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Kitzmiller v. Dover Area School District

Trial transcript: Day 3 (September 28), PM Session, Part 1


(The following discussion occurred in chambers:)

THE COURT: Let's go on the record. We are in chambers, and this is the matter of Kitzmiller, of course, versus Dover Area School District. We have assembled as planned with respect to the issue of certain subpoenas that have been issued to reporters Joseph Maldonado and Heidi Bernhard-Bubb.

Present in chambers are counsel for both the plaintiffs and the defendants, and in addition to that, let me ask that you enter your appearances specially, presumably as counsel for the individuals we referred to in our orders collectively as "reporters."

MR. BENN: I'm here, Niles Benn, on behalf of both of the reporters, Heidi Bernard-Bubb and Joseph Maldonado. And with me is Terance Barna, an attorney in my office, as well.

THE COURT: All right. Now, previously, on September 12th, the Court entered an order which went to the motion for reconsideration. That related specifically to -- filed by the reporters. That went specifically to our August 2nd order which, in effect, said that the reporters would have to testify at certain depositions.

Subsequently, the reporters were, if memory serves, approximately eight days ago, subpoenaed to testify by the plaintiffs in the case-in-chief. Yet another motion to quash or for alternative relief was filed by the reporters through Mr. Benn's office. By our order of last Thursday -- the date escapes me, I think it was Thursday -- the Court denied relief in that matter.

The Court was advised that yesterday, on September the 27th, the reporters, both of them, showed up at the appointed times for their depositions as appropriately scheduled by the defendants, and I'm advised -- and I'll correct this if I'm wrong -- that both reporters cited the reporter's privilege that they consider to exist under the First Amendment so that they would not answer any questions at those depositions.

We're brought here today by that, as well as the fact that I presume you're here because the reporters have been properly subpoenaed to appear in the plaintiffs' case-in-chief. Now, have I mischaracterized anything from your standpoint?

MR. BENN: No, everything that you said is correct, Your Honor.

THE COURT: Now, the most salient question then is, with respect to the reporters' appearance today, is it your understanding that the reporters are intending to invoke the same privilege cited by them yesterday, if called, when called, to testify by the plaintiffs?

MR. BENN: Yes.

THE COURT: All right.

MR. BENN: But that's the reason why I had asked if we could have this conference.

THE COURT: The floor is yours.

MR. BENN: Thanks. I'm not here to discuss law. I think we have discussed the law ad nauseam with respect to briefs, argument. I certainly understand the opinion and orders that have been rendered by the Court, and I appreciate them.

And I don't want there to be a misunderstanding in terms as to this case being wrongly focused. And what I mean by that, with regard to all of you in this room is that we've got approximately 40 people from the media that are observing this trial in the courtroom, plus outside of the courtroom.

In speaking for myself, it would be my humble opinion that if these parties were called to the stand to testify and refuse to testify, as I just indicated to you, Your Honor, that I think the focus of this trial all of the sudden isn't addressed as to intelligent design, but rather the media is going to be very much concerned in terms as to these stringers, not full-time employees, not employees at all, standing up for what they think is right. And I really truly believe in my heart of hearts the focus gets misdirected. I really truly do mean that, because I don't think that should be the focus of this case.

As a result of that, Mr. Barna and I have spent days in an effort to try to see if there was a means by which we could somehow ameliorate the problem so that, in a certain sense, everybody gets what they want. I clearly will not get what I want, because at the end of the day, if I agree that my reporters are going to testify predicated upon something that I want to propose here, that's more than I would want, because I stand by the fact and they stand by the fact that there's a reporter's privilege here.

They refuse to testify at a deposition, and my suggestion to them was that if we were capable of resolving something as a result of this conference, that they would then attend a deposition, because I believe the defendants would have a right to cross-examine them or otherwise examine them prior to them taking the stand. And based upon that, they would then testify in court.

But we have several issues. One is that when we filed our motion to quash last week, quite honestly, we thought we did it in a timely fashion because we filed it only after we were served with the subpoena. Your Honor summarily dismissed that motion to quash, so, in effect, if my reporters were to be called upon to testify today by the plaintiffs, they're undressed. They've got no protective order at all. They're just regular people. Because the order I believe that you had previously entered related to the deposition and not related to their appearance in court. So that raises an issue for us because clearly we would otherwise object to them taking the stand under the order as it currently exists or the motion that you're -- your position that the motion to quash could not stand.

I interpret the order and the amended order to mean that Your Honor, in a sense, has addressed them as fact witnesses. I don't think you actually come out and use the word "fact witnesses," but as one reads the order, that's the implication. And you initially had indicated that you did not feel that the reporter's privilege stood in this kind of a case.

These two newspapers respectively go to approximately 89 municipal meetings in terms of 89 different municipalities and school districts. And ironically -- in a sense, I have to commend both Mr. Maldonado and Ms. Bernard-Bubb because, again, they're paid per story. They get anywhere between $40 and $50 a story. They might make $300, $400 a week if they write X number of stories, and that's it. And the stories that they write predominantly are municipal stories.

She's a full-time mom. She's breastfeeding. She has a seven-month old child, and so she works at night when her husband is at home. He's a schoolteacher. Mr. Maldonado owns a little deli in the market in York, and he home-schools his son, his youngest son who has learning disabilities. And he's been doing that for the last three years. So this is just supplemental income to them because they're not very wealthy people. But yet without a lot of education in terms of journalism, they believe that what they're standing for is the right thing.

I don't have control over them as I would an employee of the Daily Record or the Dispatch because they are stringers and independent. So having said that, their fear is that because of all those municipalities that they cover and the school districts that they cover, that at least in the Middle District Court, should a matter come up similar to this case, then they are exposed as a fact witness.

I've related to them, quite frankly, this is the first case we've ever had in federal court in the 15 years that I've been doing newspaper law, and most of our cases are in county courts, and so, you know, there's a different issue there. But having said that, the concern that I have is that there is a precedent being set in the counties that these people otherwise work.

So how do I make it better? Well, we provided an affidavit, and that affidavit indicated that we, if called upon to testify, would validate the authenticity of the articles that were written. We did that, in effect, to offer to both sides so that we wouldn't otherwise have to testify. Accepted by the plaintiffs, not accepted by the defendants. Defendants wanted to have the right of cross-examination.

And at the time when you wrote the original order and you used the words "perceived, saw, and heard," we were concerned, as you well know, with the word "perceived" in terms as to what's the thought process. And there was dialogue on the phone amongst all of us, and you made it very clear that you did not want any testimony that would otherwise relate to biases and prejudices. And, in fact, when you reviewed the notes of the reporters, you had also indicated that your review of Heidi Bubb's notes and the e-mails clearly evidence that there was no bias in the writings, those writings.

The concern that we currently have is that the order reads, in effect, that they have to testify as fact witnesses, predicated upon my interpretation, as to what is otherwise unpublished material so that, for example -- just using this for example.

THE COURT: That's not my intention.

MR. BENN: No, no, but I --

THE COURT: Well, that's not my intention. And I wanted to let you go as far as you could, and I think I have to interject and I want to interject and I want to be clear, because I think it's important that I do that. Let me address a couple points that you made.

First of all, I understand and deeply respect the position that you're in in this case. And by saying that the motion was untimely, it was not legally untimely, it was untimely in my view only in the sense that it came, as I said, on the eve of trial, when we knew that there was going to be an issue with respect to their testimony at trial. It was an attempt to bring this to a head. It was successful in that respect. It was not successful in solving the problem, but it was successful to bringing it to a head. So to that extent, I succeeded, good, bad, or indifferent.

With respect to the point that you made as it relates to their testimony at trial, that is a very valid point. However, I will tell you that the sense of my opinion as it related to their deposition testimony and as reconsidered and as honed in the reconsideration, was that it was meant to apply -- the general thrust of that, the protections, if you will, in that opinion were meant to apply in the same sense to their testimony at trial, if they chose to testify, and they would be protected in every way by the Court, and they would not be questioned in the broader sense. So it would not revert back to an unprotected realm, if you will, at the time of trial.

