Kitzmiller v. Dover Area School District
Trial transcript: Day 13 (October 20), PM Session, Part 2
THE COURT: All right, Mr. Gillen, you may continue.
MR. GILLEN: Thank you very much, Your Honor.
Q. Dr. Nilsen, before we broke, we had a discussion about your communicating Mr. Buckingham's request with respect to Mr. Bonsell, with respect to Of Pandas to Mr. Bonsell, and I want to just make sure that the record is clear on what you derived from that discussion.
There are two things that are at issue there. First, Mr. Buckingham has brought up his desire that the text Of Pandas be put on for approval by the board in August. Did you convey that to Mr. Bonsell?
A. Yes.
Q. Did you have an understanding concerning Mr. Bonsell's disposition of that request?
A. At that time period he did not want it on the agenda.
Q. Okay. Let me ask you about Mr. Buckingham's posture at the end of the meeting you've described with respect to the text recommended by the science faculty.
As a result of your communication with Mr. Bonsell, did you have an understanding concerning his disposition about Mr. Buckingham's position on the purchase or approval of the text recommended by the science faculty?
A. Yes.
Q. And what was that?
A. Mr. Bonsell understood from me that Mr. Buckingham supported the textbook being on the agenda and being approved at the August 2nd board meeting.
Q. And did you have an understanding concerning whether that was good news or bad news to Mr. Bonsell?
A. It was good news.
Q. Okay. I'd ask you again to direct your attention to Defendants' Exhibit 28 and ask you, in case I haven't, do you recognize that document?
A. Yes, I do.
Q. What is it?
A. It's the Dover Area School District school board planning meeting agenda for Monday the 2nd, 2004.
Q. And I'd ask you to direct your attention to the page of Exhibit 28 which has the Bates Stamp Number 116 in the lower right-hand corner. You've already indicated that the 2004 edition of Miller and Levine is listed for approval. Is that correct?
A. That's correct.
Q. Is Of Pandas on that agenda for approval?
A. No, it's not.
Q. Why not?
A. I didn't put it there.
Q. And why didn't you put it there?
A. Because I did not recommend it.
Q. As you sit here today, do you have any recollection of the events at the August 2nd, 2004 board meeting?
A. Yes, I do.
Q. And if we focus your attention on recollection that bears on the approval of the biology text, tell us what you recall.
A. I recall that it ended up in a four-four tie for approval.
Q. Be a little more specific for the record. A four-four tie with respect to approval of what?
A. Approval of the textbook. Four people voted in favor of purchasing the textbook and four voted against approval.
Q. Well, do you recall any discussion prior to that tie vote?
A. No.
Q. Did you do anything in response to the tie vote?
A. Yes.
Q. Tell us what you did.
A. I directed my comments to the individuals that had voted against the vote and communicated them my displeasure on the vote that they had taken and the fact that if we did not purchase the book at that time period, we would begin the school year without a current book. And if we had purchased the book subsequent to that, it would amount to the fact that our teachers would have two different textbooks during the school year, as well as our students would have two different textbooks during the school year, as well as we would have a book that would not reflect the state standards. Our teachers were, at that time, teaching very specifically the state standards.
Q. Well, did your observation produce a reaction on the part of any board member?
A. Yes, it did.
Q. Tell us what reaction.
A. Angie Yingling made the comment, Well, in that case, let's give the teachers and the students what they need, and she requested a re-vote.
Q. What happened next?
A. She got a re-vote, and the board adopted five-three for approval and purchase of the book.
Q. Now, when this vote took place, was there any discussion of creationism?
A. No.
Q. When Angie Yingling decided to switch her vote, did she mention creationism?
A. No.
Q. Did any board member have a discussion about the curriculum and creationism at that time?
A. No.
Q. I'd ask you to look at Defendants' Exhibit 30. Do you recognize that document, Rich?
A. Yes.
Q. What is it?
A. It's a document I requested the assistant superintendent's secretary to author. The assistant superintendent at this time period was on vacation, and I asked her to send a -- the exhibit memo to the board curriculum subcommittee, including the president and the high school principal, the senior biology teacher, and the department chairperson.
Q. Okay. And you're referring now to the Defendants' Exhibit 30, which is a memo from you to certain board members and faculty?
A. That is correct.
Q. And let me ask you, was curriculum ordinarily within the area of your responsibility?
A. No, it was not.
Q. Well, then why did you do this?
A. As stated earlier, Mr. Baksa was on vacation.
Q. Okay. And given that Mr. Baksa was on vacation, still, why did you send this specific memo? Did it have any connection to your discussions with Mr. Buckingham?
A. Yes. In my discussion with Mr. Buckingham in July, when I told him that I would not support the purchase of Of Pandas and People as a textbook, the understanding I had with him when we left that July meeting is the fact that we would purchase the Miller and Levine book and then hold a conversation and a discussion with the science teachers on what we would do with the Of Pandas and People book.
Q. Well, the memorandum calls for a meeting on August 27th, 2004. Did that meeting take place?
A. Yes, it did.
Q. Who was there?
A. The individuals listed, the board members, Mrs. Brown, Mr. Buckingham, Mrs. Harkins, Mr. Bonsell, Mrs. Miller -- I do not remember whether Mr. Riedel was there or not -- Mrs. Spahr, Mr. Baksa, and myself.
Q. Do you recall any discussions with the teachers about Of Pandas at this meeting?
A. Yes.
Q. Tell us what you recall.
A. The teachers, in a compromise, accepted the fact that they would use the -- and agreed that they would use the Pandas book as a reference in their classroom.
Q. Did they have some concerns they expressed at this meeting about Of Pandas?
A. They had voiced concerns that the textbook was dated. The textbook had some faulty science included in it.
Q. How about anything else? Did they express any concern for their personal -- what should I say, any personal consequences of the use of this text?
