Kitzmiller v. Dover Area School District
Trial transcript: Day 19 (October 28), AM Session, Part 2
THE COURT: All right. Mr. Gillen, you may pick it back up.
MR. GILLEN: Thank you. Your Honor, may I approach the witness?
THE COURT: You may.
THE WITNESS: Can I set these here?
THE COURT: Yes.
THE WITNESS: Can I set these here?
THE COURT: You can ask Mr. Gillen, too. We'll let him weigh in on it.
DIRECT EXAMINATION ( CONTINUED)
Q. Oh, Lord. All right. We're moving past the August meeting into the fall of 2004 and some developments that relate to the biology curriculum. And I'd ask you to look at Defendants' Exhibit 44.
A. Okay.
Q. Do you recognize that?
A. This first is the memorandum. Is that what we're looking at?
Q. Yes.
A. This is of September 21st, 2004. It is the recommended curriculum change for biology.
Q. Okay. Do you remember receiving this?
A. Not as I sit here, no, I don't.
Q. Well, flip the page and take a look at the next page. I think that will help you. Look at the page with the baits number 32 on it. Do you remember receiving a document like this from Mr. Baksa in the fall of 2004?
A. It looks familiar, but I don't remember getting it at that time, but I do remember seeing this. Is that what you're asking?
Q. Yeah.
A. Yes.
Q. That's it. Now let me ask you to look at Defendants' Exhibit 46.
A. Am I supposed to keep ahold of this one, too?
Q. No, that's fine. Just on to 46, please.
A. Okay.
Q. Do you recognize that document?
A. Yes. Obviously, this would be a memorandum, and, obviously, who it's to is to the curriculum committee members.
Q. Look at the reference to a meeting.
A. October 7th, 2004, 3:15. Okay.
Q. Okay. Do you remember receiving this memo?
A. No.
Q. Do you remember attending a meeting on October 7th?
A. No, but I probably did.
Q. Let me ask you. Well, let me stop here. Before we go on, look at Defendants' Exhibit 46?
A. Yes, I do. I do remember now. I do, thinking about it.
Q. Okay.
A. Do you want me to look at 46 yet, or what did you say?
Q. Okay. Do you remember seeing it now?
A. I remember -- I now visualize, I'm pretty sure, the meeting.
Q. With that in mind --
A.
A little bit.
Q. I want you to look at Defendants' Exhibit 50.
A. Yes.
Q. Do you recognize that document?
A. Yes, this is all the recommendations for all the different curriculum changes.
Q. Okay. Before we go to that, I want you to tell me, do you remember there was a time when textbooks Of Pandas were donated to the school district?
A. Yes, I do.
Q. And I want to ask you, did you have a role in securing that donation?
A. No role whatsoever.
Q. Did you discuss the donation of the book with anyone?
A. No.
Q. And did you contribute any money personally to the purchase of the book?
A. I did not.
Q. Let's look at the Exhibit 50, and let me ask you, do you remember attending a meeting on October --
A. You know what. Am I supposed to get rid of this curriculum meeting --
Q. No. Is that Exhibit 50, Sheila?
A. Yeah. Excuse me. Yes.
Q. Okay. And I'd ask that you direct your attention to that.
A. Yes.
Q. And I'd ask you whether you remember being at a meeting on or about October 17th, 2004?
A. Yes, I do.
Q. Do you remember seeing this document?
A. Yes, I do.
Q. Okay. Let's talk about that. I notice that there is no position attributed to you on this memo. Is there a reason for that?
A. I just wanted to go to the meeting and see what other people had and listen to their arguments.
Q. Well, let me ask you a little more about that. At this time, you have in front of you a document entitled proposed curriculum changes. Did you have a strong opinion on whether a curriculum change was necessary or desirable?
A. I had no strong opinion whether it was necessary, no.
Q. So why are you attending this meeting?
A. I wanted to hear their arguments for it.
Q. And what do you mean by that?
A. I want to hear what they have to say, what they want, and why.
Q. Okay. Now you've been on the board curriculum committee in 2004 and party to some discussion between board members and teachers?
A. Yes.
Q. Did you have a sense as you attended this meeting concerning whether those discussions were at all fruitful?
A. Yes. I thought the administration and the teachers were working together to come up with something, an option.
Q. If you look at Exhibit 50, at the page bait stamp 35, under the heading, A, recommendations, there's a number of positions that have been laid out there. Do you remember looking at those?
A. Yes, I do.
Q. And do you remember having a sense for whether they were different, and if so, how?
A. Well, yeah. Mr. Buckingham's was the only one that had intelligent design. Casey wasn't at the meeting. She didn't come. But she sent this in. Alan's was, to me, very similar to the administration's and staff's.
Q. Okay. Do you recall whether it was a long meeting?
A. No, it was not.
Q. I'd ask you to direct your attention to the portion of Exhibit 50 --
A. Excuse me.
Q. If you would look at the page of Exhibit 50 that has 36 stamped in the lower right-hand corner?
A. Yes.
Q. And you'll see some handwritten notations?
A. Yes, I do.
Q. Do you have an understanding concerning how those notations got there?
A. Yes. We discussed it. And as I listened to them, part of my argument was, well, if you want to mention other theories of evolution, you ought to have an example of what other theories are. So I sided with Bill because I felt, just saying, other theories, well, what are other theories? So Alan went along with us and agreed to include, but not limit to, intelligent design.
Q. All right. We're leading up to the meeting of the board on the 18th, so I want to just get you to look at a few documents and discuss those briefly with you. If you would look at Defendants' Exhibit 60?
A. 60?
Q. 60.
A. Okay.
Q. Do you recognize that document?
A. Do you want me to just look at the memorandum?
Q. Yeah. If you would, look at both pages. Do whatever it takes to see if you recognize that document?
A. I'm sure I got this. I don't remember, you know, getting it at the time, but it looks familiar.
Q. Okay. Well, let me ask you to look at the subject matter of the memo, which is Defendants' Exhibit 60, at the page with the number 17 in the lower right-hand corner.
A. 17, memorandum?
Q. Yeah.
A. Yes.
Q. Do you see a description of the attached document?
A. It says, attached are the recommended changes to the biology curriculum from the board curriculum committee.
Q. Okay. With that in mind, I'd ask you to flip to the page of Defendants' Exhibit 60 which has the page 18 stamped on it?
A. Yes.
Q. Looking at that document, does that strike you as the board curriculum committee's --
A. Yes, it is.
Q. Now I'd ask you to look at Defendants' Exhibit 61.
A. Okay.
Q. And again, I direct your attention to the description of the attached document on the page of Defendants' Exhibit 61, bait stamped number 19 in the lower right-hand corner?
A. Yes, I apologize. Yes, attached are the recommended changes to the biology curriculum from the administration and staff.
Q. Okay. And I'd ask you to flip to the next portion of that exhibit with the bait stamp number 20 on it?
A. Yes.
Q. And examine that document. Do you recognize that?
A. Yes, that's -- that was from the --
Q. Do you remember receiving this in the period leading up to the October 18th, 2004, board meeting?
A. Like I said before, I'm sure we did -- I did, but --
Q. Okay.
A. My recollection --
Q. Do you recognize the document?
A. Yes, I do.
Q. Okay. Thank you. Look then next at Defendants' Exhibit 68?
A. 68. Okay. This says, attached is a second draft of the recommended changes to the biology curriculum from the administration and staff.
Q. Again, I'd ask you to direct your attention to the second page of that exhibit, which has the baits number 22?
A. Okay.
Q. Do you recognize that document?
A. Yes, this has the note, the origins of life is not taught.
Q. Okay. Do you remember receiving this document as you went into or leading up to the October 18th, 2004, board meeting?
A. No, but I did see this.
Q. Okay. Do you remember voting on three versions of the curriculum change that night?
A. Yes.
Q. Defendants' Exhibit 60.
A. Excuse me. I'm sorry.
Q. That's quite all right. Defendants' Exhibit 60 is one version, correct?
A. Okay.
Q. Defendants' Exhibit 61 is another version, correct?
A. All right.
Q. And Defendants' Exhibit 68 is a third version, correct?
A. Yes.
Q. Okay. Do you remember seeing any other versions in the lead-up to the October 18th, 2004, board meeting?
A. Not to my recollection, no.
Q. Let's talk about the board meeting. As you went into the board meeting, did you see a big difference between the various versions?