To be as clear as I can be, at issue in this case -- and I can't particularly be concerned about precedential value. I understand your concern in that regard. I have to try this case the best way that I know how. The concern in this case, and it is a vital concern by all parties, is that we have, as you well know, to restate the obvious, we have newspaper articles within which there are quotes from individuals. Those quotes go, at least in one sense, to the purpose behind the policy that was enacted by the Dover School Board.

The simple issue here, because it is the Court's understanding that these individuals have denied that they made these remarks, is from the plaintiffs' standpoint how can they get something that is, in my view, on the purpose test, which clearly goes to the truth of the matter asserted, how do they get these newspaper articles into evidence? Well, they can't, in my view, without the reporters testifying.

The defendants might say that even with the reporters testifying, they can't get them in. I think that's their argument. But at the very least, in my view, and I think the plaintiffs might agree with this, the reporters would have to testify.

I didn't say this strictly in the opinion, perhaps, but my opinion was not meant to allow the testimony of the reporters to go in any way, in particular, outside the four corners of the affidavits rendered by the reporters. I can't say that to the word, and that's why the opinions were crafted the way that they were. The Court has to have some discretion on the questioning.

But I was as clear as I could possibly be that what is at issue here would be, for example, the particular events that the reporters wrote about and questions such as -- simple questions, did they attend the meeting, did they hear them say the comments, did they write the story immediately after, did they take notes at the time of the meeting.

I thought my opinion was clear in that regard, and as you appropriately characterize, no questions as to bias or motivation or reasons to misrepresent quotes would be allowed in. There I believe we would decidedly fly in the face of established case law.

I did not view and do not view the law as providing that there is some exhaustion requirement, although I understand some cases have said that. In this particular fact situation -- and I do think, I will say, on the issue of precedent, you can distinguish cases of -- and I'm not so sure I would be as fearful as some might be as to precedential value. I think this case is somewhat distinguishable, and I don't know that a judge in another situation would knee-jerk allow this type of testimony. We are in a very unique situation here, and that's what we have.

Finally, the last thing that I want to do -- I'm answering soliloquy with soliloquy here. I'm not sure if this is a dialogue. Finally, I am acutely cognizant of the fact that this trial has abundant media coverage, and it is surely not my intent to force a constitutional confrontation with two reporters and to create a side show that we don't need to. That's why we're meeting in chambers.

But I'll tell you that if it's their persistent position that they don't want to testify, then we'll go on the record -- now, I'm not going to put them on the witness stand. I don't think it's necessary to do that. I would bring you and the reporters, I will tell you, to the bar. I will swear them in, I will have them sworn in. I will ask you the question whether they're going to testify. I will allow them to speak for themselves on that point, and then we'll decide what we're going to do at that point.

I don't know what else to do, but I'm not going to go through the charade of having them take the stand and assert, you know, as articulately as they can the privilege that they believe that they can avail themselves of.

MR. BENN: That's fine.

THE COURT: I interrupted you, but I think it was necessary to do that.

MR. BENN: Well, let me share with you why I have the issue that I have. About a week and a half ago I had a telephone dialogue with Eric because I had proposed to Eric the possibility that in light of your most current order and because you took out the issues of biases and things of that nature and because we're going to be called to trial by Eric, that maybe he should be speaking to Pat to see whether they would be willing to accept the affidavit in lieu of the testimony.

THE COURT: I think we're beyond that.

MR. BENN: Well, and then what happened was, we had a conference call, Eric, Pat, several others in Pat's office and myself and Terry. They indicated that they would not. And then in the course of that conversation, the defendants counsel had stated, for example, we would like the opportunity to ask if they heard Mr. So and So say something, why didn't they write that. That's what I'm concerned about with respect to --

THE COURT: I'm not going to allow that question.

MR. BENN: But you weren't at the deposition, meaning you don't know that that question wouldn't be allowed and quite frankly yesterday you were in trial.

THE COURT: I said, though, very clearly in the last order, I thought, in the September 12th order, that I would be available. And I thought, when I heard that the reporters, quite frankly, appeared for depositions, that when I was on a break, I was going to hear an accumulated list of questions that were objected to and that I would have to rule on those questions.

Now, I don't have time to preside over a deposition at this late date. And I know that you respect that. You're experienced counsel and you know that. I do know from my private practice experience that I was extremely loathed to get a judge on the telephone in mid-deposition. That could be one of the most unhappy experiences that a lawyer would have.

MR. BENN: You got it.

THE COURT: Depending on the time of day and the personality of the judge.

MR. BENN: Especially after your last opinion on my case, I don't want to call you at all.

THE COURT: As you see, I'm far more genial than I express in writing. What I invited by that opinion, though, was that I would be available -- and I believe in an issue that is as important to the reporters and to you, as their counsel, as this, it is appropriate for you to stop a deposition on a question like that, instruct your witness not to answer, and allow the Court to rule on it. I was inviting you to do that. Now, I understand what your reasons are for not doing that, and I think you can do that.

Now, if you're telling me that you have problems with certain anticipated questions but not others and if you're telling me that the reporters would not exercise the privilege if they were kept roughly within the confines of their affidavits --

MR. BENN: I go beyond that. I'm willing to have them testify as to what they wrote in the article and basically forget the affidavit.

THE COURT: That's fine.

MR. BENN: That means everything that's set forth in that article.

THE COURT: Well, then I think we've clarified that point. Then I think you should reschedule the depositions and try to do that.

MR. BENN: Well, if I can interject -- I mean, this is kind of like my last hurrah.

THE COURT: We could only hope not.

MR. BENN: It depends what happens next week. Because we don't have an order with respect to trial testimony -- and we don't, except for the fact that, again, they're naked.

THE COURT: I'll produce that order, if necessary.

MR. BENN: Well, let me share with you where I'm coming from, because I think what I've done here -- and obviously I can't do your job. But what I'm proposing here, if you could just evaluate it.

THE COURT: Depending how long this trial goes, you might be my guest in terms of doing my job.

MR. BENN: All I'm doing is adding something to what it is that you basically have already written. And if I could just read this. You have no idea how long it took us to write this. Because I think it does exactly what you just said.

It says, Wherein an affidavit is provided in lieu of testimony to support a newspaper article or newspaper articles, the reporter shall be obligated to testify as to the facts set forth in the articles, i.e., what was seen and heard as related in the newspaper articles.

By doing so, the reporters would be verbalizing the contents of said affidavit -- I think, actually, they were your words when we had the telephone conference -- by testifying as to what appears in the newspaper article or articles, unless such affidavit is otherwise accepted by all parties as validating and authenticating the contents of the newspaper article or articles in issue. Meaning if they accept it, it becomes moot.

However, no testimony shall relate to unpublished material or information or to the reporters' motivations, bias, mental impressions, or other information extrinsic to what the reporter saw and heard, and the reporter shall not be obligated to reveal any confidential sources.

What I've tried to do here is to say, they'll testify as to everything that appeared in those articles. And how I then distinguish this case from maybe my next case is, where an affidavit is provided and the Court or the parties don't accept the affidavit.

What I've done is, it says that there's no extraneous unpublished material questioning. That's the clarity that I need. And then, quite frankly, my mindset is, if the issue of the defendants is that we were biased in our reporting because we either misquoted somebody or whatever, well, this isn't a jury trial. You're trying this case. You're either going to believe the reporters or you're going to believe Mr. Buckingham or Mr. Bonsell or whomever when they say, I didn't say that.

But my concern is that I have to have some degree of certainty by your order that they can't ask any questions as to unpublished materials.

THE COURT: Are you suggesting that this language should apply to both the depositions and the trial testimony?

MR. BENN: Meaning if you could adapt language similar to this for the trial testimony and I agree, I have no problem in them being at a deposition prior to trial with the same kind of language relative to that. I will appear at a deposition prior to trial.

I would like to do that, because of my own health conditions, maybe on Friday in terms as to a deposition, if that works within anybody's schedule, and then maybe the latter part of next week. Because what I did was, I put my surgery off until next Friday to get this done.