A. They had voiced a concern with liability with the book.
Q. Did you do anything to try and allay that concern?
A. Yes. I brought to the meeting a memo from our solicitor that had researched if there was any case law on the usage of the book.
Q. Did you give that to Jen Miller?
A. I gave it to everybody in the meeting.
Q. Do you remember anything else about this August 27th meeting in terms of consequences that were looked forward to?
A. Yes. The other issue that came out of that meeting is the fact that Mr. Baksa would begin work on updating the biology curriculum.
Q. How about Mr. Buckingham? You said there was a discussion of using Of Pandas as a reference. Was Mr. Buckingham satisfied with that?
A. No, he was not.
Q. What did he want?
A. He wanted the book used as a textbook, companion book, to be right next to the Miller and Levine book.
Q. Okay. We're looking now at a meeting on August 27, 2004. Was there any discussion about using public money to purchase this book?
A. There was a general conversation about Mr. Buckingham wanting to use budget money. But as far as a specific directive on using that, I don't think there was any specific outcome on that.
Q. Okay. Did you come away from this meeting with an understanding concerning whether other board members supported the use of public funds to purchase this book?
A. There were board members that did not support using public funds, and there were some that did.
Q. Okay. Let me ask you this. Did you later on have a conversation about a way to incorporate Of Pandas as a reference text that wouldn't entail the use of public funds?
A. Yes.
Q. And tell us what happened there.
A. The board president at the time, Mr. Alan Bonsell, communicated to me that he had been contacted about individuals that were willing to donate the finances to purchase 60 copies of Of Pandas and People.
Q. Did he tell you who was donating the books at that time?
A. No.
Q. Did you ask?
A. No.
Q. Why not?
A. Dover is much like many schools, financially strapped, and anytime anybody wants to provide free educational and appropriate materials, we'll accept them.
Q. Has there come a time after this particular incident where other books have been donated to the Dover Area School District?
A. Yes.
Q. Did you accept those books?
A. Yes.
Q. Did you ask who sent them?
A. No.
Q. Why not?
A. Similar reasons.
Q. As you leave this August 27, 2004 meeting, are there any developments that bear on the curriculum?
A. At the time period Mr. Baksa is working with the individuals in the board curriculum subcommittee and teachers on a revised biology curriculum.
Q. Did you have detailed discussions with Mike Baksa about that?
A. Not detailed, but general updates.
Q. Did there come a time when Mr. Baksa communicated to you some input he had received from board members with respect to a proposed curriculum change?
A. Yes.
Q. With that in mind, Rich, I'd ask you to look at Defendants' Exhibit 45. Do you recognize that document?
A. Yes, I do.
Q. What is it?
A. It's a memo to Mr. Baksa from Mrs. Brown entitled, Curriculum Committee Member.
Q. Were you shown this document?
A. Yes.
Q. Did you derive any impression from the document with respect to the position of Casey Brown on the proposed curriculum change?
A. Yes. Mrs. Brown, while she was on the board, was one of our better wordsmiths and had a good opportunity and a good ability to combine concerns and thoughts in a very positive way, and it appeared in either one of her recommendations here that she had addressed all the concerns that the board had had concerning the biology curriculum.
Q. Okay. And you've referenced those concerns, and I want to ask you, Rich, as you look at this document, did you have an impression concerning whether it related to anything that you had heard at board meetings in this June, July, and August period?
A. Yes.
Q. What sort of impression did you have?
A. The board was specifically concerned about making sure in the biology curriculum that it had stated that students were made aware of gaps in Darwin's theory, as well as that there were other explanations of the origins of life on earth.
Q. And in terms of the language that Mrs. Brown used to express those gaps, did you have any -- or those goals, did you have any understanding concerning whether this language might address the board's concerns?
A. Yes. I had the feeling that it had addressed all their concerns.
Q. In terms of your goal leaving that August 27th meeting, did you have an impression concerning whether Mr. Baksa was making progress?
A. Yes. I thought that these two sentences actually should have addressed all the issues and we had completion.
Q. Okay. And let me ask you, look at those issues. Just look at the first version that she proposed. How did you see the issues at this time?
A. Again, the issues dealing with gaps and recommending other explanations for origins of life.
Q. Did you do anything in response to this document?
A. No.
Q. Did you ask Mr. Baksa to do anything in response to this document?
A. No.
Q. Did you have an understanding concerning what Mr. Baksa's continued activity would be in this area?
A. Yes.
Q. What was that?
A. He would continue as the curriculum coordinator, director, to continue to fine-tune and get consensus on the statements.
Q. With that in mind, Rich, if you'd look at Defendants' Exhibit 48. And, again, I'd ask you to direct your attention to the page of Exhibit 48 that has the Bates Number 135 stamped in the lower right-hand corner. If you look at the Item 13 there under Curriculum, you'll see an FYI. What's that?
A. It reads, FYI, the superintendent has approved the donation of two classroom sets, 25 each, of Pandas and People. Classroom sets will be used as references and will be made available to all students.
Q. Okay. Now, the document describes the text as a reference. Was there anything from the August 27th, 2004 meeting with the board curriculum committee and science faculty that justified that description?
A. Yes. The faculty had agreed that they would use it as a reference.
Q. I note that this has you in the position of approving the donation of the text. Can you approve the purchase of texts?
A. I cannot approve purchase of texts.
Q. Likewise, the biology text had to be approved by the board in August. My question to you is, how did you have the authority to accept this book?
