Kitzmiller v. Dover Area School District

THE COURT: We're in chambers. We're on the record. And it's been indicated to me by Mr. White that the reporters, Mr. Maldonado and Mrs. Bernhard-Bubb, were called for depositions, was it yesterday or -- today -- I'm sorry -- today at 10 a.m. and 2 p.m.

Mr. White advises the Court that the reporters refused to answer any questions, and that they invoked their, what they claim is a, First Amendment reporters privilege -- do I have that correct -- not to testify. He's presented me with a transcript. I have no reason to doubt that that's what took place.

Now we have had some testimony already this afternoon and some discourse about the subject articles. The Court has allowed the articles to be referred to, to refresh recollection. However, we have not admitted them. Let me ask Plaintiffs' counsel, is it still your intention to attempt to call the reporters in your case-in-chief?

MR. ROTHSCHILD: Yes, Your Honor.

THE COURT: All right. Under the circumstances then, you clearly have a right to depose them. And my -- I don't think I have any choice at this point but to summon the reporters. I'm not going to hold them in contempt without giving them an opportunity to come in.

So my intention, subject to, and I'll hear you on this, any of you, would be to issue an order and have them appear, but if any of you think that's inappropriate under the circumstances, or you have a better idea, I'll hear you on that.

MR. WALCZAK: Your Honor, if I could add another piece to the puzzle, which is the trial testimony. We have subpoenaed the reporters for 1:00 tomorrow. I apologize for not being here earlier this afternoon for the testimony, but I was meeting with Mr. Benn. I actually attended the deposition and can confirm certainly what Mr. White says.

THE COURT: That would solve the problem of having to summon them. I would assume they would appear and then exercise the same privilege.

MR. WALCZAK: My understanding is that, they will appear, but it is unclear as to whether or not they will testify. And after speaking to Mr. White, it would be our proposal that we all meet in chambers maybe -- I'm sorry, with Mr. Benn at maybe 1:15. If we break at 12:15, and go back at 1:45, maybe meet at 1:15 to discuss where we are in terms of witnesses testimony and trial. And I guess folded into that has to be the situation with the depositions as well.

MR. WHITE: Excuse me, Your Honor. I had asked both reporters whether they were going to invoke the privilege tomorrow, and they said they wouldn't give me an answer.

THE COURT: I don't know that there's anything particularly magical about them invoking the privilege in this court. If they, for example, would appear with Mr. Benn, and Mr. Benn simply says, they're here and they're not going to testify. I'm not going to stand on ceremony. So to put them on the stand and waste everybody's time by having them invoke the privilege, I don't think that that's helpful.

Now the question I have to grapple with, and I don't know the answer to this at this point, is whether I bring them in chambers, as I think Mr. Walczak suggested, and correct me if I'm wrong, and that I cite them for contempt in chambers and we move on and I determine what sanctions, if any, I'm going to assess against them, they take their appeal, and so it is, or whether I have a dialogue with them in open court.

I will tell you that my inclination is to have a dialogue with them in open court at this point, and I don't know what I'm going to do in terms of sanctions at this point.

MR. GILLEN: If I may, Your Honor. I mean, you know our position, which is simply that, you know, we're entitled to every man's evidence. And for them to show up tomorrow and attempt to get on the stand --

THE COURT: They're not going to. I'm not going to have them testify as fact witnesses. I'll tell you that now. They will not testify as fact witnesses for the Plaintiffs unless you have the opportunity to depose them. So that is not going to happen. I'll tell you that right now.

So, you know, I don't assume that Mr. Benn is playing that game. But if he is, then that's not going to work. I don't know why he would under the circumstances. I'm assuming privilege asserted as to one is privilege asserted as to both until someone tells me differently. Maybe I'm wrong. But I can't. I won't.

Because, as I said during the last conference that we had, which was off the record, and I'll state it on the record, in order to get the residual exception under 807, I think implicitly there has to be an opportunity. And I understand that you disagree on the scope of what they would be deposed on, but at a minimum, you have to be given the opportunity, since they're called as fact witnesses, and if you are going to attempt to assert 807 to have some questioning, and you haven't had that opportunity.

So they're not going to testify unless the Defendants have had the opportunity to, the full opportunity within the limits of my orders to question them. I am confounded by this. I will tell you that, in the abstract, I understand the argument, but I think this is the wrong place to line draw by them. I think it's very in fortunate. It's going to impede this trial.

I got a reading from Mr. Benn, although it was not explicit, that if I tailor this order to certain concerns that he had, they would testify. I, in no way, understood his motion last week, which asked for alternative relief and asked for the same relief that I thought I granted in the prior order, which I have to tell you, was utterly confusing to me as it related to your subpoena. Maybe somebody can explain that, but I can't.

MR. WALCZAK: I think, after meeting with Mr. Benn for an hour, I have a slightly different understanding of what they are asking for. But I certainly don't want to represent his, Mr. Benn's, views to the Court. And I would rather him state that tomorrow.

I think that our primary concern is that we are able to get this to the Circuit and have them decide this on an expedited basis. An expedited, I would think, is a couple of weeks. Since it's a bench trial, I assume, if we get a decision in two or three weeks, and if even if the Plaintiffs are done with their case-in-chief, assuming there's no directed verdict, that we would be able to call them out of turn.

THE COURT: I understand that. And I have that same concern, too. I also have a concern, you know, for the integrity of this court and this proceeding. And I, as I said last week, I was not inclined to do business as according to what I characterized at that time is the Marcus of Queensbury [Marquess of Queensberry? - editor] rules where we have contempt by consent and life goes on.