A. No.
Q. Do you remember any public comment being made at the beginning of the October 18th board meeting?
A. Yeah, this is when, I believe, Bert got up and talked, and it became apparent that she strongly did not support having the words intelligent design in the curriculum change.
Q. Okay. Do you remember anything specific she said?
A. Yeah. She quoted several different law cases.
Q. Do you remember a response to Ms. Spahr's statement?
A. Yes, Mr. Buckingham said, where did you get your law degree?
Q. Did you have a reaction to that statement?
A. (No response.)
Q. What was that reaction?
A. He shouldn't have said it.
Q. Do you remember anyone else who spoke at that meeting?
A. Yeah. I remember Jen Miller talked, but I don't remember what she talked -- I'm trying to think what she talked about.
Q. If you would, Sheila, speak into the microphone.
A. I'm sorry. I was thinking. I was trying to think at the same time. I apologize.
Q. That's all right.
A. Yes.
Q. When you say Bill shouldn't have offered that retort to Bert's comment, what do you mean by that?
A. That wasn't nice.
Q. Well, let's talk about the process of voting. Do you remember how that process began?
A. Yes.
Q. Okay.
A. Noel started out. He made several different changes or motions. He made several different motions of different options.
Q. Okay. You know, to help you out here --
A. Is that what you're referring to?
Q. Yeah, I'm referring to what you remember, but let's do this to try to help you out. Would you look at Defendants' Exhibit 64? Again, I'd ask you to look at the page with the baits number 158 in the lower --
A. 158?
Q. 158.
A. Okay.
Q. Now let me ask you. What was your reaction to Noel Weinrich's motions?
A. I didn't get the point.
Q. What do you mean by that?
A. I didn't understand what his point was that he was trying to make.
Q. Did you see any meaningful difference in the versions of the curriculum change that were in front of you at that time?
A. No.
Q. Okay. How about Mr. Weinrich's motions? Did you see them having a point?
A. I didn't understand where he was going with it.
Q. You've mentioned some objection that the teachers made at the beginning of this meeting. Did you agree with the objections that were being raised to the curriculum change?
A. Run that by me again.
Q. Sure. You've mentioned that there were some objections to the proposed curriculum changes that were voiced in the public comment?
A. Yes.
Q. And I believe you said that they were voiced by the teachers, is that correct?
A. Yes, that's correct. They were concerned they were going to be forced into teaching creationism, I think.
Q. Okay. And do you recall whether there was a response to that from board members?
A. They were told they were not teaching creationism. We were not having them teach intelligent design even.
Q. Do you remember, during the process of the voting, Mr. Bonsell making a motion to amend?
A. Yes. Yes, he made the motion to add on a note, the origins of life, you know what I mean, that note, yes, onto our board curriculum committee recommendation motion.
Q. Did you have an understanding of Mr. Bonsell's purpose in doing so?
A. It was to address that concern.
Q. And what concern?
A. The concern that they were not going to be teaching intelligent design. They weren't going to be teaching -- if they interpreted it as creationism, they weren't going to be teaching that either.
Q. Did you vote to support the motion proposed by Mr. Bonsell?
A. Yes, I did.
Q. And why did you do that?
A. Because they do not teach origins of life. Is that what you're asking?
Q. That's what I'm asking.
A. And to direct their concerns, to direct the teachers' concerns.
Q. And is it your recollection that the final version of the proposed curriculum change was worked out on this night of the meeting?
A. Yes, it was.
Q. Do you remember board members resigning at the conclusion of this meeting?
A. Yes, I do.
Q. Tell us what you remember about that.
A. At the end of the meeting, Casey resigned first, and gave a lengthy dialogue chastising the board, and then Jeff resigned, too.
Q. And what was your reaction to their resignation?
A. I was extremely disappointed.
Q. And why is that?
A. They're my friends.
Q. Some criticism was made of the board in connection with these resignations. Did you agree with that?
A. Excuse me?
Q. Some criticism was made at the board with respect to these resignations in evidence here. Did you agree with that criticism?
A. What did you say? I'm sorry.
Q. Excuse me.
A. I'm sorry, Pat. Excuse me.
Q. You've mentioned the statements that Mrs. Brown made?
A. Yes.
Q. Did you perceive that as critical of the board or favorable?
A. Critical.
Q. Did you agree with the criticism she offered?
A. No, I felt hurt.
Q. At the time that this curriculum vote was taken, were you voting for a religious reason?
A. No.
Q. I'd ask you to look next at Defendants' Exhibit 65.
A. Okay.
Q. Do you recognize this document? Maybe if you flip to the next page?
A. Okay. Yes. This is the statement that's read. Excuse me. Okay. This is the statement that the administration reads. Is that what you're asking?
Q. Did you play any role in drafting that statement?
A. No, I did not.
Q. Do you recall reviewing the draft at some point?
A. Yes, I do.
Q. Now let me ask you. When the curriculum change was put in place, did you believe a statement would be necessary?
A. No, I did not.
Q. Did you have something in mind when you voted for the proposed curriculum change?
A. I just felt the teachers would present it however they saw fit.
Q. And did you see a problem with that?
A. No, not at all.
Q. As we move forward from this meeting, let me ask you. Did you become aware of a controversy surrounding the reporting on this meeting, the press reporting?
A. Yeah.
Q. Okay. Tell me what you recall about that.
A. We've had problems. We've had strained relations with the newspaper for some time. And it wasn't a good situation.
Q. Well, you perceived this strained relation. How far back does it go?
A. It goes back, jeez, when -- when we were doing the building project, the newspapers took a position against us, as the board of directors, us, the conservative board of directors. They wrote editorials against us. And took positions that way.
So that each -- so we've had strained relations for some time. And then another instance, we had -- when we did the pledge, it seemed almost deliberate that the newspaper, they put in, in the front of the section, they put a little block of what you're doing, and they're putting, the Dover School Board wants to take under God out of the pledge. And then the next meeting, we had -- I mean, we had -- our room was more than packed.
Q. Was the board contemplating taking under God out of the pledge?
A. No, we were not.
Q. Do you remember Mr. Buckingham saying anything in connection with that meeting?
A. Excuse me?
Q. Do you remember anything that Mr. Buckingham said that was reported in connection with that meeting?
A. He said something the meeting before.
Q. Okay. Tell us about that.
A. When the motion for the pledge for under God came up, they wanted to send a resolution supporting under God. This is when the big issue was up, I don't -- when the lawsuit was with the Supreme Court or whatever. He wanted to send a resolution. And I raised my hand and said that I couldn't -- I didn't support the resolution.
And Bill immediately -- before I even got my statement finished, he comes down my throat verbally at me and shouts, 2000 years ago, somebody died on a cross for you. Can't you take a stand for him? And to that, Jeff Brown comes to, if you want to call it, to my defense, and goes, whoa, you know, are you saying that's a Christian God in the pledge? And we were off to the races at a big verbal heated debate.
Q. Did you understand that other board members shared Mr. Buckingham's criticism of you? Did they express support for that position?
A. Oh, no. Jeff and Casey both supported my position the first meeting. And in the second meeting, when we voted, Jeff and I were the only two that did not support the motion.
Q. Did you ever do anything?
A. I was going to say, I did get to explain my position though.
Q. Okay. Let me ask you this. Did you ever do anything personally to address what you perceived as inaccurate reporting?
A. Yes.
Q. Tell us what you did.
A. I regrettably had words with Joe.
Q. Joe who?
A. Maldonado.
Q. And when was that?
A.
A couple times. I got to the point that I didn't talk to him.
Q. Is this prior to the curriculum dispute or in connection with the curriculum dispute?
A. Before that.
Q. What was the issue that you were complaining about? What reporting concerned you? What was the issue? Do you recall?
A. There were numerous. I don't have anything particular.
Q. Okay. Let me ask you to look at Defendants' Exhibit 103.
A. Okay.
Q. Do you recognize that?
A. Biology curriculum press release. Yes.
Q. Do you recognize that?
A. Yes.
Q. Now let me ask you, when the curriculum change was voted for on October 18th, 2004, was there any discussion for a need for a press release?
A. Yes, there was. People came from the community and said they wanted more information, and there were concerns -- people came there and said, why are you teaching creationism? Why are you teaching intelligent design? And we tried to explain to them, we're not doing that. And so I think it was Alan's idea that we put out something of our own to the community.
