Kitzmiller v. Dover Area School District

THE COURT: Be seated, please. We continue with direct examination by Mr. Rothschild.

DIRECT CONTINUED MR. ROTHSCHILD:

Q. Thank you, Your Honor. Good morning again, Ms. Brown.

A. Good morning.

Q. Did there come a time when you learned that there was a proposal to modify the biology curriculum at Dover High School?

A. The curriculum instructional guide, yes, sir.

Q. And how did you find out about that?

A. Initially from Mr. Baksa, sir, by a memo.

Q. By a memo? Could you turn in your notebook and also look on the monitor, whatever is better for you, at Trial Exhibit P-73? If you could look at the first page, is this the memo that you're referring to?

A. Yes, sir, it is.

Q. And it says, "Attached is a recommended curriculum change for biology. The changes were reviewed by the science department," and did you receive that at or around September 20th, 2004?

A. Yes, sir, I did.

Q. And on the second page is a draft change to the curriculum guide?

A. Yes.

Q. Or a page of that?

A. Yes, sir.

Q. And on the page that is stamped Exhibit 29 it says at the bottom, and I'm going to read it to you, because I know I'm also going to ask Matt to blow it up, but it says, "Students will be made aware of gaps in Darwin's theory and of other theories of evolution."

A. Yes, sir.

Q. And is that the recommended curriculum change that you remember receiving from Mr. Baksa at this time?

A. Yes, sir, it is.

Q. And did you -- was this the first time you were aware that a curriculum change was being proposed?

A. It was the first proposal I was aware of, yes.

Q. Did you respond to Mr. Baksa?

A. Yes, I did. I offered a couple of alternative wordings.

Q. If you could turn to P-681, and that will appear on your monitor, were these the suggested changes in the wording of what Mr. Baksa had sent you that you proposed in return?

A. Yes, it is.

Q. Did you tell him anything when you gave this to him?

A. We spoke very briefly, and I asked if the curriculum advisory committee was involved in the process, and he told me that Mr. Buckingham told him that it was not necessary to call a meeting of the curriculum advisory committee.

Q. And that's the citizens committee?

A. Yes, sir, it is.

Q. And did you agree with that statement by Mr. Baksa, or what he was reporting Mr. Buckingham had said?

A. I didn't agree with what he was reporting. I felt that the curriculum advisory committee as per our normal pattern should be part of it. They're an integral part of the whole process.

Q. Did you receive subsequent to this exchange a memorandum indicating that there would be a meeting of the board curriculum committee to discuss the biology curriculum?

A. Yes, sir, I did.

Q. And Matt, could you turn to Exhibit P-75? And blow up the text, please. Is that the memorandum you remember receiving?

A. Yes, sir, it is.

Q. Did you attend that meeting?

A. No, sir, I did not.

Q. And why was that?

A. I had an appointment with my ophthalmic surgeon, sir.

Q. What was the next thing you found out about the biology curriculum?

A. I learned that the teachers were not involved with the proposed changes. They were not part of the discussion.

Q. And when you're referring to the discussion, are you referring to the meeting of the biology curriculum, of the curriculum --

A. Subsequent to that I know that Mr. Bonsell was there, and they came up with changes in wording beyond what had originally been proposed on the 20th I believe.

Q. Did you receive any materials from Mr. Baksa with proposed curriculum changes?

A. We did indeed as part of our board materials just prior, the Thursday prior to the meeting.

Q. If you could turn in your notebook to Exhibit 84? And we have marked these exhibits as P-84-A, B, and C to correspond with how they were indicated as enclosures on the documents. You'll see the first is enclosure 11- A. If you could just look at P-84- A and P-84-B, were these materials you received on October 13th, 2004?

A. To the best I can read they are.

Q. Okay, and --

A. It's a little small.

Q. And the first one says that it is, 84-A says that, "Attached are the recommended changes to biology curriculum from the board curriculum committee," is that right?

