RationalWiki:Kitzmiller v. Dover annotated transcript/P045

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Trial transcript: Day 13 (October 20), PM Session, Part 1

THE COURT: Good afternoon to all of you. We are here for our somewhat abbreviated, half-day afternoon session of this trial.

Now, I have the exhibits from Professor Behe's testimony, but if you'd like -- and this is certainly fine with me -- we could just proceed to have the testimony and we could save this for a later point in time. That's perfectly all right with me. I see nods.

MR. GILLEN: Yes.

THE COURT: No shakes of the head. So with that, why don't we get right into the testimony, and you may call your next witness.

MR. GILLEN: Thank you, Judge. The defense calls Dr. Richard Nilsen.

DR. RICHARD NILSEN, called as a witness, having been duly sworn or affirmed, testified as follows:

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

THE WITNESS: Richard Dean Nilsen. Richard, R-i-c-h-a-r-d, Dean, D-e-a-n, Nilsen, N-i-l-s-e-n.

DIRECT EXAMINATION BY MR. GILLEN:

Q. Good afternoon, Dr. Nilsen.

A. Good afternoon.

Q. You're here to give your testimony in this case. Let me ask you, are you currently employed?

A. Yes.

Q. Where at?

A. Dover Area School District.

Q. Would you give us just an idea who you are as a person, your family status. Are you married?

A. Yes.

Q. And you have children?

A. One child 21 years old.

Q. How about your educational background, would you briefly describe that for us, please?

A. I have an undergraduate degree, BA in history at Gordon College, received my master's at Shippensburg University in education administration, and I have a doctorate in education administration from Temple University.

Q. And if you would, please sketch your employment background before coming to Dover.

A. I began my career at Dover -- I'm sorry, Derry Township School District as a social studies teacher. My first administrative position was at Big Spring School District as assistant principal/athletic director. I was then elevated to principal at the high school at Big Spring. I also was a middle school principal at Northern York School District, then director of curriculum instruction at Big Spring, and assistant superintendent at Dover, and then eventually my current position, superintendent of Dover.

Q. And when did you come to Dover Area School District?

A. School year 1998-99.

Q. And what was the first capacity in which you were employed?

A. Assistant superintendent.

Q. And your current position is?

A. Superintendent.

Q. Okay. Give us an idea for the general range of your duties as superintendent.

A. My primary responsibility is implementation of board actions, developing the agenda, personnel, budget development, and overseeing the student and faculty procedures.

Q. All right. Well, with that said, I think there's no mystery as to why you're here. We may as well begin that story from your perspective.

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

THE COURT: You may.

MR. GILLEN: Thank you.

BY MR. GILLEN:

Q. Rich, I'd ask that you open that binder I've just provided to you and direct your attention to Defendants' Exhibit 288.

A. I have that.

Q. We've seen this document before in the trial, and I'd like you to say, do you recognize this document?

A. Yes, I do.

Q. What is it?

A. It's the minutes I authored from the Dover Area School District board administrative retreat for January 29th, 2002.

Q. You just called it "minutes." Are they minutes, Rich?

A. They're more my notes.

Q. Okay. I want to get a sense for how this document was generated. But before I do that, I want to describe briefly how this document came to our attention in this litigation. Tell the Court how you found this document and turned it over to me.

A. This past summer, after coming back from vacation, with the summer being somewhat slow, it gives an opportunity for administrators to go through and clean out their files and update items, and in my cleaning out of files, I came across these two or three documents I submitted.

Q. And one of those is Defendants' Exhibit 288?

A. That is correct.

Q. If you look at 288, there are three pages. I just want to make sure those are the three pages you turned over to me. Four pages, it looks like.

A. Yes.

Q. Prior to finding this document, did you have any recollection of Alan Bonsell ever mentioning the term "creationism" to you?

A. No.

Q. Let me ask you this. What did you do as soon as you found this document?

A. Contacted you, counsel.

Q. Okay. Now, I want to give the Court a sense for how the document was generated. It has a date, January 9th, 2002. Can you tell us if this document was generated in connection with the meeting?

A. Yes.

Q. Describe that meeting.

A. My first week as superintendent we decided to have a dinner where we invited all the new board members and current board members and administrators where we ended up having a dinner for about an hour, where the administrators and board got together socially.

And then we ended up having a -- kind of a this-is-what-the-school-is-doing presentation of where each administrator had an opportunity to talk about what tasks they were involved in. And then at the very end, we ended up having a quick go-round for the board.

Q. Let me ask you just about the general purpose of the meeting. Did you give the meeting a name?

A. Board administrative retreat.

Q. And was this in place when you came to Dover, or did you put this meeting in place?

A. I put it in place.

Q. And what was your purpose in doing so?

A. I think two or three reasons. The first reason was get acquainted. One of the strategic plan initiatives was team-building, and we knew that with a new school board coming on, that we needed to develop a team concept between administrators and the board.

Secondly, we were looking, quite honestly, to boast about what the administrators were doing throughout the district and also to take a look at what future tasks we were planning on doing.

Q. As you sit here today, do you have a sense for how long this meeting on January 9th, 2002 took?

A. Most people would say too long, but I would say about three and a half hours.

Q. Okay. You look at Exhibit 288 here, this document that has the Bates Stamp Number 3968 at the foot of the page, the lower right-hand corner, and I want to get a sense for specifically how this list was generated. Would you describe how the information that's reflected in this document was communicated to you?

A. After the administrators were done, the board then had an opportunity to state anything that they wanted to, and we went around the table, and each board member had about a minute or two.

Q. And what did they do with that minute or two?

A. They ended up stating comments or issues.

Q. And I take it you took notes based on what they mentioned?

A. Yes.

Q. I'd ask you to turn to the next page of Exhibit 288 with the Bates Stamp Number 3969 in the lower right-hand corner. Look at that. Do you recognize that document?

A. Yes, I do.

Q. What is it, Rich?

A. It's the agenda for the subsequent board administrative retreat on March 26th, 2003.

Q. Now, you've mentioned that this agenda is for a meeting on March 26th, 2003. Would an agenda similar to this have been prepared for the 2002 meeting?

A. Yes.

Q. Do you have that document, Rich, the agenda for the 2002 meeting?

A. Do I have it with me?

Q. Yes. Do you have it?

A. No.

Q. Okay. Let me ask you this. If you look at the page that's stamped 3969, you'll see it has an Item Roman VI. Would you look at that?