A. I'm allowed, under state code, to accept reference materials.
Q. At the time that you accepted this text, Of Pandas, did you have any understanding about what the text contained?
A. No.
Q. Well, let me ask you, had there been discussion of the text at the August 27th meeting?
A. Yes.
Q. Had any board member made objections to the text as such?
A. No.
Q. How about the science faculty, did they voice specific criticisms?
A. Again, there was the criticism about dated science. But beyond that and the readability level, no.
Q. What do you mean by "readability level"?
A. They had concerns that the text read at a freshman college level.
Q. Okay. In terms of the approval of the donation, did you see that as having any implications for the curriculum?
A. Yes.
Q. Tell us what you understood at that time.
A. It would end up being a reference that the teachers would make mention of.
Q. Okay. Did you -- looking at the approval of the text now and looking forward to the next meeting in October, did you get any communications from Mr. Buckingham relating to the curriculum?
A. Yes.
Q. Tell us what they were.
A. Mr. Baksa communicated to me that Mr. Buckingham wanted to place on the October 18th agenda the board subcommittee curriculum recommendation for the biology.
Q. Did you talk to Mr. Baksa about Mr. Buckingham's request?
A. Yes.
Q. And what did you say?
A. At that time I reviewed the recommendation and then contacted Mr. Buckingham.
Q. Okay. We've been talking about consensus-building, or trying to, at least, and now Mr. Buckingham has given you this call. Did you have any concerns?
A. Yes.
Q. What were they?
A. My concern, first of all, was the fact that the final recommendation did not have the full support of either the curriculum committee or the teachers.
Q. And did you talk to Mr. Baksa about that?
A. Yes.
Q. Did you learn anything about other proposed changes to the curriculum?
A. Yes. He had an additional recommendation coming from the faculty.
Q. When Mr. Buckingham called and asked you to put the board curriculum committee version on the agenda for the August 18th -- October 18th meeting, did you voice any objections?
A. Yes.
Q. What were they?
A. My first objection was that any final recommendation going to the board, I would recommend going through the community advisory council for one last review. I also objected to it being on the last board meeting in October as an action item because historically what we've done is had an item on the planning session or at least one meeting and then the final action on a curriculum at the second meeting.
Q. Did Mr. Buckingham respond to the concern you've just referenced for, you know, usually putting things on two board -- having things as items in two board meetings?
A. Yes.
Q. And what did he say?
A. He, first of all, said that he had already received and the board had already received enough input over the past six months that they had -- that this had actually begun with dropping off the DVDs to me in the fall, and we have had numerous board meetings, conversations and input from many different board members and community members and the fact that he was interested in acting upon it.
He also voiced a concern that two of the board members that had been involved in the six months of conversation, Mr. Noel Wenrich and Jane Cleaver, were moving out of the area and would not be part of the vote if we delayed.
Q. Well, did he say anything further about that, the possibility of two board members resigning?
A. Yes. His concern was the fact that if two board members resigned, two new board members, when they would come on the board, would not know what was going on and would either not vote or would not have the capacity to vote and therefore would request delaying the vote.
Q. Did you get an impression for whether Mr. Buckingham was seeking some closure here?
A. Yes.
Q. And what was that?
A. I think Mr. Buckingham was looking for finalizing the work that had been done over the past six months.
Q. You said also that you mentioned the curriculum advisory committee to Mr. Buckingham. Does the Dover Area School District policy require review by the curriculum advisory committee prior to a curriculum change?
A. No.
Q. Did Mr. Buckingham respond to your suggestion that you let them have input?
A. Yes, he responded.
Q. What did he say?
A. He said he did not need to have them meet anymore.
Q. Well, let's look at -- what did you do in response to that? Did you send the board curriculum version to the curriculum advisory committee?
A. What I did was, I contacted Mr. Baksa, who is the chairperson of the committee, and communicated to him that we would still send that information to that committee for them to review it, that even though they would not be meeting, they would at least have an understanding of what was happening.
Mr. Buckingham is one board member and not the whole board. And the board acts in general in total, so I took it upon myself to reflect what the board would be interested in, and that would be specifically as much input as possible. So I directed Mr. Baksa to send, I believe, both copies to the committee to review.
Q. Did you put the board curriculum committee version on the agenda for the October 18th meeting?
A. Yes, I did.
Q. Was that the only version you put on the agenda?
A. No, I did not.
Q. Did Mr. Buckingham tell you to put the other version on the --
A. No, he did not.
Q. Why did you do it?
A. Again, I thought the board needed to know everything that was going on, and I thought it important for the board to know Mr. Baksa and my stance, that we administratively did not recommend Mr. Buckingham's recommendation, that we actually supported the teachers.
Q. Do you know if there was any feedback provided by the curriculum advisory council in response to your directive?
A. Yes.
Q. All right. With that in mind, I'd ask you to look at Defendants' Exhibit 67. Do you recognize that document?
A. Yes, I do.
Q. Before we get to that, I skipped one, it looks like. Would you go back to 51. Do you recognize that document, Rich?
A. Yes, I do.
Q. What is it?
A. It's a memorandum from Mr. Baksa to the curriculum advisory council dealing with the biology curriculum recommendation.
Q. And now go back to 67. That describes comments on proposed biology curriculum changes. There are two items there. Did you discuss those with Mr. Baksa?
A. Yes.
Q. What was the nature of your discussion?
A. The first one states, According to policy, the curriculum advisory committee should review changes first before going to the board. That was a red flag to us, so we ended up researching whether that was true or not.
Q. And --
THE COURT: Who is this from, just so I understand?
MR. GILLEN: Yes.
THE COURT: Who is the author of 67?
MR. GILLEN: 67 was authored by Mr. Baksa in response to Dr. Nilsen's --
THE COURT: All right. I just wanted that clarification. If you said it, I didn't get it.
MR. GILLEN: No problem, Judge.
Q. Go ahead, Rich, please tell us. I mean, that first item suggested there's been a departure from policy. Did you look into that?
A. Yes, we did. Tom Schaffer, who is the assistant principal in charge of policy, researched our current policy and all prior policies in relationship to that comment.
