RationalWiki:Kitzmiller v. Dover annotated transcript/P049

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Trial transcript: Day 14 (October 21), PM Session, Part 1

(1:23 p.m., reconvene after luncheon recess.)

THE COURT: All right. Mr. Rothschild, you may continue.

BY MR ROTHSCHILD:

Q. Dr. Nilsen, there came a time when you found out that Mr. Buckingham wanted to put the curriculum change on the October 18th agenda?

A. Yes.

Q. And that was to add intelligent design to the curriculum?

A. Reference to it, yes.

Q. That intelligent design, that's what Mr. Russell had told you was Thomas More's name for the creationism issue?

MR. GILLEN: Objection, Your Honor. He's offering a hearsay statement for the truth of the matter asserted. And what's more, Mr. Russell's characterization, if you read the document, is his characterization of the issues not ours.

THE COURT: Well, the letter or the E-mail was referred to without objection. So the question is couched in the -- in the context of the letter.

MR. GILLEN: Okay. And my point, Judge, is simply that the statement that Mr. Rothschild is referring to is his description of the issue.

MR ROTHSCHILD: Mr. Russell's.

MR. GILLEN: Yes.

MR ROTHSCHILD: And that's how I couched my question.

THE COURT: Well, if you take the question in context, that intelligent design, that's what Mr. Russell told you was Thomas More's name for creationism, I took it as Mr. Rothschild referring to what Dr. Nilsen had received via this E-mail. Why is that objectionable?

MR. GILLEN: Well, the only thing that I'm intending to point out is when Mr. Russell says they referred to the creationism issue as intelligent design, that's his interpretation of the issue. Obviously from -- it's one of the issues.

THE COURT: I understand that, and I take it as that.

MR. GILLEN: Okay.

THE COURT: And I don't take it for the truth of what the Thomas More Center may have actually thought. It is simply a reflection, and I think that was the gist of the question of what was transmitted to him through this E-mail.

MR. GILLEN: Thank you very much.

THE COURT: All right. So noted. Was the question answered? I don't think it was.

MR ROTHSCHILD: It was not.

THE COURT: Do you want to read it back for us, Lori, please?

(The record was read by the court reporter, as requested.)

THE WITNESS: Could you highlight the -- what sentence in this E-mail, please, you are referring to? He speaks to -- the quote is they refer to the creationism issue as intelligent design. That's what's in the E-mail, yes.

BY MR ROTHSCHILD:

Q. Mr. Buckingham also wanted to add Pandas to the curriculum?

A. Yes.

Q. That's the book that you agreed has at least one creationist tenant on pages 99 to 100 of the book?

A. Yes. It's also the book that the teachers at this meeting had agreed would end up being a reference text and had understood as being part of their curriculum.

Q. And this is also the text which teaches children that life was made by either God or aliens?

A. I don't know that.

Q. But it added the language of a master intellect. Correct?

A. I don't know that.

MR ROTHSCHILD: Could you pull up page 85 of Pandas please? Highlight the passage on the right side that begins the strong analogy.

BY MR ROTHSCHILD:

Q. It refers there to life owes its origin to a master intellect. Correct?

A. Yes, it says that.

Q. You agreed with me previously the only understanding you could have of that term is it's either God or aliens?

A. Yes.

Q. You actually objected to the way Mr. Buckingham was putting this item on the agenda. Correct?

A. Yes.

Q. But you didn't stop it. Correct?

A. Didn't stop what?

Q. Stop the item from being put on the agenda.

A. What item on the agenda?

Q. The item to add intelligent design and Pandas to the curriculum?

A. Did I stop him from putting on the bio curriculum recommendation?

Q. Right.

A. No.

Q. And nobody else on the board did either. Correct?

A. No. The reason we did not is the fact that the curricular chair, or any board member for that matter, can bring under miscellaneous any action. And knowing that he had an interest in that, I preferred the board to know prior to the agenda -- when they received the agenda prior to the meeting what was going to happen.

So anytime someone tells me that they are going to bring something up, even if I'm not supportive of it, I prefer to put it on the agenda so individuals, the board members and the community are aware of what's happening.

Q. And ultimately it did come to a vote. Correct?

A. Yes.

Q. And a majority of the board supported it coming up for a vote. Correct? They didn't delay it?

A. Correct.

Q. Okay. And that included Mr. Bonsell. Correct?

A. Yes.

Q. Now, you suggested to Mr. Buckingham that there be a meeting of the curriculum advisory council?

A. Yes.

Q. And kind of like the one we saw documented in Defendant's Exhibit 3, the April meeting?

A. Yes.

Q. But that didn't happen. Correct?

A. Correct.

Q. They were sent a memo with the change to the curriculum information, but there was no meeting. Correct?

A. No. His comment was he had thought he had already received enough information from the curriculum committee meeting and that the committee members had conveyed information over the past six months, and he didn't see another reason to hold another meeting and get the same input that he has gotten over the past six months.

Q. Well, you did get a little bit of feedback back from the curriculum advisory committee. Right?

A. Yes.

Q. Mr. Baksa had prepared that memorandum that had two comments by the curriculum advisory --

THE COURT REPORTER: Could you please slow down?

MR ROTHSCHILD: I apologize.

BY MR ROTHSCHILD:

Q. Mr. Baksa had prepared that memorandum with the couple of suggestions by the members of the curriculum advisory committee?

A. Yes. When Mr. Buckingham said he didn't want it meeting again, I talked to Mr. Alan Bonsell, the president, and I communicated to him that I was going to send the information out to the curriculum committee anyway and he supported that. In like fashion, we had two items that came back.

Q. And the two items that came back were, according to policy, curriculum advisory committee should review changes first before going to the board, which you have explained you disagree with as a matter of policy. Right?