A. Yes.

Q. What's the heading for that section of the meeting on March 26th, 2003?

A. Roman Numeral VI is Board Feedback and Items of Interest.

Q. Is that the section of the retreat that produced the listing we have as Page 3968 for the meeting in January of 2002?

A. No.

Q. I understand, but was that the same portion of the meeting, Board Feedback and Items of Interest?

A. Yes.

Q. Okay. Now, if we turn our attention back to Exhibit 288, at the page marked 3968, I want you to take a look at each of the board members. Just get a sense for what their items of interest were and, you know, what importance they took on in this 2002 year or thereafter.

If you look at the first letter, it's letter A, and that's Mrs. Brown. Is that Carol known as Casey Brown?

A. Yes.

Q. And there's --

THE COURT: Mr. Gillen, you're on your 288. Is that right?

MR. GILLEN: That's correct, Your Honor, at Page 3968, the first page of that exhibit.

THE COURT: Liz, where is -- I'm up to 281, Volume 7.

MR. GILLEN: Your Honor, you correctly note, these were late additions.

THE COURT: Should that be in the 281 book?

MR. GILLEN: It should. It should be in Volume 7, Liz, and should be properly tabbed.

THE COURT: If you're not going to put it on the screen, let me make sure I have it in front of me.

MR. GILLEN: Sure.

THE COURT: You can proceed.

MR. GILLEN: Thank you.

BY MR. GILLEN:

Q. If you look under Mrs. Brown, there are a number of items there, Rich. Would you read them for the record?

A. Mrs. Brown?

Q. Yes.

A. Full-day kindergarten, block schedule, intermediate school, board reps, three-year policy review, discipline policy, pathways, PE credit for sports.

Q. As we sit here today, do you have a recollection of at least some of those topics that are listed under Mrs. Brown's name?

A. Yes.

Q. Tell me what you can about the full-day kindergarten option.

A. One of the options and one of the reasons we instituted this was to actually develop partnerships administratively in things that we wanted to do. And one of the things administratively we wanted to do was begin research and implementation of a full-day kindergarten. So under Mrs. Brown, she has listed full-day kindergarten, so I remember very specifically the conversations subsequent to this that I had with her on that.

Q. And did that issue that she raised produce action in the coming year?

A. Yes. In fact, within months, she was involved with us in researching and eventually developing and currently implementing full-day kindergarten throughout the district.

Q. How about the second item under her name, block schedule?

A. Yes. Her concern was the intermediate school had block scheduling, and subsequent to this conversation, we eliminated it.

Q. What about the third item, board reps?

A. I cannot tell you what that refers to. I don't remember.

Q. How about the three-year policy review?

A. Her biggest issue when she came on the board was the fact that she had gone to a weekend seminar that stated that we ought to have policies update -- updated every three years. And it was one of my initiatives as a new superintendent because our policies were 20, if not 25 years old. So one of the challenges she gave us is to make sure that all our policies were current, and that was one of the things that I wanted to do, as well.

Q. How about the discipline policy, do you remember anything that Casey Brown said in 2002 about that?

A. Not specifically, no.

Q. How about pathways?

A. Yes. She was not in favor of pathways.

Q. How about the PE credit for sports?

A. At this time period I can't remember anything specifically she said, although I've had conversations with Mrs. Brown about PE and credit.

Q. Okay. Let's just take a quick look at Noel Wenrich. There are some items listed under his name there. The first one, alternative ed, do you remember anything specific about that?

A. No.

Q. How about discipline policy?

A. Yes.

Q. Tell me briefly what you remember about that item.

A. Mr. Wenrich wanted consistent discipline policies for all students.

Q. How about the drug policy, Item 3?

A. I don't remember anything about the drug policy. I do remember him talking about and requesting that we research the drug dog initiative.

Q. Did that ever issue an action?

A. Yes.

Q. How about the three-year policy review?

A. I believe he was echoing Mrs. Brown's comment that we ought to upgrade and update all of our policies.

Q. Let's look at Alan Bonsell. You'll see there that it's already been highlighted in this trial. Under his name, the first item is creationism. As you sit here today, do you remember Mr. Bonsell saying anything to you about creationism at this retreat meeting on January 9th, 2002?

A. No.

Q. How about prayer?

A. No.

Q. Do you remember anything he said about the need for administration to work as a team?

A. No.

Q. How about curriculum?

A. No.

Q. How about uniforms?

A. No.

Q. Well, you know, let me ask you this, Rich, because I think it's a fair question. You've been asked and will be asked again, you know, tell the Judge why it is that you remember some of these things but you don't remember others.

A. Well, I'll state it in a number of fashions, but first of all, each of these had a relative emphasis, meaning when we began the school year, there was an emphasis on certain things that needed to be completed. Mr. Bonsell had specifically been elected to the board -- at least his campaign was dealing with the high school project.

The prior board had developed, gone out on bids, and had actually ended up with all but bid acceptance. The new board came in, and Mr. Bonsell's main responsibility was the building project. And almost to exclusiveness, Mr. Bonsell and I, along with Mr. Wenrich, worked very closely on the building project. So our conversations were almost totally exclusive to the building project.

Q. And let me ask you about that, Rich. This is the January, 2002 period. Were there specific projects that loomed large for you as a superintendent in Dover at this time?

A. Yes. This meeting on the 4th was my first week on the job, as well as the prior superintendent had retired and the board took six months to hire a replacement. So in the spring, I was basically without an assistant in a new position with a building project and two or three priorities that I had chosen, along with the building project, to concentrate on.

Q. Let's flip the page here, still on Exhibit 288, but go to 3969, which is the agenda for the March 26th, 2003 meeting. And I just want you to, again, briefly describe how this document was generated.

A. Bates Stamp 3969?

Q. Correct.

A. Similar fashion as the 2002 agenda. It would have been where we had -- that would be the second board administrative retreat where we ended up bringing in board members, as well as administrators, for dinner. You can see where we had the welcome and then the dinner.

And then we ended up having an administrative go-round on accomplishments. As I alluded to before, it ran later than expected. We asked each of the administrators to have three minutes, and I think most of them took seven minutes because they were so proud of what they were doing.

