Kitzmiller v. Dover Area School District

THE COURT: All right. By agreement we're going to have a brief resumption of, relatively brief resumption of Mr. Baksa's testimony.

Mr. Baksa, you may take the witness stand. And we'll allow, when he does so, you remain under oath, sir, and Mr. Gillen you can pick up where you left off.

(Witness Michael Baksa resumes witness stand.)

MR. GILLEN: Thank you, Your Honor.

DIRECT EXAMINATION (Cont'd.)

BY MR. GILLEN:

Q Mike, when we left off we were leaving the July meeting where the 2004 edition of Miller and Levine had come to the attention of the teachers. And I want to capture your mind set now as we begin to move forward.

As you sit here today looking back at events in 2004, did you remember Bill Buckingham using the term creationism in his discussions with you up until this point right now, which is July 12 , 2004?

A No.

Q Had any other board member discussed teaching creationism with you in the classes of Dover High School up until this point in 2004?

A No.

Q Do you remember Barrie Callahan -- let me ask you first. Do you remember Mr. Buckingham using the term creationism at a board meeting up -- sometime prior to this point?

A Yes.

Q Okay. And do you remember Barrie Callahan calling you with a question about a text which addressed creationism?

A Yes.

Q What did you tell Mrs. Callahan in response to her call?

A That we're not going to find a text that has creationism for teaching in the public schools.

Q Okay. And I want you to explain that answer, because it could be subject to a number of understandings. Were you looking for a text that included creationism?

A No.

Q Well, when Mr. Buckingham used the term creationism at the board meetings, did you have an understanding or did you act on it?

A No.

Q And why is that?

A First, I was surprised to hear Mr. Buckingham say creationism. I hadn't heard that before from him.

My understanding is our search for textbooks continues to be, and continued to be, that we were looking for a treatment of Darwin in textbooks that the board would be satisfied with. And just board members saying something, their wishes or desires at a board meeting, that would not cause me to take any formal action.

Q Well, let's look at that because that is plainly important here. From your standpoint as an administrator for the school district, if we look at what you understand is a sign of action, something that's going to make you take serious steps, how do you look at that process, what does it take?

A For me to pursue any type of research or action, a board member would -- or more than one board member would have to sit down with me and ask me to specifically explore an area, and then I would follow up on that. But if -- you know, if there's just comments made at the general board meeting, that's not directing me to take any formal action.

Q Okay. We left off with you learning that there was a 2004 edition of the Biology text by Miller and Levine. What happened next that related to the Biology text?

A I reviewed the new 2004 edition with the 2002 edition with Mrs. Spahr and Ms. Miller.

Q Okay. And with that in mind, Mike, I would ask you to look at defendant's exhibit 24. Do you have it, Mike?

A Okay.

Q Okay. Do you recognize that document?

A Yes.

Q What is it?

A These are my notes from my meeting with Mrs. Miller and Mrs. Spahr.

Q Well, tell us about that meeting.

A What we did is we -- Jenn was sitting next to me and one of us had the old edition, one of us had the new edition, and we went through the chapters dealing with evolution, and we compared the text side by side, line for line, and then noted any changes. And the teachers, for the most part, explained the science of the changes to me and what was different.

Q Did you derive a general understanding about nature -- the nature of changes in the text from the 2002 to the 2004 edition as a result of this meeting?

A Yes. We thought that they definitely had softened some of the language for the evidence from species to species. It seemed to address a lot of the same pages that -- or areas that Mr. Buckingham had concerns with.

Q Well, from your standpoint as an administrator looking at some of the complaints that Buckingham had made about the text, were there any other specific changes that seemed to address those concerns?

I mean, look at your notes and just see if it refreshes your recollection.

A This section included -- yeah, the one -- the one -- another area is gaps. There was -- there actually was language that talked about gaps, and there was like a paragraph that talked about the strengths and weaknesses of evolution.

Q Do you recall any discussion with the teachers about the nature of the changes and whether it made the book more desirable?

A Well, there's two questions I asked. One was did they feel that any of the changes left out any critical information that they felt necessary to teach, and they didn't feel that happened. But they did feel that knowing the concerns of Mr. Buckingham, that these changes did address them.

Q Did the board curriculum committee meet as a committee to discuss these changes?

A No.

Q Did you meet with any committee members to discuss the changes?

A I met with Mr. Buckingham.