A. I disagree that that is currently the policy.

Q. Right. And also, hadn't been for sometime. Correct?

A. Correct.

Q. But it certainly was practiced. Right?

A. Yes.

Q. And the second comment was, I disagree with the highlighted statement. Maybe we should meet as a curriculum committee. But there was no meeting of the curriculum committee on this issue. Right?

A. Not on the issue currently. There were curriculum committee discussions on this issue over the past six months.

Q. Actual meetings?

A. On the science curriculum? Yes.

Q. On the biology curriculum?

A. I can't speak to that specifically, no.

Q. In any event, there was no meeting after this request was made by a member of the curriculum advisory committee?

A. That's correct.

Q. And no board member supported that occurring, did they? No board member that voted for the change of the biology curriculum.

A. That's correct.

Q. And you also thought that it was irregular to put this item on the agenda when it hadn't been previously on a planning meeting agenda. Correct?

A. Yes.

Q. As you've said now again, Mr. Buckingham said we've had enough input over the last six months. Right?

A. Correct. He ended up leaving -- as I stated in my testimony yesterday, that he wanted to make sure that all the board members that had been involved in the discussion for the past six months had an opportunity to vote on it, because he was under the understanding that two individuals were not going to be on the board in the near future.

Q. And those were Mr. Wenrich and Ms. Cleaver. Correct?

A. Correct.

Q. And if they were replaced, you wouldn't have had -- the couple of board members that replaced them wouldn't have had the whole history that had been going on since April. Correct?

A. That's correct.

Q. Now, Mr. Wenrich actually, as you explained in your direct testimony, didn't feel the same way. Correct?

A. Same way as what?

Q. As Mr. Buckingham, that he Mr. Wenrich needed to be part of this decision. Isn't that right?

A. I'm not sure I understand your question.

Q. Mr. Wenrich was the movant on all of the motions to delay consideration of this curriculum change. Correct?

A. Yes.

Q. Okay. So he actually thought it was a good idea to involve all the relevant constituents, the teachers, the curriculum advisory committee and the like?

A. That's correct.

Q. He didn't want this rushed. Correct?

A. He wanted it to be revisited. Yes.

Q. And when we talk about these last six months, I think you actually said in your direct testimony, it sort of goes back to the point where Mr. Buckingham distributed the DVD's and the book. Right?

A. Yes.

Q. And that was the DVD's and the book from the Discovery Institute?

A. Yes.

Q. And then he also was referring to the numerous board meetings and comments by members of the community. Correct?

A. It covered that time period, yes.

Q. And six months back from October, that takes us back to February?

A. About.

Q. Okay. And so that period would have included the board meetings in June where the newspapers had reported that many religious statements were made by board members including balancing evolution with creationism and 2,000 years ago a man died on a cross and other religious statements. Correct?

A. The newspapers reported that, yes.

Q. And these discussions had occurred during these past six months?

A. Newspapers reporting those discussions, yes.

Q. And those were the kind of religious statements that Attorney Russell was referring to, wasn't it?

A. Yes.

Q. And this period also included the board meeting in August when Buckingham, Harkins and Geesey had tried to deprive the teachers and students of their biology textbook. Right?

MR. GILLEN: Objection to the characterization.

THE WITNESS: I'll phrase it this way.

THE COURT: Wait. There's an objection, Doctor.

MR. GILLEN: Mr. Rothschild is asking whether the board sought to deprive them of their text. They had a text. The question is whether they were going to get another text. If he rephrases the question precisely, I would have no objection.

MR ROTHSCHILD: I'll repeat and rephrase the question.

BY MR ROTHSCHILD:

Q. This period included the August 2nd board meeting in which board members Buckingham, Harkins and Geesey had voted to deprive the students and teachers of the new biology textbook recommended by the teachers. Correct?

A. Yes.

Q. Now, at the October 18th meeting Mrs. Spahr made a statement in opposition to the curriculum change.

A. Yes.

Q. And she testified about that in court.

A. Yes.

Q. At that October 18th meeting did you state your disagreement at that board meeting with anything Mrs. Spahr said?

A. No.

Q. Now, at the meeting to approve the curriculum change there were several versions being discussed.

A. Yes.

Q. And version B was the proposal of the administration and the staff?

A. Yes.

Q. And it does not include intelligent design.

A. That is correct.

Q. And that was the one you supported. Correct?

A. There were two we supported, B and C.

Q. And the teachers indicated that they could live with that?

A. They could live with B and C.

Q. And the board members who voted against the final version of the policy, Mrs. Brown, Mr. Brown and Mr. Wenrich, they actually indicated they would have voted for versions B or C, as well. Is that correct?

A. I don't remember that specific statement.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. Do you recognize this document?

A. Yes.

Q. What is it?

A. It's the October 18th, 2004, Dover Area School District board minutes.

Q. And this was the -- these are the minutes of the meeting where the change of the biology curriculum was passed?

A. Yes.

Q. If you could turn to page 158 of that document, the Bate stamp 158.

A. I have it.

Q. And it might require your review all the way through 160. But this is a rather complicated set of parliamentary maneuvers to put on the agenda different versions of the change to the biology curriculum?

A. Yes.

Q. And if you could take a minute to review that and tell me if I'm correct that the three ultimately dissenting board members; Mrs. Brown, Mr. Brown and Mr. Wenrich all indicated through their votes that they would support versions B and C.

A. I don't see any final vote on B or C. What I see is motions to move the discussion or the vote to A -- I'm sorry -- from A to B and C. There is no final vote on either B or C.

Q. Fair enough. So they were supportive of a vote to -- they were supportive of moving the consideration from A to versions B and C; Mr. Brown, Mrs. Brown and Mr. Wenrich?

A. Yes.

Q. But that effort was defeated by other board members. Correct?

A. Yes.

Q. And the other board members included Mr. Bonsell. Correct?

A. Yes.

Q. He didn't support having a vote on versions B or C. Correct?

A. Correct.

Q. Okay. He stood firmly behind a version that included intelligent design?

A. I can't speak to what he stood firmly behind. I know he stood firmly behind what's reflected here.

Q. And that was -- all of his votes indicate that the only version that he would support was one that had intelligent design. Correct?