Q. Did you gain an understanding concerning whether the district policy required review by the advisory committee?
A. Yes, we did.
Q. And what was that?
A. It did not.
Q. Okay. I'd ask you to look at Exhibit 71. Do you recognize that document, Rich?
A. Yes, I do.
Q. What is it?
A. It's the August 2nd, 2004 curriculum development policy.
Q. Is that the policy you looked at in response to this concern?
A. One of, yes.
Q. Okay. I'd ask you -- skip through these. Excuse me a second. As we get to this meeting, I want to ask you one question again. Did you put one or two versions of the curriculum change on the agenda for October 18th?
A. I put two.
Q. And as we approach that meeting, I want to get a few documents identified here, and I'd ask you to go to Exhibit 60.
A. I'm sorry, again, please?
Q. Exhibit 60. Do you recognize that document, Rich?
A. Yes, I do.
Q. What is it?
A. It's the enclosure 11A for the board agenda. It's the recommendation from the -- dealing with the biology curriculum from the board.
Q. And when you say "from the board," do you mean the board curriculum committee, to be more precise?
A. That is correct.
Q. And if you look at the first page of Exhibit 60, if you look in the lower right-hand corner, there's a reference to an enclosure, Roman XI-A. Correct?
A. That's correct.
Q. And I'd ask you to flip to the next page of Exhibit 60. There's an attached page with a Bates Stamp Number 18, and I'd ask you to look at that. Do you recognize that?
A. Yes, I do.
Q. What is it?
A. That is the board subcommittee recommendation for the biology curriculum change.
Q. I'd ask you next, Rich, to look at Exhibit 61. Do you recognize that document?
A. Yes, I do.
Q. What is it?
A. It's the board curriculum recommendation from the administration and staff.
Q. Okay. And if you look at that document, you'll see on the page Bates stamped Number 19 a reference to an enclosure, Roman XI-B. Correct?
A. Correct.
Q. I'd ask you to flip the page and look at the document with the Bates Stamp Number 20 that is part of Exhibit 61. Do you recognize that document?
A. Yes, I do.
Q. What is it?
A. It's the administration and faculty recommendation for the biology change.
Q. Did you receive these documents in your capacity as superintendent?
A. Yes, I did.
Q. Did you have an understanding concerning the difference between Exhibit 60 and Exhibit 61, the proposed curriculum changes that were attached?
A. Yes, I did.
Q. What were the differences as you saw them?
A. Two. Under the second column, it notes on the board recommendation but not the administration and teacher recommendation intelligent design, and under the materials and resources under the board recommendation and not the teachers and administration Of Pandas and People as a reference.
Q. And just to make sure the record is clear and that we get the point across, is it true that the board curriculum committee version references Of Pandas as a reference text?
A. That's correct.
Q. And does the staff and administration recommendation do that?
A. No.
Q. Okay. Is it true that the board curriculum committee version references intelligent design?
A. Yes.
Q. And is it true that the staff and administration version Roman XI-B does not?
A. That is correct.
Q. Was it your understanding that those were the points of divergence at that time between the two versions?
A. Yes.
Q. Learning that there were two versions circulating at this time, did you do anything?
A. Yes.
Q. What was that?
A. I contacted the board president, Mr. Alan Bonsell, and told him that there were two items on the agenda, there were two recommendations coming dealing with the biology curriculum.
Q. And why did you contact him?
A. As board president, it's my responsibility to communicate to him issues that may rise on the board agendas.
Q. Looking at the way he approached this process, was there anything that you saw that he would want that was inconsistent with these two versions? By that I mean, you've got two versions. Knowing Mr. Bonsell as board president, would he want disagreement or consensus?
MR. ROTHSCHILD: Objection. Calls for speculation.
MR. GILLEN: I can ask for his belief concerning what Mr. Bonsell would regard as desirable as the outcome of a collaborative process.
THE COURT: Well, the way you framed the question, it was sort of in the alternative, would he want disagreement or consensus. You can ask him to characterize his understanding of Mr. Bonsell's reaction, but I think the --
MR. ROTHSCHILD: It's leading as well, Your Honor. Disagreement or consensus I think is --
THE COURT: Well, we'll allow a little bit of leading, Mr. Rothschild, or we'll never finish this trial. So I'll overrule the objection on that basis. I'll sustain it. You can rephrase.
MR. GILLEN: I do understand, Your Honor.
Q. Rich, in your capacity as superintendent, did you have an understanding concerning the way Mr. Bonsell would view this state of affairs, namely, that for the proposed curriculum change, there are two rival versions being offered instead of one?
A. Yes. Mr. Bonsell always had a premium on consensus. He, throughout this process and almost every process that we were involved in in the school, the building project on through, spent a considerable amount of time and effort making sure that everybody agreed or at least compromised on an issue.
Q. Did you do anything as a result of your discussion with Mr. Bonsell?
A. Yes.
Q. What did you do?
A. Mr. Bonsell requested that I meet with the senior biology teacher, Jen Miller, to see if I could generate from her consensus.
Q. And did you do that?
A. Yes, I did.
Q. Did you have a discussion with Jen Miller about this issue?
A. Yes, I did.
Q. Tell us what you said.
A. I met Jen Miller, because she was a senior biology teacher, and discussed both of the proposals and the issue dealing with the divergent issues and communicated to her that Mr. Bonsell had recommended a note, specifically that origins of life will not be taught, because he thought that would address the concerns that the teachers continually had about teaching the origins of life. And we also discussed at length the placement of the Panda book.
MR. ROTHSCHILD: Objection, Your Honor. I think it's hearsay. It's not clear from Dr. Nilsen's testimony whether he's repeating exactly what he said or he is incorporating in his answer some reasons for the things he said, his reasons for why origins of life --
THE COURT: Relating to what Mr. Bonsell said, I think, specifically?