Q. Let me ask you to look at Defendants' Exhibit 119. Do you have it there, Sheila?
A. 119?
Q. Yeah.
A. I don't see 119. I see 113.
MR. GILLEN: Your Honor, may I approach?
THE COURT: You may.
MR. GILLEN: Thank you.
THE WITNESS: I still don't see a 119.
MR. GILLEN: Is that volume 2?
THE WITNESS: This starts with 171. Is it upside down? Okay, it's upside down. Excuse me. Okay. 119. Yes.
Q. Do you recognize that document?
A. (Witness nodded head affirmatively.)
Q. Do you remember seeing this?
A. I'm thinking. Yeah, I think I did, yeah, uh-huh.
Q. What was your reaction to that document?
A. This is when the Discovery Institute, as I recall this article, came out opposed to us.
Q. Did you agree with it?
A. No.
Q. Why was that?
A. I thought the Discovery Institute supported intelligent design.
Q. Let me ask you about the placement of Pandas. Do you know where the Pandas books were placed ultimately?
A. In the library.
Q. Do you believe that placing the books there is consistent with the curriculum policy?
A. Yes.
Q. Why is that?
A. That's where I always thought they were going to be.
Q. Excuse me?
A. That's where I thought they were always going to be.
Q. We've had you look at a statement that was drafted and passed on to you for your review. Did there come a time when you learned that the teachers did not read the statement?
A. Yes.
Q. And what was your reaction to that?
A. Upset, hurt. I guess, you know, disappointed.
Q. Why was that?
A. I guess I didn't understand why.
Q. Did you call for any action?
A. No.
Q. Why was that?
A. I think we were already sued, weren't we? I believe we were.
Q. And did you see a connection between the litigation here and whether any action should be taken with respect to the teachers?
A. Action against the teachers? Is that what you said?
Q. Yes.
A. No. Any action?
Q. Yes.
A. (Witness shook head negatively).
Q. Well, all I'm trying to do is, have you explain for the record here in court why you did not call for any action when the teachers didn't read the statement?
A. I guess I don't understand the action against -- I'm sorry, Pat. I'm not following your train of thought here.
Q. Okay. Well, let's just -- I guess we can leave it at that. Did you want any action to be taken against the teachers?
A. No.
Q. Do you have an understanding concerning who ultimately did read the statement to the students?
A. The administration.
Q. Let me ask you. When you voted for the curriculum change on October 18th, 2004, did you contemplate that the administrators would read the statement?
A. No. I didn't contemplate when we passed the motion there would be a statement.
Q. What did you have in mind?
A. Like I said before, that the teachers would just say whatever they felt they needed to say.
Q. Okay. Let me ask you this. Did there come a time when Dover Area School District put out a newsletter relating to the curriculum change?
A. Yes.
Q. Okay. And do you know whose idea it was to put that out?
A. No, I don't.
Q. Did you support sending it out?
A. Yes.
Q. And why?
A. I just thought it was good to give the community more information.
Q. How about --
A. So they understood better what we were doing. I think it was -- yeah.
Q. Okay. Let's talk about donations of other books. Did there come a time when you became aware that other books relating to the biology --
A. Yes.
Q. -- curriculum had been donated to the school district?
A. Yes.
Q. And do you have an idea for when that happened?
A. In the spring sometime.
Q. And how did the books come to your attention?
A. Somebody told me they got an e-mail or something at school, and they had arrived -- a box -- excuse me.
A box had arrived -- how was it. They got an e-mail, and they didn't know -- let me think back exactly how it was. I think the administration got an e-mail saying they had a donation of books, and it was from a group called Debunk Creation, and what they were going to do with it, something like that.
Q. Okay. Did you review the books?
A. Yes, I did.
Q. And why did you do that?
A. I wanted to see what these books were that came at our door step.
Q. And you referenced coming to your door step. Was there something about the circumstances of their arrival that you found unusual?
A. Well, they arrived, I guess, the secretary signed them in, and nobody knew they were there even. Somebody had to go hunt for them, I think it was.
Q. And I think you said you reviewed the texts?
A. Yes, I did.
Q. And did you approve placement -- or inclusion of the texts in the library?
A. Yes.
Q. Why did you do that?
A. I thought that -- I like books. I thought, you can give them information. If it's additional material, good.
Q. Okay. Did there come a time when you learned that Dr. Nilsen changed the statement that's read to students?
A. Yes, I did.
Q. And do you know the nature of the change? Did it relate to these books?
A. To say we had more books, I think it was.
Q. And do you believe that's consistent with the board curriculum change adopted on October 18th, 2004?
A. I do.
Q. Why is that?
A. Because we support additional information. We support teaching kids, you know, anything we can in addition -- you know, give anything available we can provide for them, that's what we want to do.
Q. Okay. Let me ask you. When you voted for the curriculum change on October 18th, 2004, did you have a religious purpose in doing so?
A. No, I did not.
Q. What was your purpose?
A. I just thought it was good to add additional information. I thought, you know, we are -- we are a standards driven school. But when kids walk across that stage, you want them -- you want them to know how -- not just what to think, but how to think. I thought, this is another way to maybe make them think.
MR. GILLEN: I have no further questions, Your Honor.
THE COURT: All right. Thank you, Mr. Gillen. Cross by Mr. Schmidt.
Q. You need more water, Mrs. Harkins?
A. No, I don't. I'm good. Thank you. Nice to see you again.
Q. You, too. I think you've testified in response to Mr. Gillen a bit about your career on the school board, but let me ask a few additional questions. As I recall your testimony, you ran for reelection with a ticket including three other members, including Alan Bonsell, in 2001. And in the course of that election, you became, in effect, a part of a majority on the board, having been part of a minority before that. Did I sum that up correctly?
A. Very well.
Q. In December 2004, you were elected president of the board, isn't that right?
A. Yes, sir.
Q. And you conducted at least an informal campaign for that position, didn't you? Didn't you solicit votes from other board members for that position?
A. No, I didn't.
Q. Just sort of happened out of the blue?
A. No. What we did, we were taking turns. My turn would have been before, but I never really wanted my turn before. I wasn't, you know, seeking a turn. I had more seniority than other board members, but I didn't take a turn. And I now was available to take a turn.
Q. So you welcomed the opportunity to be president, is that a fair statement?
A. That's a fair, I guess, yeah.
Q. Now as president of the board, you've done a number of things that have some bearing on this litigation, and I'd like just go over a few of them with you?
A. Okay.
Q. One thing you've done, and I've noticed, you've been here for nearly every day of the testimony, isn't that right?
A. That is correct. I've tried.
Q. You've heard the witnesses testify about many of the same subjects that you've testified about this morning?
A. Yes, sir. Yes, sir.
Q. Second thing you did of pertinence is, as board president, you appointed, if that's the right term, Alan Bonsell to serve as the board's liaison or representative in establishing a relationship with a lawyer and eventually with the Thomas More Law Center?
A. That is correct.
Q.
A third thing that you did involved the publication of a newsletter for the Dover Area School District that you just spoke about with Mr. Gillen, isn't that right?
A. I didn't initiate it.
Q. Who initiated that, Mrs. Harkins?
A. I don't know. I would guess -- I don't remember who brought it up and asked for the newsletter be sent out. I don't remember that.
Q. Let me show you two exhibits.
A. Okay.
MR. SCHMIDT: May I approach the witness, Your Honor?
THE COURT: You may.
THE WITNESS: Okay.
Q. I think you have already seen, so I won't burden your table with it, Plaintiffs' 127, which is the newsletter. Do you understand the newsletter I'm referring to?
A. Well, okay, yes.
Q. The one that's up on the screen?
A. Uh-huh.
Q. Okay. Now the exhibit that I've handed you are the minutes of a meeting in February of this year. Do you see that?
A. Yes, sir.
Q. Look under number 1, communications?
A. Yes, that's presented by Mrs. Harkins, okay. I didn't remember I presented that.
Q. And then look under number 2, board presidency?
A. That's what I was referring to, yes. Yes.
Q. It says there that this newsletter, as I understand it, was presented by you at the meeting?
A. All right.
Q. And you were president of the board?
A. Yes, I was.
Q. You were aware of the efforts to prepare a newsletter, is that right?
A. Yes.
Q. You knew somebody prepared it?
A. Yes, I did.
Q. Is it your testimony today that you don't know who prepared it?
A. Why don't you ask the administration? They're up next. I'm not sure. No, I don't.
Q. Did you agree with it?
A. Yes, I did.
Q. You approved sending it out?
A. Yes, I did.
Q. Okay. Now the fourth thing that you did that's pertinent to this case, among a number of things, was you testified on January 3rd --
A. Yes.
Q. -- as one of four representatives of the school district in connection with the Plaintiffs' decision whether or not to pursue a temporary restraining order, isn't that right?