Q And tell us what you told Mr. Buckingham.

A I brought this with me and reviewed these changes with Mr. Buckingham, and said that I thought that this text -- the new edition really did address his concerns, that it didn't make so strong a case for evidence from species to species and it talked about gaps. And tried to point through all of these pages where we noted changes, I showed all of those to Mr. Buckingham.

Q Did you have an impression as to Mr. Buckingham s response to this information?

A He didn't respond at the meeting. He took my notes and the new edition home with him. But at the meeting he just listened to me.

Q Did you hear from him subsequently?

A Yes, later he called me.

Q And what did you learn as a result of that conversation?

A Bill called me and said he still couldn't approve the book.

Q And what did you do in response to his objection -- continued objection?

A The -- well, we went forward placing the book on the August agenda. And shortly after this I think I received a note from him about including Pandas.

Q Okay. Let's look at this process as it unfolds. I'd ask you to look at exhibit -- defendants exhibit 25.

A Okay.

Q Do you recognize that document, Mike?

A Yes.

Q What is it?

A That's a note to Dr. Nilsen's secretary to place Miller and Levine on the agenda for approval and purchase.

Q You say you went forward despite Mr. Buckingham s objection. Why did you do that?

A I was still trying to address Mr. Buckingham s concerns, but we needed to -- August was late in the day if we were going to get a book in the student's hands. So we needed to continue to move forward to get that book approved and purchased in August.

Q Did you put it on the agenda despite his objection?

A Yes.

Q Did there come a time -- you mentioned Of Pandas, did there come a time when he brought another text to your attention?

A Of Pandas and People.

Q Okay, with that in mind, I would ask you to look at defendants exhibit 26. And do you recognize that document, Mike?

A Yes.

Q What is it?

A This is a note from Mr. Buckingham asking Of Pandas and People to be placed on the August agenda along with Miller and Levine.

Q Did you do anything in response to this document?

A Yes.

Q Tell us what you did.

A I shared this with Dr. Nilsen, and then Dr. Nilsen and I set up a meeting with Bill in Dr. Nilsen's office.

Q Did you have an understanding concerning the purpose of that meeting?

A For -- well, two. One, we wanted to make sure that we kept moving forward for the purchase of the Miller and Levine. And the second, in talking with Dr. Nilsen, Dr. Nilsen was not going to approve the purchase of an individual book for -- Of Pandas and People for all of the students.

Q Let's -- let me ask you, did the meeting with Mr. Buckingham occur?

A Yes.

Q Who was in attendance?

A Mr. Buckingham, myself and Dr. Nilsen.

Q And tell us what you can recall about that meeting.

A Dr. Nilsen ran that meeting. I remember him telling Bill and making it clear that he is not going to recommend the purchase Of Pandas and People, which meant that for a book to be approved, it would need six votes instead of five, you're overriding the superintendent s recommendation.

Q Well, what about Bill's position, did he come to this position -- this meeting with a position that he articulated?

A I think Bill wanted the students to have the Miller-Levine book alongside Of Pandas and People, and he wanted the teachers to be teaching out of both, side by side.

Q Okay. Well, did either you or Rich Nilsen respond to that request on Bill's part?

A Dr. Nilsen offered a compromise position that -- that the -- instead of purchasing books for individual students, that we would simply have a classroom set available to students.

Q Mike, if you'd push that mike away a little bit.

A Sorry.

Q Don't break it, push it by the stem, push it by the stem back a little, you'll probably get a little less puh.

Did you come away with the sense that this meeting had produced results?

A It was our -- our understanding at the end of this meeting that we would approve the Miller-Levine book at the August meeting, that we would wait for teachers to take a look at Of Pandas and People, consider its use, and possibly that would be as a classroom set. And it's our understanding that if we did do that and did have some consideration Of Pandas and People that Bill would approve Miller and Levine.

Q And you say some consideration Of Pandas and People, be more specific, what did you have in mind?

A Well, originally when we got Of Pandas and People, I remember Dr. Nilsen and I thinking at the first that we could possibly purchase these for the teachers and they could have them just as a personal reference.

When Bill was suggesting, you know, kind of a more rigorous use of the book in instruction, then Dr. Nilsen suggested a compromise position, just being in the classroom. But at this point we hadn't had any discussion with the teachers on, you know, what they would find acceptable for the use Of Pandas, and we were asking for time to be able to have those discussions.