A. Yes.

Q. Okay. So just to summarize, for votes B and C, there is some indication that Mr. and Mrs. Brown and Mr. Wenrich would have supported those versions. Correct? They wanted the consideration to move to those versions?

A. I'll state it the way you did in the second half of your question. They voted to consider B and C. I can't recollect, nor does the minutes reflect, how they would have voted eventually on B and C.

Q. And certainly, the administrators and the teachers were supporting B and C?

A. That's correct.

Q. So for a board member that placed a premium on consensus, B and C could have achieved that, couldn't it?

A. I can't tell you that because we never got to deciding to vote on B and C.

Q. Certainly it would have brought the administrators and the teachers into the fold. Correct?

A. Yes.

Q. Okay. And you describe Mr. Bonsell as someone, he puts a premium on consensus. Correct?

A. Yes.

Q. But he blocked -- he joined other board members in blocking every effort to even bring B and C to a vote. Correct?

A. To a vote, yes. But the concept behind C, no. Meaning later on you'll note in the minutes the major concept of C was note the Origins will not be taught, and he's the individual seconded, I believe by Mr. Brown, that he moves the origins of life will not be taught to A, because he believed the major sticking point with the professional staff was that the intelligent design was going to be taught.

So his consensus effort, at least from my viewpoint and understanding, is the fact that he was looking at developing a consensus between the teachers and a majority of the board by addressing their individual concern that intelligent design was taught, and he thought he had directly addressed their concern with the support of one of the three, Mr. Brown.

Q. But adding origins of life didn't actually meet the teachers' concern that intelligent design not become part of the curriculum?

A. I think that's eventually what the interpretation was. But I would hesitate to make an understanding that I think at that time period he thought he had developed a consensus that the teachers would be satisfied with it.

Q. Dr. Nilsen, there is no way anybody could reach that interpretation about the teachers' position from what the teachers said at that October 18th meeting. Isn't that right?

A. I think you are going to have to ask Mr. Bonsell that question.

Q. We'll have the chance to do that. But certainly Bertha Spahr got up there and stated her absolute opposition to intelligent design. Correct?

A. Yes.

Q. After indicating she had engaged in compromise after compromise, this was the one issue she couldn't compromise on. Correct?

A. That would be my understanding, yes.

Q. And Mrs. Miller actually got up at a point during the session to make clear that the teachers were not the drafters of what was being put into place. Correct?

A. You are going to have to be more specific than that.

Q. Didn't Jennifer Miller jump up at one point in response to Mrs. Geesey's -- and I don't want to get into who Mrs. Geesey's comment was directed at. But Ms. Miller was adamant that the teachers not be construed to have been the authors of the curriculum change that was being voted into place?

A. Yes.

Q. Now, on the subject of origins of life, your understanding is that refers to macroevolution. Correct?

A. Yes.

Q. And the origins of man?

A. Yes.

Q. And this curriculum change makes the -- makes not teaching origins of life policy. Correct?

A. Yes.

Q. Teachers can't teach it now?

A. Correct.

Q. It's not just practice, it's policy?

A. Correct.

Q. Now, at the time this was passed there was very little discussion about what intelligent design actually is. Isn't that right?

A. I can't speak to what the board did or what Mr. Baksa did. I can only speak to what I did.

Q. In terms of what you actually observed, there was very little discussion of what intelligent design actually is. Isn't that right?

A. From my viewpoint of what I saw, again, I can't speak to what was discussed in the curricular areas. I can only speak to my responsibility. And I did not see anything from my responsibility, although I can't speak for the board or anybody else.

Q. And you were at all of the board meetings. Correct?

A. At this time, yes.

Q. So if there was discussion of what intelligent design actually is, you would have heard it?

A. Yes, at board meetings.

Q. And there also wasn't any discussion about how this would improve science education except for this idea that there would be some balance. Right?

A. I think the discussion was the board wanted students to be aware of other theories, and one of the other theories was intelligent design.

Q. I'm going to ask you, do you remember that I asked you at your deposition how the science curriculum has been enhanced beyond how it previously existed before the change in the curriculum?

A. I remember the question.

Q. If you could turn to page 93 of your January deposition.

A. I have it.

Q. I asked you that question on lines two to four of page 93.

A. Yes.

Q. And you answered, "Students prior to the change only knew that there was one theory, Darwin's, and there were students that held other theories. And those that were priorly discriminated against now know that there are other theories and can believe those other theories and not believe the school district is discriminating against their beliefs."

That's what you answered. Right?

A. Yes.

Q. Discriminating against students' beliefs. That's what this policy was fixing. That was your answer, Dr. Nilsen?

MR. GILLEN: Objection to the characterization of his answer.

MR ROTHSCHILD: I'll rephrase, Your Honor.

THE COURT: All right.

BY MR ROTHSCHILD:

Q. That was your answer to how this was enhancing the science curriculum beyond how it stood before the curriculum change, that it would mean that we -- that the district was no longer discriminating against student beliefs?

A. Yes.

Q. I also asked you about the statement in the press release that the statement and revised biology curriculum together provided an opportunity for open and critical discussion. Do you remember that?

A. Yes.

Q. And you testified that there is critical discussion being allowed for the gaps part of this but not for intelligent design. Correct?

A. Correct.

Q. There's no questions allowed on that?

A. Correct.

Q. In your experience as an educator, the only time students are directed not to discuss topics and teachers are not permitted to comment on topics with students is for issues of political affiliation, sexual education, issues that are highly politically charged and religion. Correct?

A. That was examples I gave you. I also told you that there may also be items that are far afield of what is in the planned courses and/or not in the standards.

Q. And you actually testified today about that, that you discussed with Jen Miller what would happen if questions were asked. Right?