THE COURT: Well, the problem Friday, I assume you fellows are getting out of here on Friday, but I'm not sure of that.

MR. BENN: Or we could do it Monday. I mean, whatever works.

THE COURT: Well, we do have Friday morning off.

MR. GILLEN: Right.

THE COURT: Although you may have something scheduled in terms of pretrial planning. I'm not sure. Do you know?

MR. MUISE: I have a plane flight.

MR. WHITE: I was not going to be here.

THE COURT: Do we need the whole team?

MR. WHITE: I was the one going to take the deposition.

MR. BENN: Yeah, Ed was there yesterday.

THE COURT: Alternatively?

MR. BENN: Well, we'll do what we have to do.

THE COURT: Scheduling usually isn't my pay grade, but, you know, you can figure that out. Go ahead.

MR. GILLEN: Judge, if I may, there are some things here that we can agree with, but there are others that we can't. And this is why, in our opinion, Judge. You know, if our clients are believed, the reporters did talk to them but took misrepresentative statements so that they left things out to put them in a false light and in so doing have created articles that, if they were admitted for the truth of the matter asserted, would be misrepresentative.

THE COURT: Well, that's what I'm not going to get into. And I understand and I respect that argument. But I think I've got to line-draw here someplace. And I understood that argument before. And what I don't want to do here is turn this into an oral argument on things that I've already decided. And I know you respect that.

I think there is a privilege here, and I think the privilege sometimes gets drawn in what appears to be an ad hoc manner. But my job is to find where to put the line down in this case. To traipse into the area of why they selectively used a quote as opposed to not using other things that were said I think is to get on a very slippery slope. It really almost precipitates a bias line of questioning, and I'm not going to allow it. I am trying to narrowly draw this.

I understand that that's not what the defendants want in this case, but I don't think it's called for. And, as a matter of fact, I think if I did that and I ordered that and if -- I assume that the reporters would not testify and I would predict, if it went to the Third Circuit on that basis, I would be reversed. I don't think that that's a fair area of inquiry to get into.

This looks artificial when you're dealing with a fact witness, but these are fact witnesses who are also reporters, and I am straining to try to find a fair way to do this. I believe that to the extent -- and I've said this now several times -- that the reporters' testimony is necessary in order to invoke the residual hearsay exception under Rule 807, that the defendants have to have an opportunity to examine the reporters on the same topics and subjects that I would allow the plaintiffs to question them on during their case-in-chief, nothing more and nothing less.

So I'm inclined to accept this language, you know, not word for word, only to the extent where it states, rather generically, "wherein an affidavit is provided," I would take that sentence and simply say that affidavits have been provided, rather than "wherein." It's somewhat artificial or a little strained as it relates to this case.

The rest of it I don't have any problem because I think it does not do violence to my opinions. And this gets into a semantical exercise to some degree but one that is important, I understand, to the reporters. We have got to cut the Gordian knot here. Either --

MR. BENN: We can live with this, and they would testify if we had language similar to this.

THE COURT: Well, my intention would be to enter an order that is a wrap-around order, if you will, that is, in effect, a re-reconsideration of the order on the depositions but also speaks to the trial testimony in chief. And it will be abbreviated because of the time constraints on me, but we'll issue it forthwith, and it will indicate that you're going to -- they're going to sit for depositions under those circumstances.

MR. BENN: Can I ask whether that would be reported?

THE COURT: In what sense? When you say "reported," what do you mean by that?

MR. BENN: "Reported" meaning in the books.

THE COURT: Oh, published. When you say "reported" and you're talking about reporters, then I'm thinking, I have enough work in this case. No, we wouldn't publish it, but there are reporters who can access the CM/ECF system.

MR. BENN: No, the reason why I'm asking whether it would be published, I don't know whether your original opinion --

THE COURT: You're worried about the precedential value. No, it's not my intention to publish it. I have no need. However, good or bad news travels fast, and in the legal realm it will be cited by somebody someplace.

MR. BENN: You have no idea.

THE COURT: Oh, you'd be surprised.

MR. GILLEN: Your Honor, just in an effort to avoid needless procedure or inquiry, if I could just get a sense for what you have in mind and intend by the order. If they show up for deposition and begin to testify about an article about June 14th, 2004 --

MR. ROTHSCHILD: Hypothetically?

MR. GILLEN: Hypothetically. Would we be at liberty to say, did you hear anything else, did you see anything else?

THE COURT: No, because -- and I know this is difficult, but it goes like this. And this is the best I can put it, other than what I tried to do in my opinion. We have articles. We have a situation where the declarants, the quoted individuals, have apparently denied -- either denied, I guess -- I'm not sure about this. This is my understanding, either denied that they said what was reported in the articles or said that they were statements taken out of context. And they can speak for themselves. And that's one of the reasons that I'm line-drawing here. They can say that, and I'll take that under consideration.

But from the reporters' perspective, were they at the meeting. The obvious answer is yes, but they haven't answered that under oath. Did they hear the statement that is included in the article? Perhaps where were they standing in the room, did they utilize a tape recorder for the purpose of taking down the statement or did they use a tape recorder and did they take notes contemporaneously with the statement. How long after the meeting did they write their article, did they use the tape recorder, did they use notes as it related to that statement. Those are the types of inquiries that relate specifically to the contents of the article.

To allay Mr. Benn's concerns, I think it is not fair game to talk about all the other things that they heard and why they wrote the article the way they did and why they excluded quotes. I sincerely believe that that gets into journalistic integrity, and that's problematic, and it's not my intent to allow that, nor would I allow any questioning on anything personal to the reporters. I think I spelled that out in detail in the prior orders.

We are going to simply have them testify for the purpose of authenticating the contents of that article, nothing more, nothing less, because I really believe that to do more than that is to create, I think, a precedent which would have reporters called -- Mr. Benn, I think, fears that even this would do that. I don't share that fear. But to go any further than that would mean that a reporter's veracity could be questioned each and every time something like this comes up. I strain mightily not to have to do that. That's what I'm talking about. Now, I don't know if that clarifies it.

MR. GILLEN: It does, Your Honor, I think in large measure. And I would ask this, with your leave, would it suffice to preserve my objection that I object here in chambers on the record?

THE COURT: That's fine. And I note that, and that's why I wanted to do this on the record. And I understand that you object to that, and I understand the defendants have interposed not only this objection but they have also argued against that. And to the extent that this really clarifies and reasserts what I have in my prior orders, I think you've preserved your position as it relates to that, and I understand that position.

MR. GILLEN: Thank you.

THE COURT: Anything from the plaintiffs?

MR. WALCZAK: We have no objection to the proposed modification, Your Honor.

THE COURT: All right. So with that brief change to what is a little bit awkward in the first sentence, the "wherein" -- and I don't mean that facetiously, but just as it relates to this case, because this almost looks like it's a contracted or --

MR. BENN: I understand. I just wanted to make sure the word "affidavit" was in there.

THE COURT: We will recite that. We will get a clarifying order out.

Now, for the purpose of -- because this is a very public trial. What's your intention, what are your thoughts regarding how we should address this? Because it's known that this is a festering controversy.

MR. BENN: That's an interesting question. I mean, if we're not called today, which we're not going to be, I don't know that it really is an issue. We just had dialogue in chambers, the judge is going to be entering an order, and after we receive the order, we'll be able to make a decision in terms of where we proceed.

THE COURT: Well, I don't know about that. I think you can assume, unless you doubt my word, I'm going to issue an order -- and I'm very serious -- I'm going to issue an order and that order will be forthwith. I would prefer that --

MR. BENN: We can say that we've restricted the order in such a fashion that we believe the reporters will testify.

THE COURT: If I might be so bold, that we are satisfied with the resolution.

MR. BENN: Thank you.

THE COURT: We expect an order that is consistent with our understanding of an agreement that we reached -- I will let it to you to address that. And my intention would not be to address this again in open court this afternoon. We would just move on. You have other witnesses, I assume, to present, and we can move through this. I'm simply saying I don't want wiggle room that we're waiting to see, because I've had that experience now before.