Now I don't know what I'm going to do. But I'm, you know, deeply concerned, and not particularly happy that we have this line drawn in a place where I don't think it should be drawn. Reasonable people will differ. I'll hear Mr. Benn out, as I have to, but I don't know what else we can do. So we'll conference in chambers on at least the issue of what Mr. Benn intends to do.

We can get that on the record. I don't know what I'm going to do in terms of the dialogue with the reporters themselves. But your understanding then is that they will be available in the building? It's not necessary for me to separately order their appearance, if I understand you correctly?

MR. WALCZAK: That is my understanding, and I'd be happy to take responsibility for contacting Mr. Benn for two reasons. One, to verify that's true. And second, to confirm that we'll meet here at 1:15.

THE COURT: Well, I don't know if it will be 1:15. We'll take it as we can. Let's just say, after lunch, because, you know, if they're a little inconvenienced, they're a little inconvenienced. We all have to be here, and I'm not going to disrupt anybody's case.

It just depends on how things go. So I would be reluctant to say, 1:15 sharp, but let's just say, after lunch they should be available. I would say, any time from 1:15 on. I'll try to take it as soon as I can. Does anybody else want to weigh in on this conundrum?

MR. WALCZAK: I think it's just because we don't have enough interesting constitutional issues in this case already.

MR. ROTHSCHILD: I wasn't going to give a humorous aside. The only thing I was going to bring up, which was at issue when we were admitting exhibits into evidence, is that, obviously, the flip side of this, one side of this, and the reason we're trying to call these reporters, is to get these articles in for the truth of the matter asserted.

We still have, obviously, our flip side argument, which is that, this is what a reasonable observer would know about the controversy.

THE COURT: Well, I understand that argument, and, you know, I think we can take that up, but, you know, to chew that fat, so to speak, when we've not run through the mechanism that you're attempting, which is to have the reporters verify the article, and I understand their arguments on both sides, I would just as soon not go there.

Now one result we could get, if they take it up, is the Third Circuit could agree with Mr. Benn and they could say that there is a privilege here, and that's the argument you're left with. And you could assert that argument at that time. But I don't know why we have to do that.

MR. ROTHSCHILD: I guess the only thing I would say, I don't look at it as the argument we're left with. I think it's actually an independent evidentiary purpose. It may be the more important one actually from our perspective at this point in the case, that we get the evidence that the reasonable observer in the community would have been aware of.

THE COURT: I understand that, but I think, as a progression, if you want to abandon your attempts to bring the reporters in, and I know you don't, then we'll have to focus in on that argument. I'd just as soon not and rather allow you the opportunity to do that.

I recognize that you don't think it's a second best argument, but it's an ancillary argument, if you will. I think, let's take the first method first, so to speak, and then we'll deflect it, if we have to. You'll agree that, if the Third Circuit agrees with my assessment, which is that there is no reporters privilege, and if, in fact, they're deposed, and if, in fact, you take them, and if, in fact, I allow the articles in on that basis, three if's, but if I do, you won't have to assert that argument, the ancillary argument.

MR. WALCZAK: Although, on the other hand, I think it's not, from our perspective, it's not a question of whether the articles come in. The question is, for what purpose they come in. And our argument would be that they definitely come in as historical record. The question is whether they come in for the truth of the matter asserted.

THE COURT: I understand that. But if they came in for the truth of the matter asserted, which is what you're attempting to do through the reporters' testimony, then they're obviously going to come in for effect.

MR. WALCZAK: Right. They're better.

THE COURT: That pulls them in. Right. But it doesn't happen the other way around. If they come in -- if I allowed them in for effect on your argument, then they wouldn't come in for the truth of matter asserted.

MR. WALCZAK: Well, they could come in for both.

THE COURT: Well, I'm not so sure. I think what you're left with, without the reporters' testimony, my view, is that they could come in for a collar boy on the argument that's asserted for effect.

But I would tell you that, I'm disinclined to let them in standing alone without verification from the reporters for the truth of the matter asserted. I'm not inclined to do that.

MR. WALCZAK: Right, but I think they come in for, this is what the community was reading, not that what happened and this is happened.

THE COURT: On the effect prong.

MR. WALCZAK: Right. That's a non-hearsay purpose.

THE COURT: I understand that, but not the truth of the matter asserted in the article, which is probative of, for example, Mr. Buckingham making certain statements, if all you assert is the ancillary argument. That's my point.

MR. WALCZAK: That's right.

MR. MUISE: That's assuming the effect they're making is the proper one, which we obviously disagree with.

THE COURT: I understand that, and you reserve the right to argue on that point. That's why we've taken the exit ramp off into that argument that I didn't want to, so we'll save that, and I'll let you assert whatever arguement you want to on that. That's precisely why I don't want to do that unless we see what happens here. All right.

(Whereupon, the discussion held in chambers concluded at 3:35 p.m. and proceedings reconvened in the courtroom at 3:45 p.m.)

THE COURT: All right. We'll continue with the direct examination of this witness.

DIRECT EXAMINATION (CONTINUED)

BY MR. HARVEY:

Q. Mr. Rehm, earlier you said that Mr. Buckingham had made a comment to the effect of, 2000 years ago, a man died on a cross. Can't someone take a stand for him? Or words to that effect, correct?