A. Yes.

Q. And you answered to her well, you handle it like everything else that's not in the curriculum; you don't have to answer those questions. Right?

A. No. What I think I believe I said is that the teachers would say that was a good question, not what we're teaching at this time period. You may refer to your own individual research and/or your parents.

Q. Okay. But in any event, this is -- this item here is not like things that are outside the curriculum. This is something that's inside the curriculum. Right?

A. I'm not sure I understand the question.

Q. Well, we are in agreement that this particular issue that students are not allowed to be asked about is part of the curriculum. Right?

A. Yes.

Q. And that's pretty unusual that something that's actually in the students' curriculum can't be discussed by the students or the teachers. Would you agree with that?

A. Yes.

Q. Now, there came a time when this lawsuit was filed. Correct?

A. Yes.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. Do you recognize this document, Dr. Nilsen?

A. Yes.

Q. And what is it?

A. It's a letter from Pepper Hamilton signed by a gentleman by the name of Eric Rothschild to Mr. Russell, our solicitor.

Q. And he showed you this document after he received it?

A. Yes.

Q. It's dated December 15th, 2004?

A. Yes.

MR ROTHSCHILD: Just for the record, this is P-758.

BY MR ROTHSCHILD:

Q. And in that letter I made you aware of Pepper Hamilton, the ACLU and American United's representation of certain parents of children in the Dover Area School District?

A. I believe you actually made Mr. Russell aware of that and eventually made me.

Q. Fair enough. And I also made Mr. Russell aware that we felt we had a very strong case that this violates the First Amendment and that if parents prevail in the lawsuit there would be recovery of attorneys' fees for the prevailing parties. Right?

A. Yes.

Q. All of that is consistent with what Mr. Russell told you in that August E-mail we looked at. Correct?

A. Yes.

Q. And then I went on to say the plaintiffs and their attorneys would prefer to resolve this matter amicably. Correct?

A. In your third paragraph you state that, yes.

Q. And going over to the next page, in the first full paragraph it states, "If the defendants agree to resolve this matter in this fashion, which is nothing more than what the law otherwise requires, the plaintiffs and their attorneys will agree not to apply for the attorneys' fees and expenses to which they otherwise would be entitled." Correct?

A. That's what it says there, yes.

Q. And you were made aware of that offer by your solicitor. Correct?

A. Yes.

Q. But the district stayed with its policy. I'm sorry. Let me withdraw that. Did you make the board aware of this letter?

A. Yes.

Q. But the -- the board did not take the opportunity to present it in this letter?

A. That is correct.

Q. It went ahead with the -- with the -- with implementing the policy?

A. Yes.

Q. And the district retained Thomas More to represent it?

A. Yes.

Q. And I assume that yourself and the board did some due diligence to find out about Thomas More before it engaged Thomas More?

A. Yes.

Q. You did some research to find out their qualifications?

A. Yes.

Q. Went to their web site?

A. I can't speak to what efforts were done. I know that the board president designated a board member to do research on what would be our recommended plaintiff counsel.

Q. And the board president was Mr. Bonsell?

A. Excuse me?

Q. The board president was Mr. Bonsell?

A. No. I believe at the time period we were discussing this, it actually was Mrs. Harkins.

Q. Who did she designate to --

A. Mr. Bonsell.

Q. Now, you talked about how you -- you talked about how you made an effort to go on the Gary Sutton Show to communicate something that the teachers wanted you to communicate. Is that right?

A. Yes.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. I'm showing you what's been marked as Defendant's Exhibit 172, a collection of documents. And I would like you to turn to the page Bate stamped 359.

A. I have it.

Q. Okay. This is what the science department asked you to tell Gary Sutton?

A. Yes.

Q. That included they had acted in a professional manner, they made every attempt to maintain the integrity of the Pennsylvania state science standards and the Constitution of the United States of America. Correct?

A. Yes.

Q. And you then went on the Gary Sutton Show?

A. Yes.

Q. And if you could turn to the next page.

A. Yes.

Q. And this is your statement that you made on the Gary Sutton Show?

A. Yes.

Q. And you did communicate that the science department staff acted professionally?

A. Yes.

Q. And you did communicate, as they wanted, that they had made every attempt to maintain the integrity of the Pennsylvania state science standards?

A. Yes.

Q. But you did not communicate their statement that they had made every attempt to maintain the integrity of the Constitution of the United States.

A. That's correct.

Q. Now, you testified today that you had given instructions to put the books in the library. Correct?

A. Yes.

Q. But that wasn't your initial instructions about what to do with the book, was it?

A. No.

MR ROTHSCHILD: Can I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. I'm showing you what's been marked as Plaintiff's Exhibit 109. Do you recognize this document?

A. Yes.

Q. And this -- what is it?

A. It's a letter or a memo from Mr. Baksa to Bert Spahr.

Q. What does it say?

A. "Please place Of Pandas and People in the biology classrooms and make available for students."

Q. And that was something you were copied on?

A. Yes.

Q. And that's dated December 7th, 2004?

A. Yes.

Q. And then the lawsuit was filed, correct, on December 14th or 15th?

A. Yes.

Q. And then on December 22nd you told the librarian that the book should be put in the library. Correct?

A. Yes.

Q. After the lawsuit?

A. After I realized two things. One, we had difficulty finding a place in the classroom, as well as I didn't know we had a section in the library dealing with this issue.

Q. And the section was a section on creation and evolution?

A. Yes.

Q. And the librarian made you aware of that?

A. Yes.

Q. And she thought those books belonged there?

A. She didn't mention thinking that the Panda books belonged there, no. She didn't make any comment about that at all.

Q. That was your thoughts?

A. Yes.

Q. You talked about giving the students the opportunity to opt out of the -- of hearing the statement read in biology class. Correct?

A. Yes.

Q. And the other examples, the circumstances in which students are allowed to opt out that you identified are, I guess you would say, military recruiting. Correct?