MR. BENN: If you indicate to me as you have, that this is satisfactory to you, I will indicate that we are satisfied with the prospective order that we understand the Court is going to enter and that our clients will be testifying at deposition and at trial.

THE COURT: Because I'll adopt this, but I don't want to do this again.

MR. BENN: I understand.

THE COURT: And you don't want to do it again, I know, I recognize.

MR. WHITE: Your Honor, just one other clarification question. With regard to asking what they saw and heard with regard to all of the statements and the articles, I would assume that's statements made after the gavel banged and the meeting was over. Some of those quotes are afterwards.


MR. WHITE: But can questions be asked as far as the context of those statements?

THE COURT: Ask the question that you want to ask.

MR. WHITE: When so and so said this thing, you know, it was in response to what, what question or what else was being talked about when this statement was made.

THE COURT: No. That's too amorphous a question. The issue here, I'll restate, is the veracity of the articles themselves, did the reporter hear the statement as reported. If it was taken out of context, we're not going to delve into that in this examination. The individual who believes -- who was quoted and believes the statement was taken out of context or flatly that he didn't or she didn't say it and it's inaccurate will have the opportunity to say that during the defendants case-in-chief or at any other time during the trial.

We're not going to side door, you know, a bias argument by going into context. Context is a dangerous thing as it relates to what we're doing here. So, no, it's -- we presume that the statement was likely given to the reporter upon a question being asked by the reporter, although it could have been volunteered. That's of no moment.

The issue is, did the reporter hear the statement, was it reported adequately, not was it reported out of context, but did those words, as quoted, come out of that individual's mouth. Now, I can't be any clearer than that. All right?

MR. WALCZAK: Your Honor, one thing I might ask, since it is perhaps likely that issues are going to arise during the deposition, I'm wondering if we could now attempt to schedule the deposition at a time when everybody, including Your Honor, might be available to intercede.

THE COURT: Well, what's your next day that would be available if not Friday?

MR. BENN: Monday.

THE COURT: Well, Monday I'll be in chambers in Williamsport all day.

MR. WHITE: I cannot do it Monday because I couldn't get here on Sunday. My wife is going out of town, and I have to watch all the kids. I could do it Tuesday, I could do it Wednesday.

MR. BENN: Tuesday and Wednesday is a Jewish holiday for me. I can't do it.

MR. WALCZAK: How about tomorrow?

MR. WHITE: I'm leaving tomorrow.

THE COURT: Well, look, if it's any weekday other than next Friday when I will not be available -- I'll be traveling next Friday -- I'll be available. And, you know, we'll work through that issue. And if you're otherwise taking the deposition and we're at trial, I'll tell you that we'll construct some mechanism -- and we kind of talked about this a little bit yesterday -- where you hold the thought if counsel instructs the reporters not to answer because it's a problematic question, and we can circle back and we'll deal with that later.

I understand those things could come up in the course of the deposition, and I'll rule on those as I can if I'm not instantly available. So whether I'm sitting at trial or not -- and likely it will be a day when I'm sitting in trial -- we'll deal with it.

MR. WALCZAK: How about later today?

THE COURT: You work that out. Let's get back on the record here, because we've got people waiting and I want to get going. You'll have to work that out. But I will tell you in concluding that if it is at night, if you do it at night, I will give you my home number, and you can contact me so we get this finished. If we have to do that, we'll do it so we get it finished. I will not attend the deposition, though. I stopped doing that when I got this job. Anything else?

MR. BENN: No. Thank you, Your Honor.

MR. WALCZAK: Thank you, Your Honor.

(The discussion in chambers was concluded.)

THE COURT: We return in session, and I want to apologize to the assembled spectators and, of course, to the media. We handled a matter in chambers that you'll become aware of in an effort to resolve a problem, and I think we did. These things arise during trials from time to time. That is the first time that we've had that type of matter in this trial. We may have others as the trial unfolds. But it was a necessary exercise. And we try to keep them at a minimum and we will keep them at a minimum during the trial.

But with that, we will go back to the plaintiffs. You may call your next witness.

MR. HARVEY: Your Honor, the plaintiffs would call Julie Smith.

JULIE SMITH, called as a witness, having been duly sworn or affirmed, testified as follows:



Q. Please tell us your name.

A. Julie Ann Smith.

Q. Where do you live, Ms. Smith?

A. 3007 Honey Run Drive, York, Pa.

Q. And is that within the area covered by the Dover Area School District?

A. Yes, it is.

Q. And how long have you lived there?

A. Fourteen years.

Q. Do you have any children?

A. Yes, I have two children.

Q. How old are they?

A. My daughter Katherine is 16, and my son Michael is 19.

Q. Your daughter Katherine, what school does she attend?

A. Dover High School.

Q. What grade is she in?

A. She's in eleventh grade.

Q. Please tell us what you do for a living.

A. I'm a medical technologist.

Q. And please summarize for us your educational background.

A. I graduated high school in 1979, and I graduated at York College with a degree in medical technology in 1984.

Q. Now, did there come a time when you learned that the Dover Area School District Board of Directors was considering approval of a biology textbook?

A. Yes.

Q. And tell us, when did you learn that?

A. I learned that in June of '04.

Q. And what was the basis for your knowledge?

A. I read it in the paper.

Q. Do you remember what you read?

A. Yeah, I read it in the York Daily Record, and, yes, I do remember.

Q. Please tell us what you remember learning at that time.

A. That the school district was very concerned about approving a biology text that did not include creationism.

Q. And do you remember anything else that you learned at that time?

A. Not right off the top of my head.

Q. Okay. Did there come a time when you learned that the school district board of directors had approved a biology text?

A. Yes, they did in August.

Q. And what was the basis for you learning that at that time?

A. I read about it in the paper.

Q. And did there come a time when you learned that the school district board of directors was considering a supplemental textbook?

A. Yes.

Q. And what was the basis for your knowledge of that?

A. I learned that from the paper, also.

Q. And what did you learn?

A. That they were going to have Of Pandas and People in the classroom as a supplemental text to the biology book.

Q. And did you learn about where that book was going to come from?

A. It was donated.

Q. Now, did there come a time when you learned that the board had made a change to the biology curriculum?

A. Yes.

Q. And approximately when was that?

A. In October, I believe it was, in '04. It was in the newspaper that they were going to be teaching their intelligent design from Of Pandas and People.

Q. And did you attend that board meeting?

A. No.

Q. And did you learn anything else from reading the newspapers at that time?

A. Well, that they were going to read the statement in the classroom, yes.

Q. Okay. Now, I'd like to ask you to take a look in the notebook at what's been marked as P127.

A. Yes.

Q. Can you tell us what it is?

A. It's the newsletter that came to the house in the mail that told -- that had the statement included that they were going to be teaching in the biology class.

Q. Now, do you know approximately when you received this?

A. Well, it says it was February, so I'm assuming it was February.

Q. Did there come a time when -- let me withdraw that. Do you believe that the board's actions in this case, the change to the biology curriculum and its other actions, have caused you harm?

A. Yes, I do.

Q. And can you tell us what harm you believe that it has caused you?

A. Late in '04 my daughter came home from school, and I was discussing kind of what was going on in the district with her. And she looked at me and she said, Well, Mom, evolution is a lie, what kind of Christian are you, anyway, which I found to be very upsetting.

Q. Did you ask her why she said that?

A. Yeah, I asked her why she said that, and she said in school what they had been talking about or amongst her friends and what's going on. She seemed to be under the impression that as a Christian, she could not believe that evolution was a science that, you know, was true.

Q. And how did that harm you?

A. Well, it goes against my beliefs. I have no problems with my faith and evolution. They're not mutually exclusive.

MR. HARVEY: No further questions of this witness.

THE COURT: All right. Cross-examine, Mr. Thompson.

MR. THOMPSON: Thank you, Your Honor.



