that I wasn't aware of who the board member was that made the statement about equal time with creationism and evolution. And at this time I believe -- whether it was Mrs. Spahr, Mr. Baksa, made us aware that it was Alan Bonsell that made that statement.

We also were told by Mr. Baksa just some background on Mr. Bonsell, that he was what Mr. Baksa said, a young earth theorist or young earth creationist, didn't believe in some of the fossil records or some of the dating of fossil records, I believe. So that was the background we were given.

Q. What was your understanding at the time of what it meant to be a young earth creationist?

A. Basically that -- I believe they believe that the earth is somewhere around 10,000 years old, didn't believe that the earth was as old as some of the carbon dating and things like that that the evidence shows.

Q. At the time of this meeting -- and I think you've said this already -- you were the senior biology teacher. Is that right?

A. Yes.

Q. Did you become the principal spokesperson for the science department in whatever discussion took place at this meeting?

A. As far as in the biology curriculum when he was asking questions about how we taught evolution, then, yes, I became the spokesperson for that.

Q. Can you summarize what the questions or concerns were that were expressed by Mr. Bonsell at that meeting?

A. His concern was, again, how we taught evolution. And I explained how we taught evolution just as I explained to you, day one where we go with evolution. We did explain that we teach the origin of species, not necessarily the origin of life. His concern was definitely with the teaching of the origin of life.

He was concerned that we would convey something to the students that was in opposition to what their parents were conveying to them at home and didn't want to pit the teachers in the middle of, you know, having the students say, well, somebody is lying, basically.

So, again, we reiterated that we don't teach the origin of life. We stick with the origin of species. And I remember, at the end of that meeting, that we thought everything was okay. And I remember him even saying that, you know, he agreed with that part of what we taught, too. He was okay with that part.

Q. Now I'm going to take you forward in time.

A. Okay.

Q. Do you recall a meeting in the spring of 2004 with a board curriculum committee?

A. Yes, several of them.

Q. Do you recall the first such meeting? Or what meeting do you recall, at least, as the first one?

A. The first one that I can remember was sometime April, I would say. We were -- there's a rotation of getting new textbooks. And the science department was up in that rotation for getting new textbooks, and we were sort of justifying which textbooks we wanted, how they were significantly different from the previous textbook, why we needed new textbooks, and that kind of thing.

Q. Let me ask you two quick background questions. Do you recall what textbook was in use by the biology teachers in the beginning of 2004?

A. Yes.

Q. Which was it?

A. It was the -- I believe it's 1998 was the last time we ordered the books, edition of Miller and Levine's book.

Q. Okay. Was that book up for replacement in the -- I'll call it the ordinary cycle before early 2004?

A. Yes.

Q. When did it first come up for replacement?

A. It would have been the year before that.

Q. And to your knowledge, was that decision to purchase new books postponed for some reason?

A. Yes.

Q. Do you know what the reason was or were you ever told by anyone?

A. I think it was -- my recollection is that to save money, they were going to put off ordering any textbooks that year, so no one got any textbooks that year. I remember a discussion of a fund balance was going to be used to order textbooks the next year. So no one got textbooks.

Q. Now, in 2004, was the subject of this first meeting you recall with the curriculum committee the justification for purchasing a new book?

A. Yes.

Q. Did you do any work to provide that justification?

A. Yes.

Q. Can you turn to what's been marked as Tab 148, which is also Plaintiffs' Exhibit 148.

A. Okay.

Q. Is this the document that you prepared --

A. Yes.

Q. -- to justify the purchase?

A. Yes.

Q. And was it prepared around the time of the meeting in the spring of 2004?

A. Yes.

Q. Was one of the reasons that you suggested a new textbook to bring it into line with the new curriculum which was based on the new state standards?

A. Yes.

Q. Does that appear anywhere on this page?

A. Number 3, the order of the textbook aligns itself to our curriculum.

Q. At the end of that meeting, what was your understanding about what would happen next with the textbook requisition for biology?

A. That they would be put before a vote of the school board.

Q. When was the next meeting that you recall having with the curriculum committee in the spring of 2004?

A. Sometime very close to the -- if not the last day of school, somewhere around the last day of school in June of that same year.

Q. Who was at that meeting?

A. It was the curriculum committee, which would at that time have consisted of Mr. Buckingham, Mrs. Harkins, Mrs. Brown, I believe Mr. Baksa was there, and I know at least Mr. Eshbach, myself, and Mrs. Spahr were there.

Q. At this meeting what were you told was the subject of discussion?

A. We had gotten a list of concerns by Mr. Buckingham on how the textbook presented evolution.

Q. Let me ask you to turn to Tab 132.

A. Okay.

Q. I'm showing you what's been marked as Plaintiffs' Exhibit 132 and ask if you recognize this document.

A. Yes.

Q. What is it?

A. That's the list of concerns we had gotten given to us by Mr. Baksa.

Q. Now, before I ask you some questions about this list of concerns, were you in attendance at a school board meeting on June 7th?

A. I don't believe so.

Q. Do you recall hearing from anyone that there was a discussion about a mural at the school board meeting on June 7th?

A. Yes.

Q. Was there a discussion about a mural at the board curriculum committee meeting that you're now testifying about near the end of school that June?

A. Yes.

Q. What was that discussion?

A. My recollection is that someone mentioned something about a mural, I don't know, held up a picture or something like that at a previous board meeting. And at the June -- I think it's somewhere around June 14th meeting of the curriculum committee, Mrs. Spahr asked Mr. Buckingham where he had gotten that picture of the mural.

Q. Let me ask you if you knew, when she asked that question, what mural she was referring to.

A. Yes.

Q. What was the mural?

A. It was a mural done by a senior as his senior project that showed basically the evolution of man. It was donated to the school or to a teacher because it was so big he couldn't basically take it home with him, so it was donated to him and it was in the back of his classroom.

Q. Does each science teacher at the high school have his or her own classroom?

A. Yes. There may be a floater or two that goes between, but yes.

Q. You said that the mural was at the back of a teacher's classroom. Was it hanging on the wall, leaning against the wall? How was it --

A. I believe it was propped up on the -- there was a chalkboard on the back, and it was propped up on the chalk tray.

Q. Had you ever seen the mural yourself?

A. Yes.

Q. How big was it?

A. It took up the whole back portion of his room, so it was big.

Q. Do you remember a time when the mural was no longer in that classroom?

A. Yes.

Q. At the time that it was no longer there, did you know what happened to it?

A. No.

Q. Back to the meeting in June of 2004. Mrs. Spahr, as you've testified, asked Mr. Buckingham a question about having a picture of the mural. Who was Mr. Buckingham?

A. A member of the school board. At that time I believe he was head of the curriculum committee, also.

Q. What was his response to her question about having a picture of the mural, do you recall?

A. I think she asked where he had gotten it, and he didn't answer that. And she asked what happened to the mural, do you know what happened to the mural? I believe his words were that I gleefully watched it burn.

Q. The mural, as you've described it, depicts the evolution of man?

A. Yes.

Q. Was there some discussion of the evolution of man or monkeys and men or anything that related to that during this curriculum committee meeting?

A. Yes.

Q. Can you recapitulate a bit what that discussion involved?

A. Most of the discussion focused around, you know, again, I thought you didn't teach origins of life, how can this mural be in the back of a classroom if you don't teach that, what message does that send to the students if you're not teaching it but this mural is in the back, and, again, disagreeing with the whole idea that man evolved, I guess, or came from monkeys.

Q. Was that discussion about man's evolution and what was depicted on the mural associated in the discussion of Mr. Buckingham's concerns about the biology textbook that is reflected on what's been marked as Exhibit 132?

A. Yes.

Q. Explain that, please.

A. Some of his -- before this meeting we looked over his concerns and looked at the page numbers trying to just get a general sense of, you know, where his problems were, you know, trying to get an idea.

And there was -- I can't point them out specifically, but I know there were several of them -- I remember one of them, for example, said -- it was a teacher-to-teacher section, and it was asking the students -- a suggestion for the teacher to ask students to propose, for example, if humans were sent to another planet and subjected to the environment on that planet, what kind of -- what kinds of adaptations might they have at that new planet and how might they evolve, you know, to occupy that new planet. And that was one of his.

So that sort of related to, again, didn't necessarily believe that man evolved, and, you know, if we were asking students to do that, it showed that man evolved and that kind of thing. So it was related to that.

Q. Do you recall any comments that Mr. Buckingham himself made about the concerns that are listed on Plaintiffs' Exhibit 132, other than the ones you've already --

A. No, nothing in particular, no.

Q. What was your response to Mr. Buckingham's concerns?

A. We again reiterated how we teach evolution, sort of the same conversation that we had had with Mr. Bonsell the previous year. And we also pointed out that some of his concerns were in -- he had a teacher's edition, so some of his concerns were in the teacher's edition, and if he was worried about what students would see, they would not get the teacher edition, so they wouldn't see what was in the teacher edition.

Q. Do you recall which edition of the biology textbook you were referring to? I don't mean teachers versus student, but date.

A. 2002.

Q. Was that the one that had been under consideration up to that point?

A. Yes.

Q. Okay. I'm still at the spring meeting. Did you receive some other documents from either Mr. Buckingham or Mr. Baksa at that meeting?

A. Yes.

Q. I'd like you to turn to what's been tabbed as P136 and is marked as Plaintiffs' Exhibit 136.

A. Okay.

Q. Have you seen this document before?

A. Yes.

Q. Is that your handwriting in the upper right-hand corner, by the way?

A. Yes.

Q. Did you put that handwriting on there as part of the process of producing documents that I asked you about earlier?

A. Yes.

Q. What is this document?

A. This is a product profile of the textbook that I believe the Bob Jones University uses in their biology instruction.

Q. What were you told was the reason for giving you this particular document?

A. I just remember giving -- they were doing a survey, sort of, of different textbooks that were out there or different textbooks used, and I just remember getting this one as an example of one that's used in other universities or high schools, that type of thing.

Q. You said "they." Who did you mean?

A. I know Mr. Baksa gave this to us, so --

Q. Were you asked, as the senior biology teacher, by anyone in the school district administration or anyone on the curriculum committee to get other selections or suggestions for a biology textbook?

A. No.

Q. Turn, if you would, to the next tab in your book, which is Plaintiffs' Exhibit 138.

A. Okay.

Q. What is this document?

A. This was also given to us at that meeting by Mr. Baksa. It's a survey of biology books used in local -- in York County Christian schools.

Q. Do you know who assembled this information?

A. It was given to us by Mr. Baksa.

Q. At this same meeting?

A. Yes.

Q. There's handwriting at the top right corner. Was that your handwriting?

A. Yes.

Q. And did you put that on when you produced this document through discovery?

A. Yes.

Q. There is another place in the first line where there's handwriting that appears to be the title and publisher of a book. Whose handwriting is that?