MR. ROTHSCHILD: Right, why Mr. Bonsell wanted to add origins of life.
MR. GILLEN: I didn't ask him why.
MR. ROTHSCHILD: No, it's the answer.
THE COURT: I know you didn't. It wasn't your question. But I'll simply say to the witness -- and I'll sustain the objection on that basis -- what we want you to avoid doing, unless otherwise instructed, is to avoid saying what someone else said.
THE WITNESS: Okay.
THE COURT: Now, there are circumstances where you can do that, but if I tried to explain that to you, we'd be here until tomorrow. We're not going to do that. But try to stay with that rule, and that will eliminate the objections. You can proceed.
MR. GILLEN: Thank you, Your Honor.
Q. Rich, what did you tell Mrs. Miller about the purpose of the note?
A. The purpose of the note was to allay the fears that the teachers had that if they mentioned intelligent design, they would be liable.
Q. And did you have an understanding concerning how the note was supposed to do that?
A. Yes.
Q. What was that understanding?
A. The understanding was that the note would reinforce the fact that the teachers did not and will not teach the origins of life.
Q. And how does that relate, in turn, to the subject that's at issue here, intelligent design?
A. The teachers believed that the intelligent design referenced the origins of life.
Q. Did you discuss anything else with Mrs. Miller that touched on the differences between the proposed curriculum changes?
A. Yes.
Q. What?
A. The placement of the Pandas book.
Q. And what was the issue there?
A. In the August meeting, the faculty had agreed on the compromise of having the Pandas book as a reference in the individual classroom, and we talked about the implementation of that.
And specifically, she asked me where and how she was to bring that book into the classroom. And I ended up telling her that it should be on the shelves. And then she communicated to me that she couldn't do that and have the students see it, because all of her shelves had doors on them. And then I ended up saying, well, then place it on the tables. And then she referenced the fact that that would be intrusive to her instruction.
Q. Well, let me ask you in terms of the listing of Of Pandas on the curriculum, did you discuss that with Mrs. Miller?
A. Yes.
Q. What did you tell her?
A. I told her specifically that I had recommended placing that there so if in the future and currently if the teachers had referenced that, that their liability would be covered because it was a board action.
There is case law or at least directive that if a board directs a superintendent and/or teachers to do something, that they're under the cover of direction. And in this case, I thought putting the reference Of Pandas and People on the right-hand side would protect the teachers currently and in the future if they made that reference.
Q. Did you ask Mr. Baksa to do anything as a result of the fact that two rival versions were created and circulating?
A. Yes. The outcome of the meeting with Mrs. Miller was inconclusive, so I requested him, after I communicated that it was an inconclusive meeting, he then spent some time trying to develop a compromised version.
Q. Did there come a time when you had reason to believe that Mr. Baksa had been successful?
A. Yes.
Q. I'd ask you to look at Exhibit 68. Do you recognize that document, Rich?
A. Yes, I do.
Q. What is it?
A. It's the -- attached is the second draft of the recommended changes to the biology curriculum from the administration and staff.
Q. And did you understand that this document was a result of further collaboration with the staff?
A. Yes.
Q. Did you have an understanding concerning the nature of the compromise that was offered here?
A. Yes.
Q. I'd ask you to direct your -- well, for the record, I'd say first that Exhibit 68 references an enclosure, Roman XI-C. Correct?
A. Yes.
Q. And the following page, which is Bates stamped 22, is attached. Correct?
A. Yes.
Q. Is this the document that Mr. Baksa showed you?
A. Yes.
Q. Did he tell you anything when he showed it to you?
A. He told me that he had --
MR. ROTHSCHILD: Objection, Your Honor. Calls for hearsay.
MR. GILLEN: Your Honor, if I can ask him -- I can ask him questions concerning what someone said if it's for the purpose of establishing what he believed. That's what I've done. I'm not offering Mr. Baksa's statement for the truth of the matter asserted. That's something you'll have to find. But I'm asking Rich what Mr. Baksa told him about this document for the purpose of getting his understanding.
THE COURT: Well, he can say what his understanding is. Why doesn't it go to the truth? I think it does. We're talking about the emergence of a particular policy by the board, and it seems to me that what Mr. Baksa said to him may go to the truth. You seem to conflate that with some state of mind, but I don't see it.
MR. GILLEN: I suppose, as you said, it's an exceedingly fine line, and we won't spend all day. I'll ask him his understanding as to what this document represented. Is that satisfactory?
THE COURT: I think that cures the objection. Does it?
MR. ROTHSCHILD: I believe so, Your Honor.
THE COURT: All right. The objection is sustained then for the record on that basis. Why don't you proceed in that fashion.
MR. GILLEN: Certainly.
Q. Rich, looking at this document, the portion of Exhibit 68 with the Bates Stamp Number 22, did you have an understanding concerning what that document represented?
A. Yes.
Q. Did you have an understanding concerning -- what was it?
A. It was the document that Mr. Baksa generated as a compromise.
Q. Okay. Looking at that document, did you have an understanding concerning the elements of the compromise reflected in the document?
A. Yes.
Q. And what were they?
A. Two things. One, under the first two columns, Note, the origins of life is not taught. And, secondly, under materials and resources, it references Of Pandas and People.
Q. Okay. I'd also ask you to direct your attention to the second column of the page under the heading, Unit Content, Concepts and Process. Further direct your attention to the language at the bottom-most portion of that column. Would you look at that, Rich?
A. Yes.
Q. Did you have an understanding concerning whether that proposed language reflected an effort to compromise?
A. Yes.
Q. What was your understanding?
A. Intelligent design was taken out.
Q. Okay. Now, if we look at this document, Roman XI-C, and consider that in comparison to the board curriculum committee's proposed version, which is Roman XI-A, did you have an understanding concerning how they diverged?