And then, again, at the end of the evening we asked the board to, once again, as in the previous year, to go around and give a one- or two-minute quick comment.

Q. Okay. If we look at the first document I showed you, these issues from 2002, and then we look at the agenda for 2003, do you see points of contact, points of continuity, between these two documents which, to you, reflect the priorities of board business at that time?

A. Yes.

Q. Just give us an idea for what some of those are based on your recollection of what was looming large at this meeting on March 26th, 2003.

A. Once again, I think boards are consistent in their thoughts of discipline and budget and finance, and you'll note that there are issues that board members had brought up in the prior year that continue in the subsequent year.

Q. And give us just a quick idea for what some of those are.

A. You'll note that Mrs. Brown had an issue with intermediate school block scheduling in 2002. In 2003, she had an issue this year with the high school block scheduling, still had an issue with pathways, as well as most of the board continually talked about supporting the middle school or middle level students.

Q. All right. If you look down on -- at that document to the items that are N and O, you'll see some reference to curriculum there. Can you recall, Rich, what was the subject of discussion about curriculum at this March 26th, 2003 meeting?

A. I'm sorry, could you be more specific?

Q. Sure, Items N and O.

A. Which Bates?

Q. 3969.

A. Yes. If you remember, we had talked before about initiatives. We were talking about the extended kindergarten you'll see in D. But it's also at this time period that the science curriculum, the state mandates were coming up and we ended up having individuals, Mrs. Hoppe and Mr. Hufnagel, start reviewing the science standards.

Q. Okay. Let's flip to the next page of Exhibit 288. It's got the Bates Stamp Number 3970 on it. And, again, I want to ask you just to give us an idea of how this document was generated, Rich. Do you recognize this document?

A. Yes, I do.

Q. What is it?

A. It's my notes on what the board members had said as we went around on the administrative retreat.

Q. And, again, what sort of procedure produced these comments that are reflected in this document?

A. Similarly in 2002 where they had a minute or two where they could make quick comments.

Q. And you took notes based on those comments. Correct?

A. Yes, I did.

Q. Well, again, for the sake of just trying to place this document in its context, I'm going to ask you to look at some of the items that are listed under the board members' names and see if, as you sit here today, you remember specific comments that they made at this meeting on March 26th, 2003.

How about Mr. Wenrich -- the first item for him is K through 12 discipline -- do you have any specific recollection of something he said?

A. Yes.

Q. What did he say?

A. He was very concerned about double standards that we ended up having with students and wanted to make sure that we had -- again, were consistent with our discipline.

Q. Look at the rest of the items under his name, 2 through 4. Any of those that you have a specific recollection about?

A. Yes, the alignment of technology and curriculum. He was very interested in technology. We had numerous conversations. In fact, he's employed as a technology individual, so he had a background with that, so we had long conversations. I remember very specifically his comments.

Q. Apart from that item, do you have any specific recollection of statements he made about the other items listed under his name on this document?

A. No, I do not.

Q. Let's look at -- the second person listed is Mrs. Callahan. She's got two items there. Do you have a specific recollection of anything that she said relating to those points listed under her name at this meeting on March 26th, 2003?

A. No, I do not.

Q. Beneath her is Mr. Brown. He's got two items listed under his name. Do you have any specific recollection?

A. No.

Q. All right. We get Mr. Bonsell again. He's got a number of items listed under there. Let's look at the first one, mandatory EdLine. Do you have a specific recollection about any comments Mr. Bonsell made about that item at this meeting on March 26th, 2003?

A. Yes.

Q. Tell us -- just give us an idea of what you recall.

A. He was encouraging -- in fact, I think his specific comment was, as stated there, he wanted more information placed on the EdLine.

Q. Item 2 is continue to stress manners, dress, and good behavior, help support parents. Do you remember anything you said along those lines?

A. Yes.

Q. Give us an idea real quick.

A. His emphasis was the frustration parents were telling him that there was a mixed standard at school of where the -- some kids would come to school inappropriately dressed and then tell their parents that everybody else is dressed like that, and he wanted us to be consistent in our dress codes throughout the district.

Q. All right. For the moment, let's skip to Item 4 underneath Mr. Bonsell's name, and that's a reference to emphasize American history. Do you recall any comments that Mr. Bonsell made at this March 26th, 2003 meeting?

A. Yes.

Q. Tell us what you remember.

A. Mr. Bonsell and I have had, over the three or four years, extended conversations about American history and the founding fathers. That's why we brought it up. It didn't surprise me because we had had conversations in that area. And specifically his interest is American history, and since my professional background is American history, we had talked about the founding fathers and the emphasis of making sure that's in our curriculum and the Constitution. So when he brought this up, it fit in with the conversations that I had had with him before.

I don't remember events more than dates. That actually may have been my editorializing based on the fact that I firmly believe that.

Q. Well, you know, let's go back up to Item 3, and there again, as the plaintiffs have highlighted, there's a notation "creationism." As you sit here today, do you remember Mr. Bonsell saying anything to you about creationism during this two-minute go-round session?

A. No, I do not.

Q. Prior to finding this document, did you ever remember Mr. Bonsell saying anything about creationism to you?

A. No. In fact, even finding it in this document, I don't remember those conversations.

Q. What do you mean by that?

A. Meaning even now, reviewing these, I don't remember either of those conversations or statements.

Q. Well, again, I want to ask -- I think it's a fair question. You've been asked before. Why is it, Rich, that there are some of these things that you can remember and others you can't?

A. I think it goes back to what I said earlier. There are specific areas of relative interest and emphasis that were going on during this time period. And I was more interested in the building project and how to make sure Mr. Bonsell supported certain aspects of the building project, as well as the budget.

Q. Do you know if Mr. Buckingham attended this meeting?

A. I know he did not.

Q. And do you have an understanding as to why he did not?

A. Yes. It was this time we started getting a little bit of feedback that Mr. Buckingham had significant physical issues. I think he's had three or four operations on his knees, as well as I believe at this time period was his first or second time he was hospitalized for substance issues, Oxycontin addiction.

Q. Let me ask you, this is the 2003 year, were there any projects that loomed especially large for you as superintendent during this year?

A. Without question the building project.

Q. Did the building project have any impact on the makeup of the board?

A. I would easily estimate that the building project was the major electoral issue that changed the board. In fact, two of the board members, very good board members, ended up resigning over the building project's direction.