A. Mine.

Q. When were you given that information?

A. I believe at that meeting that he was unsure of what the Christian School of York used and found out since then, and so we wrote it in.

Q. Did Mr. Baksa tell you at this meeting why he collected information about books being used in parochial or sectarian schools?

A. Not really, no.

Q. Did he ask you to do anything with this information?

A. No.

Q. Did you do anything with this information?

A. No.

Q. Okay. Turn to Tab 148, please.

A. Okay.

Q. Behind the tab are two pages marked as Plaintiffs' Exhibit 149. Have you ever seen these documents before?

A. I'm at Tab 149, not 148.

Q. I'm sorry, 149.

A. 149. Okay. Yes.

Q. When did you see them?

A. They were given to us somewhere around this curriculum meeting. I can't remember if they were handed out at that curriculum meeting or sometime before that curriculum meeting.

Q. And by "that curriculum meeting," again, we're talking about the one around the end of school in June, '04?

A. Yes.

Q. And the handwriting on the top of the first page is your handwriting. Is that right?

A. Yes.

Q. And put on this document when you were producing it in response to discovery?

A. Yes.

Q. Okay. Was there any discussion of the first page in Exhibit 149 called, Beyond the Evolution versus Creation Debate at the curricular committee meeting?

A. No, not that I can recall.

Q. Was there any discussion of the next page, which appears to chart out different views on the origin of the universe and life at that meeting?

A. No.

Q. Now, I'm going to take you to another meeting about this same time. Did you attend a meeting of the school board on June 14th, 2004?

A. Yes.

Q. Do you recall at that meeting a person named Charlotte Buckingham making a statement during the public comment portion of the meeting?

A. Yes.

Q. Tell us what you recall about her statement.

A. I remember her reading many Bible verses, I know some were from Genesis, and stating that basically this is the truth and how can we teach anything else.

Q. Was it your understanding at the time she made this public statement that it was related to something on the agenda of the school board?

A. Yes.

Q. What was it, as you understood it, that was on the agenda that she was speaking to?

A. I believe at that time it was the purchase of the textbooks.

Q. The biology textbooks?

A. Yes.

Q. Do you recall if Mr. Buckingham made any statements during the meeting of the school board on June 14th?

A. Yes.

Q. What do you recall he said?

A. I remember him -- again, I wasn't at the June 7th meeting, but because of statements he made at the June 7th meeting, that he was asked to sort of tone down some of his remarks that were made at the June 7th meeting. And he said something to the effect that I am who I am, and if you don't like it -- I'm going to state my beliefs, and if you don't like it, you can vote me out at the next election.

Q. Did he make any other statements about his beliefs or views on subjects pertinent to the purchase of the textbook?

A. Yes.

Q. What did he say?

A. I believe there were several. I remember him saying something about, again, this nation being founded on Christianity, and we should teach as such. I also remember him saying, 2,000 years ago, someone died on the Cross, shouldn't someone take a stand for Him now.

Q. Did he make any statements about the separation of church and state?

A. I believe so, yes.

Q. What did he say?

A. That the separation of church and state was a myth.

Q. Did the school board, on June 14th, take action on the purchase of a new biology textbook?

A. No, I don't believe so.

Q. Forward to the next meeting the following month. Did you have a meeting with anyone about the purchase of a new biology textbook?

A. Yes, sometime in the middle of July.

Q. Who did you meet with?

A. It was Mrs. Spahr, myself, Mr. Baksa, and Dr. Nilsen was sort of in and out at that meeting.

Q. Was this meeting at the school administration office?

A. Yes. I think it was in Mr. Baksa's office.

Q. What was your understanding of the purpose of the meeting?

A. At that point I believe that the purchase of the textbooks was tabled because we found out that there was a 2004 edition of the Miller and Levine textbook, where we had ordered the 2002 edition, so now there was a brand-new edition.

So we were in his office to basically -- we had a copy of the 2004 edition, and we were comparing the 2002 edition to the 2004 edition.

Q. I'm going to take you back to what's been marked previously as the justification. You don't have to look for it. But you recall that you provided a written justification for why the school district should move from the 1998 edition to the then new edition of 2002?

A. Yes.

Q. The justifications related to the entire book. Isn't that right?

A. Yes.

Q. When you met with Mr. Baksa and Mrs. Spahr in July, 2004, did you compare the entire 2002 edition to the entire 2004 edition?

A. No.

Q. Did you focus on any particular part?

A. Yes, the evolution chapters.

Q. And what did you do in that comparison?

A. We basically read over the evolution chapters word for word and compared what it said in the 2002 edition versus what it said in the 2004 edition.

Q. I'm going to ask you to turn to Tab 150 and ask Matt to call up Plaintiffs' Exhibit 150. What is this document?

A. This is a written representation of the comparisons between the two books.

Q. Did you work on the preparation of this document?

A. Yes.

Q. Did Mr. Baksa work on it?

A. Yes.

Q. Did Mrs. Spahr?

A. Yes.

Q. Is this an accurate comparison between the two editions on the subject of teaching evolution?

A. Yes.

Q. At the same meeting did you receive a copy of the book entitled Of Pandas and People?

A. Yes.

MR. SCHMIDT: I think that's been marked and admitted, Your Honor, as Plaintiffs' Exhibit 11.

THE COURT: It has.

MR. SCHMIDT: May I approach the witness?

THE COURT: You may.

BY MR. SCHMIDT:

Q. Ms. Miller, I've shown you a copy of what's been marked as P11. Do you recognize that as a copy of Pandas and People?

A. Yes.

Q. If you would -- and I think this is probably in the record more than once -- but would you turn to the copyright page and tell us what the copyright date is on that book?

A. 1989 and 1993.

Q. When you were introduced, if that's the right word, to the book of Pandas and People, who gave it to you, Mr. Baksa or Mrs. Spahr?

A. Mr. Baksa.

Q. Did he say anything to you about why he was showing it to you or giving it to you?

A. Basically here's the book, I don't know, given to him, look over it, tell me what you think.

Q. Did you look it over?

A. Yes.

Q. Did you read the entire thing or portions of it?

A. There are introductory chapters, and then there are more in-depth chapters. I believe I read the introductory chapters. I think there are six of them.

Q. When Mr. Baksa gave it to you and said, look it over, tell me what you think, did he tell you at that time that this book was under consideration as a companion text to go along with the biology textbook?

A. No.

Q. Did he tell you at that time that Of Pandas was under consideration as a reference text to be placed anywhere in the school building?

A. No.

Q. What did Mr. Baksa tell you and Mrs. Spahr was going to happen with the biology textbook following your meeting in July?

A. I believe the next board meeting was sometime in the beginning of August, and it would be up -- the 2004 edition of the book would be voted on at that meeting.

Q. Would you have liked to have the textbook you were going to be using in the school year beginning in September in your hands before August?

A. Yes. We were concerned because, again, the students were coming to us at the end of August, and our textbooks were still not in place, and we would like time to look over the textbooks and prepare lessons and things from our new textbook.

Q. Now, I want to take you back to Pandas for a minute. You said you read parts of it but not the entire book.

A. Right.

Q. What was your impression of Pandas as a science book when you read the parts that you did?

A. Two things that I focused on. The first one was that when I read it, with my biology degree, I had trouble reading some of it. I thought it was very high-level text, and I was concerned. I didn't know what -- you know, where this textbook was going, you know, if students were supposed to be reading it, that it would be too high of a level for my ninth graders to read. I also had questions, I guess, on some of the science in it, some of the conclusions, I guess I want to say, that it made in the book and how science-related they were.

Q. Were you at all concerned about the fact that the book you were replacing was a 1998 copyright, this was a 1993 copyrighted science book?

A. Yes. There was a -- there was some discussion on, you know, even if it's an old -- at our first curriculum committee meeting, even if it's a newer book, if it's very similar to the old book, it doesn't necessarily warrant getting a new book. So here we had an outdated book, so, yes, we were concerned about the year.

Q. Did you do anything formal to sort of test your first impression that this might be hard going for a ninth-grade student?

A. Yes.

Q. What did you do?

A. I went online and found two different Web sites that allow you to do what's called a readability study of the text.

Q. Was doing a readability study something that you learned how to do when you got either your bachelor's or your master's degree?

A. Yes.

Q. Go on, now. What did you do when you had that material available?

A. Basically a readability study is you take random samplings from a text and you look at how many words are in a sentence, how many syllables are in each word, and you plug them in, and they -- it's a formula, and they spit it back to you, basically, on how -- what the level of the reading is, whether it's a third-grade level, you know, fifth-grade level, twelfth-grade level.

Q. Do you recall what the results were of the readability study you did?

A. Yes. Both of them that I did it was 12 plus, which would have been grade level 12 plus.

Q. Okay. Now, moving forward, did you learn sometime after the August school board meeting that the purchase of the 2004 edition of Biology had been approved?

A. Yes.

Q. Did you attend a curriculum committee meeting with the board curriculum committee members late in the month of August?

A. Yes.

Q. Who else was at the meeting?

A. Let's see. That was -- I believe the board curriculum members, I believe Dr. Nilsen was at that meeting, Mr. Baksa. I believe at that time it would have been our new principal, Mr. Riedel, and, again, at least Mrs. Spahr, Mr. Eshbach, and myself. There may have been other science department members there.

Q. What was the principal subject of the meeting on the -- is it the 30th of August?

A. I believe so.

Q. What was the principal subject of that meeting?

A. The Of Pandas book and how it was going to be used in the classroom.

Q. Was the Pandas book the first substantive contact you had had with intelligent design?

A. Yes.

Q. Was that subject something that was discussed at the meeting on August 30th, intelligent design?

A. Yes.

Q. Was there any concern expressed by anyone at that meeting about using a book that conveyed intelligent design material?

A. Yes.

Q. What was that discussion?

A. I believe it was Mrs. Spahr had documents that were evaluating whether or not you could present intelligent design in a science classroom. So there was some discussion of is it science, you know, is it appropriate to place in a biology -- or science classroom.

Q. As you recall that discussion and the concerns that Mrs. Spahr expressed, how would you describe those concerns in your own words? What was the problem with teaching intelligent design in a biology class?

A. It was -- intelligent design, you know, from the textbook says basically that life is, I guess, created by an intelligent designer. And we knew through my science classes and education classes in my undergraduate work that creationism was not allowed to be taught. And we just felt that it was too close to creationism to be comfortable in our classroom, to present it in our classroom.

Q. As a biology teacher, were you comfortable with your students having Of Pandas and People as a companion textbook?

A. No. I believe at that meeting sort of the end result was if we had to compromise, this book was coming as a reference text was our compromise instead of having it in the hand of every student.