A. Yes.

Q. This surely doesn't fall under that?

A. I'm sorry. What's the question?

Q. The statement doesn't fall under military recruiting. Correct?

A. No.

Q. Sex ed. basically; they were allowed to opt out of that?

A. Yes.

Q. This doesn't fall under that?

A. No.

Q. Materials relating to planned parenthood --

A. No.

Q. -- they are allowed to opt out from receiving those?

A. No. I'm sorry?

Q. I'm not sure what -- that was one of the examples that you gave when they're --

A. Yes.

Q. This was not -- this statement does not have anything to do with planned parenthood?

A. No.

Q. Or the subject of abortion?

A. No.

Q. Or reach any kind of issues of reproduction or contraception?

A. No.

Q. And dissections, that was another thing that students were allowed to opt out of?

A. They are allowed to opt out of anything the parent chooses. But yes, that's an example.

Q. Okay. And this obviously doesn't fall under that?

A. No, it does not.

Q. The last thing you said they could opt out from was issues relating to religion. Correct?

A. Yes.

Q. We talked about -- you talked about the newsletter. If you could pull up Exhibit 127. That was something that was created by Mr. Bonsell and the lawyers at Thomas More. Correct?

A. Yes.

Q. But that wasn't entirely -- that wasn't entirely from Thomas More's pro bono representation, the district actually had to pay for it?

A. Not the letter itself but the mailing of the letter.

Q. And that cost the district about $1,000?

A. Yes.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. Dr. Nilsen, I'm going to give you a copy of the newsletter and also the answer filed in this case by defendants. That's Exhibit P-120.

Dr. Nilsen, if you could go to the second page of the newsletter and look at the section entitled quotables. There's a quote from Rick Santorum. Right? "The Dover Area School District has taken a step in the right direction by attempting to teach the controversy of evolution." Right?

A. Yes.

Q. Then at the bottom of the page there's a quote, "Where topics are taught that may generate controversy such as biological evolution, the curriculum should help students to understand the full range of scientific views that exist."

It's attributed to conference report from the No Child Left Behind Act of 2001. That's sometimes called the Santorum Amendment. Is that right?

A. Yes.

Q. And the district has actually relied upon that as support for what it's doing. Correct?

A. Yes.

Q. And you understand that this is not actually part of the No Child Left Behind Act. It's not part of the law. Correct?

A. It's not part of the law, no.

Q. And in the answer that defendants filed, Exhibit P-120, there's again a reference to this language from the Santorum Amendment on page two of the answer, second full paragraph.

A. Okay.

Q. And this is an answer you reviewed before it was filed with the Court. Correct?

A. Yes.

Q. It says here, "Defendants affirmatively state that DASD's resolution" -- and that's the Dover Area School District's resolution. Right?

A. Yes.

Q. -- "adopted on October 18th, 2004 reflects the intent of the Santorum Amendment to the No Child Left Behind Act of 2001 which was adopted by the U.S. Senate, 91 to 8, and included in the final conference report as follows."

And you quote the same language that you had in the newsletter, "Where topics are taught that may generate controversy, paren, such as biological evolution, closed paren, the curriculum should help students to understand the full range of scientific views that exist, why such topics may generate controversy and how scientific discoveries can profoundly affect society."

So there again, the district is relying on the Santorum Amendment. Correct?

A. Yes.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. Dr. Nilsen, I have handed you Exhibit P-786, which is titled the No Child Left Behind Act of 2001, conference report to accompany HR, House Resolution, one. Do you see that?

A. Yes.

Q. If you could turn to the next page and go down to the second full paragraph. Now, you see the language that's relied upon in the answer and in the newsletter, Where topics are taught that may generate controversy, that's actually the second sentence of that paragraph. Correct?

A. Yes.

Q. Could you read the first sentence of that paragraph into the record?

A. "The Conference recognizes that a quality science education should prepare students to distinguish the data and testable theories of science from religious or philosophical claims that are made in the name of science."

Q. And that's not something that the Dover Area School District communicated to its citizens in the newsletter. Correct?

A. That sentence was not in the newsletter, no.

Q. It's not something that was put in the answer as evidence to what the District's intent was in passing this policy. Correct?

A. That's correct.

Q. Dr. Nilsen, you have argued, as have your attorneys and members of the board in depositions, that what you're doing with this policy is not teaching. Correct?

A. That's correct.

Q. You read this four paragraph statement to the students, but it's not teaching?

A. That's correct.

Q. And you heard Ms. Miller talk about it and she disagrees with that. Correct?

A. Yes.

Q. You're not a science teacher like Ms. Miller?

A. No.

Q. You were a history teacher. Correct?

A. That's correct.

Q. Let me ask you this. If students in Dover Area School District were told in 1066 William the Conqueror invaded England and nothing more, is that teaching?

A. Depends on what happens around that individual statement.

Q. Just part of European history, but it's the only thing they are told about William the Conqueror invading England.

A. Again, it goes back to the pedological question, being if it's done in isolation, if it's done in the context of what's being presented, if it's just a random statement, no, it's not teaching.

Q. If they are being taught European history but the only thing they're being told about that set of facts is in 1066 William the Conqueror invaded England, is that teaching?

A. No.

Q. If students are told about the Declaration of Independence this one fact; Thomas Jefferson wrote the Declaration of Independence, is that teaching?

A. As I've defined teaching, no.

Q. If students are told that William Jennings Bryan represented the state of Tennessee in the Scope's monkey trial, and that's all they are told about William Jennings Bryan, is that teaching?