A. I believe two words very specifically, intelligent design.
Q. Well, you've said those two words, and let me ask you also to direct your attention to the note that is on Roman XI-C.
A. Yes. And the note on C specifically states, Note, the origins of life is not taught.
Q. Are these the three versions of the curriculum change that were at issue as we enter the October 18th meeting?
A. Yes.
Q. With that in mind, Rich, I'd ask you to direct your attention to Defendants' Exhibit 63. Do you recognize that document?
A. Yes.
Q. What is it?
A. It's the October 18th, 2004 Dover Area School District board agenda.
Q. And I'd ask you to direct your attention to that portion of Exhibit 63 which has the Bates Stamp Number 145 in the lower right-hand corner. Do you have that, Rich?
A. Yes, I do.
Q. If you'd look at the agenda item curriculum. I notice that there are two of the versions we've discussed listed. Which are they?
A. A and B.
Q. That means that Roman XI-C is missing. Can you tell me why?
A. The C version was developed after the agenda was printed. We print the agenda on Wednesday prior to and submit to the board five days in advance, and C was developed after the board got the agenda.
Q. Under that item there is further background information. Would you read that for the record?
A. Background information, copies of the changes have been sent to the district curriculum advisory committee and the science department.
Q. Is that true?
A. Yes, it was.
Q. As we enter the October 18th meeting, let me ask you if you discussed these different versions of the proposed curriculum change with the board.
A. Yes. Prior to the meeting, we were in executive session to meet the new high school assistant principal, and at the end of the meeting, on the way to the board meeting, I handed the board all three copies -- they had not yet received C -- just to make sure that they had in their possession all three copies prior to the discussion.
Q. Do you recall what you told them?
A. I reiterated at that time period the recommendation, what was the covered section, who had recommended what and why.
Q. Okay. Removing from the executive session to the public portion of the board meeting that night, do you remember anything about that public portion of the meeting?
A. Yes.
Q. Tell us what you remember.
A. Mrs. Bert Spahr had attended the meeting and gave comments during the public comment period.
Q. And do you remember a reaction by any board member to the comments?
A. Yes. Mr. Buckingham asked her where she had gotten her law degree.
Q. And why did Mr. Buckingham say that?
MR. ROTHSCHILD: Objection, Your Honor. Calls for speculation.
Q. Well, did you have a sense or belief as to why he uttered that comment?
MR. ROTHSCHILD: That still calls for speculation, Your Honor.
MR. GILLEN: He can give his impression or belief. That's what a lay witness does frequently.
THE COURT: Well, the objection to the first question is sustained. He doesn't know why. Why can't he ask him what his impression was?
MR. ROTHSCHILD: I'll withdraw my objection.
THE COURT: All right. That objection is overruled. He can answer the question.
THE WITNESS: During the public comment period of Mrs. Spahr, she referenced that intelligent design was creationism and that intelligent design was illegal.
Q. And did Mr. Buckingham agree with her?
A. No, he did not.
MR. ROTHSCHILD: Objection, Your Honor. Calling for speculation.
THE COURT: I'll sustain the objection.
Q. Do you believe that Mr. Buckingham agreed with her?
MR. ROTHSCHILD: Objection, Your Honor. It calls for speculation. If Mr. Buckingham said something that provided his understanding, that would serve as a basis, but this is really --
THE COURT: Is an acceptable question, what was your impression as to Mr. Buckingham's response?
MR. ROTHSCHILD: I think your suggestion might cure it.
THE COURT: Answer that question.
MR. GILLEN: Thanks, Judge.
THE WITNESS: Am I allowed to ask her to reread that question, Your Honor?
THE COURT: Yes. Read that back.
(Previous question read back.)
THE WITNESS: My impression of Mr. Buckingham's response was the fact that he wanted to know where she got her law degree.
Q. Good enough. Let me ask you as superintendent, without going into the details, did you have reason to believe that you were recommending an unlawful course of action to the board on the night of the October 18th meeting?
A. Did I have reason to believe that?
Q. Yes.
A. I had reason to believe we were not.
Q. Okay. Let me ask you, when the board came up -- board curriculum items came up for a vote, was there discussion of that issue?
A. Yes.
Q. And despite that claim that it would be illegal, was the board curriculum committee -- did the board approve a curriculum change?
A. Yes.
Q. Do you have an understanding concerning whether the board believed it was engaged in an unlawful course of conduct?
A. I have a reason to believe that the board did not think they were involved in an illegal activity.
Q. Okay. Let's talk about the process that resulted when these rival versions came up for a vote. Do you remember anything about that?
A. Yes.
Q. Tell me what you recall.
A. I recall that it was moved and that through a series of amendments, individuals tried to delay the approval of that, of the biology curriculum.
Q. Well, as the voting started, did you make any comments?
A. At the beginning of the discussion of the curriculum, I made sure that all the board members understood what the three options were, who supported which options, and what the difference was in all three options.
Q. In terms of support for the various options that were circulating at this time, did you make a statement with respect to the administration's position?
A. Yes. I specifically stated that Item C was the administrative recommendation, and, in fact, since Mr. Baksa was in charge of the curriculum, I requested he to come also to the podium and reiterate his support, as well.
Q. And why did you take that position?
A. It was the administrative feeling that for a successful implementation of the curriculum, we needed the teachers to buy into the program and change.
Q. How about in terms of the relationship between the various versions, did you think that Roman XI-C did a good job addressing board goals?
A. It was also our understanding, if I may answer it this way, that over the past six months, each of the concerns that we had heard from every board member from presenting gaps, presenting recommendation of using Pandas as a reference, as well as the origins of life will not be taught, that C covered all of the concerns that had been voiced over the past six months.