Q. Why did you accept that compromise?

A. We felt like, again, we were, you know, all throughout this -- earlier we had agreed to say that we'd point out some areas of evolution that don't have as much evidence. That was our compromise first. And then this came, and we felt that it was being, you know, pushed, so we felt, well, if we compromise, maybe this will go away again.

Q. Even with the compromise that you've just described where it's in the class as a reference book and not a companion text, did you have any sense from the curriculum committee about how you were to use Of Pandas and People?

A. Not at that point. I think there were still questions of how we were to use it.

Q. Was there any discussion at the meeting on August 30th about changing the biology curriculum?

A. No.

Q. Going forward to another meeting. Did you attend the October 18th meeting of the Dover School Board?

A. Yes.

Q. Did the school board, at that meeting, change the biology curriculum?

A. Yes.

Q. Turn to Tab 135. What is that document?

A. Our biology curriculum.

Q. And if you would, turn to -- sorry, Your Honor. The page numbers are Bates stamped on the bottom. 1646, can you find that?

A. Yes.

Q. Does the change that was approved by the board on October 18th appear on that page of 136?

A. Yes.

Q. Where does it appear?

A. At the very bottom.

Q. This page is set up with a number of columns that convey the amount of time, the content and concepts that are to be taught, the state standard. Right?

A. Yes.

Q. And let me ask you about the state standard. There is a reference to a state standard in that column?

A. Yes.

Q. If we were to look at the state standard, would we find any mention there of intelligent design?

A. No.

Q. The next column talks about instructional strategies. What instructional strategy was to be followed?

A. Lecture.

Q. And what resource is identified?

A. Of Pandas and People.

Q. Is there anyplace else in the biology curriculum, if we went through it page by page, where we would find a resource identified by specific title other than Of Pandas and People?

A. Other than our textbook is listed. And we just generically said "textbook" because this is to stay throughout whatever textbook we use.

Q. Was there any comment made by a board member named Heather Geesey at the October 18th meeting about teachers being fired?

A. Yes.

Q. What do you recall she said?

A. My recollection is something was said, I believe it was by Mr. Brown, something about the addition of this being sued or something like that, do they have the right to sue us. And Mrs. Geesey said, well, if the teachers sue us, then they should be fired because they agreed with this.

Q. Did you respond to that comment?

A. Yes.

Q. What did you do?

A. When she said that, it caused me to jump out of my seat, and I ran to the podium and basically said the teachers did not agree with this addition of intelligent design into our curriculum.

Q. At that meeting of the 18th, was there any discussion by the members of the board about why the curriculum change was being made?

A. No.

Q. Was there any discussion by any member of the board at any other time or any explanation provided about why the curriculum change was being made?

A. No. The only thing we knew was their problem with evolution and the origin of life.

Q. I've mentioned the board, but the school also has administration. Let me ask the same question. Was there ever any explanation given by the administration of the school district about why this curriculum change was being made?

A. No.

Q. Did anybody ever explain how it improved teaching science or biology in the school district?

A. No.

Q. Now, after the board meeting, a number of other things happened, and let me take you through a few additional exhibits. If you would turn to Exhibit Tab P692.

A. Okay.

Q. Have you seen a document, at least something containing this material, before?

A. Yes.

Q. What is it?

A. It was a draft sent to us, you can see at the top, by Mrs. Spahr of -- basically it says what's going to be read to all biology classes.

Q. Do you know who originated this draft?

A. Mr. Baksa.

Q. Were you asked to do anything with this draft?

A. Yes.

Q. What were you asked to do?

A. Look it over, make changes, tell me what you think again.

Q. All right. Who directed you to do that job?

A. Mr. Baksa.

Q. Turn now, if you would, to Plaintiffs' Exhibit 94, which is at Tab 94 in your book. You'll find it closer to the front.

A. Okay.

Q. Do you recognize this document?

A. Yes.

Q. What is it?

A. This is my notes of changes that I was instructed to make.

Q. What did you do with these changes?

A. I sent them, I think via e-mail, to Mr. Baksa.

Q. Turn, if you would, to Exhibit 98.

A. Okay.

Q. Is that the typed version of the handwritten changes we saw in the previous exhibit?

A. Yes. This is what I actually sent to him.

Q. All right. There's handwriting on this page. Do you recognize the handwriting?

A. Yes.

Q. Whose is it?

A. Mine.

Q. Some of the type on this page is in boldface. What does that signify?

A. I bolded the areas that -- where I may have added words or changed things around.

Q. Are -- well, let me ask you this question. What does your handwriting convey to the person looking at this document?

A. I went over how many things, I guess, that I had changed and circled those. And then I compared, I guess, my version with the version that was eventually -- I don't want to say voted on, but the version that was eventually presented and put in where things were taken out or where they removed pieces of mine and that kind of thing.

Q. There are some numbers and circles.

A. Yes.

Q. What do they signify?

A. I believe those were the changes that I made, or the boldface is the changes that I sent.

Q. Okay. And so when you say on this document they removed or they took out, that's what you were seeing as a comparison between your proposal and the ultimate version?

A. Yes.

Q. Okay. Let me ask you to turn to Tab 100 and just tell us what this is. Is that another review of --

A. Yes.

Q. -- this draft?

A. Yes. I believe this is almost a final copy, yes.

Q. Now, one more on this. If you would turn forward on Plaintiffs' Exhibit 110.

A. Okay.

Q. The first page of that is a memorandum --

A. Yes.

Q. -- from Mr. Baksa. You received a copy?

A. Yes.

Q. Dated December 7, 2004?

A. Right.

Q. And what is that forwarding and is that part of this exhibit?

A. Telling us that before we get to the chapters on evolution, we are to read this statement here.

Q. And is the document that appears behind this memorandum the final version of the statement that was to be read to students?

A. Yes.

Q. You've talked a little bit about your involvement in discussions with Mr. Bonsell, Mr. Buckingham, curriculum committee, where issues have come up about teaching evolution, issues have come up about how to use Pandas, and you described at least one or two compromises along the way.

A. Yes.

Q. Why did you work on the statement that was to be read to students?

A. I was directed to by Mr. Baksa, who is my superior. And the original version I thought held -- well, was lacking in some of the, I guess, validity, or some of the statements were inaccurate, I thought. So if it was going to be presented to the students, that it should at least be accurate.

Q. Okay. Turn, if you would, to Exhibit 104, which is behind Tab 104.

A. Okay.

Q. What is this?

A. This is a press release. I think it was on the Web site, district Web site, about --

Q. What was the -- sorry.

A. About the biology curriculum and what was to be read to the students.

Q. What is the date of the first posting of this press release?

A. 11/19/04.

Q. I'd ask you to look down to the last paragraph before the final indented material at the bottom that starts, In coordination.

A. Okay.

Q. Do you see that?

A. Yes.

Q. Will you read that aloud into the record?

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

Q. Is that an entirely accurate statement?

A. We did not think -- we didn't like the "in coordination with the science department teachers" part.

Q. Did you believe that was an inaccurate statement?

A. Yes.

Q. What did you do about it as science teachers?

A. We wrote a letter to Dr. Nilsen, I believe, that stated that we weren't -- we think that the "in coordination with the science teachers" sort of misrepresented what factor we had to play in it.

Q. Let me ask you to turn to Tab 106.

A. Okay.

Q. What is this document?

A. That's the letter that we sent to Dr. Nilsen.

Q. Would you read this, since it's only one paragraph long, into the record, please?

A. Sure. (Reading:) Dear Richard Nilsen: Contained in the most recent press release regarding the biology curriculum, the following was stated: The assistant superintendent in charge of curriculum development, Mr. Baksa, in coordination with the science department teachers, the district solicitor, and the school board, has developed the following procedural statement to use in implementing the new biology curriculum language. The science department members strongly object to this statement. To reiterate what was verbally indicated to Mr. Baksa upon returning the draft of the procedural statement and in an effort to honor your request as not to be deemed insubordinate for input, the science department corrected the statement to ensure it was factually correct from a scientific standpoint. This was by no means giving our consent or agreement to the development of this statement. Since the science department had no input in this press release, we are asking a correction be released to the media.

Q. Did you help prepare this document?

A. Yes.

Q. Is your signature on it?

A. Yes.

Q. Did you send it?

A. Yes.

Q. The statement that was to be read to students was something that, as originally prepared, was to be read by teachers. Is that correct?

A. Yes.

THE COURT: If you have a substantial amount more, Mr. Schmidt, we probably should take a break. If you think you can wrap it up in the next five or ten minutes, your direct -- and I don't want to hold you to that.

MR. SCHMIDT: No, I'm willing to be held, Your Honor. I only have a few more questions.

THE COURT: All right. Well, let's wrap that up, and then we'll break and have cross this afternoon. You may proceed.

BY MR. SCHMIDT:

Q. Ms. Miller, did you actually read that statement to your students in the ninth-grade biology class?

A. No.

Q. Did you refuse to read it?

A. Yes.

Q. I'd like you to turn to a document that's been marked Plaintiffs' Exhibit 121.

A. Okay.

Q. What is this document?

A. This is a document sent to Dr. Nilsen where the science teachers were asking to be -- to basically opt out of reading that statement to the biology classes.

Q. Did you have a hand in preparing this document?

A. Yes.

Q. Do you agree with it?

A. Yes.

Q. Look down at the second paragraph from the bottom before the boldface. Do you see that?

A. Yes.

Q. Would you read that paragraph into the record?

A. The one that starts, Central to the teaching?

Q. Yes, please.

A. (Reading:) Central to the Teaching Act and our ethical obligation is the solemn responsibility to teach the truth. Section 235.10 guides our relationships with students and provides that the professional educator may not knowingly and intentionally misrepresent subject matter or curriculum.

Q. And why, guided by that principle, did you refuse to read the statement to your students?

A. By us reading the statement to our students, it essentially was -- it was going to be very contradictory to the students by saying, number one, that intelligent design is science, which we didn't believe it was, and that would be misrepresenting a subject matter.

And, number two, if I'm telling the students that I'm going to teach evolution, which is very important and they're going to be tested on it, but yet ask them to go and read Of Pandas and People, which says that evolution didn't occur, to me that's confusing for the students. It's contradictory to do both. Okay? For them to be tested on evolution but yet say evolution didn't occur confused our students and would misrepresent how important evolutionary theory is to the students.

MR. SCHMIDT: Nothing further on direct, Your Honor.

THE COURT: All right. Thank you, Mr. Schmidt. We will now recess for lunch until -- why don't we say about five of 2:00. That will give us an hour and a half. And we'll take up the exhibits first thing for Professor Forrest when we return. And obviously we won't have the exhibits for this witness until we finish direct and cross. So we'll be in recess until 1:55 p.m. this afternoon.

(A luncheon recess was taken.)

Note
Exhibit discussion occurs here, moved to own page to not interrupt Miller testimony

Exhibits for Forrest
THE COURT: Be seated, please. All right. Let's take, Liz, if you have them, we'll take the exhibits for Professor Forrest, and there are quite a few. We have P-348. I'll tell you what I'm going to do.