A. Yes, sir.

Q. And there's an attachment to that memorandum?

A. Yes, there are attachments to those.

Q. And I'm going to -- if we could go to the next page which has the attachment, and I'm going to read from the bottom section of that page. It says, "Students will be made aware of gaps, problems, in Darwin's theory and in other theories of evolution, including but not limited to intelligent design." Is that the change to the curriculum proposed by the board curriculum committee that you remember hearing about at or around October 13th, 2004?

A. Yes, to the best of my recollection it is, sir.

Q. And then if we could turn to 84-B, which also indicates enclosure B, it says, "Attached are the recommended changes to the biology curriculum from the administration and staff."

A. Yes, sir.

Q. And in that, in the bottom section of that there's an attachment to that memorandum?

A. Yes, sir.

Q. And in the bottom section of that, and again I'll read to make this a little easier, it says, "Students will be made aware of gaps in Darwin's theories and of other theories of evolution."

A. Yes, sir.

Q. And do you remember that as being the change to the biology curriculum that Mr. Baksa represented to be the recommended changes from administration and staff?

A. Yes, sir.

Q. Thank you.

A. The difference, sir, in the main is the inclusion of under materials and resources under the previous, C, I'm not sure, the previous one is the inclusion of the reference to Of Pandas and People.

Q. And is another difference that the board curriculum committee's recommendation included mention of intelligent design?

A. Yes.

Q. And the one represented to come from administration and staff did not?

A. Correct. It used only the terms theories of evolution with a small "E," sir.

Q. Was this the first time you became aware of the board curriculum committee's recommendation that intelligent design and the text Of Pandas and People become part of the curriculum?

A. Yes, sir.

Q. Was there a board meeting on October 18th, 2004?

A. Yes, sir, there was.

Q. Did the board vote on a change to the biology curriculum at that meeting?

A. They voted on specific changes to the planned instruction curriculum guide, yes, sir.

Q. For biology?

A. For biology.

Q. Had there been an earlier meeting in October?

A. Yes, sir.

Q. Was that the planning meeting?

A. Yes, sir.

Q. Was the subject of a curriculum change for the subject of biology discussed at that planning meeting?

A. I don't recall the greater amount of the discussion, sir, but it was, there were many comments made.

Q. Let me just be clear. At this, not at the October 18th meeting but at the earlier meeting in October, the planning meeting, was there any discussion about the changes to the biology curriculum to include intelligent design at that meeting?

A. Not at that, not that part of it. There was ongoing discussion about the placement of Pandas and People in the classroom. My husband and I both had objected to the placement of it in the classroom. We felt it belonged in the reference section of the library.

Q. Was an actual curriculum change part of the discussion at this planning meeting?

A. Not that I recall, sir.

Q. Was that a deviation from custom and practice for the board not to discuss something that would be voted on at a subsequent meeting like a curriculum change at this planning meeting?

A. Sir, anything related to curriculum changes at this time of the school year was unusual.

Q. What do you mean by that?

A. There is a normal pattern related to curriculum specifically. We begin planning for changes to the curriculum the fall of the school year before. So in planning for changes for say the 2004/2005 school year we would begin meeting, discussing, researching in fall, the fall of 2003, and this was not the case. The normal procedures were not followed at all in making this change.

Q. And one way is that it happened after the school year was already underway?

A. Yes, and I had never experienced that during my entire tenure on the school board.

Q. And just to be clear, when school was underway for something that was to be implemented that school year?

A. That's correct, sir.

Q. And was it also unusual, putting aside the year, for something like this, a curriculum change to be voted on, when it hadn't been discussed at the planning meeting?

A. It was unheard of in my experience for all of the stakeholders not to be involved in any kind of change to our planned instructional curriculum guide.

Q. Do you know if the curriculum advisory committee citizens committee was made aware of this change to the biology curriculum prior to the vote on October 18th?

A. It is my understanding from Mr. Baksa that he did make telephone calls to a number, if not all, of the committee, the advisory committee members. I do not know how many people with whom he spoke.

Q. Do you know whether the curriculum advisory committee had a meeting about this proposed change?

A. No, they did not.

Q. Do you know whether they provided any input at all prior to the vote about the proposed curriculum change?

A. We received a sheet containing two or, I believe two comments that Mr. Baksa had prepared. They were comments that he had received from I believe telephone calls he made to advisory committee members. I do not know who.