Q. And why is that?

A. Because they didn't like the way the project was headed.

Q. How about if you look at the board as -- in the 2003 period in terms of people who were aligned with each other, can you tell me which members resigned?

A. The individuals that resigned at this time period were Mr. Larry Snoke and Lonnie Langione.

Q. Were there other board members that remained who had been frequent -- should I say board members who shared the convictions of Mr. Langione and Snoke?

A. Yes.

Q. And who would that be?

A. Mrs. Callahan.

Q. I'd ask you, Rich, to turn your attention to Exhibit 283.

A. I have it.

Q. You recognize that document?

A. Yes, I do.

Q. What is it?

A. It's a letter directed to me from Messiah College.

Q. And what does the letter relate to?

A. It's relating to a Pennsylvania School Board Association's meeting entitled, Creationism and the Law.

Q. You said there was a meeting, but look at the letter a little more closely just for the sake of being precise. Was it a meeting or something else?

A. My apologies, seminar.

Q. Okay. There's a handwritten note in the upper right-hand corner there. Would you read that for the record, Rich?

A. Amy, please register me for this seminar and order this book. Rich wants me to attend. Thanks.

Q. Is that your handwritten notation?

A. No, it is not.

Q. Does it reflect something that you did?

A. It reflected me directing Mr. Baksa -- or recommending Mr. Baksa to attend.

Q. And why did you do that?

A. We were looking at the science curriculum, and I knew Mr. Baksa's background was language arts, and I knew he had to develop an understanding of science. And in one of my prior experiences as a director of curriculum instruction during a science implementation, there were a lot of questions that were raised to me concerning evolution and science, and I thought it appropriate that Mr. Baksa gain an understanding of the issues.

Q. Well, let me ask you, Rich, did you send Mr. Baksa to this seminar because you thought Alan Bonsell wanted to teach creationism?

A. No.

Q. Did you ever have any discussion with Mike Baksa about the seminar?

A. Yes.

Q. Tell us what you recall about that discussion.

A. Mr. Baksa returned and communicated to me in a very general sense he had thought it was a very productive seminar.

Q. Did he say anything else?

A. No.

Q. This relates to an item of curriculum. In your capacity as superintendent, do you have a lot of dealings with curriculum?

A. No. In fact, I've always benefited from my former superiors. When I was a director of curriculum instruction and assistant superintendent, my superintendents didn't micromanage me and tell me what to do, and I've attempted to do the same with Mr. Baksa. So even though I have a supervisal piece, I've always tried to -- and he has done a good job with that, so I've tried to keep my fingers away from his activities.

Q. Let's look next at Defendants' Exhibit 1. Do you recognize that document, Rich?

A. Yes, I do.

Q. What is it?

A. It's a memo to Mr. Baksa, Mr. Larry Redding, Mrs. Bert Spahr from Dr. Trudy Peterman, who was the principal at this time, carbon-copied to me.

Q. Do you remember receiving this?

A. Yes.

Q. Did this memo give you cause for concern?

A. Yes.

Q. And what was that concern?

A. My concern was a process that Dr. Peterman had been involved with in generating this memo.

Q. And explain that, Rich.

A. We had difficulty with Dr. Peterman to the extent of where she continued to write memos directed to individuals and codifying information, that she did not work with the individual that she had noted in the memo. This was done about administrators, as well as teachers, as well as various department chairs.

Q. Rich, I'd ask that you direct your attention to the first paragraph of the memo. First of all, tell us, what's the "re" line on the memo? What does it relate to?

A. Creationism as it relates to the approved school board Biology I curriculum.

Q. Okay. And then I'd ask you to direct your attention to that first paragraph to the portion of it that begins, Mrs. Spahr explained, and read it through the end of that paragraph.

A. Mrs. Spahr explained to Mr. Baksa that in Biology I, one theory of evolution taught is Darwinism. 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 is not addressed by the standards. Mr. Baksa further stated to Mrs. Spahr on March 31st, 2003, that this board member wanted 50 percent of the topic of evolution to involve the teaching of creationism.

Q. Let me ask you a few questions about that, Rich. When you got this memo, did you read it?

A. Yes.

Q. Were you concerned when you read what Dr. Peterman said about the teacher's practice in biology class mentioning creationism?

A. No.

Q. Why not?

A. Because they weren't teaching creationism.

Q. Let me ask you, did you ever discuss with Mr. Baksa the assertion made in the last sentence of that memo, that paragraph?

A. Yes.

Q. And what did you learn?

A. I learned that he did not say that.

Q. Let me ask you, did you have -- did Dr. Peterman have a habit of taking things out of proportion?

A. Yes.

Q. Had that produced any impact on her job performance reviews?

A. Yes, it did.

Q. At the same time let me ask you this. Did you punish Dr. Peterman for the content of this memo?

A. No.

Q. You say, Rich, that you learned that creationism, per se, is not taught. When you say you're not concerned that the teacher was violating the law, what's the basis for that position?

A. Teaching is a very specific art that generally has four components. The first component is very specific behavioral objectives. The second component is very specific student actions. The third would end up entailing materials. And the fourth would be a very specific assessment relationship to the behavioral objectives.

Q. When you read this memo, Rich, did it ever occur to you that the teachers were delivering a mini-lecture on creationism?

A. No.

Q. Let's look at the remainder of 2003. This memo is dated April 1st, 2003. Let me ask you, do you recall any developments touching on proposed changes to the biology curriculum in the remainder of 2003?

A. No, I do not.

Q. Do you recall any developments touching on the biology text in 2003?

A. Yes.

Q. What do you recall?

A. I recall that the board was looking at fiscal issues. They had been elected to have a fiscally conservative budget, and one of the areas that they looked at was purchasing of the textbooks, science and family consumer science.

Q. Looking at this period in 2003, let's focus your attention in the fall, and let me ask you, do you remember hearing comments that students didn't have books during this period?

A. Yes, I do.

Q. And one of the books was a biology book?

A. Yes.

Q. Did that concern you?

A. No.

Q. Why?

A. We ended up in -- because of the state standards -- originally our biology was in tenth grade, and we wanted to, because of the test being in tenth grade, move the biology to ninth grade. So we had one year of where we had both our ninth grade and our tenth grade taking biology. And our teachers were very supportive and understood that we couldn't buy a whole class set or a whole grade set just for one year.