A. That is correct.
Q. And on January 2nd, in the evening, you, Mr. Buckingham, Mr. Bonsell, Mr. Nilsen, and Mr. Baksa met with the district's lawyers, Mr. Thompson and Mr. Gillen, for several hours to prepare for those depositions, isn't that right?
A. Two, less than two, I think it was.
Q. And that was a meeting that all of you participated in at the same time?
A. That is correct.
Q. And you understood what the purpose of those depositions was when you were preparing for them, isn't that right? You knew that they were pursuant to an order from Judge Jones to allow discovery prior to the decision to pursue a temporary restraining order?
A. Okay, yes.
Q. You did know that, didn't you? And you were deposed by Mr. Harvey, my colleague, who's been in court?
A. Yes, that is correct.
Q. Now during that deposition, you reviewed a number of press reports involving the district's consideration of a biology textbook in June of 2004, isn't that right?
A. That is correct.
Q. Now I think I understand this, but let me confirm it. You take the York Daily Record at home?
A. That is correct.
Q. You read it every day?
A. No, that is not correct. I get it every day. I read it from walking -- carrying it into my husband, so that would be, you know, then I might glance through it. Some days, I don't read it. Some days, I do. When I say, you know -- you know, so, no.
Q. Fair enough.
A. Is that okay?
Q. That's fine. That's fine. Prior to the deposition on January 3rd, you were aware that there had been extensive coverage of the board's meetings in June of 2004 and the discussions of the biology textbook?
A. Yes, I was.
Q. Now you've said today that you thought some of the board's activities had been misreported, particularly by Mr. Maldonado?
A. There were strained relations.
Q. The strained relations, as I recall your testimony a few minutes ago, was because board meetings had been misrepresented by Mr. Maldonado and his articles that appeared in the York Daily Record, right?
A. No, that's not true. These strained relations happened before we were elected on the board even with the building project.
THE COURT: I'm having trouble hearing, you and I'm sure the court reporter is, too.
THE WITNESS: I'm sorry. I'm thinking with my eyes closed. I'm sorry.
Q. I think you testified a few minutes ago that the strained relations arose from how the building issue was reported in the paper, and that involved events reaching all the way back to your run for reelection in '01, isn't that right?
A. That's correct.
Q. And I think you said, as I recall your testimony, that there was some misreporting or mischaracterization of the board's debate of the under God issue when a resolution was being considered to support the position of a party in a Supreme Court case?
A. That's correct.
Q. Now there weren't any other problems you had with Mr. Maldonado's reporting in the York Daily Record, were there, just those two?
A. I don't remember. There were other issues, but I can't give you any particulars. The relationships were strained.
Q. I'm trying to get at not whether the relations were strained, but whether you are able to identify any other issues that you thought involved misreporting in the York Daily Record. As I understand your testimony, Mrs. Harkins, the only issues involved the building project and the board's debate of whether or not to adopt a resolution to support the use of under God in the pledge of allegiance. Am I right about that?
A. No. There were several other ones. I know there was an issue -- I'm thinking back. Misreporting. Angie Yingling had issues, and there was some misreporting then. And I can't tell you what they all were. I'm sorry.
Q. That's all right. Let me ask you a follow-up question on that subject.
A. Okay.
Q. As I recall your deposition testimony, and I'm happy to show you the transcript --
A. Okay.
Q. -- but this may shorten it up.
A. Okay.
Q. The third subject is the one you just mentioned, which was some reporting of comments by or about Angie Yingling that you took exception to?
A. Yes.
Q. Isn't that right?
A. Something like that. I don't know.
Q. Okay. But at the time of your deposition, you did not identify any misreporting by the paper of the board's debate at the June meetings when the subject of the biology text was discussed, did you?
A. I probably couldn't think of anything.
Q. Now your testimony this morning is that, when the board was considering a biology book in June of '04, your view was that the books then in use looked new and that you didn't believe it was necessary to buy new books or newer books, is that right? That was your principal concern?
A. Yes, pretty much, yeah.
Q. That wasn't the concern that was expressed by everybody else on the board though, was it?
A. Oh, not at all, no.
Q. In fact, Mr. Buckingham thought the problem with the book was that it was laced with Darwinism?
A. You better believe it.
Q. Some people on the board wanted to find a book that balanced the teaching of creationism and evolution, didn't they?
A. I don't remember that.
Q. You remembered that there was no such discussion?
A. I don't remember that, no.
Q. One way or the other?
A. Huh-uh.
Q. Okay.
A. Correct.
Q. Now during the deposition that was taken, I think you were asked about some other statements by Mr. Buckingham?
A. Such as?
Q. Bear with me one minute.
A. Okay.
MR. SCHMIDT: May I approach the witness, Your Honor?
THE COURT: You may.
Q. Do you see that?
A. Uh-huh, yes, sir.
Q. If you would look down at P-53. Sorry, Matt. Seventh paragraph. It starts, 2000 years ago, someone died on a cross?
A. Yes, that is correct.
Q. Do you see that?
A. Yes, sir.
Q. Is it your testimony today that this statement was not made at the June 14th board meeting by Mr. Buckingham?
A. That's my testimony, that I never heard him say it there. I heard him say, I think, I believe, I should say, I believe I heard him say the one above that, but I don't remember the 2000 one, no.
Q. The one above that, you're referring to the paragraph that refers to a generation that prayed and read from the Bible during school?
A. No, the one above that, the liberals in black robes.
Q. Okay. Do you recall him saying that?
A. Something -- I remember something to that effect, I think.
Q. It's come up with other witnesses, Mrs. Harkins, and I want to be clear about that question.
A. I'm sorry.
Q. That's quite all right. You're doing fine. This article says that Mr. Buckingham said, 2000 years ago, someone died on a cross?
A. Right, correct.
Q. Is it your testimony today that he did not say those words at the June 14th --
A. I cannot say.
Q. Wait for me -- that he did not say those words on June 14th?
A. I didn't hear him. I didn't hear him say those words. I don't have any recollection of it. I don't.
Q. In fact, you have a clear recollection that he said those words in November of 2003, isn't that right?
A. He jumped down my throat.
Q. Is that why you recall him saying it in November 2003?
A. Right, because he -- I mean, he bit my head off.
Q. Now is it possible that he said those words on June 14th, 2004?
A. I could have been coughing.
Q. Say that again. I missed that.
A. I could have been coughing.
Q. Turn the page, if you would. P-53. Please look at the fourth paragraph down.
A. Which one?
Q. Fourth down. Starts with the word also. Do you see that?
A. Yes, sir.
Q. You recall Mrs. Buckingham saying those words at the board meeting on the 14th?
A. Since I've been sitting in court, I do, but I did not remember that at all when I gave my first deposition. I know I didn't.
Q. But you remember it now?
A. Yes, sir.
Q. Do you remember saying at your first deposition emphatically that she didn't say that?
A. I didn't remember that at all, you're right. I did not. Because I thought she only got up and, quote, unquote, preached once. But maybe she preached twice. I don't know. Or maybe this was the only time.
Q. I want to be clear about what you're saying now, Mrs. Harkins. Is it your testimony that you didn't remember this before, but you remember it now?
A. Since I sit in here, yes, that's correct.
Q. And isn't it true, at your deposition, in fact, you said emphatically that she made this statement in November of '03?
A. I thought that's when she made it, that is correct.
Q. Well, for the moment, you've saved me a trip up to the witness stand. Let me ask you some questions about Pandas.
A. Yes, sir.
Q. You got the Pandas book from either Mr. Baksa or Mr. Nilsen sometime in the summer of 2004, correct?
A. That's correct. Mike.
Q. You had it for a very brief time, and you gave it to Jeff Brown?
A. That is correct.
Q. I think you said you had it for about an hour or two, is that right?
A. That's correct. That's all I had it for, that's correct.
Q. And you glanced through it?
A. That is correct.
Q. Did you study it?
A. No.
Q. Do you remember what parts you read?
A. No.
Q. How did you reach the conclusion that it was science and that it didn't have anything to do with creationism, Mrs. Harkins, if you only looked at it for an hour?