Q. Could you pull up Exhibit P-151, Matt? Is this the document that you received with comments from the curriculum advisory committee?

A. It is, sir.

Q. And do you remember when you received it?

A. We received it just prior to the beginning of our board meeting on October 18th.

Q. Do you know who created this document?

A. To the best of my knowledge it was Mr. Baksa.

Q. And do you understand this to be his recording of what was told to him over the phone?

A. Yes. That is how he explained it to us.

Q. The heading is "Dover area school district curriculum advisory committee comments, comments on proposed biology curriculum changes from curriculum advisory committee." And could you read the entry for number 1?

A. "According to policy, curriculum advisory committee should review changes first before going to the board."

Q. And did you feel like that had not been followed in this case?

A. Most definitely it had not.

Q. Could you read with, there's a second statement.

A. "I disagree with the highlighted statement. Maybe we should meet as a curriculum committee."

Q. Did you have any understanding of what highlighted statement was being referred to?

A. To the best of my understanding it was the changes in the last sentence or two sentences in the biology curriculum guide.

Q. So just to summarize, the way this curriculum change came to a vote was irregular in the fact that the curriculum advisory committee had not been involved in the normal fashion?

A. Correct, sir.

Q. It was unusual in the fact that it was voted on during a school year to be implemented in that school year?

A. Yes, sir.

Q. It was unusual in that the teachers were not involved in that process, at least in meeting with the curriculum committee to come up with the proposed language?

A. To my understanding the final wording that came from the board curriculum committee, the teachers have no part at all in that. They only learned of it the morning of October 18th. The meeting would have been that night. They met hastily and made their own comments, but they were not involved in preparing any of it, no, sir.

Q. And it was also unusual in that it had not been the topic of discussion at the planning meeting, the meeting before the vote?

A. That is correct, sir.

Q. At the board meeting on October 18th did you bring these procedural problems to the attention of the board?

A. Not in so many words, sir. We tried to amend what was being proposed. The minutes of the meeting do reflect that I think there were something like eighteen amendments proposed. The only change that was finally added was the teachers' note concerning, "Origins of life will not be taught."

Q. And I will ask you about that aspect of the event in a moment, but did anybody communicate in the board meeting or among board members separately can we slow down here, we haven't done this right?

A. My husband was very forthcoming in suggesting that we table this. We voted on tabling it. That was defeated. There were a variety of tabling motions that were defeated. Mr. Renwick was our parliamentarian extraordinaire, and he offered many of those proposed amendments.

Q. But that was not successful?

A. No, sir. None of them were.

Q. If you could turn in the binder, and we'll also pull this up on the screen under Exhibit 84, we have 84-C, and it says Enclosure C, and it's dated October 18th. It says, "Attached is a second draft of the recommended change to the biology curriculum from the administration and staff." Is this something that you received as a member of the school board?

A. Yes. We received it the night of the meeting, sir.

Q. Okay, and there's an attachment to that document?

A. Yes, there is.

Q. Another draft curriculum guide?

A. Yes, sir.

Q. Okay, and if you could turn to that page? And this is virtually impossible to read, but it says, "Students will be made aware gaps, problems, in Darwin's theory and other theories of evolution. Notice, the origin of life is not taught," and here it does indicate the reference to Pandas and People. Do you remember that as the document, the attachment to the document you received on October 18th? Is that the language you remember?

A. Yes, sir.

Q. This document uses the expression "origins of life," and you brought it up in your testimony. When you use that term in the context of the biology curriculum and the teaching of evolution, what's your understanding of what that means?

A. How life began. Not simply on the earth, but in all of the universe that we know. From my own faith I believe in God the creator.

Q. I just want to -- I want to get your understanding of what the term meant as it was being used in the discussion of the biology curriculum. So your understanding as it pertained to this issue.