So what the teachers graciously did was coordinated a classroom set for each of the teachers and then used the textbooks whenever they needed to in the respective classes. So the students did not take home a text because we didn't have enough texts for two grades, but they did use the texts in class.

Q. Well, looking, again, at this fall, 2003 period, do you recall any comments made about the books not being used?

A. Yes. There was a specific board member, Mrs. Harkins, that ended up communicating that she had heard that the teachers didn't like the text and therefore were not using the text.

Q. Did she give more detail on the nature of her concern?

A. Her concern was, why would we buy texts if they didn't want the texts, as well as, we should wait to make sure that when we do buy a text, it is aligned with the current and new state standards.

Q. You've mentioned the curriculum cycle. I just want to get an idea for what that is. Tell us, Rich, what is the curriculum cycle?

A. When I came to Dover, the curriculum was reviewed and textbooks were purchased in a haphazard way, so I ended up developing a seven-year cycle of where every year designated a curriculum review and corresponding purchase of textbooks. That way we would not have one year of three or four different adoptions of textbooks and/or miss a review of a textbook adoption.

Q. You've indicated that the science texts were up in 2003. Did they come up for review in the ordinary course of the curriculum cycle you've described?

A. Yes.

Q. Now, does the curriculum cycle relate to text purchase?

A. Yes.

Q. Tell us how.

A. The curriculum is developed, and then the teachers take a look at what companion material -- in most cases it would be a textbook -- would support the updated curriculum. And that would be the time we would purchase the textbooks and materials.

Q. Let me ask you this, Rich. If you'd turn your attention back to Defendants' Exhibit 1, I want you to look and see if Dr. Peterman took any action in response to the conversation that you sought to reflect in this memorandum.

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

Q. Sure. Look at the memo again and see if you can -- it refreshes your recollection as to anything that Dr. Peterman told the science faculty to do.

A. Well, if you look at the bottom half of the memo, she gives very specific curriculum directions.

Q. And what are they? Please read them.

A. Number 1, if we are a standards-driven school district, can creationism be taught if it isn't addressed by either the state standards or by the approved school board Biology 1 curriculum?

Q. Hold on, Rich. Before you begin there, let me just ask you to jump up to the title paragraph, the second paragraph, the heading where she says -- she's asking for direction and read the second sentence of that for the record.

A. I advised them to continue to mention that creationism is another alternative theory of evolution.

Q. Now, I've got two questions for you there, Rich. First is, again, upon reading that, did you have a concern that your teachers were engaged in unlawful activity?

A. No.

Q. And why is that?

A. Once again, they are mentioning creationism and not teaching creationism.

Q. Well, and let me ask you, did you have a concern when you read that statement?

A. I had a concern of the process, meaning Dr. Peterman was taking the responsibility of a curriculum director, but as far as the actions of the individual teachers, no.

Q. Again, Dr. Peterman is providing directions to the teachers. Was that within her area of responsibility as principal to speak to curriculum?

A. No.

Q. That brings us to 2004, Rich, and I'd ask you to look at Defendants' Exhibit 2. Do you recognize that document?

A. Yes, I do.

Q. What is it?

A. It's the budget submission for textbooks.

Q. And what's the document dated?

A. January 5th, 2004.

Q. And do you have an idea or can you tell us why you would receive this document?

A. The high school is resubmitting requests for biology textbooks.

Q. In 2003, the text was put off. Do you recall any concern on the part of the science faculty relating to when their texts would be purchased?

A. Yes, they were concerned on two levels. One, they were concerned that if they were not purchased that year, that we would move on to the next cycle and totally skip them and that it would be another seven years before they ended up getting their texts. And, secondly, they were also concerned on getting current and standards-driven texts.

Q. Did the board delay the purchase of the text for another cycle?

A. No, they did not.

Q. And is that why you were receiving this document in January, 2004?

A. Yes. The high school principal was directed to resubmit the biology and science and family consumer science text requisitions.

Q. Did the expressed concern that students not have biology textbooks, which you've mentioned in 2003, carry over into the 2004 year?

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

Q. You've mentioned that some people were saying the students don't have texts. Was that concern expressed also in 2004?

A. Yes.

Q. How about the notion that the students weren't using the books, the teachers weren't using the books, was that concern also expressed in 2004?

A. Yes.

Q. Why are you receiving this document in January of 2004?

A. That would be the budget time period.

Q. Rich, I'd ask you to look at Defendants' Exhibit 3. Do you recognize that document?

A. Yes, I do.

Q. What is it?

A. It's the curriculum advisory council minutes.

Q. What is the curriculum advisory council?

A. It's a council chaired by the assistant superintendent for curriculum that has, as members, faculty, community members, and administrators.

Q. Does the curriculum advisory council have to be consulted prior to curriculum changes pursuant to Dover Area School District policy?

A. No.

Q. Does the curriculum advisory council have to be consulted prior to text purchases pursuant to Dover Area School District policy?

A. No.

Q. Did you seek the input of the curriculum advisory council concerning the curriculum change at issue in this case?

A. Yes.

Q. Were all of Dover's policies regarding curriculum development followed with respect to the curriculum change at issue in this case?

A. Yes.

Q. If you look at Exhibit 3, Rich, there is an item Roman Numeral IV.

A. Yes.

Q. If you look at that, there's a reference to the board curriculum committee. Describe what that is.

A. The board curriculum committee is a subcommittee of the full board that has three board members on it that review all curriculum prior to submission to the full board, curriculum and textbooks.

Q. Okay. And if you look at Item 4, Roman IV, would you look that over, Rich, briefly. There's a reference there to science and family consumer science textbooks. Do you recall an issue about the family and consumer science textbooks at this time?

A. Yes, I do.

Q. Tell us what you recall about that.

A. Specific board members had concerns that the teachers were recommending books that literally were the same as the prior books with the exception of a cover and maybe two or three words through the whole text, basically requesting purchase of a book that was very similar to the book that they currently had.

Q. And if you can, in your capacity as superintendent, describe how the board approached text purchases during this period.

A. Very frugally.

Q. And did they have a series of concerns that they looked at fairly regularly?

A. Yes. They ended up, with any purchase of a book, requesting a number of items of information. First of all, they would want to know how long the books had been used, the condition of the books, how many students would be accessing the books, how many books we ended up having, and, in relationship to that, any recommended books, the copyright date of those books, as well as the relationship to the standards.