A. Correct.

Q. You said that was said at one of the June board meetings?

A. Yes.

Q. Do you remember, I can't remember if I asked you, do you remember which board meeting that was said at?

A. I cannot place which meeting.

Q. Was that said in the context of a discussion about the biology textbook?

A. Yes, it was specifically about Darwinism, centered around the textbook, and how evolution didn't agree with it and, therefore, had to be balanced so that those that don't agree with evolution can have something else that they can hold onto.

Q. Now let's go back to the November 1st board meeting, which is where we were just when we took that short break.

A. Okay.

Q. Did you attend a board meeting on November the 1st?

A. I'm pretty sure that I did.

Q. Why did you attend that board meeting?

A. It was a follow-up to the 18th board meeting. I read the newspaper articles following the 18th meeting and saw more of the reports of what had continued on after my wife and myself had left, centering around the expectations of the Board and Heather Geesey's comment that they should be fired, and it was in the context, if they asked for legal representation, if they're -- if the suit is filed against them for somehow addressing intelligent design in the classroom.

Q. Let's go back to the October 18th meeting for just a second. Do you remember board member Heather Geesey saying something to the effect about somebody being fired?

A. I was not there at the time that it was supposedly said, which is why I showed up at the November meeting, having read that in the paper, having requesting to hear the audio tapes.

Q. Did you request to hear the audio tapes?

A. Yes, did I.

Q. Did you do that before the Board meeting?

A. The November 1st board meeting?

Q. Yes.

A. I did it at the board meeting.

Q. What did you say?

A. I stood up and explained why I did not get to hear the comments, that I was concerned by the comments I was reading in the newspaper, and since the Board members had been denying that they said those comments, that I wanted to hear them for myself. When I had the infant with me and I had to take it home because it was way past its bedtime. It needed more diapers. It needed bottle fed. I had to leave. That was the more responsible thing to do.

Therefore, since I missed the opportunity to hear what was being said for myself, the audio tape is there, I should be able to hear it.

Q. And you're referring now to the audio tape of the October 18th meeting?

A. Correct, correct, where it should have been recorded what those comments actually were to determine if they were said as reported or were not said.

Q. When you say, the comments, you're referring now to the Heather Geesey comments?

A. All of the comments in general, but specifically the Heather Geesey comments because that's what I read in the paper that I wasn't able to hear on my own.

Q. What were you told by the Board on November 1st or any member of the Board on November 1st in response to your request that you should be permitted to hear these tapes?

A. My request was framed around information I had been given previously, such as that the Board would have the tapes available, and generally you could either get a copy of them or you could go to the administration building and listen to them.

And I asked, why can't we get a copy, you know, because we already asked that question previously and had been asked through phone conversations and so forth. I know I stopped in the administration building, I can't tell you if it was before or after the November 1st meeting, and specifically asked and actually spoke to Mike Baksa about it.

And he told me at that point in time, he was waiting for the Board to make a decision. It was then related back to me at the board meeting that that was not the practice and that it had been, in fact, checked on, and we would not be allowed to listen to the audio tapes.

And this was coming from Mr. Bonsell. And he stated that they had consulted with the district solicitor and he related to the public there that they could not release the audio tapes because they were told it would open up the Board members to possible litigation.

And then he followed it up with -- I'm actually not going to say that because I don't remember if he said that or if that's what I'm thinking to myself as he's saying it.

Q. Did he say anything about hiding anything?

A. That's the part that I'm not sure of. It sticks in my mind he did say that, that we're not trying to hide anything, this is what the lawyers have told us to do. But at the same time -- unfortunately, I can't specify he said that versus that's my thinking as he's saying, we're not going to release them.

Q. Now --

A. I'm sorry. I take that back. He did say that. And the reason I know is because I'm thinking to myself, that's a contradiction. How can you be telling me that you're not hiding anything, yet the lawyers told you you can't release them or you'll be open to litigation? To me, that was a direct conflict. So, yes, now thinking through that, that's what I remember hearing.

Q. Following this, did you seek appointment to the board of directors for the Dover Area School District?

A. Yes, I did.

Q. And approximately when was that?

A. It was in the middle of November, the 15th, 18th, somewhere in that time frame. Noel Weinrich had been resigning. I just lost the other -- Jane Cleaver was resigning. My understanding was, Noel was moving to Lancaster, Jane was moving to Florida, or something of that nature. Then the Browns had resigned in protest over the biology curriculum change.

Therefore, there were four vacancies on the school board that needed to be filled. The vacancies are filled by appointment by the remaining school board members.

Q. Did you have to do something to become, to seek appointment?

A. You had to contact the administration offices,, Dr. Nilsen, I believe, was the main contact on that. You had to submit a letter of intent with your qualifications. I did that. And then about two days before it was, you got a phone call that I was scheduled to be interviewed at the public meeting that they were holding to do interviews.

And subsequently, it was followed by a letter in the mail the day or two days before the actual interviews is when I received that letter telling me where it was, when it was, and that I had to have a prepared statement when I arrived.

Q. Now did other people seek appointment?

A. Yes, it was a full house. There was in excess of 10 applicants.

Q. So you and the other 10 applicants had to appear before the Board?

A. Yes, we all had to be interviewed.

Q. What was the process of appearing before the Board?

A. The school board was still set up in the general board meeting setting where they had tables at the front for the board members, and then they had the audience on basically the opposite side of that. But they had it pulled into more of a compact U shape, where Bill Buckingham was here. I don't remember who was right beside Bill Buckingham. Alan Bonsell and Sheila Harkins were somewhere in the middle. Dr. Nilsen was mediating it.