I'm going to run through the whole list that I have, and then I'll see if there's any that you're not moving for the admission of and if there are any controversies with respect to these exhibits. P-348 is the witness's CV.

630 is the Trojan Horse publication, the book. P-347 is the report itself. P-349 is the supplemental expert report. P-418 is the Kenyon affidavit. P-12 are the FTE articles of incorporation. P-633 is the Why All the Fuss About Evolution and Creation article.

P-566 is the FTE letter. P-344 is the case for creation -- a case for creation article. P-634 is the Bible Science newsletter. P-563 is the creation biology textbook. P-560 is the biology and creation textbook.

P-1 is the biology and origins textbook. P-562 is the Pandas draft. P-652 is the Pandas and People copy sent by Mr. Buell. P-565 is the introduction to summary chapter. P-6 is Of Pandas and People. P-350 is the FTE letter to Barlett. P-360 is Challenging Darwin's Myth by Mark Hartwig. P-429 is Life in the Big Tent article.

P-524, How the Evolution Debate Can't Be Won article. P-355 is an article. P-379 is the State of the Wedge article. P-516 is the Wedge article. P-410 is Darwin's Last Stand, an article. P-354 is the Check for ID article.

P-473 is, Does Seattle Group Teach Controversy article. P-386 is the intelligent design article. P-390 is the intelligent design book. P-394 is the design revolution book. P 357 is the intelligent design article. I don't know if that's comprehensive. I hope it is. Tell me if it's not.

MR ROTHSCHILD: I think there were a couple exhibits already admitted.

THE COURT: Yes, clearly several of them had been previously admitted. What is your pleasure with respect to that roster?

MR ROTHSCHILD: Your Honor, the Plaintiffs would seek to move in all of the exhibits into evidence, but I want to just be specific about the expert reports, because we only want to move them into evidence for a specific purpose and not -- I'm not suggesting a precedent that all expert reports come into evidence.

With this particular expert, her qualifications, methodology had been challenged. That was the subject of the motion in limine and also argument in court. And for those purposes, her report, we believe, should be part of the record, and, in fact, I would suggest that all of the resources that she relied upon become part of the record for purposes of -- for that specific purpose.

THE COURT: All right. Before we get to that, let's see if we can color from that list what has already been admitted. Pandas is P-6, I think, is that right?

MR ROTHSCHILD: The first edition of Pandas is P-6. That's the 1989 version.

THE COURT: I believe that was admitted previously.

MR ROTHSCHILD: I think that's correct.

THE COURT: Do you know of any others that were previously admitted?

MR ROTHSCHILD: I'm going from my list, which you may have not included some of the things you had recorded as admitted. P-11 is the second edition of Pandas.

THE COURT: Yeah, I don't have P-11 on this list.

MR ROTHSCHILD: P-328, I don't think you said, but that's one that was admitted through Mr. Pennock.

THE COURT: Did we admit P-6, Liz, previously?

COURTROOM DEPUTY: I don't have that as admitted already.

THE COURT: Then we didn't. Liz typically takes down and cross checks me with what we have not admitted, so I'm not so sure if P-11 was admitted.

MR ROTHSCHILD: We would like to move in P-6.

THE COURT: 6 is the '89 version and, I think 11 is the later version.

MR ROTHSCHILD: Correct, Your Honor.

THE COURT: All right. So let's then hear the Defendants -- if I understand, Mr. Rothschild, what you are requesting is that the expert report and the various publications, in fact, all the exhibits go in, but not to be considered by the Court in our determination other than the testimony that we heard here in court. They're there for the record.

MR ROTHSCHILD: Obviously, a lot of the documents that she did testify about today will be included in that group, but we're suggesting supplementing the exhibits with the ones she did not mention, but only for the purpose of --

THE COURT: Then I misunderstood you. You're suggesting that additional articles that were not referred to in her testimony-in-chief be included in the record?

MR ROTHSCHILD: That's correct. I don't want any question in the record about the thoroughness of her methodology, and we think that's important to make that record. And we have a list of those exhibits, and, you know, we can do that now or if you think that would be better to do it later.

THE COURT: Insofar as -- let's take these first. So why don't we have Mr. Gillen and Mr. Thompson, do you want to speak to not the -- the non referred to articles but the referred to articles or any of the exhibits, in fact, because if I understand Mr. Rothschild, you're moving for the admission of all of the exhibits, including the expert report and the supplemental report.

MR ROTHSCHILD: For the limited purpose, yes.

THE COURT: As identified and named.

MR. THOMPSON: Your Honor, the only objection we have is the introduction of her expert report per se and the accompanying articles. I think it would really fly in the face of our position in the sense that we've challenged her report.

We've challenged her methodology. The Court has before it the transcript of the challenge and will be able to review the challenge. Now what we're doing is giving her report more heightened value that that's being introduced in evidence.

THE COURT: Well, and you're arguing that the report and the supplemental report shouldn't go in, and you're arguing against the ancillary materials that really don't have exhibit numbers against, contrary to what Mr. Rothschild is asking, you don't want those in either?

MR. THOMPSON: Correct.

THE COURT: But let's take out the report and the supplemental report and those ancillary exhibits which were not referred to during her testimony. What's your position on the remainder of the exhibits?

MR. THOMPSON: We have no objection.

THE COURT: All right. We'll admit all the exhibits at this point. And let's concentrate our dialogue on the report and the supplemental report. If I understand what Mr. Rothschild is asking, first of all, we don't have exhibit numbers for the other publications. That's something that we have to do in any event. And you can't move in what hasn't been identified.

MR ROTHSCHILD: They are on the exhibit list, but we would have to make you aware of them.

THE COURT: Okay. So we have to note what the exhibit numbers are. If I understand what Mr. Rothschild is saying, he's not requesting that the report go in for the Court or the supplemental report for the Court's consideration but simply to appear in the record.

I surmise that, that would be for the purpose of appellate review and not for the purpose of consideration by the Court. I can separate that out for my purposes. If you want to reserve argument on that, that's fine, because this is a little different, but I don't find it an out of bounds request, but I'll not rule if you want to think about that, and we can circle back and revisit it.

MR. THOMPSON: I would appreciate it if we have some time to think about it under the circumstances that he's raised.

THE COURT: All right. Why don't you put the xx own us then on is counsel. You can return to this topic because I don't think we have to decide this now, and maybe there's a way that you can have some kind of stipulation that you want to enter into the record, and you can do that orally, that sets ground rules, if, in fact, you're agreeable to enter in your report and the supplemental report and the ancillary non-referred to exhibits.

I understand Mr. Rothschild's point. I also understand, Mr. Thompson, your point, that it is unorthodox inasmuch as the testimony was limited and didn't encompass the entire report, you do not want the entire report to go in.

So if we can firewall, if you will, that, then I think there's probably a way to do that. But you're capable fellas, and maybe you can work out a way to do it. Mr. Gillen is smiling. He likes that perception.

MR. GILLEN: I'll take any compliment, Your Honor.

THE COURT: Anything you can get. Any other exhibits? I have none on cross.

MR. THOMPSON: We do not have any exhibits on cross, Your Honor.

THE COURT: All right. Does that encompass, other than those disputed areas which we'll circle back to later in the proceedings, Mr. Rothschild, that's everything?

MR ROTHSCHILD: Yes.

THE COURT: All right. Then I think we're prepared to have cross examination of this witness.

MR ROTHSCHILD: One more point, Your Honor. As with Mr. Miller, Dr. Miller, if we could submit to aid in your reading the transcript of demonstratives used with Dr. Forrest, not as exhibits in evidence, but as an aid to your consideration of the issues.

THE COURT: The demonstratives were principally the timeline and the intersecting graphs as to the -- why don't you want to reduce them and give them numbers?

MR ROTHSCHILD: I don't mind doing that at all, Your Honor. I'll do that.

THE COURT: I'm thinking, for your own purposes, maybe that makes sense. I didn't think of them, but I would certainly like -- I didn't think of them as exhibits. But I'd like to have them. Inasmuch as you're going to submit them, why don't you assign them exhibit numbers, and when we circle back on this other issue, let's deal with that.

MR ROTHSCHILD: The other demonstrative was the comparison charts between creation and science and intelligent design, the six topics.

THE COURT: Do you want to say something?

MR. THOMPSON: We have no objection to that. However, we do have an objection to the graph which listed the various Supreme Court cases. That's the graph you were talking about?

MR ROTHSCHILD: We did not use that.

THE COURT: I'll probably be reading them anyway, if I haven't already.

Cross
THE COURT: All right. Let's proceed with cross examination.

(Whereupn, Jennifer Miller, having been previously duly sworn, testified as follows:)

CROSS EXAMINATION BY MR. GILLEN:

Q. Good afternoon, Mrs. Miller.

A. Good afternoon.

Q. Pat Gillen, attorney for the Defendants. I took your deposition. I'm going to ask you a few questions today about your direct testimony. You testified that you've been a biology teacher at Dover since 1993, correct?

A. Yes.

Q. And prior to 2003, the issues that have brought us here today, the biology text, the biology curriculum were not on the radar for you as a teacher at Dover, correct?

A. Correct.

Q. But you have testified about a meeting you had with Bert Spahr, head of the department, in the spring of 2003; correct?

A. Yes.

Q. And there was mention of a memo that was generated in connection with Mrs. Spahr's discussions with Dr. Peterman, correct?

A. Right.

Q. I'd like to ask you to look at that. Again, if you would, and Plaintiffs' counsel has kindly agreed to put it up on the screen for ease. For the record, Mrs. Miller, this is Defendant's Exhibit 1. It's also a Plaintiffs' Exhibit 26.

And they've kindly agreed to project it for ease of reference, if that helps you. I want to ask you a few questions about that. You remember Bert Spahr telling you she had a discussion with Mike Baksa, and she took it to Dr. Peterman, correct?

A. Yes.

Q. And if you look at that memo, Exhibit 1, you'll see that there's a reference to the instructions that Dr. Peterman passed on in the memo. Would you read, if you would, the first paragraph into the record, please?

MR. SCHMIDT:: Your Honor, I'm not sure whether there is an objection or request for clarification. Mrs. Miller did not testify about this memo, and it hasn't been established that she ever received this memo at any time contemporaneously with its having been published. I think that should be established as the foundation.

THE COURT: That sounds like a foundation objection. All right. I'll sustain it on that basis. Why don't you try to establish a foundation prior to questioning her further?

MR. GILLEN: Okay.

BY MR. GILLEN:

Q. I do remember -- let me ask you this, Mrs. Miller. You testified that Bert Spahr came back to you with instructions on how to continue teaching evolutionary theory in your class, correct?