Q. There's a reference in that Item 4 on Exhibit 3 to the science textbooks. Did the board ask the same questions with respect to the science textbooks?

A. Yes, they did.

Q. This document is dated April 15th, 2004. If we focus your attention on the spring period, did there come a time when a board member provided you with materials that related to the biology curriculum?

A. Yes.

Q. And who was that?

A. Mr. Bill Buckingham.

Q. And what did he give you?

A. He dropped off to my office two CDs and a book.

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

THE COURT: You may.

MR. GILLEN: Thank you.

BY MR. GILLEN:

Q. Rich, I've handed you two DVDs. I'd ask you to identify them for the record.

A. One is Icons of Evolution, and the other one is Unlocking the Mystery of Life.

Q. Do you recognize these?

A. Yes, I do.

Q. What are they?

A. They're two DVDs and are reflective of what Mr. Buckingham gave me.

Q. You've also referenced a book. Do you remember its title?

A. No, I do not.

Q. That's unfortunate, because I don't have it here right now. Hopefully we'll find it before your testimony is done.

Did Mr. Buckingham say anything to you when he handed you these materials?

A. Yes. He recommended that I take a look at them.

Q. Did you do that?

A. No.

Q. Did you do anything with them?

A. Yes.

Q. What did you do?

A. I gave them to Mr. Baksa, who is in charge of curriculum. It's his area of responsibility.

Q. Did you say anything to Mike when you handed those materials to him?

A. I said a board member dropped these off and he probably ought to take a look at them.

Q. Rich, I'd ask you to direct your attention to Defendants' Exhibits 6 and 14. Do you recognize those documents?

A. Yes.

Q. What are they?

A. Those are the -- it's a memo from Dr. Peterman to myself and Mr. Baksa reviewing the textbook summary report dealing with the biology, chemistry, and family consumer science textbooks.

Q. Okay. Now, if you compare Defendants' Exhibit 6 with Defendants' Exhibit 14, you'll note, I believe, that they're the same document in terms of typewritten text. Is that correct?

A. Yes.

Q. But Defendants' Exhibit 14 has some handwritten notations on it. Correct?

A. Yes.

Q. Do you know what those handwritten notations reflect?

A. Yeah. Those are the copyright dates of those books.

Q. Do you know why that information would have been added to the document which is Defendants' Exhibit 14?

A. Yes. As stated earlier, the board would have wanted to know the copyright dates of the books.

Q. I'd ask you to direct your attention to Defendants' Exhibit 15. And with that in mind, I'd ask you a few things. First of all, did Bill Buckingham ever speak with you personally about the materials that he had handed to you in the period up through June, 2004?

A. No.

Q. Did he ever express specific concerns to you as superintendent about the biology text?

A. Not to me, no.

Q. Do you recognize Defendants' Exhibit 15?

A. Yes.

Q. What is it?

A. It's a list of concerns that Mr. Buckingham gave Mr. Baksa concerning the 2002 Miller and Levine textbook.

Q. Did you have any discussions with Mike Baksa about that?

A. Beyond the fact of him telling me that he would review those concerns, no.

Q. Did Mr. Baksa mention creationism to you when he showed you Defendants' Exhibit 15?

A. No.

Q. Well, in terms of our increasingly narrow focus on the biology curriculum and biology text, do you recall any other developments in the spring of 2004 which touch on that text?

A. Yes.

Q. Tell me what you remember.

A. At the first board meeting -- I believe it was June 7th -- a constituent came to the mic and asked what the status of the biology books were.

Q. Who would that be?

A. Mrs. Callahan.

Q. And what concern did she express?

A. She wanted to know what the status of the biology books were and why they were not purchased.

Q. Do you remember anything that Bill Buckingham said in response to her inquiry?

A. Yes.

Q. Tell us what you remember.

A. Mr. Buckingham told her that he had concerns with the book because it was laced with Darwinism.

Q. Well, prior to this board meeting -- let me ask you first, is this the first board meeting in June?

A. Yes.

Q. Prior to that board meeting, had you ever heard Bill Buckingham talk about Darwinism?

A. Directly, no.

Q. How about when he made this comment that the text was laced with Darwinism, did you know what he was getting at?

A. No, based on the fact that all biology books are going to be full of Darwinian theory. And I didn't really understand his point based upon the fact that laced with Darwinism, I'm not sure about the word "laced," but all biology books are going to have Darwin in them.

Q. Do you remember anything else Mr. Buckingham said at that meeting?

A. No.

Q. Do you remember anything that any other board member said at this meeting in June?

A. No.

Q. Up until this time now, this is June -- the first week in June, 2004, did any board member come to you and discuss a desire to teach creationism?

A. No.

Q. Up until this period, had any board member come to you and expressed a concern that the biology text was laced with Darwinism?

A. To me directly, beyond the June 7th comment, no.

Q. Well, indirectly, Rich, had any board member come to you and discussed a concern about being laced with Darwinism?

A. No, not me.

Q. Were you aware of them going to anybody?

A. I was aware that Mr. Baksa was in receipt of Mr. Buckingham's Defense Exhibit 5, and apparently that references Darwinism.

Q. Okay. But does it reference it being laced with Darwinism?

A. No.

Q. I'd like you to look at Defendants' Exhibit 6 and 14. And I just want to note the date of those documents again for the record. When are they dated, Rich?

A. June 8th, 2004.

Q. And looking at that period in time and looking at the text purchase cycle that you've described, where in the process does this memo fit?

A. It would be about the time for final budget approval and purchase after July 1.

Q. Okay. Let me ask you, what do you remember next touching on this dispute about the biology text and curriculum? We've gone through the first board meeting.

A. The only thing I could remember would be the next board meeting, which would be July 14th.

Q. Okay. Tell us what you recall about that meeting.

A. I remember the July 14th meeting had a large attendance. The board, at that time, was contemplating eliminating a high school English position, and Dr. Peterman had encouraged her staff to attend that meeting to support the position. And there were a lot of individuals there in attendance to support the English position.

Q. Well, you've linked the attendance at the meeting to a faculty or personnel decision. Was there anything in the makeup of the crowd that led you to draw that inference?