And then to the left side, I don't remember who was on my immediate left, and Angie Yingling was still on the left-hand side of that format. Then there a smaller table set up where I was a little bit away from -- where all the candidates were away from the Board members when it was your turn to be interviewed. And you sat there and they conducted the interview. They asked one question at a time, and they alternated which person would ask the questions to you.

Q. Did the candidates go up one at a time to be asked questions?

A. The candidates were pre-scheduled according to a particular order, and they were called one at a time to be interviewed, yes.

Q. Were you present when the other candidates were interviewed?

A. Yes.

Q. And at this point, had you spoken out against the Board policy curriculum change that is the subject of this lawsuit?

A. Yes. At some point in time, I spoke out against the Board's decisions way back before the October decision -- I know I was speaking in June -- I don't remember which meeting -- about the idea then of changing and the textbook selection, that the idea of doing this because you have a problem with evolution is totally ridiculous. We're talking about science.

We're not talking about anything else here. You have to look at the scientific arguments in science class. I had also spoken out -- the November 1st meeting was about the tapes. I don't know if I said anything else then or not. But it was common knowledge at that point in time that I was opposed to the school board's policy change.

Q. Had any of the other candidates who appeared at that meeting to be interviewed by the Board for possible appointment, had any of them spoken out against the Board and its policy, the change to the biology curriculum?

A. I don't recall if any had spoken out prior to the meeting. I know that a number of them were asked or offered an opinion when they were being interviewed. One of the candidates, Eric Riddle, who eventually was appointed, actually had spoken out in favor of the school board and, of course, was appointed.

Q. Were you interviewed at that meeting?

A. Yes, I was.

Q. And were you asked any questions that other members, that other candidates were not asked?

A. Yes, I was.

Q. And tell us what you were asked?

A. Bill Buckingham had his next turn for question, and I don't remember the exact wording, but he asked me if I had either ever been accused of child abuse or child molestation. And I don't recall if he said abuse or molestation. But that was his question.

Q. Now if you would just, please, take a look at what has been marked as Plaintiff's Exhibit 127. And my only question for you on that document is, did you receive it in the mail?

A. Yes, I did.

Q. And when was that?

A. I'm guessing by the date on it, February. It was after the curriculum change had already gone through. They were, I'm guessing, February 2, that they had already enacted the first reading of the statement. And it really caught me off guard because they passed it on the previous board meeting. Rather, it wasn't on the agenda. They just brought it up and very quickly did it and shuffled it out of the way.

Nobody got to see it. Nobody got to read it that was in the audience prior to them already passing it and approving it. At that point in time, the document was not even complete. The copy that they had that was circulating had cut off at least three lines of the last paragraph above where it says, quotables, on the backside.

Q. Mr. Rehm, I'd like to turn to my final area of questions to ask you, and so I'll ask you, do you believe that the board's actions have caused harm to you?

A. Absolutely.

Q. And can you please tell us how the Board's actions have harmed you?

A. There is a lot of different ways. I'll simply start with professionally. When I went to Dover, I thought that was going to be my teaching home. I enjoyed working with the faculty. I enjoyed the students I had. It was my home district. It's where I lived. I was looking forward to that.

Within those two years I was in the district, I saw a totally different side. And I saw a district in which teachers were not respected for their educational expertise. Their educational background was not respected. Science teachers were not respected. And it was all, as far as the science teachers not being respected, was out of religious ideas.

I sat in a meeting when Alan Bonsell told me he didn't agree with evolution because of his religious background. He may not have been aware of it, because I was teaching evolution as well, because natural selection was part of the curriculum for the environmental course that I had to teach.

So, therefore, even though he was addressing the curriculum change in biology, he was addressing the curriculum change in something that I also had to teach. How long is it until he changes my environmental and tells me what I have to do?

In addition to that, if his religious beliefs of young earth creationism that he expressed are in disagreement with evolution, what happens when we get to the big bang theory and I'm teaching in physics that the earth is billions of years old? And I saw my head on the chopping block and my curriculum as being the next to be altered when they realized what was there.

Personally, I live in the neighborhood, you know. I live within the school district where I taught. You used to be able to go out to any restaurant, sit down, not worry about who was next to you. You could walk down the street and say, hi, to everybody and get a nice pleasant return.

Now people stare. They know you're a Plaintiff or they know in this particular case that I'm a candidate opposing the school board, and you can't sit there and not worry about who's looking at you or what's going to happen, you know. You'll go out and regularly be called inappropriate things centering around the concept of atheist.

They don't know me. They don't know that I'm the co-director of the children's choir at church or that I run the music halfway at the second service, or that, you know, my wife and I run Vacation Bible School. Yet they have no problem going around calling me an atheist because my particular religious viewpoint doesn't agree with that of the school board, which is a public entity not a religious one.

Religiously, the young earth creationism and that influencing science is not what my religious views entail. There is a separation there. You know, my religion accepts that science can explain things in the world as we perceive them, but that science is not going to touch theology.

It can't explain the divine creator. In intelligent design, every aspect I've ever heard of it, is religious creationism. You know, if the designer is not -- an intelligent designer is not a God, even if you don't want to refer to it as Judea Christian God, what is it? Aliens? Then you're still not addressing the origins of life that you speak of. Where did the aliens come from?

So there has to be a supernatural component to. And that, to me, is religious. That's not my religion, and that's not something that should be shared in the science classroom. Scientifically, there is no merit right now to the concept of intelligent design. Philosophically or religiously, is it a possibility? Sure.