A. After this conversation?

Q. Yes.

A. We had a conversation. I think it was again at a department meeting that this topic came up and that we were to be on guard, but continue teaching as is, yes.

Q. And Bert Spahr told you to essentially continue teaching evolution as you taught it, correct?

A. Correct.

Q. Now I want to ask you, did she continue to -- did she tell you to continue teaching creationism in the classroom?

A. No.

Q. But you mentioned creationism, correct?

A. No, not specifically, no.

Q. Is it your testimony that you had no discussion with Bert Spahr about teaching creationism in connection with your presentation of evolutionary theory?

A. Yeah, I -- I know that somewhere in here, it says -- I remember reading -- let me see if I can find it. She explained to Mr. Baksa that all biology teachers state that another theory of evolution is creationism, but creationism per se is not taught since it's not addressed by the standards.

So when I saw this memo for the first time, I had some misgivings about that, because I disagree that we state that another theory of evolution is creationism, but I do agree that creationism is not taught.

Q. And that was the point of my questions. Getting again to what you discussed in connection with evolutionary theory, I just want to make sure that I'm clear on the way you present the subject matter. I think you said this morning that you tell the students you don't care what they believe about how life begins, is that correct?

A. Yes.

Q. And you don't get into the origins of life question, correct?

A. Correct.

Q. And you said that you don't get into sort of the microbiological part of that process, the cells and development of cells, is that correct?

A. Correct.

Q. And you said that you focused on change within species or change in species, correct?

A. Yes.

Q. You used the example of diversification of finches, correct?

A. Correct.

Q. And you don't focus on change between species, it's more how one finch becomes another if isolated in the Galapagos Islands, correct?

A. Correct.

Q. And that's always been your teaching practice, correct?

A. Yes.

Q. And it is today, is that correct?

A. Yes.

Q. In addition, you don't focus on what we might consider the cosmological dimension of the question of origin of life, the conditions in the universe that are conducive to life, is that correct?

A. Correct.

Q. You don't recall any specific instruction from Dr. Peterman to you about how to teach evolutionary theory, is that correct?

A. Correct.

Q. And you remember Bert Spahr telling you essentially to continue teaching as you were?

A. Yes.

Q. Now you've testified you remember a meeting with Alan Bonsell in the fall of 2003?

A. Yes.

Q. And there was a discussion of how teachers addressed origins of life?

A. Correct.

Q. You explained that you did not address the origins of life, correct?

A. Correct.

Q. And the other teachers in the department agreed?

A. Yes.

Q. It was a cordial meeting?

A. Yes.

Q. And you left on good terms feeling he was satisfied?

A. Yes.

Q. Creationism was not mentioned during that meeting?

A. Correct.

Q. And you can't remember any discussions of changes to the biology text or biology curriculum between that meeting and the end of 2003?

A. Correct.

Q. You do remember though that Bert Spahr remained somewhat concerned, is that correct?

A. Yeah, I would say so. Yes.

Q. And just to elaborate and be fair, I mean, she had non-tenure teachers, and she was concerned about what this issue might mean for them, correct?

A. Correct.

Q. You also testified that there was a board curriculum meeting in the spring and summer of 2004?

A. Yes.

Q. And I don't know if you remember this, but one of the books discussed was the family and consumer science textbook?

A. Correct.

Q. You remember Sheila Harkins pointed out to the teacher in that area that there was really a very slight difference between the old book and the new book?

A. Yes.

Q. Mr. Schmidt showed you this morning the curriculum that was -- the curriculum as changed on October 18th, 2004. I wanted to ask you one question. At the top of that column that Mr. Schmidt showed you today, there was a reference to times, weeks, classes. It's the first column to the extreme left of the curriculum chart. And it says there are 19 days. But you don't spend 19 days presenting evolutionary theory, correct?

A. No, not typically.

Q. Right. This 19 days was put there when you developed this curriculum, correct? You put that there?

A. Yes, uh-huh.

Q. But it wasn't changed to reflect your change in practice more recently, including your practice with the 2004 text, correct?

A. Recently, it has. I have submitted a new one, yes.

Q. Okay. So -- and that's what you described today, you got a revised curriculum that's now in front of the board, correct?

A. I'm assuming. We gave it to Mr. Baksa, so I don't know happens to it after that.

Q. And for the record, to be clear on this point, the purpose of those revisions is to bring Dover's biology curriculum, its curriculum guide into closer alignment with the changed state standards, correct?

A. No, it was just strictly for time, to more -- when we put that 19 days in, it was -- we had taken -- at one point, there was a science project basically that all 9th graders had to do.

We took that out and we started to rearrange things and probably just sort of dumped days here and there. So a lot of them ended up in evolution. So that's why that states 19 days, because of taking that out. So we have recently, I believe at the beginning of this year, just resubmitted one that more accurately reflects the number of days spent on topics.

Q. And that's one or two days, correct?

A. I think it says five, maybe now.

Q. Okay. And that's been drafted between your depositions -- between the spring of 2005 and this day today?

A. Correct.

Q. Okay. Good enough. You testified about a meeting that was held with the board curriculum committee on June 2004?

A. Yes.

Q. And there was discussion of this mural that's been referenced here during that meeting, correct?

A. Yes.

Q. And you remember Bill Buckingham saying, how can you say you don't teach origins of life if that mural is in the classroom, correct?

A. Correct.

Q. I think you said there was a heated exchange between Bert Spahr, Mrs. Spahr, and Bill on that issue?

A. Yes.

Q. Nonetheless, they parted shaking hands, correct?

A. Yes.

Q. And this was consistent with your sense that the meeting had been productive and that you had explained your position to the board curriculum committee, correct?

A. Correct.

Q. Now there were other meetings in the spring of 2004, correct?

A. I remember the one that you just said about with Mrs. Harkins and the family consumer science books.

Q. Okay. So that would make two?

A. Right.

Q. Okay. Good enough. And, you know, insofar as it relates to the biology curriculum, over the course of these meetings, there was kind of a compromise that began to be worked out with the teachers, is that correct?

A. Correct.

Q. And the teachers said that they'd be willing to point out that Darwin's theory is not necessarily a fact?

A. Yes.

Q. That there were parts of Darwin's theory that don't have as much evidence as others?

A. Correct.

Q. Essentially, that you would make students aware that there were gaps and problems, correct?

A. Which is something that we've always done, yes.

Q. Exactly. Thank you. And by way of compromise, you suggested maybe putting what you had always done in the curriculum, is that correct?

A. Correct. Well, I don't know if we suggested it, but it was -- I don't know who drafted the language, gaps and problems, but somehow that came out of those, yes.

Q. Okay.

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

THE COURT: You may.

BY MR. GILLEN:

Q. Mrs. Miller, if you would, I'd ask you to turn to page 56 of your deposition, line 4.

A. Okay.

Q. I just want to make sure the record is clear on this point. If you look at 55, 24, page 55, line 24, through 56, 3, my question to you is simply, during these curriculum meetings, was a compromise worked out where what the teachers did would be put in the curriculum?

A. I believe so, yes.

Q. Now at the end of that June meeting, you were assured that the department would get the text that had been recommended by the department, correct?

A. Yes.

Q. And that was the Miller and Levine text, 2002 edition?

A. Correct.

Q. Now talking about the way in which the text jived with the state standards, the 1998 -- when the state standards were recalibrated, the 1998 edition of Miller and Levine didn't jive so well with the state standards, correct?

A. Correct.

Q. Because there had been a shifting of some topics between different subjects by the state standards, correct?

A. I don't think by the state standards necessarily. We didn't have published state standards necessarily before that. So I don't know if, you know, we can compare it to something old to say there was a shift.

Q. I take your point. What happened is, the state standards came out and they allocated different topics to different subject matters, and it was inconsistent with your prior practice, correct?

A. I'm not sure of what you mean by saying different topics, how it subjected it to different topics.

Q. Sure.

A. We saw where there was an emphasis, so that we made sure that our curriculum reflected what was in the state standards.

Q. Well, let me ask you this. Topics that had previously been considered in connection with the biology course were now shifted to other areas, correct?

A. No, I don't say they were shifted to other -- like, for example, DNA wasn't shifted to chemistry or anything like that. I mean, that didn't happen.

Q. Okay. How about environmental science? Wasn't there some reallocation of topics between biology and environmental science?

A. There was a separate set of standards on environmental science where, before we had talked about that in biology.

Q. Okay. Good enough. So there was a movement of some topics from biology to environmental science under the state standards, correct?

A. Yeah, there was a separate set of environmental and ecology standards.

Q. And part of your justification for the 2002 edition, its purchase, was that, that edition of the text, as you saw it, jived more perfectly with the state standards, correct?

A. Correct.

Q. Now during the time of these meetings with the board curriculum committee, you recall receiving some DVD's and videotapes for review?

A. One DVD, yes, or a video. I don't remember if it was DVD or video.

Q. Do you recall that there were a couple of them, two DVD's and one video?

A. The only one I remember is Icons of Evolution.

Q. That's the one you watched, correct?

A. Yes.

Q. You remember that Bill Buckingham provided that tape for your review?

A. Mr. Baksa gave it to us, so I'm not sure where he got it, but Mr. Baksa gave to us.

Q. But you undestood it had come ultimately from Mr. Buckingham?

A. From a board member, yes.

Q. Did you think it was someone other than Mr. Buckingham?

A. I don't remember if we were told at that point who it came from.

Q. If you'd look at page 56, line 17?

A. Say the page again, please.

Q. Certainly. Page 56, line 17.

A. Okay.

Q. At that time at least, you answered, I am remembering Buckingham that got the tape and gave it to us.

A. Okay.

Q. As you sit here today, you have no reason to remember otherwise, do you?

A. No.

Q. Okay. You remember that, as you recall it, Bill Buckingham focused on an area, a topic, origins of life that you weren't actually teaching?

A. What do you mean, he focused on? In a meeting or --

Q. It was your understanding he was focused on a topic that you weren't actually teaching, correct?

A. As far as his concerns with the textbook?

Q. Yeah.

A. He had some concerns, like I said, that were only the teacher edition and some concerns with man's evolution, which, yes, we didn't teach.

Q. Now you've also today had some product information about a text that's put out by Bob Jones University text?

A. Yes.

Q. And but you don't remember any discussion of that text at the board curriculum meetings, do you?

A. No. I remember it being handed out. And I think it was Mr. Baksa saying that this was obviously one we couldn't use.

Q. And when he said that, it was because with reference to its religious content, correct?

A. Correct.

Q. I think you also testified today there were two charts that Mr. Schmidt showed you, but you don't remember discussion of those either, right?

A. No.

Q. You attended a board meeting, a board curriculum committee meeting on or about June 14th, 2005, correct?

A. Correct.

Q. And you remember Alan Bonsell mentioning intelligent design?

A. I think that was in my notes from that board meeting, correct.

Q. Remember Alan Bonsell saying that the paper should stick to reporting facts?

A. I think so, yes.

Q. And that he had a sense that, because the papers weren't reporting facts, there was distrust between families, parents, students; correct?