A. That was my opinion after looking at it for an hour.
Q. And that remains your opinion today, and it remains so based on just that hour's review of the book, isn't that right?
A. Yeah, there are things in there I don't like that I've seen since, but, yes. It looks okay for the library.
Q. Looked okay to add to the curriculum, isn't that what you mean to say?
A. I don't see a problem with that. But we have the other books added, too, to the curriculum.
Q. Jeff Brown told you that it offended him because he thought it was religious in nature, didn't he?
A. I'm trying to think what exactly -- he looked at the book as -- I think he said it offended his religion.
Q. It offended his religion on religious grounds, didn't it?
A. Yeah, I would say so, yes.
Q. And Jeff Brown also told you that he thought it was surprising that you would be willing to spend about $4400.00 to buy Of Pandas because of your fiscal conservativism?
A. I never said I was willing to spend $4400.00, never.
Q. You knew that was how much it was going to cost to buy the 220 books?
A. I never said we were going to buy the 220 books.
Q. You knew Mr. Buckingham proposed that the district acquire Of Pandas and People and make it a companion text with the biology book, didn't you?
A. I remember something to that effect.
Q. That, in fact, was the subject of the debate at the board meeting on August 2nd, wasn't it? Do you recall that, Mrs. Harkins?
A. I remember the debate, but I don't remember that -- it may have been said -- that was a huge multi-faceted, if you will, debate.
Q. Wasn't the essence of Mr. Buckingham's position on August 2nd that he wanted the district to have Of Pandas and People be a companion text with the Miller and Levine biology text?
A. I believe you're right, yes.
Q. Isn't it true that Mr. Buckingham advised the board and the school's administration that he could acquire, or the district could acquire, the 220 volumes that would be needed for $4400.00?
A. I don't remember the cost, but I remember -- I think you're right, that he did propose something of acquiring them, yes.
MR. SCHMIDT: May I approach the witness, Your Honor?
THE COURT: You may.
Q. I'm showing you Exhibit 65.
A. Okay.
Q. Take a minute to look at it.
A. Okay.
Q. That's a memorandum from Mr. Buckingham --
A. Okay.
Q. -- involving his position that Of Pandas should be purchased as a companion text, isn't that right?
A. It appears so, yes.
Q. And it does say that the cost to the district afforded by the distributor would be $4391.20, plus shipping, right?
A. Yes, that is correct.
Q. And isn't it true that Mr. Brown was surprised and expressed his surprise to you that you would be willing to spend that money given some of the budget cuts that the board had authorized or was considering?
A. I don't remember him ever saying that, no, I don't.
Q. Isn't it true that around the time that this issue came up, you had cut the library budget at Dover High School?
A. No, we increased the library budget.
Q. Isn't it true you were considering charging volunteers in the school district a $10.00 fee to defray the security checks that had to be performed?
A. No, that's not true. We've charged the people, I think, for two years -- ever since we initiated -- the state passed a law that you have to have checks on all your volunteers. And from that time, we've -- they've had to pay for their checks. I think it's $10.00.
Q. So there is a fee that the board requires, is that right?
A. But it was long before any of this.
Q. Okay.
A. Long, long.
Q. Let me take you forward in the summer of 2004.
A. Okay.
Q. You've had the book. You've passed it on to Mr. Brown. And the meeting on August the 2nd includes the debate that we just touched on, which is whether or not to purchase the biology book with Pandas as a companion book, correct?
A. Correct.
Q. You recall that discussion?
A. That's correct.
Q. It's your testimony this morning that you decided to vote against purchasing the book because it was too expensive?
A. Yes -- well, we were short on money. We bought the family consumer science book.
Q. And, in fact, the money you said you were short was almost exactly the amount of money that it would have taken to purchase the book Of Pandas and People, according to Mr. Buckingham's memo, isn't that right? Didn't you say that you were $5000.00 short?
A. It was something like that, that we were short in the budget. No, that was what the biology books would have cost, we were short.
Q. I think your testimony this morning was, I just want to be clear about it, is that the biology textbook was an expense you didn't want the district to incur, and that the district, I think you said, was $5000.00 short in the textbook fund for that year?
A. That was my recollection, that's correct.
Q. And I think you said that the kids --
A. I think that's what the family consumer science books cost, if you look.
Q. I'm only asking you this, whether you thought the fund was short $5000.00?
A. That was my recollection.
Q. And the kids were just going to have to wait another year?
A. Those books were like brand new.
Q. Now it's true, isn't it, Mrs. Harkins, that you had already heard from the teachers on more than one occasion that the then current biology book didn't fit the curriculum?
A. That is correct.
Q. And you said today, and you've said before, that Dover is a standards driven district?
A. That is correct.
Q. And isn't it true that Dover had to adopt its curriculum to teach biology to conform to the Pennsylvania standards for teaching biology in public schools?
A. That is correct.
Q. And you had a '98 book?
A. That's correct.
Q. And the standards came out and the curriculum was modified to meet the standards several years after that book was published, right?
A. Yes, but they didn't use that book from before.
Q. Okay. And isn't it true that the reason they didn't use the book, to use your description, is because they had too many students who needed access to the books, so it was kept in the classroom rather than distributed to each student?
A. No, that's not true. Bert said, when they got the book back, it would have been '98, when they got the book, that they had only reviewed one chapter of it. When they got the book, they realized, in that period, that it didn't fit the curriculum.
Q. Isn't it true that in the spring of 2004, the biology teachers provided a multi-point response to the question why they needed a new science textbook?
A. When was this?
Q. In the spring of 2004.
A. I don't remember.
Q. Do you recall that?
A. No. Refresh my memory. I'm sorry. I do not remember that.
Q. If you don't recall it, you don't recall it.
A. No, I don't.
Q. I want to go back to my question about the curriculum, because you have expressed your testimony about the cost of the book?
A. That's correct.
Q. I want to be sure I understand that you knew at the time that the books didn't match the curriculum that had been adopted three or four years after the book was purchased by the district?
A. Then they were teaching the curriculum fine without -- with the information they were using, the supplemental information.
Q. So you made a judgment that the teaching was going just fine despite the fact that the teachers told you they needed the new book, is that your position?
A. That's pretty fair to say.
Q. I want to move on to the change in the curriculum.
A. Okay.
Q. Do you have the exhibits that Mr. Gillen gave you still up there?
A. Which one would you like? Which book?
Q. I'll point you through it. Just hang on to the book. It's the exhibits that started with 44.
MR. SCHMIDT: Bear with me a moment, Your Honor.
THE COURT: That's fine.
Q. I think you have a chart.
A. Okay.
Q. Plaintiffs' Exhibit 149. Do you have that in front of you still? I'll hand you mine.
A. Yes, sir. Yes.
Q. You have it?
A. Uh-huh.
Q. Your testimony this morning was that you gave that document to Casey Brown?
A. What was -- the other side is what I was focusing on. We really didn't focus on this side.
Q. Page 2?
A. No, only that side did we discuss.
Q. You recognize page 1?
A. That's the side we discussed, correct.
Q. Turn to page 1.
A. Uh-huh.
Q. Page 1 of 149.
A. Uh-huh.
Q. You've seen that one before?
A. Yes, that's the opposite side.
Q. You gave both sides of this piece of paper to Casey Brown, didn't you?
A. That is correct.
Q. You were here for her testimony, weren't you?
A. Yes, I was.
MR. SCHMIDT: Your Honor, may I approach the witness?
THE COURT: You may.
Q. I'm showing you what has been marked as Plaintiffs' Exhibit 660, and ask you to turn two or three pages in, and ask if you recognize those as the same document that shows up as P-129?
A. Yes, sir.
Q. Now turn back to the first page of that exhibit.
A. Okay.
Q. Do you see that handwriting in the top corner?
A. Yes, sir.
Q. What's the date there?
A. August 27th.
Q. And you recall Mrs. Brown testifying that she got these documents --
A. Yes.
Q. -- on August 27th?
A. I believe that Casey might have got that document on August 27th. But I think maybe this was not in the same pile. I gave her this one. I believe she may have got that one then.