A. No.

Q. If they're told that American foreign policy was characterized as isolationist before World War II, is that teaching?

A. As I've defined it, no.

Q. If they are told that John Wilkes assassinated Abraham Lincoln, is that teaching?

A. No.

Q. They are told that John Jay was the first chief justice of the United States, is that teaching?

A. I continue to answer it in the same way. As I have defined teaching, no.

Q. If they are taught about the presidency of Franklin Delano Roosevelt and they are told only the following about -- and they are taught a lot about Franklin Roosevelt, but they are taught only this about the court packing episode; in 1937 Franklin Delano Roosevelt tried to add several members to the Supreme Court bench and many people opposed it because they thought it was unconstitutional, is that teaching?

A. Again, as I've defined it.

Q. And similarly, you stand by your position that the statement read to the students before the class on evolution starts is not teaching?

A. It's learning without question. But as I've defined it, teaching? No.

Q. But it's definitely learning, isn't it, Dr. Nilsen?

A. Yes.

Q. Students are learning when they hear that statement?

A. Yes.

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

THE COURT: Thank you, Mr. Rothschild. Mr. Gillen, redirect.

REDIRECT EXAMINATION

BY MR. GILLEN:

Q. Dr. Nilsen, is teaching a term of art in the educational profession?

A. Yes.

Q. And what do educators mean when they use that term of art?

MR ROTHSCHILD: Your Honor, I would just object to state that they are trying to treat this as expert testimony.

MR. GILLEN: He's the superintendent with a Ph.D. in education.

MR ROTHSCHILD: He's not been -- he's not been offered or qualified as an expert in this case. I have no objection to him giving his opinion or understanding, but it should not be treated as expert testimony.

THE COURT: I think that's the point. I think he's qualified to answer it. I think your objection goes to the weight that the Court should give it. So I'll overrule the objection. I'll let him answer. I understand your point.

THE WITNESS: There are basically four components to teaching; one specifically behavioral objectives; secondly, specific learner behaviors or outcomes; thirdly, materials used; and fourthly, assessment based on the behavioral objectives.

BY MR. GILLEN:

Q. Thank you. Mr. Rothschild has mentioned that an individual, Mr. Reeser, spoke at the March 26th, 2003 board retreat, and he's also pointed out that Mr. Reeser is the individual who destroyed a display in a science classroom in the Dover Area School District.

Did you tell Mr. Reeser anything when you learned he had done that?

A. Yes. I brought him in my office and told him if he continued behavior like that he would be terminated.

Q. At the time you received the Peterman memo, did you have the information that Jen Miller provided to this Court in her testimony in court?

A. No.

Q. At the time you received the Peterman memo, was that the only information you had about what teachers taught in the biology class?

A. Yes.

Q. Mr. Rothschild has asked you about the Discovery Institute. During the period that has been the subject of your testimony, did you learn anything about the Discovery Institute?

A. I learned that they were a scientific think-tank.

Q. Mr. Rothschild has asked you certain questions about the board issues, documents that were produced late in this litigation by you. I want to ask you a few other questions.

When you found those documents, Rich, did you realize that they were inconsistent with your recollection as testified to in your depositions?

A. Yes.

Q. Did you turn them over nonetheless?

A. Yes.

Q. And why did you do that?

A. I'm honest.

Q. As you sit here today, do you recall anything about the term creationism being mentioned in either the 2002 or 2003 board retreats?

A. No, I did not, much like neither did the Browns or Mrs. Callahan.

Q. Had you looked at the text of --

MR ROTHSCHILD: Your Honor, move to strike. I'm not sure what he even based that on. They testified in this court -- Ms. Callahan testified in this court of a recollection of that.

MR. GILLEN: The record will speak for itself. He's speaking to his recollection of Jen Miller's testimony.

THE COURT: Deny the motion to strike. It's the Court's recollection that controls. My recollection may comport with yours and I understand your point, but I'm not going to strike it. It's his testimony. I don't take that as controlling. I'll weigh the evidence and make a determination.

You can proceed.

BY MR. GILLEN:

Q. Mr. Rothschild has drawn your attention to certain portions of the text of Pandas. Had you reviewed those prior to seeing them here in court today?

A. No.

Q. As you sit here today, do you believe that Pandas is a creationist text?

A. No. If it was a creationist text, the teachers would not have accepted it as a reference.

Q. Mr. Rothschild has characterized the vote held on August 2nd, 2004 as a vote to deprive the students of their text. Did the students have a biology text at the time of the August 2nd vote?

A. Yes.

Q. Are you aware of the copyright of that text?

A. Yes, 1998.

Q. Did you ever believe that the students would not get the biology text recommended by the science faculty?

A. No. In fact, my statement to the board was the fact that when they eventually agree on the text it would end up being mid September when we would start with the teachers using two different texts. There was never a perception that we would not get a new text.

Q. What was the actual outcome of that vote on August 2nd, 2004?

A. Five/three for the text.

Q. Mr. Rothschild has drawn your attention to the fact that it is unusual for a reference text to be specifically referenced in the curriculum. Why is it specifically referenced?

A. The only reason it was referenced was because the concern of the teachers and my attempt to convey my support and legal coverage for them.

Q. Mr. Rothschild has drawn your attention to the fact that besides the book of Pandas, the other texts that were donated were not listed in the revised statement which was read to students in June of 2005. Why were those individual texts not listed in the statement?

A. Because I think they would end up being -- first of all, I think there were a lot of different texts. We were just referring to the group of texts.

Q. Mr. Rothschild has questioned you at some length about Defendant's -- Plaintiff's Exhibit 70. Would you look at that, please?

A. Could you tell me what it is?

Q. Certainly. It's that E-mail.

A. I have it.

Q. Rich, would you tell us what was your purpose in sharing that document with the teachers?

A. To address their concerns about the legality of the Of Pandas and People book.

Q. You say address, were you trying to allay?

A. Excuse me?

Q. When you say address, were you trying to allay?

A. Yes.

Q. Mr. Rothschild asked you if the document had a Pandas in it, and you responded it did not. Does the E-mail reference text?

A. Yes. It references it in two places. In fact, this is an answer to questions that I had conveyed to him. So I think it was pretty much assumed when he was answering my questions what he was referring to.