A. What the teachers did was to take custom and wanted to make it part of policy. Heretofore when students asked, as I testified earlier, when students ask about the origins of life, the teachers' custom was to refer them to discussion with their parents, to their pastors, their home churches. This had been custom, not written, and I believe from talking with some of the teachers later on that what they were trying to do was to keep this just this side of the line legally by making it written policy. You don't get into trouble with custom. It's when you get into written policy that you can get into trouble.

Q. Did you understand the term as it was being used in these discussions to include for example the origin of species, including the human species?

A. Yes, you could interpret it that way, sir.

Q. Did you interpret it that way?

A. When I say all of life I mean all of life, from the smallest single cell to the greatest galaxy, sir. That's my understanding.

Q. Did you have any conversations with other board members about this specific language, what it means?

A. There had been conversations through a couple of years discussing faith versus science, sir.

Q. Ultimately there was a vote on the change to the biology curriculum?

A. Yes, sir, there was a vote.

Q. And I'm going to ask you -- actually let me back up for a second. You said, testified earlier when we were talking about the June meeting that one of the things you advocate is that the concepts that they were talking about like creationism should be taught in for example a comparative religions class.

A. Yes, sir, I did.

Q. Rather than science.

A. Yes, sir.

Q. Did you renew that advocacy subsequently?

A. Yes, sir, I did.

Q. Did you do that --

A. At just about every meeting.

Q. Did you do that at the October 18th meeting?

A. Yes, I did, sir.

Q. Was that, when you said that, were you saying that intelligence design should be taught in that arena rather than science class?

A. Biology is a physical science. It is based on teaching our students about the physical senses, the world around them. Intelligent design, like any other hypothesis, is a matter of faith to me, and it does not belong in science class. It belongs in, I believe the term would be a softer class, a softer discipline, such as comparative world religions, world philosophy, ancient philosophy, but that type of subject.

Q. And you made that point at the October 18th meeting?

A. Yes, I did, sir.

Q. There was a vote?

A. Yes, sir, there was.

Q. I understand there were a lot of amendments before a vote on what finally was passed occurred, but I'd like to focus on what was actually voted into the curriculum. If you can turn to Exhibit 209, Plaintiff's Exhibit 209? And this document is really the entire biology course curriculum guide, and you can look in your notebook if you want to flip through it.

A. Yes, sir.

Q. On page P-1646, and those are page numbers that the plaintiffs have affixed to these documents during the course of this litigation, there's a section that reads -- and do you need a minute to flip through? It will also be on the screen, but take your time.

(Brief pause.)

A. Yes, sir.

Q. And at the top of the guide where it talks about unit, content, concepts, process, the chapters listed include 10, Natural Selection; 11, the Mechanism of Evolution; and 12, the Origin of Biodiversity.

A. Yes, sir.

Q. And going all the way to the bottom of the page, under the unit, content, concepts, process -- just we need the bottom section there, Matt. Do you recognize this, and actually, Matt, if you could pull in the note at the bottom as well?

A. Yes, sir, I do.

Q. And is this what was actually voted in on October 18th?

A. That was approved on October 18th.

Q. That says, "Students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution, including but not limited to intelligent design." Then it has a note below it, "The origin of life is not taught."

A. Yes, sir.

Q. And it includes the instructional strategy lecture?

A. Yes, sir.

Q. And under materials and resources the reference Of Pandas and People?

A. Yes, it does, sir.

Q. And what I just read to at the bottom of the page there, that is what the board voted into effect on October 18th?

A. The final vote was for this.

Q. Who were the board members who voted for that change?

A. Mr. Alan Bonsell, Mr. William Buckingham, Mrs. Jean Cleaver, Mrs. Heather Gessey, Mrs. Sheila Harkins, Mrs. Angie Ziegler-Yeungling.

Q. And who voted against the change to the curriculum?

A. Mr. Noel Renwick, Mr. Jeffrey Allen Brown, and myself.

Q. After this vote, what happened? What did you do?

A. At the end of the meeting, sir, when we opened for final public comment I requested recognition from the chair from president Bonsell, and I resigned.