Q. Isn't it true that you attended a curriculum committee meeting with Mrs. Brown on August 27, 2004?
A. I was at a curriculum committee meeting August 27th. I'm thinking if Casey was there or not.
Q. I think her testimony was, she was.
A. Okay.
Q. That's when she got those documents?
A. Well, does anyone else that was at the meeting have that document?
MR. GILLEN: I just want to object for the record to the clarification. I know you're trying to date it, Tom.
MR. SCHMIDT: That's all right.
THE COURT: Hold it. Wait a minute. What's the objection?
MR. GILLEN: The objection is, there's a question here about the dating of this document and receipt by Casey Brown. I do not -- the witness has testified she gave it to her in the spring.
THE WITNESS: I thought it was around June.
THE COURT: Wait, ma'am. Hold it. Don't talk while he's talking.
MR. GILLEN: And the document that was flipped up there, the version of the chart that's up there has spring of 2004 on it.
THE COURT: I'm just wondering, what's your objection?
MR. GILLEN: My objection is to the characterization of the witness's testimony.
MR. SCHMIDT: I think --
THE COURT: He's got her on cross.
THE WITNESS: No, he can ask me.
THE COURT: I think it was fair cross. So --
MR. GILLEN: Then let me withdraw the objection for now, Your Honor.
THE COURT: Did you have an unanswered question?
MR. SCHMIDT: I was going to ask one that might fill in the concern that Mr. Gillen raised with his objection.
THE COURT: So I'll consider that the objection has been mooted, and I'll allow you to ask the -- at least the objection to the prior question, and allow you to ask a new question. Try it that way.
Q. We have Mrs. Brown testifying that she got the document on August 27th?
A. Okay.
Q. We have your testimony that you gave Mrs. Brown the document?
A. Yes.
Q. You understand that?
A. That is correct.
Q. Okay. We've looked at P-149, which has handwriting in the top right corner?
A. Where's P-149?
Q. I can show it to you.
A. Okay.
Q. Let me bring it up.
MR. SCHMIDT: If I may approach the witness, Your Honor?
THE COURT: You may. It's on the screen also, I note.
THE WITNESS: Given to me by Baksa. Okay.
Q. I think we have testimony that, that's Jen Miller's handwriting and her notation of when she got the document?
A. Okay.
Q. Is it possible that you got the document at the same meeting that Jen Miller did and got it from Mike Baksa in the spring of 2004?
A. I don't know that. I thought I got it from a private person, but I can't swear that.
Q. Is it possible that you got it from a private person and gave it to Mike Baksa in the spring of 2004?
A. That is possible, too. That is very possible.
Q. It's also possible that you gave that document to Casey Brown in August of 2004, isn't it?
A. I thought I gave it to her earlier, but --
Q. You don't remember, do you?
A. I thought I -- my recollection was, it was around -- when we first started talking intelligent design, which was around June. That's how I placed it.
Q. Back to the curriculum change, if I could?
A. Okay.
Q. You've testified about the October 18th meeting. I need to ask you about the October 4th meeting, which was the planning meeting for the board, is that correct?
A. Right. I'm trying -- it's not coming up in my mind. Help me.
Q. Isn't it true that the board has two meetings every month?
A. Yes, sir.
Q. Except sometimes in the summer?
A. That is correct.
Q. And while we're on that subject, isn't it true that the board only had one meeting in July in 2004, July the 12th, because July 5th was the date adjacent to the holiday?
A. I don't remember, but I take your word.
Q. Okay. Back to July -- I'm sorry, back to October 4th.
A. Okay.
Q. There was no discussion of the proposed curriculum change at the October 4th meeting, was there?
A. I don't remember any.
Q. Yet you were aware that there was a curriculum change under consideration, weren't you?
A. We had been talking about one for sometime, yes.
Q. You knew on October 4th that Noel Weinrich and Jane Cleaver were resigning from the board, didn't you?
A. I knew when?
Q. October 4th.
A. I don't recall that I knew that.
Q. Okay. Didn't Jane Cleaver announce her resignation at the October 4th meeting?
A. I don't remember that.
Q. You knew that she purchased a house in Florida, didn't you?
A. Yes, I did.
Q. You knew that Mr. Weinrich was going to resign from the board, didn't you?
A. I knew Mr. Weinrich was going to be leaving, yes.
Q. You knew both of those people had announced their departure before the October 18th meeting rolled around, isn't that true?
A. I think they did. I think you're right.
Q. In fact, you knew that before the October 4th meeting rolled around?
A. I don't know that. I can't dispute that.
Q. Okay. Before the meeting on October the 18th, there was a meeting of the board curriculum committee to discuss the curriculum change?
A. Yes, sir.
Q. Isn't that right?
A. Yes, sir.
Q. If you would pull up the exhibits that Mr. Gillen identified, I'm going to ask you a few questions about them.
A. Okay.
Q. I'll walk you through them with my questions?
A. Yes, sir.
Q. Defendants' Exhibit 44. Do you have that in front of you?
A. Yes.
Q. That is the faculty and administration proposal, correct?
A. Correct. Yes, sir.
Q. It doesn't mention intelligent design?
A. That is correct.
Q. It doesn't mention Pandas?
A. Correct.
Q. Correct?
A. That is correct.
Q. Let's keep the dates straight. That's September 21, 2004?
A. Okay.
Q. One week later, Mr. Baksa sends just the board members who are on the curriculum committee, including Mr. Bonsell, who's ex-officio, a memo that asks for a meeting on October 7th, is that right?
A. Which one is that?
Q. I'm sorry. Exhibit 46. I just called out.
A. Okay.
Q. No faculty was invited to that meeting, were they?
A. No.
Q. And it was at that meeting that the decision was made by the four board members to add intelligent design to the curriculum?
A. That is correct.
Q. At that point, your familiarity with the concept of intelligent design was limited to whatever you saw in an hour's glance through Pandas and some Googling on the Internet, correct?
A. Pretty much, yes, sir.
Q. And I think your testimony today is consistent with your deposition, which is that, there was a reference to other theories and the only one anybody could identify was intelligent design?
A. That's correct.
Q. You didn't know what intelligent design really meant at that time, did you?
A. I still don't have -- I listened to many experts, and I still don't have a firm explanation.
Q. Having had that meeting with the board members --
A. Yes, sir.
Q. -- when it came time to have the board meeting on the 18th, you still couldn't get that position out of the faculty or the administrative staff, could you? They still didn't want to include intelligent design in the curriculum change, did they?
A. That's correct.
Q. Then there was the compromise, which appears behind Exhibit 68. Do you see that?
A. Yes, sir.
Q. That was proposed, metaphorically speaking, at the 11th hour, right before the meeting, isn't that right?
A. No, sir, it was, I think, done during the meeting.
Q. Well, if you look at the exhibit?
A. That's what I thought.
Q. I don't mean to jump you around, but if you look at the exhibit, there's a memorandum from Mike Baksa to the board dated October the 18th, correct?
A. Oh, okay. I thought that's the one we did at the meeting.
Q. Did you see where I'm looking?
A. Yes.
Q. Okay. This is a compromise proposed by the faculty and administration for consideration at the meeting, isn't that right?
A. Yes, that is correct, yes. I was ahead of myself.
Q. Still no reference to intelligent design?
A. That is correct.
Q. But an inclusion of a reference to Pandas?
A. That is correct.
Q. And you understood it was a compromise, didn't you?
A. I understood that this was what the administration staff was presenting. I can't say that I understood a compromise.
Q. It was something that they were prepared to live with since the members of the curriculum committee wanted intelligent design. Isn't that your understanding of happened on the 18th?
A. Run that by me again.
Q. I'll try it a different way, okay?
A. Okay.
Q. When you come to the meeting on October the 18th, you heard Mrs. Spahr make a presentation about why intelligent design should not be included in the curriculum, isn't that right?
A. Correct.
Q. She thought that it might be illegal?
A. That's correct.
Q. She thought it was not good science?
A. Correct.
Q. She thought it meant the teachers would be required to teach creationism?
A. That's correct.
Q. And Mrs. Spahr and Jen Miller were the only people with any special scientific training or education who spoke to that issue for the board?
A. That's correct.
Q. You didn't have the background to evaluate what they said or disbelieve it, did you?
A. That's correct.
MR. SCHMIDT: One moment, Your Honor.
THE COURT: That's fine.
Q. I think you testified this morning that you couldn't see the point to what Mr. Weinrich was trying to accomplish?
A. I didn't, yeah.
Q. Okay. And I think you said that you didn't see that it was a particularly big deal to add the phrase intelligent design to the curriculum?