A. That's what I had in my notes, yes.

Q. You don't remember anything else that Alan Bonsell said at that June 14th, 2004, board meeting, correct?

A. I remember looking at my notes that, as you said, I had intelligent design theory with a question mark. So I don't know if that was the first time it was brought up or -- looking at it now, I don't remember why I had that question.

Q. Mr. Schmidt asked you this morning about a survey of textbooks that had been done by Mr. Baksa?

A. Yes.

Q. Prior to you selecting the Miller and Levine text, you had reviewed a number of texts that had been sent by vendors, correct?

A. Correct.

Q. Mr. Baksa knew you had already reviewed some text in order to make your selection of Miller and Levine, correct?

A. I'm assuming, yes.

Q. Turning back again, and forgive me for shifting gears, to the June 14th, 2004, board meeting. You don't remember anything that Sheila Harkins said at that meeting, correct?

A. Nothing in particular, no.

Q. Or anything that Angie Yingling said?

A. No.

Q. Or anything that Jane Cleaver said?

A. No.

Q. Or anything that Noel Weinrich said, correct?

A. No. I remember notes saying, I don't know if it was this meeting or not, somewhere that Noel said something about all teach of a creation. I'd have to look at my notes to know if it was at that meeting or not.

Q. Now at the June meeting of the board curriculum committee, you had been assured that you would get your text, which at that time was the 2002 edition of Miller and Levine, correct?

A. Correct.

Q. But in July, you learned that there was a new and more recent edition of the Miller and Levine text, the 2004 edition, correct?

A. Correct.

Q. And as you testified this morning, you came into the office and inspected it for changes as it related to the presentation of evolutionary theory?

A. Correct.

Q. At that time, you thought that the changes addressed Bill Buckingham's concerns, correct?

A. Correct.

Q. One change pointed out that there were gaps in the evidence, correct?

A. I'd have to see the paper to know for sure, but --

Q. Well, if you look at your deposition, page 74. And you'll see on page 73, I asked you a question. Let me ask you, in terms of concern that had been expressed about presenting theorist fact, did you see changes presenting the manner of presentation of evolutionary theory? And you answered, yes. And even a lot of Mr. Buckingham's concerns that he had given us originally was some of the reference to man's evolution were taken out. You know, the wording was less controversial.

A. Okay.

Q. Is that your answer today as you sit here?

A. Sure.

Q. Now it was around that time that Mike Baksa gave you the text Of Pandas and asked you to review it and give your opinion on the book?

A. Yes.

Q. Now I know that prior to 2004, you were using the 1998 edition of Miller and Levine, correct?

A. Correct.

Q. And then you -- the department selected the 2002 edition of Miller and Levine?

A. Correct.

Q. It was the same book, new edition?

A. Correct.

Q. But you had never used Of Pandas before, correct?

A. Correct.

Q. There was the subsequent meeting of the board curriculum committee in late August of 2004?

A. Yes.

Q. And the topic of that meeting was generally Of Pandas, correct?

A. Correct.

Q. I think you said, Bill Buckingham, Sheila Harkins and Casey Brown were there?

A. Yes.

Q. Alan Bonsell was there?

A. Yes.

Q. Rich Nilsen and Mike Baksa?

A. Yes.

Q. Bert Spahr and yourself?

A. Yes. And I believe I said Rob Eshbach was, too.

Q. You think so?

A. I think so.

Q. Good enough. You brought certain reservations about the text to the attention of the board, correct?

A. Correct.

Q. One was the readability, which you talked about today?

A. Yes.

Q. Also had some reservations about the science?

A. Yes.

Q. You remember Bert providing information to the effect that she thought indicated the teaching of intelligent design was illegal?

A. She had papers with her. I don't know if they were her thoughts, but there were papers that she had gotten from the Internet, correct.

Q. And she communicated that information to the board?

A. Correct.

Q. She also expressed concern again for untenured teachers?

A. Yes.

Q. There was a back and forth between Mrs. Spahr and the board members about that issue, correct?

A. I think so, yes.

Q. And the nature of it was essentially this, the board was saying, you're telling us it's illegal, and we're hearing that we can present this legally, correct?

A. Yes.

Q. At that time, you got the sense that Alan Bonsell was viewing intelligent design and creationism as two different things, correct?

A. I would say so, yes.

Q. And in connection with these meetings, Dr. Nilsen distributed an opinion from the district solicitor, Stock and Leader?

A. Yes.

Q. To the effect that intelligent design could be presented legally, correct?

A. Re-reading that, I'm not -- it was a lot of legal jargon, so I'm not exactly sure what that memo said, but, yeah, it was handed out, and I was very confused to what it said even to this day.

Q. Sure. I wouldn't hold you to any legal conclusion. But you remember the opinion being passed out to the persons present at the meeting, correct?

A. Yes, I do remember that opinion being passed out, yes.

Q. With reference to Mr. Bonsell's belief that intelligent design could be presented legally in a biology classroom, you had the impression that Bill Buckingham shared that view, correct?

A. Yes.

Q. Casey Brown, on the other hand, seemed concerned that there was a gray area there concerning whether intelligent design might be considered creationism, correct?

A. Yes.

Q. Now there was also discussion of whether and how the text Of Pandas could be used in connection with classroom instruction, correct?

A. Correct.

Q. And you know, at one point, Dr. Nilsen suggested perhaps using it as a reference text, correct?

A. Correct.

Q. Now the science faculty wasn't keen on that, but they thought it might be a workable compromise, correct?

A. Correct. If we had to have the books, at least having them as a reference and not handed out to each student would be more acceptable.

Q. And that discussion was kind of like, well, along these lines, we could either assign it to the students, we could have it as a reference in the classroom, we could have a reference set for each student, correct?

A. Yes, I believe so.

Q. And Bill Buckingham at that meeting expressed his view that each student should be assigned a copy of Of Pandas, correct?

A. Correct.

Q. He then left early for a doctor's appointment?

A. Yes.

Q. At that point, Alan Bonsell said that not every member of the board is in agreement with Mr. Buckingham considering whether assigning the text would be the best use of Of Pandas, correct?

A. Correct.

Q. He said maybe it would better be used as a reference text, correct?

A. I believe -- yes. Uh-huh.

Q. And again, you left this meeting, as you had prior meetings, thinking that it was generally positive and that some progress had been made, correct?

A. Sure.

Q. You attended a second board meeting in September 2004 -- won't hold you to the dates, but I can tell you that it was September 14th, 2004, correct?

A. Sure, I'll go with your numbers.

Q. And let's take the date out of it so the record is clear. You do remember going to --

A. I have notes from it, yes.

Q. -- a board meeting. Okay. Barrie Callahan was there?

A. I'd have to look at my notes.

Q. That's all right. Well, we did look at your notes at your deposition. If you want to look at your deposition, page 86, line 24?

A. Okay.

Q. And just look page 86 over, Jen -- excuse me, Mrs. Miller.

A. Okay.

Q. Looking at that now, do you recall that Mrs. Callahan was present at the meeting?

A. Yes, I have some notations that she spoke.

Q. She was asking questions about Of Pandas, correct?

A. Yes.

Q. And Larry Snook was there making comments about the cost of the book?

A. Yes.

Q. Larry Snook was a former board member?

A. Yes.

Q. Ultimately, no public funds were used for the purchase of the book, correct?

A. Correct.

Q. In fact, later you learned that Of Pandas had been donated to the district?

A. Correct.

Q. After that, Mike Baksa presented a proposed curriculum change from the board curriculum committee to the science faculty, correct?

A. Yes.

Q. On or about short meeting held on October 8th, 2004?

A. Correct.

Q. The draft provided that students would be made aware of gaps and problems in Darwin's theory, correct?

A. By the board curriculum committee?

Q. The board curriculum committee proposed change that Mike passed onto you on October 8th, 2004? The draft included language to the effect that students would be made aware of gaps and problems in Darwin's theory, correct?

A. It also included the words intelligent design.

Q. We'll get there, Mrs. Miller. Just answer my question. That's a yes?

A. That was in there, yes.

Q. And you were okay with the part about gaps and problems because that was consistent with what had been discussed?

A. Right, that was our compromise from before, yes.

Q. Understood. Understood. Then the draft also provided that students would be made aware of other theories of evolution, correct?

A. Yes.

Q. And again, you were okay with that because that had been discussed previously?

A. Correct.

Q. But the draft also referenced making students aware of intelligent design, correct?

A. Correct.

Q. And it listed Of Pandas as a reference text?

A. Correct.

Q. And you were not okay with that, correct?

A. Right.

Q. For the reasons you explained this morning?

A. Yes.

Q. Okay. Good enough. And you were upset because you thought this matter had been addressed in the August meeting, correct?

A. Correct.

Q. And likewise, Mrs. Spahr, Bert Spahr, the head of the science department, was also upset and angry for the same reasons, correct?

A. Correct.

Q. You were okay with the use of Of Pandas as a reference text. That had been talked about in August of 2004?

A. Yes. If we had to compromise, we would be willing to do it, yes.

Q. Sure. Sure. And -- but you were not comfortable with the idea that teachers would be required to teach intelligent design, correct?

A. Correct.

Q. And the placement of the term intelligent design in the curriculum, along, as you saw in that draft, led you to question whether or not you'd be required to teach intelligent design, correct?

A. Correct.

Q. When Mike gave you the draft, he asked you for feedback, correct?

A. Yes.

Q. And --

A. Now that's the draft of what was read, correct, or this draft?

Q. The draft of the curriculum, he asked you for feedback on that?

A. Yes.

Q. The thrust of the feedback provided by the department was to take out the reference to intelligent design and the reference to the text Of Pandas in the curriculum, correct?

A. Correct.

Q. Later, you learned that the board curriculum committee didn't accept those changes suggested by the science faculty, correct?

A. Correct.

Q. During the period after Mike had passed this draft curriculum change on to you, Rich Nilsen came to you and spoke with you about the matter?

A. Yes.

Q. He indicated that Alan Bonsell was thinking maybe to put a note, attend -- append a note to the curriculum indicating that origins of life are not taught?

A. Correct.

Q. You remember Dr. Nilsen telling you that Alan Bonsell thought this would address your concerns?

A. Yes.

Q. Dr. Nilsen at that time also explained that he thought that, if the students were going to be able to take the text Of Pandas home, it should be listed as a reference, correct?

A. Yes.

Q. You expressed concerns again about being required to teach intelligent design theory, correct?

A. Correct.

Q. You also expressed concern about the district being a test case concerning the legality of teaching intelligent design?