Q Well, defendants exhibit 26 is dated -- that is defendants exhibit 26 is dated July 25, 2004. What happened next for you?

A I went on vacation.

Q And it was too short I know, but --

A Yes.

Q -- do you know if Dr. Nilsen took any steps for you relating to the discussion you ve just described while you were on vacation?

A Dr. Nilsen scheduled the meeting with the board curriculum committee and the science teachers for the end of August to discuss the use Of Pandas and People.

Q Were you in attendance then for the August 2 , 2004 meeting?

A Yes.

Q August 2 , 2004 --

A No, I'm sorry.

Q -- meeting of the board.

A No.

Q Okay. Let me ask you to look at defendants exhibit 30.

A Okay.

Q Did this document greet you on your return?

A Yes.

Q And you recognize it?

A Yes.

Q What is it?

A It's a memo that talks about a meeting that will be held on August 27 to discuss Of Pandas and People.

Q And what was the subject of that meeting?

A How we might -- sitting down with the teachers and the board curriculum committee, how we might make use of Of Pandas and People.

Q Did that meeting occur?

A Yes.

Q Did you take notes of that meeting?

A Yes.

Q And I would ask you to look at defendants exhibit 31.

A Okay.

Q Do you recognize that document?

A Yes.

Q What is it?

A These are my notes from that meeting.

Q Do you recall if there was anything handed out at this meeting on August 27 , 2004?

A Dr. Nilsen handed out an e-mail from our solicitor, Steve Russell, and he handed out a draft of the biology curriculum.

Q There's been some discussion of the e-mail. How about the draft curriculum, do you know -- do you recall anything specifically about that document?

A I do remember when Dr. Nilsen passed it out, that Mrs. Spahr reacted, was very upset with it saying we never agreed to ID being in the curriculum, and they weren t involved in the creation of this.

MR. ROTHSCHILD: Your Honor, I just want to clarify for the record. I don't think this is a document, speaking about the draft curriculum, that's ever been produced.

MR. GILLEN: Mr. Rothschild is quite correct. The document no longer exists.

MR. ROTHSCHILD: Thank you.

THE COURT: All right.

BY MR. GILLEN:

Q Well let's see, you ve said that Bert said we didn't agree to this. What was she getting at? What can you recall?

A Well, it was my understanding from the end of the June meeting that that was language that we talked about, Mr. Buckingham and the teachers were agreeable to, you know, from what I remember of the meeting I thought I read that back and we were in agreement with that.

I don't know why Dr. Nilsen brought that to the meeting, but once it was out there, then at the end of the meeting I remember Mr. Bonsell directing me to work with the teachers then to come up with language that they would agree to.

Q Let's look at -- who said what, to the extent you can remember it. Do you remember any of the teachers expressing any concerns about litigation?

A Mrs. Spahr -- I don't specifically remember, but almost every instance Mrs. Spahr did feel that intelligent design was the same as creationism and might lead to litigation.

Q How about Mr. Bonsell, do you recall him making any comments at this meeting?

A In talking about Of Pandas and People, there was requests by board members that we pursue its use in the schools to see if there's ever been any litigation involving the book, if there's ever been any litigation involving intelligent design, and --

Q How about in terms of evolutionary theory, did he articulate anything specifically?

A Mr. Bonsell wanted to make sure that in the curriculum language that we were going to develop for the biology curriculum, that the teachers pointed out not only that it has flaws or gaps, but also to show what those are.

Q How about Mr. Buckingham, the meeting was about Of Pandas, did he articulate a position at this meeting?

A Again, Mr. Buckingham wanted to move quicker than we wanted to, so we were asking him to wait, give us some time here that we might be able to take some action with the book in October. And I think I remember him wanting to move quicker than that --

Q Did he?

A -- do something in September.

Q I'm sorry, Mike.

Did you get an understanding of what Mr. Buckingham regarded as the desirable use of the text during this August 27 meeting?

A I think he was -- I don't remember specifically, but I think he was still advocating individual students use them. I know Mrs. Spahr recommended that the books be placed in the library. But we didn't -- at the end of the meeting, I don't remember us coming up with a clear direction exactly what we're going to do with the books.

Q Let's look at the end of the meeting. When you came away from this meeting were there any results?

A Yes.

Q Tell us what they were.