Q. Mrs. Smith, my name is Richard Thompson. I represent the defendants in this case. And do you recall in April where your deposition was taken by another member of the Thomas More Law Center, Patrick Gillen? Do you remember being involved in that deposition?

A. Yes, I do.

Q. Were you present in court for all the testimony that has been given in this trial?

A. No.

Q. When did you get to court?

A. Tuesday morning.

Q. Now, whose testimony have you heard so far?

A. I heard some of Ken Miller's. I heard Barrie Callahan, Bryan Rehm. I heard the gentleman this morning.

Q. Okay. You were asked to become a plaintiff in this case by the ACLU, were you not?

A. No.

Q. Didn't someone from the ACLU call you?

A. Yes, they called me. But I was actually asked by my friend at work, who said to me, would you be interested in having the ACLU contact you, and I said yes.

Q. And so the ACLU contacted you, and you agreed to become a plaintiff in this case?

A. Yes.

Q. Now, will you agree with me that the policy which is the subject matter of this lawsuit, the curriculum change in the biology for ninth grade, took place on October 18th, 2004?

A. Yes.

Q. That's when the board passed the resolution that changed the biology curriculum?

A. I believe so, yes.

Q. And that policy was implemented for the first time in January of 2005. Is that correct?

A. That's correct.

Q. In January, 2005, where was your son?

A. My son was in college.

Q. So he had already graduated from Dover High School?

A. Yes, that's correct.

Q. And in January, 2005, where was your daughter?

A. She was in school.

Q. What grade?

A. She was in grade ten.

Q. So you will agree with me that this biology curriculum really only affected, as far as the statement was read, ninth-grade biology students?

A. No, that's not true.

Q. So the statement was read to other classes?

A. No, but it would affect all the students at the school.

Q. Well, listen to my question. This policy provided that the statement was read to ninth-grade biology students. Do you agree with that?

A. I agree it was read to ninth-grade biology students.

Q. Okay. And your daughter had already graduated from the ninth grade?

A. That's correct.

Q. So at the time that this policy was implemented, both of your children were out of the ninth grade?

A. That's correct.

Q. Neither one of them would be subject to the statement being read to them. Is that correct?

A. That's correct.

Q. Okay. Now, you indicated to your lawyer that you got involved because of newspaper articles that you read?

A. That's correct.

Q. Okay. Now, is it an accurate statement that in the year 2004, prior to you becoming a plaintiff in this case, you had never attended a single board meeting --

A. That's not correct.

Q. -- in 2004?

A. In 2004, that's correct.

Q. Okay. Just please answer my question and then your attorney can ask you to explain if he wants to. So in 2004, prior to this -- prior to you becoming a plaintiff, you never attended a board meeting in that year?

A. In that year.

Q. Okay.

A. Before that, yes.

Q. In 2003, you never attended a board meeting. Is that correct?

A. No, I had attended board meetings previously.

Q. I didn't ask you that question. I asked you, in 2003, did you attend a board meeting?

A. I'm going to say I don't remember which board meetings I attended.

Q. In 2002 --

MR. HARVEY: Objection. Arguing with the witness and beyond the scope --

MR. THOMPSON: I'm asking questions.

MR. HARVEY: Excuse me, and beyond the scope of direct.

THE COURT: Wait, wait. One at a time. Let him finish, Mr. Thompson. Finish the objection.

MR. HARVEY: Objection, arguing with the witness and beyond the scope of direct.

THE COURT: I don't find it beyond the scope of direct. It's appropriate cross-examination. It's overruled on that basis. We're getting argumentative only because I think the witness and counsel are talking over each other. Each of you let the other finish before you start talking.

MR. THOMPSON: I apologize, Your Honor.

THE COURT: There's a great temptation in cross-examination to talk over. That happens. So let's get a question on the floor. Why don't you restate your question, Mr. Thompson.



Q. Is it true that you did not attend a board meeting in the year 2003?

A. I'm not going to say that's not true. I don't remember which board meetings I attended. I did attend some before '04.

Q. Is it true that you didn't attend a board meeting in 2002?

A. I told you I don't remember which year I -- I attended board meetings during the construction project, so when that was, that's when I was there.

Q. And that was the year 2000, was it not?

A. I don't remember.

Q. Mrs. Smith, I'm going to hand you --

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

THE COURT: You may.


Q. Mrs. Smith, I'm going to hand you what purports to be your deposition that was taken by Patrick Gillen. I would like you to direct your attention to Page 13, and I would like you to read out loud the question that you are asked starting with Line 18 and all the way down through that page and then going on to the next page, Page 14, and reading from Line 1 through Line 4. And please read it out loud.

A. You want me to read out loud starting on 18?

Q. Line 18 that starts with Q, which represents the question that was asked by Mr. Gillen, and A represents your answer. Would you please read it out loud.

A. "Let me just make sure I get you there and go on. You attended board meetings. Give me a sense of which ones you attended. They were not the board meetings" --

Q. Now give me your answer. So that the record will reflect, that was the question and now your answer, starting with Line 21.

A. You want me to read it?

Q. Yes.

A. "They were not the board meetings, and we were not discussing intelligent design. When I went to some board meetings, it was several years ago. We were discussing the building project, and it has nothing to do with the intelligent design."

Q. And then go on to the next page, and the question that Mr. Gillen asked you starting on Line 1?

A. "That is all I am trying to get a sense for. I am not familiar with the dates for the building project. Was that '03 or '02?"

Q. "Was that 2003 or 2002," is that right, the question?

A. That's correct.

Q. Okay. And what was your answer?

A. "I would say more like 2000."

Q. So was that an accurate reflection of your memory at the time that the deposition was taken?

A. Yes.

Q. Okay. Does that seem right that the board meetings that you attended prior to being a plaintiff in a lawsuit was in the year 2000?

A. If that's what I said, that's what I recalled at the time, yes.

Q. So based upon the response that you gave to your attorney, is it a fair statement that you began as a plaintiff in this case in December, 2004, without ever having personally witnessed the actions of the Dover School Board as they debated and enacted the policy on which this lawsuit is based?

MR. HARVEY: Objection. It's compound.


Q. Can you answer that question?

THE COURT: Now, wait. She's not going to answer it until I rule on the objection. Elaborate on your objection.

MR. HARVEY: I think there are several predicates to that question. He asked whether you were present at any of the board meetings while they debated and then enacted this resolution, and I'm not aware of any testimony that they debated the resolution.

THE COURT: Well, I think it's a fair characterization that there was discussion about the policy. I'll overrule the objection. You can answer the question. Do you recall the question?


THE COURT: Let's have the question read back, please.

(Previous question read back.)

THE WITNESS: That's correct.


Q. In fact, all of the information upon which you -- strike that. In fact, the information that you were getting about what the school board was doing in 2004 came from newspapers. Is that correct?

A. That's correct.

Q. And I believe in your deposition you indicated that you looked at the morning newspapers almost on a daily basis?

A. That's correct.

Q. And when you were looking at the morning newspapers, that you got very upset about what you read regarding the Dover School Board and the policies that they were debating. Is that correct?

A. That's correct.

Q. What were the two -- what were the newspapers that you were looking at during this time?

A. I read the Daily Record every morning.

Q. What about the York Dispatch?

A. Not regularly, no.

Q. Okay. So that it would be a fair statement that even though what you were reading in the newspapers got you upset, that you never personally attended one of the board meetings in that year?

A. That's correct. There were personal issues in my life at that time where I was not able to do that.

Q. And it is true that you never spoke to any of the members of the Dover School Board about the issues that concerned you. Is that correct?

A. That's correct.

Q. You never called them. Is that correct?

A. That's correct.

Q. You never e-mailed them. Is that correct?

A. That's correct.

Q. Did you write letters to the editor about what the school board was doing?

A. No.

Q. So that the first time that the school board would know that you were upset with their actions is when they learned of you being a plaintiff in this lawsuit. Is that correct?

A. That's correct.

Q. Okay. Now, did you ever speak to any of the teachers at Dover High School before you became a plaintiff in this case?

A. No.

Q. Did you ever speak to any of the reporters who had written the stories about what the Dover School Board was doing during this time?