A. Yes.

Q. You were concerned about personal liability, not just the liability of the district, correct?

A. Correct.

Q. I think the next major thing that Mr. Schmidt asked you about was the board meeting on October 18th, 2005. You remember that Bert Spahr addressed the board at that meeting?

A. Yes.

Q. In connection with her statement, she equated intelligent design with creationism?

A. I don't remember word-for-word her statement, but --

Q. No, nor would I ask you. But you remember, she said that teaching intelligent design was unlawful, she thought, correct?

A. I think -- again, that there was too much similarity there, that we were uncomfortable with that. So if creationism is illegal to teach, therefore, since intelligent design was close enough to be uncomfortable, we were unsure of where that left us.

Q. Right. So there had been no cases on teaching intelligent design?

A. Correct.

Q. But it was her view that it was nonetheless illegal, correct?

A. I guess that was the -- yeah, that's what's being tested here, so --

Q. And that was the thrust of her comments that night to the board, correct?

A. I would say so, yeah.

Q. And she had a concern for untenured teachers, correct?

A. Correct.

Q. Now there were three versions of the curriculum that were before the board that night, correct?

A. Yes.

Q. One was labeled Roman 11-A, correct?

A. Yes.

Q. And I'm not sure these will be helpful, but that's listed over there as Defendants' Exhibit 60. And then there was one that was listed Roman 11-B, correct?

A. Yes.

Q. And then on the night of the meeting, you received another version, which was Roman 11-C?

A. Right.

Q. And for the record, Roman 11-A is Defendants' Exhibit 60. Roman 11-B is Defendants' Exhibit 61. And Roman 11-C is, I believe, Defendants' Exhibit 68. I'll check that later. Now I want to ask you a few questions about Roman 11-C. As you sit there on the stand, Mrs. Miller, can you see that?

A. I can't read what's in black.

Q. You know what. And that's unfortunate. If you look in your book at Exhibit 68, I believe you'll find it. Thank you, Mr. Schmidt. For ease, it's being projected by Plaintiffs' counsel, for which I'm grateful. If you look at that, Mrs. Miller, do you remember that document?

A. Yes.

Q. And that was the document that Dr. Nilsen presented to the science faculty on the night of the October 18th, 2004, board meeting?

A. I believe so, yes.

Q. And if you look in the lower left-hand corner, you'll see that it has a note which provides that origins of life is not taught, correct?

A. Correct.

Q. If you look at the language of the bottom of the column entitled unit content, concepts process?

A. Yes.

Q. It's difficult to see in any event. But you'll note that on your printed copy, it provides that the students will be made aware of other theories, correct?

A. Correct.

Q. It omits the reference to intelligent design, correct?

A. Correct.

Q. Then the final difference that is blocked out and significant in terms of our discussion today is that, if you look at the materials resource column on the right-hand side, it retains the reference to the text Of Pandas, correct?

A. Correct.

Q. You remember that Dr. Nilsen or -- no, actually it was Mr. Baksa, I believe, who passed this onto the science faculty on the night of the meeting?

A. I believe so, yes.

Q. You remember that Rich Nilsen had spoken with you about appending the note which provided that origins of life was not taught?

A. Yes.

Q. Now throughout these discussions in the spring and summer of 2004, the position of the faculty had always been that you didn't teach origins of life, correct?

A. Correct.

Q. So when this came up, you can't recall exactly what you said, but in your deposition you testified, probably to the effect of, the note is no big deal, we don't teach it anyway, correct?

A. Correct. But there was some questions we had, if that limited us to certain things that could or could not be said in the classroom. Even though we had already done it, putting that in the curriculum, did that limit topics that could be discussed.

Q. Sure. I understand that. And we'll ask you a few questions about that. But for present purposes, the note, origins of life will not be taught, reflected the teaching practice of the science faculty, correct?

A. Sure.

Q. Okay. You remember that when Dr. Nilsen had made you aware that Mr. Bonsell was considering placing the note, he thought it was a good idea, that it would alleviate some of the faculty's concerns?

A. Yes, he said that. I wasn't exactly sure what that meant, but, yes.

Q. And you remember likewise that Dr. Nilsen had talked to you again, as he had throughout the summer, about using Of Pandas as a reference text, correct?

A. At the meeting that I had with him?

Q. Yes.

A. Yes. He explained that, if the students are taking it home, then it has to be listed so that we're covered if a parent asks a question about it, that it's in the curriculum.

Q. Okay. Now we know that there were a whole bunch of parliamentary maneuvers on the night of meeting, correct?

A. Yes.

Q. And that the final curriculum change, which is at issue in this litigation, was produced as a result of that process, correct?

A. Correct.

Q. And if you look here at this demonstrative, which is, or actually, the curriculum change that Mr. Schmidt showed you earlier today, what I want you to do is, just look at Roman 11-C and ask you this. The principal difference is that Roman 11-C was changed to include the reference to intelligent design, isn't that correct?

A. What was passed, you mean?

Q. Yes.

A. Yes.

Q. In the final version?

A. Yes.

Q. And the science faculty was disappointed with that outcome, correct?

A. Correct.

Q. You felt that you had tried to compromise, and still they had put intelligent design in the curriculum, is that correct?

A. Correct.

Q. Apart from that though, you had agreed to make the students aware of gaps and problems, correct?

A. Correct.

Q. Make them aware of other theories? In fact that was in the text, correct?

A. Right, it talks about Lamarck as a pre-cursor to Darwin's theory of evolution.

Q. Sure. And you had agreed to make use of -- or to the use Of Pandas as a reference, correct?

A. I guess. Again, if it had to be there, I don't know if we agreed to it, but if it had to be there, then at least, as just sitting on a shelf in a classroom was better than handing it out to each student.

Q. Sure. Now you've also testified about a comment that Heather Geesey made at the meeting to the effect of someone being fired?

A. Yes.

Q. And I take it from your testimony this morning that you were under the impression it was a comment directed to the teachers, correct?

A. Correct. She said, the teachers will be fired.

Q. That's what you say she said?

A. Yes, that's what I remember she said because --

Q. She denied it.

A. I understand that, but I jumped up to the podium. So if she said someone else, I don't know why I would have stepped up unless she said it about me.

Q. Nor would I deprive you about your understanding, but she has denied that, correct?

A. Correct.

Q. And the next day, she circulated a note saying, that's not what I meant?

A. Correct.

Q. Are you aware that Mrs. Geesey requested a transcript of the tape in the aftermath of the allegations that she threatened the teachers with firing?

A. No.

Q. Do you have any idea why she requested a transcript if she was trying to cover it up?

THE COURT: Hang on a minute.

MR. SCHMIDT:: The question was, did she know something, and the answer was, no, and then the follow-up question asked for more information about what she's testified she didn't know. So lack of foundation.

MR. GILLEN: I'll withdraw the question, Your Honor.

THE COURT: All right.

BY MR. GILLEN:

Q. The next development in the story, from your standpoint, Mrs. Miller, if I'm correct, is the development of the statement, correct?

A. Correct.

Q. In that, after the board meeting, you had told Mr. Baksa that you wanted specific direction if intelligent design was mentioned in the curriculum, what the teachers were to say, what exactly word-for-word the teachers were to say, correct?

A. Correct.

Q. And subsequently, Mike Baksa produced a draft statement which he passed on to you for your review, correct?

A. Yes.

Q. You've testified today that you reviewed that statement for its accuracy, scientific accuracy, correct?

A. Correct.

Q. You added the definition of theory to the statement?

A. Yes.

Q. You took the use of the term theory away from intelligent design, correct?

A. Correct.

Q. And that's because you viewed intelligent design as addressing the origin of life not evolution, correct?

A. It also said that it was something -- the original said something like, I don't know, be made aware of other theories of evolution, including intelligent design. And, to me, if intelligent design is saying evolution did not occur, then it can't be a theory of evolution.

Q. Is it your understanding, Mrs. Miller, that intelligent design says that no evolution occurs?

A. If it says that -- if it says that it was created by some intelligent being, then things couldn't have evolved.

Q. Let me just ask you the question again, and I would never take away your answer. Just answer yes or no, if you would. Is it your understanding that intelligent design holds that no evolution takes place?

A. See, I have conflicting views here. According to -- at that point, what I -- I have two -- when I read Of Pandas and People, then I would say the answer to that is, yes. Listening and hearing to some of what Dr. Behe said since then, he does agree with parts of the theory of evolution. So I think there's two -- to me, there's two conflicting things there.

Q. Is it your understanding that the text Of Pandas denies that any evolution takes place?

A. I'd have to look at parts of it to know exactly. But again, as far as origins of life are concerned, yes.

Q. You've only read parts of it, correct?

A. I read the first six chapters, yes.

Q. You objected to the press release that was issued by the district in November 19th, 2004, correct?

A. Correct.

Q. And I want to make sure that I understand your testimony correctly. You thought it created the impression that the science faculty had been involved in the curriculum change, more specifically, the inclusion of intelligent design, correct?

A. Correct, and that we agreed with it.

Q. And that was your view of what the press release conveyed?

A. Yes.

Q. And that was the basis for your objection?

A. Yes.

Q. There was a board meeting on November 9th, 2004, correct -- well, let's say, there was two board meetings in November. The second one, you attended it, correct?

A. What -- I don't know. What date was it?

Q. Sure, sure. I understand. It's hard to remember. I just want to get a few points. If you turn to your deposition, page 143, line 12.

A. Okay. This says, a November 1st board meeting?

Q. You're right. You attended that meeting, correct?

A. It looks like it, because I have notes from that meeting.

Q. Sure. And you recall Alan Bonsell more or less asking for more civility at the meetings?

A. I'm looking to see, since I don't remember.

Q. If you look at 144, it may be of assistance; 144, beginning at line 9.

A. Yes, now I see that. I said that he was not happy with the last board meeting.

Q. Barrie Callahan was there also?

A. Since I can't be sure, I won't --

Q. Okay. And I don't mean to test your memory actually. I just want to get a few points that you recalled and, therefore, can testify to. If you look at 145, line 17, Jen?

A. Right, there it is.

Q. I'm sorry, Mrs. Miller.

A. Yes, I see that.

Q. Okay. And at that meeting, she gave her opinion that the curriculum change was contradictory, correct?

A. Correct.

Q. And she thought that was so because the note provided that origins of life was not to be taught, correct?

A. Correct.

Q. And the subtitle Of Pandas indicates it deals with the question of biological origins, correct?

A. Correct.

Q. Casey Brown was also present at that meeting?

A. I believe so. I remember reading that.

Q. She said the students were being ridiculed as a result of the curriculum change?

A. Yes.

Q. She told the board that they should do onto others as you would have them do onto you, correct?

A. I believe so.

Q. It was your understanding she was saying that the board should, you know, the board members and members of the community should have a civil exchange, correct?