But it's out of the realm of science. And my career as a science educator is educating students what science is. And we also educate them what the limits of science happen to be. And through the things the Board has done, through their policy, through the mailing of their newsletter here, they're setting up the students that would be walking into my classroom to have conflict right away. They have statements in here dealing with -- am I allowed to read from this?

THE COURT: We're in the midst of a narrative answer, and I think the narrative answer might be getting a little extended.

BY MR. HARVEY:

Q. We just need you to tell us. The question was, how does that cause you harm, and you started to complain how this causes harm. If you could complete your answer?

A. Professionally covered. Personally, you know, going out, we have issues with people, where they're not very pleased to see us around and are not hesitating to let you know that. And it's not very polite. It goes beyond atheist to adding other words onto it that I don't care to repeat.

So there is a lot of issues and a lot of different ways in which it hurts me, not to mention now my daughter is in the biology course, and there are students in the class that want to know, well, what if you do come from monkeys? What's going on with this? Well, you know that evolution doesn't make sense. Why are your parents doing this?

So it has filtered down to the kids, and it's affecting my children directly. And that's a problem. And if the school board didn't pass the policy, it never would have occurred. Prior to their policy change, I never once had a student in class criticize another student for believing evolution, even when we were teaching it. It didn't happen.

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

THE COURT: All right. Thank you, Mr. Harvey. Cross examination will be by Mr. Gillen. All right.

CROSS EXAMINATION

BY MR. GILLEN:

Q. Good afternoon, Mr. Gillen.

A. Hello, Pat.

Q. As you indicated, Pat Gillen. I took your deposition. I'm going to ask you a few questions today.

A. Okay.

Q. Mr. Rehm, you've testified that you recall meeting with Alan Bonsell in the science faculty, correct?

A. That is correct.

Q. And you've testified previously that you believe Alan Bonsell may have mentioned intelligent design at that meeting?

A. It is possible. I previously testified and my deposition stated that I couldn't pin down which word he was using by the time we reached that meeting, but there had been a long dialogue prior to getting to that meeting. So creationism was associated with Alan Bonsell, and I couldn't tell you if it was that meeting or prior to that meeting, and likewise with intelligent design, if it had shown up at that meeting or prior it that meeting.

Q. Understood. You testified previously that you recalled Alan Bonsell talking to you about holes in the geologic record?

A. Yes, that is correct. I forgot that earlier, but, yes.

Q. And you mentioned that, at this meeting, teachers expressed to Alan Bonsell that they taught micro evolution, correct?

A. That was one of the main thrusts of the conversation we had with him, that the macro evolution monkey demand was not covered. And we illustrated what commonly is covered, which were mostly examples of micro evolution.

Q. And to make sure I understand you, that's changed within species, is that correct?

A. A variation of a species, so we would still recognize it typically as the same type of organism, but with a slightly different property. We're looking at the bacteria that was not previously resistant to an antibiotic and now is resistant.

Q. Am I correct that sometimes that process you described is referred to as subspeciation?

A. I'm not positive -- yeah, that's not a term that I am highly familiar, but that sounds right, that's been used in that context.

Q. And I believe you've testified that Alan Bonsell expressed his belief that there were holes in evolutionary theory big enough you could drive a truck through, is that correct?

A. I did state that, yes, and he stated that to me.

Q. And you previously testified that you remember Bert Spahr talking about the way the term theory is used among scientists?

A. I don't know if I testified to that, but that is a correct statement, that she has.

Q. Let me do this. Excuse me a second.

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

THE COURT: You bet.

MR. GILLEN: Thank you. BY SKWRAO:

Q. Mr. Rehm, if you would, I just ask you to, rather than tax your memory unfairly, if you look at page 51, line 6?

A. I don't mean to be confused here, but -- okay. Now I see the page numbers.

Q. Okay.

A. Line 6. Okay.

Q. And before I ask you the question, I'd ask you to look at page 50, beginning at line 17, down through page 51?

A. Did you say, page 50, line?

Q. Page 50, line 17, through page 51, line 11, please. Have you had a chance to review that, Mr. Rehm?

A. Line 4. Okay.

Q. And on page 51, I was asking you about some of the statements that Bert Spahr made to Alan Bonsell at that meeting, and she testified she was explaining or trying to explain that, in science theory, a certain meaning?

A. Yes.

Q. And you testified that she said it's a plausible explanation supported by evidence and can be modified pending new evidence?

A. Yes. Those, I would believe, are my words there, not the exact words she used, but the idea is correct.

Q. Good enough. And do you stand by those words today?

A. Yeah. It could definitely use some refining. I believe Dr. Miller gave a much better definition than mine, but he's the expert witness.

Q. Precisely. I think you testified you don't recall anything coming from this 2003 meeting with Mr. Bonsell, is that correct, no resolution?

A. I don't recall any resolution coming of that meeting, correct.

Q. You've also testified that Mr. Buckingham provided some materials to the teachers for their review, is that correct?

A. That was evidently what happened at the meeting that I could not attend shortly after watching the Icons of Evolution video.

Q. Okay. But you do recall reviewing that Icons of Evolution video?

A. Yes. But like I said, it was brought to us by Mike Baksa. I did not have any communicationss at that point by Mr. Buckingham.

Q. But you understood that Mr. Buckingham had given it to Mr. Baksa?

A. I understood at that point in time, a school board member had given it to Mr. Baksa. And I did not necessarily know at that point it was Mr. Buckingham. I cannot say if I did or did not know at that time it was Mr. Buckingham.

Q. Okay. As you stand here today, do you know whether it was Mr. Buckingham who provided those videos to Mr. Baksa to be provided to the science faculty?