A I was going to work with the teachers to develop curriculum language, and then I was to -- once they developed that, I was to send that to the full board for their review.

Q How about with respect to any duties you had about Of Pandas, did you come away with tasks?

A I don't -- I don't remember doing anything Of Pandas other than continuing to talk to teachers about its possible use.

Q Well, let me ask you this, Mike. There's some documents here I just want you to explain. Look at 32, 33, 34, 35.

A Okay.

Q 36, 37, 38, 39, 40, 41, 42. There's one more in there, it's an outline which I believe is in that other folder you have. Do you recognize these documents I ve just drawn your attention to, Mike?

A Yes.

Q What are they?

A Umm, these are all my notes from my research on Of Pandas and People, its use, and any litigation that was involved.

Q Let me, if you would, also take a look at 116, which is in that little auxiliary folder.

A 116?

Q Yes.

A I don't see 116 in here.

Q That's unfortunate, hold on a second. You know what, look at volume two, Mike.

A Okay.

Q Do you have it?

A Yep.

Q Do you recognize that?

A Yes.

Q All right. And I didn't want to belabor this process, so if you can, having looked at them, just tell us generally what these documents relate to and what you learned as a result of the process that created these documents.

A Just 116 or all that you referenced before?

Q All of them generally.

A 116 is a result of an inquiry about the book from the publisher, and then they sent this information back. I had learned from the Foundation for Thought and Ethics that the book was used in Tomball, Texas, and Dr. Gillen was there and used the book in that district, and I did call and talked to Dr. Gillen about the use of its book.

Q Let's go through them real quick, just for the sake of, you know, explaining them for the record.

That's 116. What's defendants exhibit 32?

A That's just information on the title and the publisher of Pandas and People.

Q And then defendants exhibit 33, do you recognize that?

A Right, that's just a -- getting information on the cover and where we might -- where we might seek purchasing it.

Q Okay. And there's a Post-it on there. What does that Post-it note describe, Mike?

A Haughton Publishing Company and their address.

Q Next is defendants exhibit 34. If you would just tell us briefly what that document is.

A I believe this is from my conversation with Foundation for Thought and Ethics where they gave me information about Dr. Gillen and how I might contact him.

Q Defendants exhibit 35, what is that?

A Again, that looks like an on-line service where you might purchase Of Pandas and People.

Q Defendants exhibit 36, what is that?

A Those are my notes from an administrator in Tomball, Texas.

Q And you say Tomball, Texas, what is Tomball?

A A high school.

Q Did you have an understanding concerning whether the text was being used at that high school?

A Currently when I talked to Melony Windows she did not know -- she didn't think the text was being used and didn't believe that they even had them anymore.

Q Had it been used at one time?

A Yes, by Dr. Gillen.

Q Defendants exhibit 37.

A Again, that's just my notes for the phone number for Melony Windows.

Q In the lower right-hand portion of that document there's a notation 12.2 or higher. Can you tell us what that relates to?

A I asked Dr. Butterfield, our language arts supervisor, to do a readability study on Of Pandas and People.

Q And why did you do that?

A To determine the appropriateness for ninth grade students.

Q And defendants exhibit 38, if you would just briefly describe that.

A Those are my notes from my conversation with Dr. Gillen.

Q And, again, just briefly summarize the information you received as a result of your discussion with Dr. Gillen -- no relation.

A Dr. Gillen said that he had used Of Pandas and People in his AP biology class as reference material that students could use and even respond in test with some of those materials. That he had initiated that use on his own and the board agreed with it. That he had the books donated to him. And then when I asked him about the appropriateness, he thought the overview section of the book would be appropriate for ninth graders, but he did think the later sections that went into more detail might be a little difficult for them.

Q And, again, I don't want to belabor this process. Were these documents all the result of your background checks, so to speak, into Of Pandas?

A Yes.

Q Let me ask you, you mentioned some discussion of making students aware of intelligent design at this August meeting. Did you have any -- anything concrete in mind at that time, in August? Did you come away from this August meeting with a sense that the teachers were open to at least some reference to intelligent design?

A From the August meeting where we discussed Of Pandas and People?

Q Yes.

A No, Bert was pretty insistent that she didn't like intelligent design in the curriculum.

Q Okay. How about the text Of Pandas, what was your sense for how that might be used?

A Well, it wasn't settled at that meeting. You know, Bert was recommending the library, but we really didn t decide exactly how it was going to be used.