A. Correct.

Q. There was a later meeting of the science faculty with the administration in November, around November 24th, 2004?

A. Yes.

Q. There was some discussion of the statements the science faculty had released in response to the press release issued by the board, correct?

A. Correct.

Q. At that meeting, Dr. Nilsen said that the purpose of the press release was to protect the teachers, correct?

A. Correct.

Q. Do you recall Mr. Bonsell saying that he was surprised with the reactions of the teachers, he thought that they had been cooperating throughout, correct?

A. Now I'm remembering that's two different meetings. We had one meeting just with Dr. Nilsen and Mr. Baksa, and we had one meeting later with Mr. Bonsell.

Q. For the purpose of my question, let's look forward to the one with Mr. Bonsell. Do you recall Mr. Bonsell saying that?

A. Say it again, please.

Q. Saying he was surprised at the reaction of the teachers to the press release because he thought they were on board?

A. Yes.

Q. And it was at that point you said, we were on board except when you put intelligent design in the curriculum, correct?

A. Correct, we tried. We told him that we'd compromise up to the point that you put in intelligent design. At that point, we stopped compromising.

Q. Add we sit here today, Mrs. Miller, the board has purchased the text that was recommended by the faculty, correct?

A. Correct.

Q. The text Of Pandas is not in the classroom as a reference, it's in the library, correct?

A. Correct.

Q. We know that the curriculum changes resulted in a statement that's read in the biology class in the beginning of the section dealing with evolutionary theory?

A. Correct.

Q. That statement was intended to be read by the teachers, correct?

A. Correct.

Q. But so far, for reasons you've stated this morning, the teachers have not read that statement?

A. Correct.

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

A. I believe that's in the -- there.

Q. And that intelligent design is not to be mentioned, correct?

A. It's mentioned because it's read to the students.

Q. Right, except for the statement, there's not to be any discussion of it, correct?

A. Correct.

Q. That the religious beliefs of the teachers are not to be taught?

A. Correct.

Q. And that the religious beliefs of the board are not to be taught?

A. Correct.

Q. You comply with those directives, Mrs. Miller?

A. Yes.

Q. You believe the other teachers do as well?

A. Sure.

MR. GILLEN: I have no further questions.

THE COURT: All right. Thank you, Mr. Gillen. Redirect. Mr. Schmidt.

MR. SCHMIDT:: During cross examination, Mr. Gillen mentioned a document, an opinion letter from the solicitor. I wonder, before I begin my questioning, whether I could see a copy of that document.

MR. GILLEN: If I can find it. Can we take a minute?

THE COURT: Sure. Do you need it for redirect?

MR. SCHMIDT:: Your Honor --

MR. GILLEN: It's hard to know until he sees it. While Mr. Schmidt proceeds, I'll look for it, Judge.

THE COURT: Why don't you start. We're putting inordinate pressure on Mr. Gillen to find something.

MR. SCHMIDT:: I don't mean to do that.

THE COURT: And it's much harder when everyone in the courtroom is focusing on your efforts. So we'll take the spotlight off Mr. Gillen, and we'll go to Mr. Schmidt, and we'll start redirect, and we'll see if he can locate it.

MR. SCHMIDT:: All right.

redirect
REDIRECT EXAMINATION BY MR. SCHMIDT::

Q. Ms. Miller, a few questions. This morning, I asked you about actions that the teachers were involved in over the course principally of 2004. Mr. Gillen asked you questions about those. And the general topic was compromises that the teachers, especially the biology teachers, made with both administration and the board?

A. Correct.

Q. Did the teachers initiate any of the actions that come under that heading of compromises?

A. No.

Q. Were those compromises by the teachers always in response to a proposal or some initiative that was put forward by the curriculum committee or the administration?

A. Yes.

Q. As a biology teacher and the senior biology teacher, did you believe that any of those steps that you took as compromises were necessary to take?

A. No.

Q. And did you take those steps because you were an employee of the school district and it looked like those things were going to happen anyway?

A. Sure.

Q. And you were going to make the best out of a bad situation?

A. Correct.

Q. Is that fair?

A. Yes.

Q. I think Mr. Gillen asked you whether Mr. Bonsell mentioned intelligent design at the June curriculum committee meeting that we've at least tagged as probably around June 14th?

A. I think it was the board meeting not the curriculum --

Q. Board meeting?

A. Yes. My notes are from a board meeting, yes.

Q. Was there any discussion about what intelligent design meant at that time or was it just mentioned?

A. I don't remember any -- in my notes, all I have is a big question mark.

Q. I think this morning you said your first substantive information about intelligent design was when you saw Of Pandas and People?

A. Correct.

Q. That was at the July meeting with Mr. Baksa?

A. Correct.

Q. You were asked by Mr. Gillen about Bert Spahr's concerns with the teaching of intelligent design and it's legality?

A. Right.

Q. And I think he asked you whether she was concerned about several untenured teachers?

A. Yes.

Q. Were you concerned about the legality of teaching intelligent design?

A. Yes.

Q. Were you the subject of your own concern, if you will, even though you are a tenured teacher?

A. Absolutely.

Q. Did you have any concern for the students who were going to be in your biology class?

A. Yes. As I said this morning, I know a comment has been made that we're only mentioning it, but I'm a teacher, and everything I do in my classroom is teaching. If I don't make my students listen to the morning announcements, and I let them talk over the morning announcements, I'm not saying a word, but I'm conveying to them, I'm teaching them that it's not important to listen to the morning announcements.

So even by us reading it, I was concerned, again because there's, to me, I was uncomfortable mentioning it because I know that creationism can't be taught. So I was wondering, you know, this is a gray area. Of course, this is the first time it's being tested. So me on the front line, me saying it, I was concerned of what that meant for me legally.

Q. Can you think of any other situation in your experience at Dover Area High School where you were required to read a statement to students about what they were going to be taught?

A. No.

Q. Can you think of any other situation at the Dover Area High School where you were instructed to tell students that you would mention something, but you weren't permitted to expand on what you mentioned or answer any questions about it?

A. No.

Q. Did that bother you as a teacher?

A. Yes.

Q. Why?

A. Again, I'm the teacher in the classroom. If students have questions, I feel like they can come to me to get answers. And, again, it put me in a situation where things that I had done in the past, I was unsure if I was to continue to do those. I was unsure of what I could and could not say in my classroom.

Q. Is that why you were troubled by the note at the bottom of the curriculum that said, origins of life will not be taught?

A. Yes.

Q. Because you had been able to respond to students before, even if that was not a formal part of your teaching?

A. I think that I asked the question at one of our meetings about, I have my students do current events in science, and someone brought in a current event on a new fossil discovery of man. And I didn't know if I was allowed to discuss that because, to me, that hit on origins of life.

Q. When you asked for guidance from either the board or administration on that question, were you given a response?

A. I was given a current events policy from Mr. Baksa.

MR. SCHMIDT:: Your Honor, back to the document. I don't know whether the opinion's been found.

MR. GILLEN: Yes. Under the reduced pressure produced by your sage directive, Your Honor, I found it. It was part of the Miller deposition exhibits, Exhibit 5, and is an e-mail from Steve Russell to Richard Nilsen, dated August 26th, 2004, which I gladly turn over to Mr. Schmidt.

THE COURT: Take a look at it and see if that raises any additional redirect.

MR. SCHMIDT:: No further questions.

THE COURT: No questions. All right. That will conclude the examination of this witness. Ma'am, you may step down.

recross
MR. GILLEN: Your Honor, can I ask for brief recross?

THE COURT: I'm sorry. I deprived you of recross. I will grant brief recross from Mr. Gillen. I apologize.

MR. GILLEN: That's quite all right.

RECROSS EXAMINATION BY MR. GILLEN:

Q. Mrs. Miller, on redirect, you testified about, there's no other instance where you haven't been allowed to take questions, correct?

A. Correct.

Q. But you've already testified on my cross examination that you were concerned about liability in this area, correct?

A. Correct.

Q. You already testified that you told Mr. Baksa you wanted to know word-for-word what you were supposed to say if students asked about intelligent design?

A. Correct.

Q. Is there any way for Mr. Baksa, Dr. Nilsen, or anyone to know what questions the student would ask in the classroom?

A. I guess not.

Q. You mentioned that you raised questions about teaching about new developments in science, correct?

A. Teaching about what?

Q. New discoveries in science that might touch on your teaching of evolutionary theory, right, the fossil record?

A. Yes.

Q. Mr. Baksa told you, you could address those, correct?

A. He gave me the current events policy, and, yes.

Q. It's also true that it's been the practice of teachers to say, we don't address creationism, if you want to talk about that, you need to talk to your parents or your family, correct?

A. Correct.

MR. GILLEN: No further questions, Your Honor.

THE COURT: All right. Then that will conclude the questioning for this witness.

Exhibits for Miller
THE COURT: We have a number of exhibits. Let's take them up now, as I did with the last witness. We'll just read them and then Plaintiffs' counsel can indicate their pleasure.

P-210 is the state standards for science and biology. P-148 is the letter to Mr. Baksa from the biology department. P-132 is the document created by Mr. Buckingham. P-136 is the Bob Jones University text, proposed text profile.

P-138 is the survey of biology texts. P-149 is Beyond the Evolution versus Creation Debate article. P-150 is the Baksa comparison of 2002 and 2004 editions. P-135 is the biology curriculum. P-692 is the statement versions. P-94 is the draft statement. P-98 is the corrections by Miller to the draft.

P-100 is the teacher's revision. P-110 is the memo regarding the biology statement. P-104 is the district press release. P-106 is the letter to Dr. Nilsen from the teachers. P-121 is the memo back to the teachers from Dr. Nilsen. All right. Do I have everything?

MR. SCHMIDT:: That's my list, Your Honor. I think P-135 is identical to P-209, which has already been admitted.

THE COURT: All right. We'll strike that, 135. And are you moving for the admission of the remaining exhibits other than P-135?

MR. SCHMIDT:: We have.

THE COURT: Any objection?

MR. GILLEN: I have no objection, Your Honor.

THE COURT: Then as read by the Court, they're all admitted, say, for P-135. Mr. Gillen, on cross, you referred to the Peterman memo, or memo to Peterman, which was D-1. And D-68 is the memo and attached planned instruction curriculum. That would be the second draft. Are you moving for the admission of those exhibits at this time or do you want to wait?

MR. GILLEN: I will wait, Your Honor.

THE COURT: All right. Do you have any exhibits then?

MR. GILLEN: I do not, Your Honor. Thank you.

THE COURT: All right. That will conclude the exhibits for that witness. Why don't we -- this is probably an opportune time for us to take a break. We're going to go to 4:30 today. We'll take about a 15 minute break, and then we'll take, what I would assume, might be your last witness of the day. All right. We'll be in recess.

(Whereupon, a recess was taken at 3:15 p.m. and proceedings reconvened at 3:35 p.m.)