A. It has been indicated to me that it was Mr. Buckingham. But from my own recollection, as far as remembering that point in time, I cannot say from my memory that it was in fact him. That's just what I've been informed of since then.

Q. Fair enough. Did you view that video, Icons of Evolution?

A. Yes, I did.

Q. And I believe that you concluded that it pointed to flaws in evolutionary theory, but you thought the criticisms were outdated, is that correct?

A. The flaws, as I saw them, it was pointing to were actually in methods of instruction of evolution theory. And from examples that I had seen, I hadn't seen those examples used in education instruction of evolution at any time that I done it, not when I learned it in 7th grade in the mid 80's to when I was teaching evolution in 2000.

Q. Sure. But just to be clear, the video did reflect specific criticisms of evolutionary theory as taught which you disagreed with?

A. The video indicated that it was criticisms of evolution education, and I believe it dated as far back as 1950. And I thought that those were outdated examples. We have much better evidence and much more easily understandable evidence to use to teach our children and students about evolution than what was presented in that video. It's not any evidence that I would ever choose to use as a hard core outstanding evidence of evolution.

Q. Now you've also testified that Mr. Buckingham indicated there was a think tank that gave the Miller and Levine book an F?

A. Correct.

Q. Did you ask Mr. Buckingham for the name of that think tank?

A. Somebody asked him. I don't recall if I was the one that asked him or not, but that meeting where he mentioned it, the question was asked, what is this think tank? Who is it? He had no response at that point in time.

Q. And I believe previously you testified that this think tank came up around June of 2004?

A. That sounds familiar, because I believe it was at the June board meetings where he made the announcement that the book was given an F. That's when the idea of it would have come up, yes.

Q. Now you testified previously that you believe that Alan Bonsell thinks that teaching intelligent design is not teaching creationism, is that correct?

A. Those are the words I heard him say, yes.

Q. Apart from the statements that you referenced by Alan Bonsell about teaching intelligent design, do you remember other board members discussing that topic in the June through August 2004 period?

A. I wasn't there in any of the August times, so in the June time, there was conversation about the Darwinism comments made about the textbook and the selection of Pandas, and people are looking for a text to balance out the ideas.

And intelligent design, I don't recall if it was specifically being used at that particular time or not. While I know there was conversations occurring, that were heated, I don't remember the specifics of, was intelligent design the words that were used.

Q. Okay. You also said it's your position that the Board shouldn't dictate curriculum?

A. My opinion on that was that they're paying teachers.

MR. HARVEY: I'm going to object, Your Honor. Mr. Gillen keeps referring to things he said. And I believe he's going to -- it's unclear whether he's talking about his testimony here now or his deposition testimony.

THE COURT: Right. Do you want to clarify the question?

MR. GILLEN: I certainly will.

BY MR. GILLEN:

Q. You've testified in your deposition to your position that the Board shouldn't dictate curriculum, is that correct?

A. If that's what's in there, I suspect so. But clarification, it's not that they don't have any say in curriculum, but they need to really base the curriculum approval upon the experts in the area. And I don't believe that nine board members that don't have degrees in science are really qualified to dictate what should be in the science curriculum or not.

They are the reviewers. They are the overseers. And they're supposed to check that the, in fact, experts in the area or the people they've hired that are knowledgeable in the area have done their work appropriately.

But as far as having the credentials to state that they know that that is science or is not science is not where I believe the Board should be. They're supposed to be the process checkers, making sure that things are done effectively, but not actually dictating what that is. They have the final approval is what their role is.

Q. And they have to accept what the science faculty says?

A. If they don't accept specifically what the science department states, then they should be looking for an outside source, that is an expert in the area that would have the science credentials to make that statement. And a good place in York County is that we have a lot of university and colleges that have a presence with very large science staffs that were not consulted or listened to.

Q. But you do know that Mr. Buckingham referenced the think tank?

A. What kind of think tank? He stated, a think tank. Is this a scientific think tank?

Q. I'm just asking you, Mr. Rehm, whether you know Mr. Buckingham referenced a think tank?

A. He stated that he did.

Q. I think you've testified here today that Superintendent Richard Nilsen did not believe or said that he did not believe the curriculum change would come up to a vote in October, is that correct?

A. That's what he told me.

Q. But you recall attending the October 18th, 2004, board meeting?

A. Absolutely.

Q. And you recall Alan Bonsell speaking about intelligent design?

A. If that's what I said in my deposition or testimony, yes. Right now, unfortunately, all the meetings are blending together again, as they often do.

Q. That's understandable. If you would, if you check your deposition at page 118, line 21.

A. Okay.

Q. And if you would take a look at the deposition transcript beginning with line 13 to give you a little context.

MR. HARVEY: I'm just going to ask that the witness be given the chance to read back a few pages to make it clear what meeting he's talking about.

MR. GILLEN: By all means.

THE COURT: You may go forward and back so that you get the statement in context before you respond to any questions that Mr. Gillen may have for you. After you've done that, just signify to Mr. Gillen that you're ready.

THE WITNESS: How far back does this particular go?

BY MR. GILLEN:

Q. Well, as far back as it takes for you to get comfortable. I can represent to you, this is testimony relating to the October 18th, 2004 meeting.

MR. HARVEY: I think if you begin looking at page 115, you can see.

THE WITNESS: I saw a mention of October and the decision.

THE COURT: Was there a question on the floor? Do you have a question?

MR. GILLEN: I do have a question.

THE COURT: Did you state one, because I don't recollect.