Q Do you recall Dr. Nilsen offering any response to Bert's suggestion?

A Bert's suggestion that they be in the library?

Q Yes.

A I don't remember him responding to that.

Q Was there any discussion of other uses of the text at that August 27 meeting?

A Of Pandas and People?

Q Yes.

A I think Bill still wanted it for individual students and taught side by side.

Q All right. There was some discussion of the curriculum change at the August 27 meeting or potential curriculum change, is that correct?

A Yes.

Q Would you look at defendants exhibit 54.

A Okay.

Q Do you recognize that, Mike?

A Yes.

Q What is it?

A It's the curriculum for the biology course.

Q Okay.

A No, I'm sorry. This is -- this is the Pennsylvania Academic Standards for teaching the biological sciences.

Q Are these the standards that were in place at the time of this discussion?

A Yes.

Q Let's look at the standards. They speak to teaching to the standards, and there's some discussion here of making students aware. Did you see a distinction in your mind between teaching to the standards and making students aware of other concepts?

A Yeah, I don't see making students aware of something as teaching, I see that as distinct.

Q And why is that?

A Well, when you take this specific content of academic standards, there's a number of things you do to teach it. First, you know, you secure instructional materials that have that content in it, then you develop instructional strategies to deliver that content to the students and activities that they might use to gain an understanding and learn the material. Then you assess that content. And then you, from those assessments, you get feedback from students on how well they did and re-teach it if you have to. And all of that I believe is teaching. When you just mention something, you don't do any of those.

Q Well, let's look at the information you had about the teaching of biology in Dover Area High School as of this time in August. Did you understand that the teachers taught evolutionary theory as you have used that term here?

A Yes.

Q Did you understand that the teachers mentioned anything else during biology classes?

A My understanding what the teachers did prior to teaching evolution is that they would preface -- before they began instruction on evolution, they would preface their teaching with an explanation to students --

MR. ROTHSCHILD: Objection. His answer is going to be, again, back door hearsay, similar to what we dealt with before.

MR. GILLEN: And the answer is of the same nature, Judge, as you ve said throughout, he can testify to his understanding of what the teachers were doing.

MR. ROTHSCHILD: His -- the answer that's going to be elicited is the statements of out-of-court declarants, the teachers, about what they were doing for the truth of what they were doing. And we ve had one of those teachers up on the stand. There was an opportunity to ask about this, and she was asked about it, and the other biology teachers are under subpoena so they can be asked about it.

THE COURT: Well, but that's not the issue, I don t think, Mr. Rothschild. I think it's his understanding. Certainly they can, and their understanding or their testimony about what their understanding was might be better evidence than what his understanding is, but that doesn t mean he can't say what his understanding is. And he did answer the question. So I understand the point, but I ll overrule the objection and the answer will stand.

BY MR. GILLEN:

Q Well, let me ask you again for your understanding of this situation today. Contrast here the situation as it exists in Dover Area School District as a result of the curriculum change that was adopted by the board on October 18 , 2004. Is it your understanding that they teach intelligent design in biology classes at Dover Area High School?

A No.

Q And why is that?

A Because my understanding is that all they're doing is making students aware, mentioning intelligent design, just as they had mentioned creationism and students having other beliefs --

MR. ROTHSCHILD: Objection, Your Honor.

MR. GILLEN: He's testifying to his understanding, Your Honor. It may be that the teachers were lying to Mr. Baksa when they talked to him, but it's what he understood.

THE COURT: Well, but that's not what he just answered, he said they had mentioned. And on that basis the objection is valid and I'll sustain the objection. You know, we ve transcended the area of his understanding into a recitation of what somebody said.

MR. GILLEN: Okay. And I don't intend to offer that. I agree, and see what counsel is getting at to the extent if someone would offer that out-of-court statement for the truth of the matter asserted, and that's not what I'm doing.

THE COURT: What is it for?

MR. GILLEN: It's to establish what understanding the board administration was operating on. And I fully acknowledge that, you know, I don't think any of them checked what was going on in the classroom, and I'm not offering it for that purpose.

MR. ROTHSCHILD: And I further object to the implication that the teachers were lying about what they were doing in the classroom. I think that mischaracterizes the events and is unfair to the teachers.