A. I would say close to 80 percent faculty members.

Q. Now, as the meeting unfolded, tell us what you recall.

A. I recall that at public comment period, Mrs. Buckingham came to the podium.

Q. And do you remember anything about what she said?

A. In a general sense, yes, I remember her reading from the Bible. And her point I never understood. In fact, I felt somewhat sympathetic with the board president because she rambled on. There was no point. And I think he kept waiting for a point so he could gavel her down, and she would pause and then continue. And to this day I have no idea what she was trying to present.

Q. Well, let me ask you this. We've said Charlotte Buckingham. Was she the wife of Mr. Buckingham?

A. Yes.

Q. And was Mr. Buckingham a board member?

A. Yes. I think probably the board president was sympathetic to the fact of a spouse of a board member on the podium.

Q. As you sat there during this discussion, what was your personal impression with respect to what she was saying and whether it was appropriate?

A. On two levels, I never got what her point was, and I'm not sure I would state a reading from the Bible and reflecting on Genesis was appropriate.

Q. Let me ask you, was it kind of embarrassing?

A. Yes.

Q. Do you remember anything else that happened at this June, 2004 meeting?

A. A student by the name of Max Pell came and had some comments. He and Mr. Buckingham had an interchange.

Q. Do you remember anything about that exchange?

A. Not specific comments, no.

Q. Looking at the second board meeting in June, do you have any recollection of Mr. Buckingham saying the country was founded on Christianity?

A. No. My recollection on all of Mr. Buckingham's religious comments were in the fall. The fall of 2003, we had a former board member come and request the board take a stand on the federal case on the under God pledge. And during that time period, a number of board members had made some comments, and my recollection, that Mr. Buckingham had made some significant religious comments. In fact, subsequent to that, he actually came and apologized for some of the comments he had made publicly.

Q. When the second board meeting occurred in June, there was large attendance, did you connect that attendance to the comments that Mr. Buckingham had made at the prior board meeting?

A. No.

Q. Why not?

A. Again, the population, and I knew the majority of the individuals were there based on the position. And I knew historically attendance at board meetings was not reflective on comments, more items on agendas.

Q. When you say "population," do you mean attendance at the meeting?

A. Yes.

Q. Are you referencing the attendance by a large number of faculty?

A. Yes.

Q. Okay. Do you recall a discussion at this meeting about the need for balance?

A. Yes. It was at this time the board started discussing its efforts on the biology curriculum, and a number of board members had discussed their interest in looking at the biology curriculum and making sure that the biology curriculum reflected a balanced view, as well as talking about gaps and problems in the Darwin theory.

Q. While they're talking about balance, do you remember any discussion of creationism at this meeting?

A. No.

Q. Do you recall any specific statements relating to the nature of the balance that was discussed at this meeting?

A. I think they were -- there was a discussion of wanting other theories being presented. What specific other theories, I cannot remember.

Q. Let me ask you, Rich, to direct your attention to Defendants' Exhibit twenty -- well, let's start with 8. I just want to get that in. Look at 8, if you would, Rich. Do you recognize that document?

A. Yes, I do.

Q. What is it?

A. It's a cost analysis of what the board had put in the budget balance, meaning when they did not purchase the textbooks the prior year, they directed me and the business manager to put the unexpended funds in a fund balance for the subsequent year. And it gives the total cost of the request at 34,000, which meant we had a shortfall of 9,000, which meant that's the amount of money we needed to budget to purchase all books.

Q. Did this document come to your attention in your capacity as superintendent?

A. Yes.

Q. And why was that?

A. That would be the amount of money we needed to budget for the textbook that year, textbooks that year.

Q. If we look at this period here between the second board meeting in June and the first board meeting in July, did any other information come to your attention relating to the biology text on the part of Mr. Buckingham, for example?

A. Yes.

Q. Tell me what you recall.

A. Mr. Buckingham, with Mr. Baksa, had dropped off a document requesting Of Pandas and People.

Q. Well, before we get there, let me ask you to look at Defendants' Exhibit 22. And if you would, Rich, I'd ask you to direct your attention to the page of Exhibit 22 with the Bates Stamp Number 101 in the lower right-hand corner. There's an item there, Item 13. What does that relate to?

A. That's curriculum.

Q. And if you would, read for the record what you see beneath that.

A. 13A, approve the following textbooks for the 2004-2004 school year: Prentice Hall Biology by Miller and Levine, copyright 2002.

Q. Okay. Did Mr. Baksa ever discuss with you Mr. Buckingham's objections to the text prior to putting the purchase of the text on the agenda?

A. Yes.

Q. And what did he tell you?

A. He had told me at that time he thought, in conversations with Mr. Buckingham, that all the items had been addressed.

Q. I'd ask you then, Rich, to turn your attention to Defendants' Exhibit 23 and direct your attention to that page of Exhibit 23 with the Bates Number 110 in the lower right-hand corner. If you look under the item for curriculum, do you see approval of the text?

A. No, I do not.

Q. Do you know why?

A. Yes.

Q. Tell us.

A. The department chairperson, Mrs. Spahr, contacted Mr. Baksa and said that she had received over the summer an updated copyright date of the book for 2004.

Q. What was the result of that information on the text approval process?

A. We recommended that the board table that action and not purchase a book because we had an updated book.

Q. And was that consistent with the board's general focus on the copyright and the currency of the new text?

A. Yes. If they could get an updated book by two years, they would be very pleased.

Q. So there's a delay in purchasing the text at this period. Is the reason you just stated the reason for that delay?

A. Yes. The teachers recommended, with administrative support, and the board agreed on delaying the book, a purchase of the 2002 book for the 2004.

Q. Okay. You referenced earlier some additional review of this text, the biology text. Tell us about that.

A. Yes. At that time period Mr. Baksa decided to bring in our senior biology teacher, Mrs. Miller, as well as Bert Spahr, to review the 2004 and 2002 textbooks, along with the original concerns that Mr. Buckingham had as testified prior here. The meeting was in my office.

Q. Now, you've mentioned his concerns. Did you as superintendent know the specific nature of his concerns?

A. No, not specifically.

Q. You've mentioned a meeting with Mr. Baksa and some of the science teachers. Did you participate in that meeting?

A. It was held in my office, and I was in and out. But as far as line by line, no.

Q. How about the general nature of Mr. Buckingham's concerns, did you have any understanding about the general nature of his concerns?