Q. Do you have an understanding concerning what text is being referenced?

A. Yes. Of Pandas and People.

Q. Mr. Rothschild has pointed out that in that E-mail Mr. Russell points to some difficulties. Did you have a sense for the nature of Mr. Russell's concerns?

A. Yes.

Q. What were they?

A. Media.

Q. Mr. Rothschild has pointed out that Mr. Russell pointed to some difficulties. Did you have an understanding concerning whether Mr. Russell had said it was unlawful to use these texts?

A. Nowhere did he say it was unlawful.

Q. You've -- Mr. Rothschild has asked you about Bill Buckingham requesting that you put the board curriculum version of the proposed curriculum change on the agenda for the October 4th, 2004 board meting. Could you stop Mr. Buckingham from bringing it up?

A. No. In fact, that's why I put it on the agenda, because I knew if I didn't put it on the agenda he was going to bring it up under miscellaneous.

Q. Did putting it on the agenda mean it would pass?

A. No.

Q. On the night of the meeting did you believe that the board curriculum committee version would pass?

A. No.

Q. Did you believe that the final result of the voting process on October 18th, 2004 would be one that the teachers could live with as the meeting began?

A. I'm sorry. Could you ask that question again?

Q. Sure. Well, let me ask it this way, Rich.

Did you have a sense for what version of the proposed curriculum change would pass?

A. Yes. I believed we would end up having C pass.

Q. And that is the version the teachers have said they could live with?

A. Yes.

Q. Is it correct that you made a statement to the teachers to that effect?

A. Yes. In fact, I communicated to them that when the vote was successful with C that I wanted to make sure that the decorum was positive because I envisioned some comments.

Q. Mr. Rothschild has drawn your attention to the note appended at the foot of the curriculum underneath the item that's produced this litigation to the effect that origins of life are not taught.

Do you have an understanding concerning whether the teachers in Dover Area High School ever taught origins of life?

A. They never have.

Q. Do you have an understanding concerning the purpose of making that note to the curriculum?

A. Yes. Mr. Bonsell wanted to reassure the teachers that they would not in the future have to teach the origins of life.

Q. Mr. Rothschild has asked you some questions about the movement of the text Of Pandas into the library. I want to ask you, did you move the text to the library because of the lawsuit or because of the practical considerations you have described?

A. I moved it because the practical considerations, and I also thought it was educationally appropriate there.

Q. Did you think that Of Pandas should be put in the library because you thought Of Pandas was a creationist text?

A. No.

Q. Did you allow the opt-out policy of Dover High School to apply in this case because you believed intelligent design was a religious assertion?

A. No.

Q. Mr. Rothschild has drawn your attention to portions of the senate report requiring -- or indicating that it is good education to distinguish scientific from religious or other philosophical assertions.

Did you believe that intelligent design was a religious or philosophical assertion?

A. No.

Q. What kind of assertion did you see that theory to be advancing?

A. I think intelligent design is science.

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

THE COURT: All right. Thank you, Mr. Gillen. Mr. Rothschild, recross.

RECROSS-EXAMINATION

BY MR ROTHSCHILD:

Q. Doctor Nilsen, you just expressed that you think intelligent design is science. Correct?

A. Yes.

Q. Now, do you remember at your deposition I asked you your understanding of what intelligent design was?

A. Which one? Is that the January one?

Q. Yes.

A. I remember you questioning it. I don't remember the answer.

Q. Why don't we turn to page 16 of your deposition? Turning your attention to page 16, line two. I asked you Mr. -- Mr. Nilsen. I forgot to use your title of doctor. "Mr. Nilsen, the draft resolution uses the term intelligent design. What do you understand intelligent design to mean as used in this resolution?" You asked, "Which resolution?" I asked, "The resolution that is the final resolution that is set forth in the complaint." You answer, "Scientifically evolution has a design." I asked, "Anything else?" You said, "No." And I asked you, "Where did you gain that understanding?" You said, "In discussions I have had with numerous individuals." I asked, "Can you identify those individuals?" You said, "Counsel and board members." I asked, "Anybody else?" You said, "To my recollection, no."

So that was the extent of your understanding of the scientific nature of intelligent design several months after the resolution had been passed?

A. In January, yes. Subsequent to that, obviously I've learned a lot more.

Q. Okay. But at that time that was your full understanding?

A. Yes.

Q. And your full understanding was based on what board members told you, who don't have a scientific background. Correct?

A. That's correct.

Q. And counsel. Correct?

A. Yes.

Q. And it was inconsistent with the understanding of the teachers in your district who had communicated that they didn't believe intelligent design was science. Correct?

A. Yes.

Q. And they, as we've discussed, are the science education experts in your community?

A. Yes.

Q. You testified that the reference to Pandas was placed for the teachers' benefit. Correct? The reference to Pandas in the curriculum was actually put in there to protect the teachers.

A. Yes.

Q. Now, there was a board curriculum committee meeting on October 7th where the amendment was discussed. Did you attend that meeting?

A. The October 7th meeting?

Q. Right.

A. Yes.

Q. Let me show you a document. This one is marked as P-81.

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. Do you recognize this document?

A. Yes.

Q. Okay. And is this a memorandum regarding proposed curriculum changes being discussed by the board curriculum council meeting?

A. Yes.

Q. Were you at this meeting?

A. Not that I remember, no.

Q. It appears that people who were at this meeting are members of the board curriculum council meeting.

A. Yes.

Q. And the teachers have testified in this case that they were not at this meeting where the curriculum change was discussed, and you have no reason to dispute that, do you?

A. I have no reason to state one way or another.

Q. And here, without your participation, there is already a reference to including Of Pandas and People as a reference source in the curriculum. Correct?

A. Could you please tell me where that is?

Q. At the bottom of page -- section B, concerns to be addressed, item four.

A. Okay.

Q. That's what it says, right, under materials and resources in the curriculum, Of Pandas and People be cited as a reference source.