MR. GILLEN: Yeah, and I'm not saying that. I m just saying they did not check -- they did not go out and monitor the classrooms, but they did have an understanding, and they did act on it, and that's my only purpose here.

THE COURT: Yeah, but perhaps it's late in the week, and this has become too abstract for me, but I don t know how you -- how you get to what the teachers said, and that it doesn't go to the truth of the matter. I -- I can t understand that.

MR. GILLEN: Well, Judge.

THE COURT: I can understand that he can testify as to what his understanding is. We ve crossed that bridge. We understand that. We ve -- we ve dealt with that. But as it gets to statements collectively or singly by teachers, that could only be -- that could only go to the truth or at least partially at least to the truth in my view, and I think that's hearsay.

MR. GILLEN: If it were offered for the truth, it would be hearsay, and that is not my purpose. I'm just trying to establish these -- the board administration proceeded on a certain path.

THE COURT: Well, you'll have to do that, in my view, and obviously my view controls, you're going to have to do it by -- by his understanding, without reference to what they said.

MR. GILLEN: Okay.

THE COURT: And that's the only way we can do it, so I'll sustain the objection on that basis.

BY MR. GILLEN:

Q Okay, let me ask you this, Mike. We're talking about an August 27 2004 meeting. Did you leave that meeting with a to do?

A Yes.

Q And tell me what you had in mind to do as a result of this meeting?

A To research Of Pandas and People, and to work with the teachers on developing curriculum language.

Q You talked about working on the curriculum. What happened next in that area?

A I believe I -- I believe I initiated, I started, wrote some draft language, and I sent it to the teachers for them to review, and afterwards I received back their recommendation in curriculum language.

Q Okay. With that in mind I would ask you to look at defendants exhibit 43.

A Okay.

Q Do you recognize that document?

A Yes.

Q What is it?

A This is a memo from me to the board curriculum committee with the draft from the teachers attached.

Q Is this a result of the process you ve described of talking to the teachers?

A Yes.

Q I'd ask you to direct your attention to the portion of exhibit 43 with the Bate stamp number 29, in the lower right-hand corner.

A Yes.

Q And I'd ask you to explain, Mike, the ways in which you see this document as reflecting the process you ve described.

A I had originally created a draft, sent it to the teachers, and the teachers sent back this draft that included language, "the students will be made aware of gaps in Darwin's theory and of other theories of evolution."

MR. ROTHSCHILD: Your Honor, again, I'm not sure what document Mr. Baksa is referring to that was sent to the teachers. It was not this. I don't know that we ve been produced.

MR. GILLEN: You have defendants exhibit 43.

MR. ROTHSCHILD: I understand that. But Mr. Baksa suggested that he prepared something and sent it to the teachers, and that they then prepared the page 29. And I m trying to understand whether there's two different documents, or whether this is what Mr. Baksa created and, as the memo says, the teachers reviewed it.

THE COURT: Are we talking about the same document or is there something different?

THE WITNESS: I don't remember if there was anything, if the original draft that I sent them was different than what they returned to me. I just don t remember that.

MR. GILLEN: I think Mr. Rothschild's question may be who created this page.

THE WITNESS: The teachers.

MR. GILLEN: Okay.

MR. ROTHSCHILD: Then I'm trying to understand then he's describing a draft.

THE COURT: Well, no, I think the question is, are there two separate documents.

MR. ROTHSCHILD: Correct.

THE COURT: And is there something missing that you don't have, isn't that --

MR. ROTHSCHILD: That is correct.

THE COURT: -- the essence of your point?

Do you understand his point? Is there a document that you're referring to that isn't this?

THE WITNESS: Yeah, I don't have the -- the curriculum was written over each time it was edited, so what I originally sent to the teachers, I don't have that document.

THE COURT: Is that the document that Mr. Gillen previously said does not exist, or is that yet another document that doesn't exist? Are we talking about two different documents now that don't exist?

THE WITNESS: I think we're talking about two now.

MR. ROTHSCHILD: I don't have another document, and it's not here.

THE COURT: I understand. You don't have it because they don't exist apparently, is that the point? Do you have an objection?

MR. ROTHSCHILD: I'll save my questions for cross. Thank you.

THE COURT: I think that's what you have to do. If it doesn't exist, it doesn't exist. You may proceed.

BY MR. GILLEN:

Q Mike, again, is this draft here a document that you generated in response or as a result of the process of discussion with the teachers you ve described?