A. No.

Q. Did you ever receive any minutes or notes about what the Dover School Board was doing during this time?

A. No.

Q. You never sent anyone e-mails or any other communication regarding this issue. Is that a fair statement?

A. That's a fair statement.

Q. In fact, one of the issues in this case is this book Of Pandas and People. Is that correct?

A. That's correct.

Q. You never looked at the book Of Pandas and People before you became a plaintiff in this lawsuit, did you?

A. I didn't feel that I could look at it. It was in -- I guess it was in the library at the school, but I was not aware if we could go in the school library and take out books or not.

Q. Well, did you make any effort to go and look at it?

A. I really wasn't interested.

Q. Now, your attorney referred to a newsletter that you received in February. Do you have a copy of that newsletter in front of you?

A. Yes.

Q. And I believe you indicated that you thought the newsletter was sent in February, 2002?

A. No.

Q. Excuse me, 2005. Excuse me.

A. Correct.

Q. Okay. Could we have that newsletter? I would like you to read from that newsletter on the top left-hand side in that box. Read it out loud, please.

A. "This newsletter has been produced to help explain the changes in the biology curriculum. Unfortunately, a great deal of misinformation has been spread regarding this policy. We hope this publication will help those interested better understand the substance of the policy while eliminating any misconceptions some may have about the curriculum change. We sincerely appreciate your understanding on this matter."

Q. Thank you. It was through this policy that you first learned about the statement that was going to be read. Is that correct?

A. No, I believe -- no, I heard about it before.

Q. But did you actually see the statement before?

A. I don't think so.

Q. So this was the first time that you saw the statement that was going to be read to the students in the ninth-grade biology class. Is that correct?

A. I believe so.

Q. Okay.

A. As far as I can tell.

Q. And so this newsletter was actually providing information to the residents of Dover as to what the actual newsletter was -- excuse me, what the actual statement was going to say. Is that correct?

A. Yes.

Q. Okay. So you had no problem with the fact that the newsletter was being produced, even though you had a problem with the policy. Is that correct?

A. No.

Q. Now, there's a bit of street wisdom, and I don't know whether you agree with this or not, and that street wisdom is, don't believe everything you read in the newspapers. Have you ever heard that?

A. Yeah, I've heard that before.

Q. Okay. And so if you don't believe everything in the newspapers, don't you think before you became a plaintiff in a lawsuit that you should have taken some personal action to verify whether things that were produced in a newspaper were really accurate?

A. I did talk to people in the district, other people in the district.

Q. Who did you talk to?

A. People that I work with, other people in the district.

Q. But you never even saw the policy until that newsletter came out. Is that correct?

A. I got my information from the newspaper, yes.

Q. And the newspaper. Now, have you ever had involvement with newspapers before? Have you been interviewed? Have you been interviewed by news reporters before?

A. No.

Q. But would it be a fair statement to say in the normal experience that newspaper reporters might spend five, ten, or fifteen minutes interviewing a person and then only put one line of that interview in an article?

MR. HARVEY: Objection. No foundation that she has any experience as referred to in the question.

THE COURT: Do you want to respond to that Mr. Thompson?

MR. THOMPSON: Well, I think it's common experience and it's knowledge, it's common sense.

THE COURT: Now I think we're going afield. I'll sustain the objection. We're now clearly outside the scope of direct, the objection is sustained.


Q. Well, you said that you were upset by the policy because it conflicts with your religion?

A. I said I was upset about it because I didn't find a problem with it with my religion. It does not -- I'm getting confused. I have a problem with it because my daughter came home from school and she says to me, What kind of Christian are you, anyway? So that's why I have a problem with it.

Q. If you recall your deposition -- and I certainly will give you an opportunity to look at it if you don't recall it -- the incident that you're referring to, also you received information that your daughter was a member of a Bible club. Right?

A. Yes.

Q. And up to that point, you were not even aware she was a member of a Bible club. Isn't that correct?

A. That's correct.

Q. And that it was -- she had a lot of friends who went to Protestant fundamental churches. Is that correct?

A. Yes, she does.

Q. And she received that information from her friends, her Protestant friends in school or in the Bible club. Isn't that correct?

A. I would assume that's where she got her information, from the Bible club at school. Plus they talked about it.

Q. And the fact that someone believes in intelligent design does not make that inconsistent with the Catholic faith, does it?

A. I spoke to my deacon about this situation, and all I know is what he told me.

Q. Is he a theologian?

A. He's a deacon at St. Rose Catholic Church.

Q. Do you know if he has any particular expertise in Catholic theology?

MR. HARVEY: Objection again. Beyond the scope of direct, Your Honor.

MR. THOMPSON: She brought the issue up of religion, Your Honor, and I'm exploring that.

THE COURT: Well, I think it is beyond the scope, again, the colorable scope of direct, and I'll sustain the objection. This is not a deposition. This is testimony in the case-in-chief, and we're afield.


Q. Now, the book Of Pandas and People, you don't mind that book being in the library, do you?

A. No, I don't have a problem with it being in the library.

Q. You heard yesterday, if you attended the deposition of -- excuse me, the testimony of Mr. Rehm's, that the science teachers, in a compromised move, had agreed to put Of Pandas and People in the science class. Did you hear that?

MR. HARVEY: Objection, Your Honor. Mischaracterizes the testimony.

THE COURT: In what sense?

MR. HARVEY: I believe Mr. Rehm testified that the teachers did not agree to put the materials in the science class.

MR. THOMPSON: Your Honor, my understanding in --

MR. HARVEY: And --

THE COURT: Now, wait, Mr. Harvey. Let Mr. Thompson speak. One at a time.

MR. THOMPSON: Your Honor, my memory, if it serves me correct, Mr. Rehm testified that they had reached a compromise with some of the board members that they were going to allow the book Of Pandas and People in the science classroom.

THE COURT: My recollection is that he may not have used the word "compromise," he may have used the word "concession." I'm not sure that there's a distinction as it applies here. I'll overrule the objection. Did you hear Mr. Rehm's testimony yesterday?


THE COURT: Well, then go ahead.


Q. Whether it's "concession" or "compromise," did you hear that the teachers had agreed to put Of Pandas and People in the science classroom?

A. I don't remember exactly what he said yesterday.

MR. THOMPSON: No further questions, Your Honor.

THE COURT: All right. Thank you, Mr. Thompson. Any redirect?

MR. HARVEY: No, Your Honor.

THE COURT: Then, ma'am, you may step down. That will complete your testimony. And I don't think we have any exhibits to enter, do we?

MR. HARVEY: That's correct, Your Honor. P127 is already in evidence.

THE COURT: You may call your next witness.

MR. HARVEY: Your Honor, the plaintiffs call to the stand Plaintiff Christy Rehm.

CHRISTY REHM, called as a witness, having been duly sworn or affirmed, testified as follows:

MR. HARVEY: Your Honor, again, may I make sure that she has the binder of exhibits?

THE COURT: You certainly may.



Q. Please tell us your name.

A. Christy Rehm.

Q. Are you married, Mrs. Rehm?

A. Yes.

Q. Tell us the name of your husband.

A. Bryan Rehm.

Q. Please clarify for us one important question, and that is, exactly how old are your children?

A. My children?

Q. Yes.

A. I have a 14-year-old daughter, Alix, an eight-year-old daughter Paige, a seven-year-old son Ian, and a 15-month-old son Lucas.

Q. And where does your family live? I mean your immediate family, you and your husband and your children.

A. 3690 Rock Creek Drive, Dover, Pennsylvania.

Q. And how long have you lived there?

A. Approximately five years.

Q. And had you lived in Dover previously to that in your life?

A. Yes. I grew up in Dover, I attended Dover High School, graduated from Dover High School. My family, my extended family, lives in the Dover area, including my grandparents, my parents, and other relatives. My parents currently still live in the Dover area.

Q. And please tell us where your children are right now in school, the grades, please.

A. Grade level, okay, yes. The oldest is in ninth grade, the next one is in the third grade. I have a first-grader, and then obviously the baby is not in school yet.