A. I was -- I would say, I was one of the proponents of adding it for the reason I wanted something added. I didn't want it just to say, other theories. I felt you had to have an example.
Q. Okay. I understand what your testimony was. But the teachers said it was a bad idea to include a reference to intelligent design, isn't that true?
A. Well, they said they thought they were teaching it. We said they weren't teaching it.
Q. We'll get to that in a moment.
A. Okay.
Q. The teachers spoke against the inclusion of a reference to intelligent design, isn't that true?
A. That is true.
Q. And your testimony today was that you didn't think it was particularly significant to include a reference to intelligent design, isn't that right?
A. I didn't think it was particularly -- I don't understand.
Q. I thought that's what you said.
A. No. Excuse me.
Q. I think your testimony was that you didn't think adding the words intelligent design made a very big difference?
A. Not if you're only making them aware, that's correct.
Q. The teachers thought it made a big difference though, didn't they?
A. Only because they thought they were teaching it.
Q. So you thought the solution was, if they didn't have to teach it, then it didn't really matter, is that right?
A. That's why, if you want to call it, the 11th hour, Alan suggested we add the note, origins of life is not taught. That addressed that issue.
Q. Mr. Gillen, in his opening, referred to this curriculum change, and I wrote his words down, as a modest change to the biology curriculum for the purpose of enhancing science education, end quote. Do you recall that statement?
A. Yes, sir. I believe you. How's that? I don't know I recollect those exact words, but I believe you.
Q. The biology teachers thought it made a difference. The administration didn't support the proposal in several go arounds before the meeting. Am I right about that, Mrs. Harkins?
A. The teaching of it.
Q. The inclusion of a reference to it?
A. Excuse me?
Q. The inclusion of a reference to intelligent design was something that the teachers vigorously opposed at the meeting on October 18th, isn't that true?
A. But that was teaching of it. They always said, teaching.
Q. After the curriculum was adopted, the administration prepared the four paragraph statement that you testified about?
A. Yes, sir.
Q. I think, if you look at Exhibit 65, do you see that?
A. Yes, sir.
Q. I think you testified this morning that when you agreed to the curriculum change, you didn't think there would be a need for such a statement?
A. Correct.
Q. That's because you thought the teachers could handle the curriculum change in the classroom, isn't that right?
A. That is correct.
Q. And teachers teach, don't they?
A. Well, I've heard Bert Spahr say she mentions things that she's not teaching. She's only making students aware of.
Q. Teachers do teach though, don't they?
A. They do teach.
Q. And the teachers on October 18th expressed concern about teaching intelligent design?
A. That is correct.
Q. So the curriculum that was adopted, in your view, involved something the teachers would have to handle in the classroom just like they handle all the other parts of the curriculum, isn't that right?
A. They handle a lot of things that aren't teaching though also. They do cafeteria count. They take attendance. Is that teaching?
Q. I don't think so. Do you?
A. No.
Q. But when they're making somebody aware of something, they're teaching them about it, aren't they?
A. I don't consider it, no.
Q. In any event, you felt it was necessary, as the board, to establish a regime for handling the curriculum change to make it explicit that the teachers were not to teach intelligent design, is that right? Isn't that eventually what happened?
A. Put that in smaller words.
Q. Sure. Happy to, and I apologize for not doing it. After the board adopted the curriculum change, the board and the administration established a policy that explicitly said teachers were not teaching, I'll put that word in quotes, intelligent design, is that your position?
A. That is correct.
Q. Now, in fact, the policy said that, if a student asked a teacher about intelligent design, the teacher was supposed to decline to answer the question, right?
A. Yes, but that only happened after we were sued.
Q. Well, wasn't that the district's plan from the beginning? Isn't that your testimony?
A.
A teacher, I think, can handle something however they see fit.
Q. Is the teacher free, Mrs. Harkins, to teach intelligent design?
A. We never -- no, that was never planned. That was only to make aware of, that is correct.
MR. SCHMIDT: May I approach, Your Honor?
THE COURT: You may.
Q. Mrs. Harkins, I've put in front of you a copy of the transcript of your deposition.
A. Yes, sir.
Q. Taken January 3rd?
A. Okay.
Q. I may ask you to refer to that.
A teacher is not permitted to respond to questions about intelligent design in the Dover School District?
A. That is correct.
Q. Back on October the 18th, if a teacher had asked you a question about intelligent design, you wouldn't have been able to answer it, would you?
A. That is correct.
Q. You didn't really know anything about intelligent design, except that the two words existed side-by-side, isn't that right?
A. No, that's not true, huh-uh. I knew a little bit, but I still don't know enough that I could ever teach it, no. I know very little still.
Q. Isn't it true that you didn't have a way to define or describe intelligent design?
A. I still don't today.
Q. And yet you're prepared to make that part of the curriculum at Dover Area School District, isn't that right?
A. And I think I've always said, you make them aware of it. They find out for themself.
Q. When you adopted the curriculum change in October of 2004, you knew it was controversial; you knew it was viewed as bad science and teaching creationism, at least by those who were in charge of dealing with it in the classroom; you knew that at least one person whose judgment you trusted on the board, Jeff Brown, was troubled by the contents of it; and that you didn't understand what it really involved; and yet you voted to add it to the curriculum?
A. Right. I didn't see it as creationism. I saw it as science, correct. And Jeff and I did have lengthy conversations on it.
Q. And your view of it as science is based on, as you put it, an hour's glance through Of Pandas and a little Googling, right?
A. That's fairly close, yes.
Q. And then in the following year, in February, when you sent out the newsletter that I think is P-127, you approved the statement that ID is a scientific theory, even though you really didn't have any basis on which to make that decision?
A. Only from what I had read, right. I had read different scientists on Googling supported it, credible scientists.
Q. The last thing to ask you, Mrs. Harkins, is, at the October meeting when you made the momentous decision to include intelligent design, you didn't offer any explanation to the teachers or those in attendance at that meeting about how this was going to enhance scientific education in Dover, did you?
A. I don't recall that that was ever discussed.
Q. Certainly wasn't discussed by the board, was it?
A. I don't think it was ever brought up.
MR. SCHMIDT: That's all I have, Your Honor.
THE COURT: All right. Thank you, Mr. Schmidt. Redirect, if any, by Mr. Gillen.
MR. GILLEN: Thank you, Your Honor.
Q. I'm going to be brief, but I have a few questions for you. Mr. Schmidt directed your attention to Plaintiffs' Exhibit 53.
A. 53. Is that in one of the books?
Q. It's a newspaper article dated June 15th, 2004.
A. 53?
Q. It's not in one of our books.
A. I'm sorry.
Q. I believe Mr. Schmidt provided you with a copy when he questioned you about it.
A. Is this the one that says, P01328 in the bottom?
Q. You know, as a matter of fact, Sheila, I apologize. I've misidentifieded it. I'm talking about or want to question you about Plaintiffs' Exhibit 53.
A. First page?
Q. The first page.
A. Yes, sir. I was doing so good for a while. I'm sorry, Pat, yes.
Q. That's all right. I won't keep you long. If you look at the one, two, three, four, five, six, seventh paragraph down, you'll see that, after Bill Buckingham's now familiar comments about the text being laced with Darwinism, the paragraph continues?
A. Excuse me. I'm not with you yet.
Q. If you would go down to the seventh paragraph of this article dated June 15, 2004?
A. What does the paragraph begin with?
Q. It begins with, last week.
A. Okay, yes.
Q. That paragraph begins with the statement, laced with Darwinism, and then continues. This week, he said, a Seattle based think tank gave the book Biology by Miller and Levine an F grade. Do you remember Mr. Buckingham saying anything about a Seattle based think tank?
A. No.
Q. Do you recall him saying that the Miller and Levine text had been given an F by a Seattle based think tank?
A. No.
Q. All right. You've been asked questions about your vote on August 2nd, 2004, with respect to approval of the biology text. And I want to make sure the record is clear on this. Were you voting to approve the purchase of Pandas when you voted in August?
A. No.
Q. Why did you cast your vote in that initial vote in the same way that Mr. Buckingham did?
A. Sorry, Pat. I don't understand.
Q. The vote came up for approval of the text. Do you recall how you voted on that first vote to approve the text in August of 2004?