A Right, that Bate stamped 29 --

Q Yes.

A -- is the teachers recommendation.

Q Okay. And let me ask you, based on your discussions with them, what was your understanding of the basis for this recommendation?

A That if there was going to be language that was going to be board approved and changed, that the teachers recommended that this be the language that the board adopt.

Q Let's look at defendants exhibit 44. Do you recognize this?

A Yes.

Q And what is it?

A September 21 , 2004.

Q Okay, and who is it directed to?

A The board of directors.

Q Okay. And let me ask you, Mike, are you generating these documents in your capacity as the assistant superintendent?

A Yes.

Q And what is your purpose in generating them?

A To try to come to some agreement between language that the board would like to see included in and language that the teachers would agree to.

Q Okay. And 44 is directed to whom?

A The school board, all the school board members.

Q Okay. And what was the purpose in doing that?

A So that they could see -- well, this is what came out of the August meeting. I was working with the teachers to develop language and then send it on to the full board for their review.

Q All right. Did there come a time when you received some input from board members?

A Yes.

Q And I would ask you to look at defendants exhibit 45.

A Okay.

Q Do you recognize this document?

A Yes.

Q What is it?

A This is a note from Casey Brown that has two suggestions of language that could be included that s different from the teachers.

Q And in terms of trying to build consensus, did you see this document as representing any progress? Did you notice points of convergence?

A Well, there were some -- there were some points that were the same, you know, making students aware of gaps. There were two problems I saw with this document is they talked about origins of life in both of Mrs. Brown s suggestions, and the teachers weren't teaching origins of life, so I didn't think that would be acceptable to them.

Q Tell us what happened next in terms of this proposed curriculum change that's being talked about?

A I did get feedback from Bill Buckingham on what language he thought should be included in that, and then also Dr. Nilsen gave me some language from Mr. Bonsell to include in there.

Q Did you take notes as a result of your conversation with Mr. Buckingham?

A Yes.

MR. GILLEN: Let me see, I think I have those.

BY MR. GILLEN:

Q I ask you to look at defendants exhibit 31 at the page Bate stamped 59.

A Okay.

Q Do you recognize that document?

A Yes, these are notes that I took after speaking with Mr. Buckingham.

Q And looking at the notes, can you recall what Mr. Buckingham said to you?

A Again, he's still talking about using Of Pandas and People side by side with Miller-Levine. The next note is that he's okay with mentioning intelligent design. That was the draft that was produced by Dr. Nilsen at the August meeting with the teachers. And then the last note is that he felt those that donated to purchase the books, that their expectation is that we would use these books in an instructional manner.

Q Did you -- you ve mentioned receiving information from Rich Nilsen concerning Allen Bonsell's input. Can you tell us what you recall about that?

A Mr. Bonsell just wanted next to gaps, slash, problems added, so he was adding the word "problems" to that statement.

Q What happened next in this process relating to the curriculum change?

A Well, I didn't have consensus of what -- I had the teachers version what they wanted, but I didn't have any agreement from the board curriculum committee, or the full board on the language. So I called the board curriculum committee together so that they could try to come to some consensus on the curriculum language.

Q And with that in mind, I would ask you to look at defendants exhibit 46.

A Okay.

Q Do you recognize that document?

A Yes.

Q What is it?

A It's a memo to the board curriculum committee about a meeting on October 7th to discuss the curriculum language.

Q And do you have reason to believe that meeting occurred?

A Yes.

Q And I'd ask you to look at exhibit 50.

A Okay.

Q Do you have that, Rich?

A Yes.

Q Mike, I'm sorry.

There's two pages to this document. I want you to look at each of them separately. The first page of defendants exhibit 50 has the Bate stamp number 35 in the lower right-hand corner. Tell us what that is.

A I prepared this document for the meeting. It has the various drafts of language from the administration and the staff, from the school board members, and I simply listed the concerns that had been communicated to me from the board that the language should address.

Q Okay. And is this your understanding of the various positions of the parties at this time?

A Yes.

Q And under "concerns to be addressed," is this your understanding of the concerns that you needed to address in order to build a consensus?

A Yes.

Q Well, let's look at the portion of exhibit 50 which has the Bate stamp number 36 in the lower right-hand corner.

A Okay.

Q Do you recognize that document?

A Yes.

Q What is it?