Q. Well, did you support the compromised version because you believed that intelligent design was religion?
A. No.
Q. Did you have any understanding as to whether intelligent design was religion or science at this time?
A. In a general sense, we had a report from our solicitor telling us that he had researched it and found no case law indicating either way.
Q. All right. Let me ask if you had derived any impression concerning whether intelligent design was science from your conversations with the science faculty.
A. Over the conversations that I have had with the board over the -- at that time and prior, it had been conveyed to me that there were over 300 individuals, scientists, specifically, that had supported it. There was a university professor from Lehigh that had done a lot of the foundation work associated with it, and the science teachers had approved the compromise of having the Of Pandas and People book as a reference.
Q. If you look at that compromised version again, which is Exhibit 68, Rich, I'd just like you to describe your understanding concerning the elements of concerns you had heard from this period June through October of 2004 which you saw reflected in that document.
A. The first concern is the fact of the origins of life will not be taught. That was placed in there. The other concern is the fact of making students aware of the gaps and problems, and also the other concern of other theories of evolution, as well as the concern of referencing Of Pandas and People.
Q. Okay. And just to make sure we're clear on this, you supported the reference, the listing of Pandas as a reference. Correct?
A. Yes.
Q. And what was your reason?
A. In support of a board request that we end up having that as a reference material.
Q. How about with respect to teachers' expressed concerns?
A. Specifically, again, reiterating past testimony, I thought that provided an opportunity for the teachers to follow a board directive and provided coverage for their liability concerns.
Q. Do you remember any discussion of board members before the voting started?
A. Yes.
Q. Tell me what you recall.
A. A minority of the board wanted to postpone the adoption and send it back to various committees for continued review.
Q. Let me ask you to look at Defendants' Exhibit 64 and further, Rich, to direct your attention to the page with Bates Stamp Number 158.
A. I have that.
Q. Okay. Now, as we look at the voting process, you mentioned that some people wanted to delay the vote. Do you recall the votes taking place?
A. Yes.
Q. Did you have a sense for the purpose of the various votes?
A. Yes.
Q. What was your understanding?
A. My understanding was the fact that some board members still were not satisfied with the status of the recommendation and wanted to revisit it.
Q. And how about the remainder of the board?
A. My understanding of the remainder of the board is the fact that at that time they wanted to end the conversation, had gathered enough information, and were prepared to act that evening.
Q. All right. As the voting starts, there were three versions of the proposed curriculum change that were at issue. Correct?
A. That's correct.
Q. Was the final version any one of those?
A. No.
Q. What was the final version?
A. The final version was board recommendation A with the note, origins of life will not be taught as a note.
Q. How did that come to pass?
A. The board president at the time, Mr. Alan Bonsell, made that recommendation.
Q. And you say "recommendation." Did he make a motion?
A. Yes, he made a motion.
Q. Was that motion seconded by anyone?
A. Yes.
Q. Do you recall who seconded his motion?
A. Yes, Mr. Brown.
Q. Did you have an understanding concerning the purpose of Mr. Bonsell's motion?
A. Yes. He was concerned and continually hearing the teachers' concern that they thought they were involved in a liable situation by teaching the origins of life. And he stated that he believed that stating the --
MR. ROTHSCHILD: Objection, Your Honor. The answer contains hearsay.
MR. GILLEN: He's testifying, did you have an understanding concerning Mr. Bonsell's purpose for that note.
THE COURT: The objection is sustained. He was repeating what he said.
MR. GILLEN: Oh, okay.
THE COURT: That was the basis of the objection. So you can ask a further question.
Q. And forgive me, Your Honor, Rich, the thing is, you can testify to what you understand but not what someone said.
A. My apologies.
Q. That's quite all right. Did you have an understanding concerning Mr. Bonsell's purpose in making that motion?
A. Yes, I had an understanding.
Q. Okay. Tell me what it was.
A. My understanding was that he wanted to address the teachers' concerns about teaching the origins of life.
Q. Okay. You said that the motion was seconded by another board member?
A. Yes.
Q. And did that motion eventually come up for a vote?
A. Yes.
Q. And was it that vote that produced the final version of the curriculum change?
A. Yes.
Q. During this meeting, was there any discussion by any board member about their desire or any desire to teach creationism?
A. No.
Q. Did the term come up?
A. No.
Q. On the part of any board member, at least. Did any board member reference that?
A. My prior answer referred to board members, and the answer is no board members.
Q. Okay. How about from members of the public, were there assertions involving creationism?
A. Yes.
Q. Do you recall any of those?
A. Minimally. I believe Mrs. Bert Spahr had made comments.
Q. And what was the thrust of her comment? How did you understand what she said?
A. I understood that she identified intelligent design with creationism.
Q. Okay. As the voting progressed, were there any other developments that produced a controversy in the aftermath of the board meeting?
A. Yes.
Q. What were they?
A. During that time period, the discussion addressed the fact that we had a recommendation from our solicitor that the liable concern with the board and the teachers was not an issue.
Q. Okay. And without going into that, you've said "liable." Do you mean liability?
A. Yes.
Q. And were any statements made in response to that?
A. Yes. When the individual mentioned, well -- or another board member said, well, what if they are wrong? Ms. Geesey then communicated, well, we'll then fire them.
Q. And was there a reaction to that statement?
A. Yes. There was a muffled gasp.
Q. When she made that statement, what was your understanding of her point?
A. My understanding of her point, and continues to be my understanding of her point, is the fact that if she believed that the solicitor gave us bad information, that that was reason for reviewing the contract.
Q. And I believe you said "if" he did. Correct?
A. Yes.
Q. Okay. Did Mrs. Geesey ever ask you to do anything as a result of the controversy surrounding her comment?
A. Yes. The next morning the paper reported that she had recommended firing the teachers. And she immediately contacted me and told me that that was obviously not what she had said, and I agreed with her, and she did two things.