A. Okay.

Q. That was what the board curriculum committee was discussing at a meeting that you didn't participate in. Correct?

A. That's correct. But that doesn't mean that that had not been a conversation that I had had with Mr. Baksa when this whole process was evolved. When we were talking about the Pandas book being a reference, all the way back to when the teachers accepted it in August, I'm sure I had conversations about where it would be placed in the curriculum when Mr. Baksa was going through that process.

I'm sure, but I can't be specific, I would have had conversations that if teachers had a concern about it, a good place to put it would end up being in the reference section.

Q. Let's be clear here. We're not talking about the reference section or anything about the library. We're talking about whether Of Pandas and People would be cited as a reference source in the curriculum?

A. That's what I'm talking about.

Q. Okay. And you're suggesting that that was already a thought in your mind and in Mr. Baksa's mind?

A. We were -- yes.

Q. Now, you are aware that version B of the proposed curriculum change that was represented as being the product of the administration and staff, that was created before this October 7th meeting?

A. I don't offhand know the exact date it was created.

Q. We'll get to that in a moment. You said you couldn't stop Mr. Buckingham from putting the curriculum change on the agenda. Right?

A. No. What I said is I couldn't stop him from bringing up at the agenda -- or during the board meeting. That was my comments.

Q. At least three board members were advocates of delaying the vote on it. Correct?

A. Yes.

Q. And any collection of five board members could have stopped the curriculum change coming to a vote at that meeting. Correct?

A. Yes.

Q. So any combination of Ms. Cleaver, Ms. Yingling, Ms. Geesey, Ms. Harkins and Mr. Bonsell; any two of those five could have joined the Browns and Mr. Wenrich to stop the curriculum change from being voted on at that meeting. Correct?

A. Yes.

Q. But they didn't. Correct?

A. That's correct.

MR ROTHSCHILD: Could I have one moment, Your Honor?

THE COURT: You may.

(pause.)

MR ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

BY MR ROTHSCHILD:

Q. Dr. Nilsen, what I have shown you is marked Plaintiff's Exhibit 73. This is a memo from Mr. Baksa of the board curriculum committee dated September 20th, 2004 regarding the biology curriculum.

A. Yes.

Q. He says, Attached is the recommended curriculum change for biology. Correct?

A. Yes.

Q. He says, The changes were reviewed by the science department. Correct?

A. Yes.

Q. So this is what administration was recommending to the board curriculum committee. Right?

A. From the biology teachers.

Q. Well, let's be specific on the language. It says here's the recommended curriculum change for biology. And the changes were reviewed by the science department. Right?

A. Yes.

Q. It doesn't say it was recommended by the science department.

A. To be perfectly clear, I'm somewhat hesitant in the specificity of those comments. You would have to ask Mr. Baksa that.

Q. Fair enough. But it certainly did constitute the recommendation from administration. Correct?

A. It doesn't say that anywhere here.

Q. It says recommended curriculum change, and it's coming from Mr. Baksa. Right?

A. Yes.

Q. If you could turn to the next page. It says that students will be made aware of gaps in Darwin's theory and of other theories of evolution. Correct?

A. Yes.

Q. And under materials and resources, there is nothing mentioned there. Correct?

A. Which Bate stamp are you looking at?

Q. I'm looking at 29, what was attached to 28. The other page there, Dr. Nilsen, I think is just an extra page. It doesn't have a Bate stamp on it.

A. That's why I asked, because that does say Of Pandas and People on it.

Q. I understand. It also says intelligent design. We know that wasn't the recommendation.

A. I wanted to make sure you and I were clear.

Q. Fair enough. Looking at the Bate stamp 29, it says that students will be made aware of gaps in Darwin's theory and of other theories of evolution. And nothing under materials and resources. Correct?

A. That's correct.

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

THE COURT: All right. That will conclude your testimony, Doctor. We thank you. You may step down.

(Witness excused.)

THE COURT: We have quite a few exhibits. Counsel, why don't you approach, please for a moment?

(The following occurred at sidebar between the Court and counsel:)

THE COURT: Yesterday you were talking about breaking for an expert, but I guess --

MR. GILLEN: In fact, I'll put on the record now we will not be bringing him on.

THE COURT: So what's your pleasure?

MR ROTHSCHILD: Can we put on the record who it was?

MR. GILLEN: Sure. Dick Carpenter.

THE COURT: Let's put Mr. Rothschild there on the other side. Okay. Who do you have next?

MR. GILLEN: Baksa.

THE COURT: Well, why don't we take our break now, if that works for everybody.

MR. GILLEN: I think that's a good suggestion. Do you want to get these in?

THE COURT: Yeah, I would rather keep moving and not get tied up with exhibits. We could probably take these on Monday, if that's alright with everybody unless you --

MR. GILLEN: No. That's fine with me.

MR ROTHSCHILD: Yes.

THE COURT: How long do you want to go? Do you have any airplane issues?

MR. GILLEN: I don't. Thanks for asking, Judge. I'm here unfortunately.

THE COURT: I would say 4:30. I don't want to beat this to death today unless we're drastically behind. Do you want to try to pick up some more time at the end of the day, which I hate to do on Friday but --

MR. GILLEN: No way.

THE COURT: Liz is making me go later.

MR. GILLEN: No way, Judge. 4:30 is fine with me.

THE COURT: Liz has the stick out. She's afraid we're getting behind. I, of course, don't get concerned about these things. All right. We'll go to 4:30. Let's take our break now for the afternoon and take it up with Baksa after that. Okay.

(Discussion held at sidebar between the Court and counsel was concluded.

THE COURT: All right. We'll take our afternoon break at this point and we'll take the defendant's next witness at the end of the 20 minute break, and we'll go until approximately 4:30 this afternoon. We'll stand in recess for 20 minutes.