Q. And the oldest three children, do they attend the public schools in Dover?

A. Yes. Two of them, my oldest is at the high school, the Dover High School, and then I have -- the next one is at the Weiglestown Elementary School. And my son is hearing-impaired, so he is charged with the education of Dover School District, meaning that they have to provide his education, but he actually attends classes at a hearing-impaired classroom.

Q. And your daughter that's in the ninth grade, is that at the Dover High School?

A. Yes.

Q. And is she taking biology now?

A. Yes, she is.

Q. Please summarize for us your educational background.

A. As I said, I graduated from Dover High School. I attended Lock Haven University and Millersville University. I received a BA from Millersville University in English, and I also have a degree in journalism, as well. I later got a teaching certification and attended Penn State University where I received my master's degree.

Q. Do you work outside the home?

A. Yes, I do.

Q. What do you do?

A. I'm a teacher, an English teacher.

Q. Where do you teach?

A. In a public school system outside of York County.

Q. And what grade do you teach?

A. High-school level, so tenth through twelfth grade generally.

Q. Did there come a time when you learned that the Dover Area School District Board of Directors was considering a change to -- was considering approval of a biology textbook?

A. Yes.

Q. Do you remember when that was?

A. It was sometime in 2004. It was prior to the June meetings because my husband was a teacher at the school, so I often heard things that he would come home and tell me. So I knew that there was some discussion over the biology book, so sometime before that. I can't tell you exactly when.

Q. Did you attend a meeting of the Dover Area School District Board of Directors on June the 7th of 2004?

A. Yes, I did.

Q. And why did you attend that meeting?

A. Well, because, like I said, my husband had been a teacher at the school, and he had sort of been directed by the high school principal to attend the meeting in support of the different things that were happening. There were other textbooks that were being adopted and controversies over them, and, you know, it was sort of a rallying thing, I suppose.

And I went along because I live in the district, I pay taxes in the district, my children attend school in the district. I'm an educator, and I was curious about what was happening.

Q. And can you recall anything that happened at that meeting on June the 7th?

A. I recall a lot of things that were happening at that meeting.

Q. Please tell us what you can remember about that meeting.

A. Okay. Some of the -- I attended a lot of meetings, so facts blur together. What I do recall, I -- as my husband said yesterday, I was pregnant at the time, so I have some reason to remember certain things. But I recall Barrie Callahan speaking about the textbook. It was the first time that I had really ever been around Barrie Callahan, so she strikes me -- that memory strikes me because my mother had known her previously.

And she was speaking about the textbook, just questioning them. I don't remember her exact words. But I do know that she was upset with them about this textbook, the textbook process, the students not having a textbook. Obviously it was very distressing for her that the students in the biology class did not have a textbook.

Q. Do you remember if any board member spoke back to her in response to her questions?

A. Yes. Bill Buckingham said to her -- and I know Bill Buckingham because at the time he lived down the street from my grandparents and for many years lived there. And he responded to her basically saying that there's, you know, a problem with the textbook, it needs to be balanced, comments about laced with Darwinism, it needed to be balanced with creationism. Comments of that nature is what he had said to her.

Q. Do you remember --

A. I'm sorry.

Q. I'm sorry.

A. And I distinctly recall Barrie Callahan sort of throwing her hands up in the air and saying, Oh, so this is about evolution. That was very distinct in my mind, just her mannerisms as she said that.

Q. Do you recall a young man by the name of Max Pell speaking at that meeting?

A. Unfortunately I was in the restroom at the time that Max Pell was speaking because -- my husband told you I was eight months pregnant. I was actually nine months pregnant and due any day, so I spent quite a deal of time in the restroom.

But I had excused myself to go to the restroom just after Barrie did this whole thing. In fact, I may have been walking out of the room at the time and in close proximity to her. And so at the time when Max was speaking -- I believe that there were people who spoke in between she and Max Pell.

But at the time when he stood to speak, I was in the restroom and sort of coming back from the restroom, so I don't really recall exactly what his comments were. I know him because he was my husband's student, though.

Q. Do you recall any other board members saying anything during the course of any discussion about the biology textbook?

A. Well, like I said, I was reentering the room from the bathroom, so I was sort of in the doorway. And I obviously didn't know what Max had said to the board but that he had spoken to the board. So the comments that were coming back were, I assume, directed at him.

But there were comments from Bill Buckingham about brainwashing, and I remember hearing that, the whole thing about brainwashing, because it dealt with going to college and getting this education and students who go to college become brainwashed. And I was very upset by that because I attended college and I don't feel as if I were brainwashed.

And also I recall Alan Bonsell making a comment about, you know, there are only two theories, there's this theory evolution and there's this theory creation, and if you're teaching only those two theories, then there's not a problem.

Q. Do you recall anything else Mr. Bonsell said?

A. At this time, no.

Q. Do you remember anything else that was said by any members of the public at that meeting?

A. At that meeting. Currently, I don't.

Q. I'd like you to take a look at what's been marked as Exhibit P46. It's in the notebook in front of you. Just take a moment to look at it.

A. Okay.

Q. Do you have that in front of you?

A. Yes.

Q. Have you ever seen it before?

A. This article, yes.

Q. Did you see it at or around the date that it was published?

A. Yes, I did.

Q. What's the date on it?

A. The date is June 9th, 2004.

Q. Who is the author?

A. The author is Joseph Maldonado.

Q. And can you tell us what publication its from?

A. Yes. It is from the York Daily Record.

Q. Now, did you just have an opportunity to read it just a moment ago?

A. Just now I skimmed it, yes.

Q. Take another moment to look at it if you need to, but I would like to know whether it refreshes your recollection about anything else that happened at that meeting.

A. Yes.

Q. Okay. Tell us what else -- after looking at that article, do you remember anything else that happened at the meeting?

A. Yes, I do recall Bill Buckingham making comments about, you know, the apes and monkeys -- coming from apes and monkeys. And I also --

MR. MUISE: Your Honor, again, objection. It appears she's going to be reading from the article with her testimony.

THE WITNESS: I'm sorry.

THE COURT: It's a little hard to do this, but we'll sustain the objection. Mr. Muise's objection is well-founded. Let me explain how we can do this, how we must do this.

When your counsel asks you the question, you may review the article, take a look at it, see if it refreshes your recollection. It's important that having refreshed your recollection, if it jogs something or re-creates a memory, that you testify in answer to Mr. Harvey's question. Do not look back and read from the article as you're testifying, please. All right?

THE WITNESS: Yes. Sorry.


Q. Now, do you remember anything else that happened at that meeting?

A. Yes. I remember comments about our country being founded on Christianity and not needing to teach the faiths of other people. And I remember talking to my husband about that in the car ride home, as well, because we're both teachers and I was -- when I hear things like that, I immediately think of my students, and I was thinking about the diverse group of students that I have in my classroom, who all have different religious viewpoints, and how difficult that would be to tell one student that, you know, we can't express your belief, but we can express that person's belief in the classroom. And I just find those things to be very upsetting when I hear things like that being said.

Q. Now, do you remember if you attended another meeting of the Dover Area School District Board of Directors approximately a week later on June the 14th?

A. Yes, I did.

Q. And why did you attend that meeting?

A. Well, because there wasn't really a clear resolution to what had occurred the previous meeting. In addition, I was very angry when I left the June 7th meeting just because of the demeanor of the school board and the things that were being said.

And, honestly, I thought that maybe it would set me into labor because of, you know, being angry, and at that point in time I was past my due date, in addition to caring about my children's education and everything I said previously.

Q. Now, tell us what you can recall of the June 14th, 2004 board meeting.

A. Again, there were many, many things that happened at that school board meeting, and I can tell you that I was very much interested in what was being said. And so I pretty well made sure, at the beginning of that meeting, which went on for quite a long time, that I wouldn't miss anything, so I took care of my bathroom needs beforehand.