MR. GILLEN: Oh, you know what, Judge, I think you may be right. Let me just put it this way.

THE COURT: Why don't you put a question on the floor, and then if you need to read more to answer the question, let's do it that way, because you don't know how far to read because you don't know what the question is.

BY MR. GILLEN:

Q. Well, I believe I asked you if you recalled Alan Bonsell discussing intelligent design theory at the October 18th, 2004, meeting?

A. According to my deposition, I do.

Q. Okay. And if you would, Mr. Rehm, just for the record, read in your answer beginning on line 21 of page 118?

A. Following the question here, how did you understand those comments --

COURT REPORTER: Could you slow down, please?

THE WITNESS: Slow down? Sorry. How did you understand those comments, Brian, when he was talking about a balanced view? Answer, Intelligent design at that point in time, that was the terminology used. We still had the lingering echoes of creationism from June. I don't know that I knew going in what wording would be in place. Do I need to continue there?

BY MR. GILLEN:

Q. I don't think so. My point is, you've recognized in your prior testimony that Alan Bonsell recognized the distinction between intelligent design theory and creationism, correct?

A. In Alan Bonsell's mind, he started communicating it that way, yes. I don't know where he got that. I mean, obviously, I don't perceive it that way.

Q. That is obvious. And I'll ask you a question about that. But first let me just talk a little more about the October 18th meeting. You testified in your deposition that you recall Bill Buckingham losing his temper and becoming impolite?

A. Yes.

Q. You recall Sheila Harkins saying members of the public were out of order?

A. Which meeting?

Q. October 18th, 2004?

A. Possibly. She was not yet president, and I remember her standing up and saying, out of order, which was not her job. It was the board president's job. That's left a mark in my mind.

Q. Okay. If you would just turn to page 128?

A. 120 --

Q. 8, line 3.

A. Line 3?

Q. Read up a little higher into 127.

A. Where am I to begin?

Q. You can begin, I think, to give you the context you'll need, on about line 11?

A. Question, prior to line 11. I see that from your answer. Who is left? Sheila Harkins, which I'm not sure now where we're going with this.

Q. Let me ask you, as you sit here today, do you remember Sheila Harkins telling members of the public that they were out of order?

A. At the October meeting, if that's when it was, yes.

Q. Okay. And do you remember that October 18th, 2004, meeting being one with a lot of controversy involved?

A. I remember it that way, yes.

Q. There were exchanges between the Board and the public?

A. As I recall, yes.

Q. Do you recall that, at that meeting, Alan Bonsell said that the solicitor had looked at the proposed curriculum change?

A. I remember Alan Bonsell saying that at some point, and I followed up, or somebody followed up, with the question, what did they exactly say? And he would not tell us what their wording actually was. So, as a member of the public, at a later point in time, I remember saying, why isn't the solicitor here? We want to hear it for ourselves because we're the ones footing the bill for this.

That opportunity never presented itself until much, much, much later. They brought the solicitor in after the new year for a totally separate issue.

Q. But he did say, the solicitor had looked at it?

A. Yes, he did.

Q. Now I think --

A. Can I take that back? I don't know if he said, the solicitor looked at it, as much as the solicitor made a statement about it, gave the board an answer about it. I don't know if that means he looked at it, if he read it, if he heard it. But there was some communication with the solicitor about the statements.

Q. Fair enough. Now you testified that during the recess at this October 18th, 2004 meeting, you spoke with Angie Yingling, correct?

A. Correct.

Q. And she said, more or less, I don't understand what the big deal is, is that correct?

A. She did not understand why there was so many people in the public comment section speaking out about concerns about separation of church and state and why intelligent design would be an issue with separation of church and state.

Q. And she told you that, in her opinion, intelligent design theory was not creationism, correct?

A. I don't recall if I stated that or if she stated that. She was explaining at that point in time she didn't understand why it was a problem.

Q. Okay. To help refresh your recollection, I think if you look at your deposition testimony on page 132, line 7?

A. Line 7, okay. This is similar to what I testified to today.

Q. If you look there at line 1, and again I want you to look far enough to get comfortable here. 131 should give you the context you need. Look it over.

A. Okay.

Q. Okay. What I'm asking you is, you have testified in your deposition that Angie Yingling told you, I don't see what the big deal is, this is intelligent design, this is not creationism?

A. Right.

Q. Correct?

A. Okay. Those were my words here summarizing the idea she was communicating, but I don't know if those were her exact words. Those were the ideas she was communicating to the person she was speaking to whom I was eavesdropping on.

Q. That is what you took from that exchange?

A. That is exactly what I took from that change.

Q. If you look at 132, you'll see a reference there to Discovery Institute?

A. Correct.

Q. And you had a discussion with Ms. Yingling about Discovery Institute?

A. According to what I was recalling at the time of my deposition, yes.

Q. And, Mr. Rehm, as I understand your testimony in your deposition, looking on those pages, if you'd like, essentially you told Angie Yingling that you disagreed with Discovery Institute's position, is that correct?

A. Is that what I have worded in here? If that's what I have worded in here, then I'm going to stand by it. I have no reason to disagree with it. I don't know if I knew a hundred percent what Discovery Institute's position is aside from they want to teach the controversy.

Q. Well, do you agree that intelligent design is science?

A. No.

Q. Do you have an understanding concerning whether Discovery Institute takes a position on that issue?

A. I don't know what their exact words are, but I'm guessing from the way they promote intelligent design that they believe it is science. And I am guessing from, what is it, the Center for Science and Culture, that that would be their stance on it.