Q. At the meeting did you explain why you resigned?

A. Yes, sir, I did.

Q. Do you remember what you said?

A. Not verbatim, sir.

Q. Did you read from a prepared text?

A. Yes, I did, sir.

Q. Matt, could you pull up Exhibit 688? Is this the first page of your resignation speech on October 18th, 2004?

A. It is, sir.

Q. I'm going to ask, Matt, could you turn to page 2 of the document? And this is what you read to everybody in attendance, "Fellow board members and the community"?

A. Yes, it is, sir.

Q. I'd like you to, starting at the second to last paragraph, to read what you said to the board and the community when you resigned. It's in your book as well on Exhibit 688.

A. I can read it. "We as board members serve as the representatives of our community to our district. We are responsible for making policy, for seeing that the district is in compliance with and remains in compliance with all applicable state and federal guidelines mandates and laws. We are here as representatives of all of the members of our community and to represent all viewpoints of our community, and we cannot favor one segment or one viewpoint over another."

Q. Could you continue reading, please?

A. "Sometimes in order to fulfill the requirements of our office we must put aside our personal feelings and beliefs. It is not always an easy thing to do, but it is what we must do in order to properly perform the duties and responsibilities of our office. In the past year regretfully there seems to have been a shift in the attitudes and direction of this board.

"There has been a slow but steady marginalization of some board members. Our opinions are no longer valued or listened to. Our contributions have been minimized or not acknowledged at all.

A measure of that is the fact that I myself have been twice asked within the past year if I was 'born again.' no one has, nor should have the right, to ask that of a fellow board member. An individual's religious beliefs should have no impact on his or her ability to serve as a school board director, nor should a person's beliefs be used as a yardstick to measure the value of that service.

"However, it has become increasingly evident that in the direction the board has now chosen to go, holding a certain religious belief is of paramount importance. Because of this, it is quite clear that I can no longer effectively function as a member of this board, that I can no longer properly represent the members of this community, and I apologize to them for this failure.

"Accordingly, effective immediately, and with deepest regret, I am stepping down from the Dover school board, as well as from the board and authority of the York County School of Technology. I shall pray for you all, pray that you will find the wisdom to separate your personal beliefs and desires from the proper fulfillment within the law of the duties and responsibilities of your office. I shall pray that you will learn to represent all of the members of our community and all of their viewpoints with impartiality and with grace."

Q. Thank you, Ms. Brown. Does the speech that you read reflect your view about how the change in the biology curriculum came about?

A. Yes, it does.

Q. Does it reflect your views about the general environment on the board at this time period?

A. With deepest regret I must say that it does.

Q. After this vote had occurred did any members of the board say anything to impugn your religious beliefs or religious faith?

A. Yes, sir.

Q. How many board members do you recall doing that?

A. Two board members, sir.

Q. Who were they?

A. One was William Buckingham.

Q. Who was the other one?

A. Mr. Alan Bonsell.

Q. What did Mr. Buckingham say to you?

A. He decried my beliefs, called me an atheist.

Q. When did that happen?

A. That was just after my stepping down from the board.

Q. When did Mr. Bonsell say something to you that you that you felt impugned your religious faith or your religious beliefs?

A. It was later on, a couple of months later, sir.

Q. And what was the setting when this occurred?

A. It was during a recess during a regular board meeting.

Q. What did he say to you?

A. He accused me and my husband of destroying the board, and he impugned my faith.

Q. What did he say?

A. He told me I would be going to hell.

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

THE COURT: All right, thank you, Mr. Rothschild. Cross examination by Mr. Gillen?

MR. GILLEN: Judge, just if you want to go on until 12:15 that's fine, but I might take a good bit of time --

THE COURT: Well, you think you will?

MR. GILLEN: Yes.

THE COURT: All right. Well, then it's probably an appropriate place to stop rather than interrupt you at mid cross examination. So contrary to what I said why don't we take our lunch break now, even though we've had a rather abbreviated session. So we'll break, why don't we break until let's say 1:15. I think that should give us plenty of time, and we'll reconvene -- actually let's say, there's some matters I must attend to. Let's say 1:30, and we'll reconvene at 1:30.

MR. GILLEN: Thank you Your Honor.

(End of Volume 1 at 11:53 a.m.)