And I recall the meeting starting with Bill Buckingham sort of -- I'm sorry, Trudy Peterman spoke about her -- actually, hold on. Give me one second to think about this. Yes, Trudy Peterman spoke. She was the high school principal at the time. And I know that she spoke because the thing that she said seemed very similar to her graduation speech that she had said just previously.

My sister had graduated that year, and I attended the commencement ceremony. And she had talked about Visigoths and things like that that she had spoken about in her commencement speech. And essentially she was speaking up for the teachers and the biology textbook.

And after she had spoken, Bertha Spahr also spoke, as well. She's the department chairperson, and, actually, I had her as a science teacher. And she presented information to the board, documents, that she and I believe other members of the science department had researched on, I guess cases that had been set down before on creationism in the public school system or something of that nature, just to show them that, you know, if they were still considering this idea, that they might, I don't know, be met with some litigation or something.

After she spoke, Bill Buckingham had made a comment to her about her -- where did she get her law degree from. Can you give me one second? I'm wondering if I'm getting my meetings mixed up.

MR. MUISE: Objection, Your Honor. This is running into a narrative.

THE COURT: Well, I think it's still responsive to the question. Do you want to put a question on the floor?

MR. HARVEY: She was just thinking.


Q. Did you need to think and change your testimony in any way?

A. I just wanted to make sure that I wasn't getting my meetings mixed up.

THE COURT: You can finish your answer. Do you want to finish the answer, or is that your answer?

THE WITNESS: Yes, that's my answer. I'm sorry, I recall something else, as well. I recall Charlotte Buckingham, who is Bill Buckingham's wife, speaking at that meeting, as well.

Essentially there were a lot of people in the community who were standing and speaking at this meeting because they wanted to warn the school board that they were not in favor of any legal action coming against the community, against the school board. They were afraid for their tax dollars.

And Charlotte Buckingham I recall really being the only person who got up to stand in defense of the school board, and she was Mr. Buckingham's wife, or is Mr. Buckingham's wife. And she quoted Scripture, Old Testament, actually, all Old Testament Scripture about why the school board is right, basically. And she also talked about school prayer and the need for school prayer in that speech that she had prepared.

In addition, Reverend Warren Eshbach stood up and spoke at that meeting, as well, sort of urging the school board not to proceed with this. And many other members of the community spoke, as well.


Q. Did your husband speak?

A. I recall my husband speaking. In fact, he hadn't prepared to speak, but he was very upset, as many people in the audience were, and he stood up to speak. I don't remember his exact comments, but, again, it was a warning to the school board and -- actually, not necessarily a warning, but just sort of reiterating what science teachers do in their science classes and how there is really no conflict here with the textbook.

MR. MUISE: Objection, Your Honor. It's a narrative. The question was, did your husband speak.

THE WITNESS: Yes, he spoke.

MR. HARVEY: My next question was going to be simply if you could tell us what -- but I think she's already told us what she can recall her husband said.

THE COURT: Well, that answered the next question. That moots the objection, and you can move to the next question.


Q. Do you remember Bill Buckingham speaking at this meeting?

A. Oh, yes. There were not many meetings where Bill Buckingham did not speak. And, actually, at that meeting -- I believe the beginning of the meeting was an apology, actually, which he had prepared in advance apologizing to the members of the community if he had said anything that offended them.

And it seemed to me sort of an inappropriate apology because -- or maybe "inappropriate" is not the correct word, but not a sincere apology because almost immediately after he had given his apology, he started doing the same things that he had always done, which was to demean the public, to say negative comments.

Q. Do you remember specifically anything he said?

A. Yes. He made comments like, 2000 years ago someone died on the Cross, can't we take a stand for Him. He made comments about the liberals in black robes coming and taking away our freedoms in the school. He made many, many comments at that meeting.

Q. Now, did you attend any other meetings of the Dover Area School District Board of Directors that summer?

A. No, we didn't attend that summer.

Q. And did you attend any meetings that fall?

A. Yes.

Q. Did you attend the meeting on or about October the 18th of 2004?

A. Yes, we did.

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

A. Well, there was -- at this point in time it was the change in the curriculum that was being proposed and voted on that evening. And, again, this was a heated meeting. There were many members of the community who stood to speak, science department members.

Jen Miller spoke, although I didn't really know who she was at the time. I recall her speaking on behalf of her biology course. I recall Bertha Spahr again speaking. My husband again spoke at this meeting. And, again, other members of the community spoke at that meeting.

Q. Did you and your husband stay for the whole meeting?

A. No, we didn't.

Q. Now, during the time that you were at the meeting, did you hear any discussion among the board members about the reasons for the proposed change to the biology curriculum?

A. During the board meeting?

Q. Yes.

A. No.

Q. Did you attend a meeting the following week, on or about November the 2nd, 2004?

A. Yes.

Q. And can you remember anything from that meeting?

A. Yes. I recall Noel Weinrich who had spoken at other meetings, as well, was upset about the vote that they had taken and was sort of urging them to rethink the vote.

Q. Do you remember anyone requesting access to --

A. Oh, yes.

Q. -- a tape of the October 18th meeting?

A. Yes. Because my husband and I had left early -- we had our infant with us and he needed to get home -- we had heard that there were comments that were said after we left about teachers should be fired if they don't listen to the school board's directive.

And we wanted to hear that for ourselves, so my husband had previously requested the tapes and then at that meeting he stood again to request the tapes. In addition, Barrie Callahan had stood to request the tapes at that meeting, as well.

Q. And do you remember if any members of the school board spoke in response to either your husband or Barrie Callahan with respect to the subject of the tapes?

A. Yes. Barrie -- I'm sorry, Alan Bonsell said very clearly that -- Dr. Nilsen had said something, as well, about the tapes, that it's not policy or something like that, that this is not past practice, this is not policy, this is not standard policy to release tapes to the public.

And additionally, Alan Bonsell made the comment that they couldn't release the tapes because after speaking with their solicitor, there would possibly be legal issues, ramifications if they released the tapes.

Q. Now, I'd like to just ask you just a couple more questions. Mrs. Rehm, do you believe that the board's actions with respect to the change to the biology curriculum have caused any harm to you?

A. Yes, absolutely.

Q. And can you please tell us how you have been harmed?

A. Well, in numerous ways. First, as a teacher, professionally, I feel that teachers in general are harmed, myself, as well, because there's a dichotomy here in what they're saying about this statement that they have passed on intelligent design as they're not teaching it. On the other hand, they've said that it enhances state standards and critical thinking.

In my mind, everything that you do in a classroom is teaching. And I don't necessarily think that's just in my mind. I believe that's true of all educators. The way I dress when I go to work tells my students something. The statements I make or the statements that I do not make in my classroom tell my students something.

So I think we're charged with, you know, having an ethical decision to make when we walk into the classroom, the things that we say and the things that we do, and so I think that's very important. But you can't say when you walk into a classroom, you're not teaching. And if that's what's happening in the Dover school system and my children are in that school system, that they're routinely establishing practices that is not teaching in the classroom, then that's shameful.

In addition, I have a child who is in the ninth-grade biology class, and this has spilled over into other classes. It's not just the biology class that has been affected by this. My child has heard comments from other students, school board member students in her classroom about evolution being against their religion, and do you think we came from monkeys, how can you think we came from monkeys.

It used to be a weekly occurrence. It's now a daily occurrence, and my daughter comes home from school upset about these comments that are being made to her and, you know, is looking for guidance on how to respond to these questions.

Also, intelligent design is not a scientific concept. It's a religious concept. And because I don't subscribe to that particular brand of religion, I feel that I and my daughter, my family, are being ridiculed, and my daughter feels the pressure. I reserve the right to teach my child about religion. And I have faith in myself and in my husband and in my pastor to do that, not the school system.

MR. HARVEY: Thank you. No further questions.

THE COURT: All right. Before we start the cross-examination, I think this will be an appropriate time for our afternoon break. We'll take that break for approximately 20 minutes, no longer than that, and we will return with Mr. Muise's cross-examination of the witness. We'll be in recess.

(Recess taken.)


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