Q. Despite the conversation you had with Angie Yingling, she did vote for the curriculum change, correct?

A. Yes, she did.

Q. You've also testified in your deposition that, based on discussions you had with Bert Spahr, Jen Miller, and Rob Eshbach, that you believe the teachers had agreed to allow Of Pandas in the classrooms as a reference text as a concession to the Board, is that correct?

A. Correct. We'll scratch -- we'll do a little bit and then let's drop it.

Q. Now you've testified today that Noel Weinrich was initially in favor of the curriculum change that was discussed in the period between June and October of 2004, correct?

A. I don't assume that he was in favor of the curriculum change. At the end, he versed his opinion. But when the discussion was about the textbooks and balance, he had originally been speaking in favor of presenting balance.

Q. Despite that though, Noel voted against the curriculum change, correct?

A. Correct. And his stated reason at the time was he was concerned about possible litigation for the district.

Q. I just want to make sure I understand your testimony today. Your oldest daughter is in what grade?

A. Ninth.

Q. Has she taken biology?

A. She is taking it right now with Mr. Linker.

Q. Did she stay in class for the reading of the statement?

A. It hasn't occurred yet. It will occur sometime in January.

Q. Do you know whether she intends to?

A. I do not know her intentions, but that will be her choice. I mean, I obviously speak to her regularly about biology and science in general. But she does get to make her own choices in that regard.

Q. And apart from the oldest daughter, what's the age of your next child down?

A. 1998. This is 2005. No, 1997. Eight.

Q. That's faster than I can reckon. That's very good. Let me ask you this. It's plain, you regard intelligent design theory as unscientific, is that correct?

A. That is correct.

Q. And you regard it as religion, is that correct?

A. I regard it as modern day creationism.

Q. And that's based on your opinion and your education, correct?

A. My science education that it must be testable, must form hypothesis, testable predictions, none of which intelligent design does. And also then taking that beyond that, an intelligent agent, an intelligent designer.

Once again, as Dr. Miller said, those are the words that, as a department, we tried to communicate to Alan Bonsell and to the school board at the meetings. We are saying that all before we even knew what Dr. Miller was going to say. So those very closely reflect my understanding and my views.

Q. You have a B.S. in science, correct?

A. Correct, physics.

Q. And you're a science educator?

A. Correct.

Q. You've also testified that in some of the classes you've taught dealing with evolution, you used a videotape that did discuss creationism, is that correct?

A. Yes, it did.

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

THE COURT: All right. Thank you, Mr. Gillen. Mr. Harvey, do you have any brief redirect or do you want to --

MR. HARVEY: Very brief, Your Honor.

THE COURT: Then we can get it in today. Let's do that.

MR. HARVEY: Hopefully, just two questions.

THE COURT: All right.

REDIRECT EXAMINATION

BY MR. HARVEY:

Q. Mr. Rehm, you testified about a conversation that you had with Angie Yingling on October 18th during the recess on your way out of the building. Do you recall that?

A. Correct.

Q. Mr. Gillen just asked you some questions about that?

A. Correct.

Q. Did you say anything in that conversation about a wedge strategy?

A. It is possible that I had, but I cannot confirm that. I did become aware of the wedge strategy. I know I knew the wedge strategy prior to November and December, but I don't know exactly when I became aware of the wedge strategy.

Q. And did Ms. Yingling later take, to your knowledge, a public stance about her vote?

A. Absolutely. She requested at a later meeting to have the policy rescinded. She tried to get, once again, a vote and it did not receive a second. So the vote never occurred. At that point in time, she offered a resignation speech.

MR. HARVEY: No further questions.

THE COURT: Last round to Mr. Gillen. Did you have any?

MR. GILLEN: No further questions, Your Honor.

THE COURT: All right. He didn't leave you much scope to maneuver in, in any event. All right. We have, for this witness -- you may step down, sir. Thank you. We have P-46, which again is the newspaper article, and inasmuch as I previously recalled, if you want to formally move it in, you can, and I --

MR. HARVEY: I do want to formally move it in.

THE COURT: You're going to object, Mr. Gillen, I assume, so consistent with the Court's prior rulings, we will not admit it at this time without prejudice to revisit that at a later point in time. Now have I missed any exhibits as they relate to any of the witnesses? I think we've picked them up in a timely fashion. Mr. Walczak.

MR. WALCZAK: With Dr. Miller, we had moved the admission of Plaintiff's Exhibit 434 as being Dr. Behe's book, Darwin's Black Box. It was called to my attention that, in fact, 434 is just excerpts of that book and the actual book is at Plaintiff's Exhibit 647. So we would move --

THE COURT: 434 is subsumed within 647?

MR. WALCZAK: Yes, 647 is the actual book.

THE COURT: So 647 would pick up the excerpts. Do you want to move them in? I see no reason to have both. But do you want to just pick up the book?

MR. WALCZAK: We can either substitute or just add 647.

THE COURT: Let's just add it for the record. We'll add 647, unless there's no objection.

MR. MUISE: There's no objection.

THE COURT: You didn't object before, so I assume you will not now. We'll admit that as well and the excerpts. Any other exhibits we missed?

MR. HARVEY: No, Your Honor.

THE COURT: We'll be in recess until tomorrow morning. We will reconvene the trial at 9:00 a.m. on Wednesday morning. We'll start at that point with the Plaintiffs' next witness. All right. Thank you. Have a good evening.

(Whereupon, the proceeding adjourned for the day at 4:30 p.m.)