A This is the -- my notes on what the agreement was with the board curriculum committee on what language we should include.

Q Okay. And what did you understand the board curriculum committee's position to be?

A That they were adding language to include the mention of intelligent design.

Q And I see it's a handwritten note. Was it worked out during this meeting?

A Yes.

Q And do you recall any specific discussion at the meeting?

A It was a short meeting. Really, I just remember Mr. Buckingham wanting intelligent design in there. And so we took -- I don't remember Mrs. Harkins suggesting any additional language. So really what happened is, we simply married Mr. Buckingham's language with Mr. Bonsell s.

Q There s, under the "concerns to be addressed" there is an item four. I want to ask you, did you know why that item was there?

A Because we were still wrestling with how we were going to use Of Pandas and People -- oh, while that wasn t decided, but earlier on when Of Pandas and People came up and us thinking about how we might use it, Dr. Nilsen asked me to check in the curriculum guides for areas that we might reference materials. In other words, Dr. Nilsen suggested that if we do use Of Pandas and People, that it be referenced so that it would be a board approved book in the curriculum so that teachers --

MR. ROTHSCHILD: Objection, Your Honor, this answer is hearsay, move to strike.

MR. GILLEN: He's just -- Judge, how can he testify except what he's doing and why. That's his -- he s generating these documents as assistant superintendent. He's trying to explain why.

THE COURT: Using that excuse, hearsay would always come in.

MR. GILLEN: Well --

THE COURT: You ve got to do a little better.

MR. GILLEN: Well, no.

THE COURT: He's repeating what Dr. Nilsen said --

MR. GILLEN: Well --

THE COURT: -- that looks like hearsay to me.

MR. GILLEN: Let me ask it a different way.

THE COURT: So I'll sustain the objection. I ll strike the passages that represent direct quotes from Dr. Nilsen because they appear to be hearsay.

BY MR. GILLEN:

Q Did -- Mike --

THE COURT: Any time you want to complete this line of questioning consistent with our agreement to finish up, however, or if you see a point where you want to break, Mr. Gillen.

MR. GILLEN: I'll wrap it up here. Thank you, Your Honor.

BY MR. GILLEN:

Q Mike, just looking at this item four under "concerns to be addressed," did you do anything in your capacity as assistant superintendent related to this item?

A I put Of Pandas and People later in a draft in the reference.

Q And why did you do that?

A So that teachers would be protected because they would have a board approved book so there's no liability there for teachers if anybody challenged it or objected to it.

MR. GILLEN: That is a good breaking point, Your Honor.

THE COURT: All right. Then we will call an end to the proceedings for this week.

Mr. Rothschild, do you have something you want to say before we go?

MR. ROTHSCHILD: I just want to clarify witness order. I understand that there's a witness coming from out of town, he'll start on Monday, and I am assuming Mr. Baksa will continue after that?

MR. GILLEN: Actually, I think I'll put on Mr. Bonsell and get him through, so we'll have another board member done.

THE COURT: Starting first thing Monday?

MR. GILLEN: Mrs. Cleaver is coming from Florida, she'll go on first. Then I'll put on Mr. Bonsell, and I think he'll take a good part of the day, probably the whole day. If there is more time for Mike, I'll put him on towards the end.

MR. ROTHSCHILD: I guess -- it just seems like it s getting broken up more than is necessary to accommodate witnesses, but I'll leave that to your discretion, Your Honor.

THE COURT: Well, it's his case, and we ve all tried to work collaboratively to do it that way. Poor Mr. Baksa has his testimony broken up in at least three pieces and now --

MR. ROTHSCHILD: I'll do my cross straight.

THE COURT: Yeah, probably --

MR. GILLEN: Could I break up his cross?

THE COURT: There's probably not going to be any time for that, but so it goes.

All right. Then we'll start with another witness, a separate witness, not with Mr. Baksa, and we'll return to Mr. Baksa at a point probably after Monday, to answer your question, is what it appears to me.

MR. GILLEN: That's my guess.

THE COURT: All right, I wish you all a pleasant weekend. I will see you Monday. We'll resume the trial on Monday at 9 a.m. Our trial days next week, just to revisit this, so we're all on the same page, will be Monday, Wednesday, Thursday and Friday.

All right, we'll be in recess until Monday.

THE DEPUTY CLERK: All rise. (4:20 p.m., court adjourned.)