A. No. I voted, no.
Q. Why did you do that? Were you voting with Mr. Buckingham or did you have your own reason?
A. No, it was the fiscal issue pretty much.
Q. You've been shown two copies of this chart?
A. Yes, sir.
Q. And during the questioning, Mr. Schmidt brought to your attention that Casey Brown, on Plaintiffs' Exhibit 660, after a strike-out, has it dated August 27, 2004?
A. Okay.
Q. Displayed on the screen was Plaintiffs' Exhibit 149, which has a handwritten notation saying the spring of 2004. If you had to choose between those dates as the date when you remember giving this chart to the Browns and discussing it with them, which date would you choose?
A. I thought it was the earlier, like June, when we first started discussing intelligent design.
Q. Mr. Schmidt has drawn attention to the fact that the faculty was absent from the board curriculum committee meeting at --
A. I'm sorry. I'm sorry. I'm sorry, Pat.
Q. Mr. Schmidt has drawn attention to the fact that the faculty were not invited to the October 7, 2004, meeting of the board curriculum committee. I want to ask you, did you see the absence of the faculty as unusual at that meeting?
A. No, we generally have committee meetings, just the committee and the administration.
Q. There's --
A. You know, and other committees. Like buildings and grounds and other ones.
Q. Well, let me ask you, so the record is clear. Are they always involved in board deliberations or only sometimes?
A. Sometimes.
Q. And are they involved early in the process with board committee deliberations or later or how does it work?
A. Usually earlier in gathering information. And then the last meeting before anything is decided or thought about, then the board has their own meeting, board committee meeting.
Q. You've been questioned about the board curriculum change, the various versions, and the phrase, teach versus made aware of. How did you understand the purpose of the language made aware of when you voted for these curriculum changes?
A. How did I view it?
Q. How did you understand the intent behind the use of the phrase, made aware of, when you voted for the curriculum change on October 18th, 2004?
A. Made aware of, I didn't view as teaching. And I heard Bert say on different instances, even in her class, that she makes kids aware of stuff, that she's not teaching.
MR. SCHMIDT: Your Honor, move to strike. Hearsay.
THE WITNESS: I'm sorry.
THE COURT: Sustained. We'll strike the last answer with respect to what Mrs. Spahr said.
MR. GILLEN: Okay.
Q. At the time that you voted for the curriculum change which employed the language, made aware of, did you have an understanding concerning whether that was consistent with teacher practices in some areas?
A. Yes, sir.
Q. Did you have an understanding concerning whether make aware of, in terms of teacher practice, was different from teach?
A. Yes.
Q. Do you know why teachers were -- do not take questions on intelligent design?
A. Because that's what the administration told them.
Q. Do you know why?
A. Is that what you're saying? Do I know why? I think because we were sued. I don't know. No, I don't know why.
Q. Okay. And there's been some questioning about your, the basis for your vote on October 18, 2004. And I want to ask you. You didn't know a lot about intelligent design, but you voted for this curriculum change. Why is that?
A. Because if you're going to say, other theories, you should have an example of what other theories is.
Q. Well, did you think that making students aware of other theories would contribute to their education?
A. Yes.
Q. And how?
A. By expanding their knowledge, provided them more information.
MR. GILLEN: I have no further questions, Your Honor.
THE COURT: All right. Mr. Gillen, thank you. Final round two, Mr. Schmidt, on recross.
Q. I want to be sure I understand your testimony about teachers being instructed not to teach. That's a mandate issued by the board through the administration, is that right?
A. I don't recall. I don't know that.
Q. Let me divide it up. Was it a board decision that teachers were to be prohibited from responding to questions about intelligent design?
A. Not to my recollection.
Q. Is your testimony --
A. But like I say, the administration is up next. You can ask them. It is not my understanding that the board directed them, but I might be wrong.
Q. Certainly, it's a district directive that teachers are prohibited from responding to questions about intelligent design. Is that your testimony today?
A. Only currently.
Q. Currently?
A. Currently.
Q. I want to be clear about this. Your testimony today is that, teachers are prohibited from answering questions about intelligent design as the part of the district's response to this litigation, is that right?
A. Right now, we have a statement that is being read. The statement would not be necessary if we were not sued. So the -- they would present it however they saw fit.
Q. That's what I'm trying to establish, Mrs. Harkins. So the record is clear, the curriculum is adopted --
A. That is correct.
Q. -- on October 18th, right?
A. Correct.
Q. Sometime later, and there's an exhibit in front of you, but I won't bother you to look for it --
A. Okay.
Q. -- there's a memorandum sent out by Mike Baksa --
A. That is correct.
Q. -- that has a statement, correct?
A. That is correct, that says, teachers will not answer questions, that is correct.
Q. And after that, there is a further directive by the school district that says, teachers may not answer questions about ID?
A. That is correct.
Q. And your testimony this morning is that that restriction, that directive to teachers is a direct response to this litigation, is that your testimony?
A. That's what I would presume.
Q. I'm not asking you to presume.
A. I don't know. I can't say I know. I would presume that.
Q. Well, you've testified already today that the reason teachers are told they may not teach ID and may not answer questions --
A. Correct.
Q. -- is because we got sued. I think that's the expression you used.
A. I didn't say, teach. I said, made aware of. I don't think I said, teach. I think I said, made aware of.
Q. Okay. I'm probably confusing you, so let me try one more time.
A. Yeah, you are.
Q. The curriculum says, students are to be made aware of intelligent design, right?
A. Right, that is correct.
Q. After that, curriculum change is adopted?
A. Uh-huh.
Q. The district prepares a four-paragraph statement to be read to students?
A. Yes.
Q. Right?
A. That's correct.
Q. And sometime after that, the district establishes a policy that teachers are not to teach intelligent design or respond to questions from students about intelligent design?
A. Correct.
Q. And I want to confirm your testimony today, that this last step, this directive that teachers not teach and answer questions was adopted by the district as a response to being sued?
A. See, I don't agree with that. Teach. That word teach you have in there, I have a problem with.
Q. Let's take teach out of it. Have teachers in Dover have been told they're not to answer student questions about intelligent design?
A. That is correct. Right now, yes.
Q. Your testimony today is, they were told that as part of the district's response to being sued in this litigation?
A. That's my understanding, yes.
MR. SCHMIDT: That's all I have.
THE COURT: All right. That will complete the questioning of this witness. Ma'am, you may step down. We have, by way of exhibits, only a few. None it appears on direct examination. And on cross, we have another article, which we will not take at this time. That's P-53. Then we have P-65, which is Mr. Buckingham's request to add the discussion of Pandas. I'm not sure if that was in previously, P-65. But are you moving that in, Mr. Schmidt?
MR. SCHMIDT: Yes, sir.
THE COURT: All right. Any objection?
MR. GILLEN: Excuse me. P-65? No objection, Your Honor.
THE COURT: All right. P-65 is admitted. Have I missed any exhibits on either side?
MR. SCHMIDT: May I have one moment, Your Honor?
THE COURT: Certainly.
MR. SCHMIDT: Your Honor, my colleague's notes indicate that P-54 was mentioned, but it's a news article, so it will be handled separately.
THE COURT: That's fine. We have 53 and 54, and they're picked up elsewhere, obviously. They've been repeatedly mentioned. We'll take them up at a different point in time. Anything else from you, Mr. Gillen?
MR. GILLEN: No, thank you, Your Honor.
THE COURT: Would counsel approach, please?
(Whereupon, a discussion was held at sidebar off the record.)
THE COURT: All right. Thank you for everyone's indulgence. What we were talking about with counsel had to do with scheduling, and rather than bore everyone to death about that, we took it at sidebar. I will advise, particularly the assembled media representatives, that it is quite clear to me that we're going to have a couple more witnesses from the defense. Those witnesses should be wrapped up tomorrow.
They may lapse over into Friday morning, but I don't think so, although that could happen. It's clear to me that we'll be in a position to have closing arguments by counsel on Friday at some point, and that this trial will end, as arranged and as agreed by counsel and the Court, at a point in time on Friday.
And that's what the subject of the discussion was, so that we're all clear on what we have to do. So we'll pick it up after the lunch break. Let's take a break until 10 minutes of 2. We'll return at that point with Mr. Baksa's continued testimony, is that correct, Mr. Gillen?
MR. GILLEN: That's correct, Your Honor.
THE COURT: All right. We'll be in recess until 1:50. Thank you.
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