A. No.

Q. Do you recall anything about this meeting that was held in your office?

A. Yes, I do.

Q. Tell us what you recall.

A. I recall that the biology teachers, as well as Mr. Baksa, were ecstatic. In fact, I remember one comment they made that they believed that Mr. Miller or Dr. Miller and Mr. Levine must have been reading Mr. Buckingham's mind because every one of his concerns seemed to have been addressed in the 2004 edition.

Q. Did you have a discussion later with Mr. Baksa about approval of the 2004 edition?

A. Yes. In fact, he felt significantly more comfortable in recommending this textbook.

Q. And tell us, you know, what happened next from your perspective relating to the text purchase.

A. The textbook was placed on the August 2nd agenda.

Q. With that in mind, Rich, I'd ask you to direct your attention to Defendants' Exhibit 28. Do you recognize that document, Rich?

A. Yes, I do.

Q. What is it?

A. It's the Dover Area School District board planning meeting agenda for Monday, August 2nd, 2004.

Q. And I'd ask you to direct your attention to that portion of Defendants' Exhibit 28 with the Bates Number 116 in the lower right-hand corner and further direct your attention to Item D under Roman XII relating to curriculum. What do you see there?

A. D, approval to order the following textbooks for the 2004-2004 school year: Prentice Hall Biology.

Q. At the time that this agenda was printed, did you have an understanding concerning whether the biology text recommended by the science faculty would, in fact, be approved by the board at this meeting?

A. Yes, I did.

Q. And what was that understanding?

A. The understanding was it was going to be purchased.

Q. Did you attend that meeting?

A. Yes.

Q. Do you recall developments that touched on the approval of the biology text?

A. Yes.

Q. Tell us what you remember about that.

A. Mr. Baksa received a memo or at least a document from Mr. Buckingham stating that he also wanted the Pandas book approved.

Q. And with that in mind, Rich, I'd ask you to direct your attention to Defendants' Exhibit 26. Do you recognize that document?

A. Yes, I do.

Q. What is it?

A. It's the aforementioned memo from Mr. Buckingham requesting that the following book be added to the school board meeting agenda, Of Pandas and People.

Q. And if you look at that first paragraph, did Mr. Buckingham make another request with respect to the placement of the item on the agenda?

A. Yes. He requested that be placed prior to the purchasing of the Miller and Levine Biology book.

Q. Did you do anything in response to this document?

A. Yes.

Q. What did you do?

A. I contacted Mr. Buckingham and requested he come to my office and meet with myself and Mr. Baksa.

Q. Did you have a purpose when you asked Mr. Buckingham to meet with you?

A. Yes.

Q. What was that purpose?

A. My purpose was to personally tell him that he would not get my approval of purchasing the Pandas book and that my purpose would be to work with him a compromise concerning his specific request. He told me he understood. He did not have the six votes needed to override my recommendation. And subsequently, at the end of the meeting, we developed a compromise where he told me he would support the text.

Q. Okay. Let's go back a little, because you've said that he realized he didn't have votes based on your objections. What do you mean by that, Rich?

A. Pennsylvania School Board's -- actually, my apologies, Pennsylvania code states that a board needs six votes to override a superintendent's recommendation.

Q. Did you -- we're at the meeting now. Did Mr. Buckingham state his desires with respect to the text Of Pandas at that meeting with you?

A. Yes. He wanted the Pandas book purchased at the August 2nd meeting.

Q. Did he express any desire with respect to the use of the text?

A. Yes. He wanted the text as a companion text.

Q. Did you approve that request?

A. No, I did not.

Q. Did you discuss with him any possible way of working with the text?

A. My recommendation was that I would subsequently discuss with him and the science teachers the possibility of having and using it as a reference.

Q. Did you agree to delay approval of the text recommended by the science faculty until Of Pandas was approved?

A. No, I did not.

Q. We've already seen that approval of the text recommended by the faculty was on the agenda for the August 2nd meeting. What was the result of this meeting you've just described with Mr. Buckingham?

A. The result was I told him that we would continue to put the Miller and Levine textbook on the agenda, but I promised him that after the textbook, Miller and Levine, was purchased, that I would sit down or at least have Mr. Baksa sit down with the science teachers and review the option of using the Pandas book as a reference.

Q. Did you have an understanding of what Mr. Buckingham's position was with respect to approval of the text recommended by the science faculty at the end of this meeting?

A. Yes.

Q. And what was that?

A. He was going to support the purchase of the textbook.

Q. Did you communicate with any other board member about this meeting with Mr. Buckingham?

A. Yes, I did.

Q. Tell us who you communicated with.

A. I communicated with the board president at the time, who was Alan Bonsell, and he ended up -- as board president would need to be aware of all of the items on the agenda, and he subsequently also talked to Mr. Buckingham.

MR ROTHSCHILD: Objection, Your Honor. Calls for hearsay.

MR. GILLEN: That's fine, Your Honor. I'll cut him off right there.

THE COURT: The objection is sustained to the extent that he started to get into hearsay.

MR. GILLEN: Sure.

THE COURT: And I'll tell you, Mr. Gillen, when you get through this area of inquiry, wherever you think it's an appropriate time, from now on we can hit your mark and we'll take a break at that point.

MR. GILLEN: Two questions, Your Honor.

THE COURT: Okay.

BY MR. GILLEN:

Q. You say that you communicated with Mr. Bonsell about the meeting. Did you have a belief concerning whether he was pleased or displeased as a result of that communication?

A. He was very pleased.

Q. Well, let me ask you. There's a back and forth here. Let's just -- I want to first get to, did you communicate to Mr. Bonsell what Mr. Buckingham had told you?

A. Yes.

Q. Did you have a belief concerning Mr. Bonsell's position with respect to that information you communicated?

A. Yes.

Q. And what was that?

A. He was supportive of purchasing the textbook.

Q. Okay. Was he supportive of Mr. Buckingham's desire to have Of Pandas approved at this meeting so far as you believed?

A. He was not supportive of that, no.

MR. GILLEN: Let's take a time out, Judge.

THE COURT: Let's take a break, about 15 minutes, since we're going to have a shortened session this afternoon, and we'll pick it up at that point. We'll be in recess.

(Recess taken.)