One, she sent me an e-mail explaining her position and asked me to forward that throughout all the teachers stating on her behalf that -- or, in her words, that that was not what she had intended and, in fact, that she had liked all the teachers and supported the teachers.
Secondly, to prove that that was not what she had said, she requested that I develop a verbatim transcript of the October 18th meeting concerning the issues of -- or the area of curriculum.
Q. Well, the tape has been mentioned before, so I want to show you that tape, Rich.
MR. GILLEN: Your Honor, may I approach the witness?
THE COURT: You may. I hope it's in there.
MR. GILLEN: It's been sealed, believe me.
Q. Rich, take a look at that tape. And I want to ask you, does Dover Area School District have a general policy with respect to the taping of its board meetings?
A. Yes, it does.
Q. Describe that for us, please.
A. The general policy and procedure is the fact that the secretary of the board tapes all meetings, uses that as a backup for the notes and developing the minutes. Once the minutes have been approved, the policy, even prior to when I showed up, was the fact that either the tapes were overwritten or destroyed.
Q. Was this tape destroyed?
A. No.
Q. And why was that?
A. By recommendation of counsel.
Q. Okay. And we were not your counsel at the time of that recommendation?
A. No. It was our school counsel.
Q. Okay. Very good. You were well advised. Let me ask you, is that tape complete?
A. This tape is complete, but the taping of the board meeting is not.
Q. And I understand what you're getting at, but the Judge might not, so let's go through that again. I understand that's all the tape we have?
A. Yes.
Q. Does the tape record the whole meeting?
A. The tape does not cover the whole meeting. The background of that is the fact that at this time our business manager and board secretary was battling cancer and was on medical leave, and her secretary had filled in as the acting secretary over that time period.
But at this meeting, her son had a wrestling match, and she was absent, so a third secretary filled in at that time period. And when I requested for the verbatim transcript to be developed, he communicated to me that when he had taken the first tape out to put a second tape in, that he had paused the tape, and when he had hit play, he had not unpaused the tape, so the second half of the meeting was not recorded.
Q. Did you ever act on Ms. Geesey's request for a transcript?
A. Yes.
Q. With that in mind, I'd ask you to look at Defendants' Exhibit 153.
A. I'm sorry, what number?
Q. 153. Do you recognize that document, Rich?
A. Yes, I do.
Q. What is it?
A. It's the verbatim transcript from the tape dealing with the curriculum section.
Q. And does that transcript reflect the whole of the board meeting discussions relating to the curriculum change?
A. No.
MR. ROTHSCHILD: Your Honor, I'm not sure this is an objection or a clarification, but my understanding is that this is not a full verbatim transcript of what was actually on the tape, that there's actually more on the tape. We've had some back and forth.
MR. GILLEN: And I couldn't agree more. It's a partial transcript, and I'll make that clear if there's any question on that score.
MR. ROTHSCHILD: Okay.
Q. And let's do that for the record, Rich. Let me ask you, perhaps, a more precise question so that we can say precisely what's on here. First of all, is this a transcript of the entire board meeting?
A. No.
Q. It is a transcript of a portion of the board meeting. Correct?
A. Yes.
Q. What portion?
A. The beginning of the discussion on the curriculum section of the board meeting.
Q. Okay. Is the transcript all of that discussion so far as it was all taped?
A. No, there were sections the secretary left out.
Q. And those were the votes?
A. Yes.
Q. Now, where the transcript ends, is that where the tape ends?
A. Yes.
Q. So as Mr. Rothschild indicated, it's partial in that sense?
A. Yes.
MR. ROTHSCHILD: So that the record is clear, I think what you're saying is there are parts of the meeting that are on the tape that precede this?
MR. GILLEN: Yes.
MR. ROTHSCHILD: Okay. And that's not part of this document?
MR. GILLEN: Correct.
MR. ROTHSCHILD: Thank you.
THE COURT: And there are parts of the meeting that came after the tape?
MR. GILLEN: No, there's nothing after, Your Honor. Well, let me ask Mr. Nilsen.
Q. Mr. Nilsen, is there anything that occurred at the board meeting after what's reflected in this transcript?
A. Yes.
THE COURT: Sure looks like it, because it has --
MR. GILLEN: Yes.
THE COURT: He's cut off in mid-sentence.
MR. GILLEN: Exactly.
THE COURT: And do I also understand, Mr. Gillen, that there are -- that this is not a continuous narrative, that there are, for example, votes in the midst of this dialogue that were not transcribed?
MR. GILLEN: Exactly, Your Honor. And I'm going to try to get that out so you know exactly --
THE COURT: I heard that. I just wanted to verify that.
MR. GILLEN: Yes, the votes are reflected in the minutes. And that's --
THE COURT: I understand.
MR. GILLEN: All right. Good enough.
MR. ROTHSCHILD: Your Honor, to make sure I'm clear, there is actually -- the tape includes other parts of the meeting that are -- that precede the part of the meeting where this transcript begins, and that's not taped over or missed, it actually exists, and so this is not everything that was taped. Is that right?
MR. GILLEN: Yes.
THE COURT: But they're not germane to this issue. Is that --
MR. ROTHSCHILD: Well, I'm not sure that's correct, and I'm not --
THE COURT: Do we care?
MR. ROTHSCHILD: I just want to make sure that the record is clear. This is not everything that's on that physical tape.
THE COURT: I understand.
MR. GILLEN: Okay. Good enough.
THE COURT: Are you going to get into an extended area? I was going to go until 4:45, but if you think that you're going to get into a longer area, we could adjourn.
MR. GILLEN: It's a good place for a break, Your Honor, if it's okay with you.
THE COURT: All right. Why don't we then call it a day, this shortened session. We will reconvene for a full-day session at 9:00 a.m. tomorrow morning, and we'll stand in recess until that time. Thank you, all.
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