Kitzmiller v. Dover Area School District

THE COURT: Be seated, please. All right. Let's take, Liz, if you have them, we'll take the exhibits for Professor Forrest, and there are quite a few. We have P-348. I'll tell you what I'm going to do.

I'm going to run through the whole list that I have, and then I'll see if there's any that you're not moving for the admission of and if there are any controversies with respect to these exhibits. P-348 is the witness's CV.

630 is the Trojan Horse publication, the book. P-347 is the report itself. P-349 is the supplemental expert report. P-418 is the Kenyon affidavit. P-12 are the FTE articles of incorporation. P-633 is the Why All the Fuss About Evolution and Creation article.

P-566 is the FTE letter. P-344 is the case for creation -- a case for creation article. P-634 is the Bible Science newsletter. P-563 is the creation biology textbook. P-560 is the biology and creation textbook.

P-1 is the biology and origins textbook. P-562 is the Pandas draft. P-652 is the Pandas and People copy sent by Mr. Buell. P-565 is the introduction to summary chapter. P-6 is Of Pandas and People. P-350 is the FTE letter to Barlett. P-360 is Challenging Darwin's Myth by Mark Hartwig. P-429 is Life in the Big Tent article.

P-524, How the Evolution Debate Can't Be Won article. P-355 is an article. P-379 is the State of the Wedge article. P-516 is the Wedge article. P-410 is Darwin's Last Stand, an article. P-354 is the Check for ID article.

P-473 is, Does Seattle Group Teach Controversy article. P-386 is the intelligent design article. P-390 is the intelligent design book. P-394 is the design revolution book. P 357 is the intelligent design article. I don't know if that's comprehensive. I hope it is. Tell me if it's not.

MR. ROTHSCHILD: I think there were a couple exhibits already admitted.

THE COURT: Yes, clearly several of them had been previously admitted. What is your pleasure with respect to that roster?

MR. ROTHSCHILD: Your Honor, the Plaintiffs would seek to move in all of the exhibits into evidence, but I want to just be specific about the expert reports, because we only want to move them into evidence for a specific purpose and not -- I'm not suggesting a precedent that all expert reports come into evidence.

With this particular expert, her qualifications, methodology had been challenged. That was the subject of the motion in limine and also argument in court. And for those purposes, her report, we believe, should be part of the record, and, in fact, I would suggest that all of the resources that she relied upon become part of the record for purposes of -- for that specific purpose.

THE COURT: All right. Before we get to that, let's see if we can color from that list what has already been admitted. Pandas is P-6, I think, is that right?

MR. ROTHSCHILD: The first edition of Pandas is P-6. That's the 1989 version.

THE COURT: I believe that was admitted previously.

MR. ROTHSCHILD: I think that's correct.

THE COURT: Do you know of any others that were previously admitted?

MR. ROTHSCHILD: I'm going from my list, which you may have not included some of the things you had recorded as admitted. P-11 is the second edition of Pandas.

THE COURT: Yeah, I don't have P-11 on this list.

MR. ROTHSCHILD: P-328, I don't think you said, but that's one that was admitted through Mr. Pennock.

THE COURT: Did we admit P-6, Liz, previously?

COURTROOM DEPUTY: I don't have that as admitted already.

THE COURT: Then we didn't. Liz typically takes down and cross checks me with what we have not admitted, so I'm not so sure if P-11 was admitted.

MR. ROTHSCHILD: We would like to move in P-6.

THE COURT: 6 is the '89 version and, I think 11 is the later version.

MR. ROTHSCHILD: Correct, Your Honor.

THE COURT: All right. So let's then hear the Defendants -- if I understand, Mr. Rothschild, what you are requesting is that the expert report and the various publications, in fact, all the exhibits go in, but not to be considered by the Court in our determination other than the testimony that we heard here in court. They're there for the record.

MR. ROTHSCHILD: Obviously, a lot of the documents that she did testify about today will be included in that group, but we're suggesting supplementing the exhibits with the ones she did not mention, but only for the purpose of --

THE COURT: Then I misunderstood you. You're suggesting that additional articles that were not referred to in her testimony-in-chief be included in the record?

MR. ROTHSCHILD: That's correct. I don't want any question in the record about the thoroughness of her methodology, and we think that's important to make that record. And we have a list of those exhibits, and, you know, we can do that now or if you think that would be better to do it later.

THE COURT: Insofar as -- let's take these first. So why don't we have Mr. Gillen and Mr. Thompson, do you want to speak to not the -- the non referred to articles but the referred to articles or any of the exhibits, in fact, because if I understand Mr. Rothschild, you're moving for the admission of all of the exhibits, including the expert report and the supplemental report.

MR. ROTHSCHILD: For the limited purpose, yes.

THE COURT: As identified and named.

MR. THOMPSON: Your Honor, the only objection we have is the introduction of her expert report per se and the accompanying articles. I think it would really fly in the face of our position in the sense that we've challenged her report.

We've challenged her methodology. The Court has before it the transcript of the challenge and will be able to review the challenge. Now what we're doing is giving her report more heightened value that that's being introduced in evidence.

THE COURT: Well, and you're arguing that the report and the supplemental report shouldn't go in, and you're arguing against the ancillary materials that really don't have exhibit numbers against, contrary to what Mr. Rothschild is asking, you don't want those in either?

MR. THOMPSON: Correct.

THE COURT: But let's take out the report and the supplemental report and those ancillary exhibits which were not referred to during her testimony. What's your position on the remainder of the exhibits?

MR. THOMPSON: We have no objection.

THE COURT: All right. We'll admit all the exhibits at this point. And let's concentrate our dialogue on the report and the supplemental report. If I understand what Mr. Rothschild is asking, first of all, we don't have exhibit numbers for the other publications. That's something that we have to do in any event. And you can't move in what hasn't been identified.

MR. ROTHSCHILD: They are on the exhibit list, but we would have to make you aware of them.

THE COURT: Okay. So we have to note what the exhibit numbers are. If I understand what Mr. Rothschild is saying, he's not requesting that the report go in for the Court or the supplemental report for the Court's consideration but simply to appear in the record.

I surmise that, that would be for the purpose of appellate review and not for the purpose of consideration by the Court. I can separate that out for my purposes. If you want to reserve argument on that, that's fine, because this is a little different, but I don't find it an out of bounds request, but I'll not rule if you want to think about that, and we can circle back and revisit it.

MR. THOMPSON: I would appreciate it if we have some time to think about it under the circumstances that he's raised.

THE COURT: All right. Why don't you put the xx own us then on is counsel. You can return to this topic because I don't think we have to decide this now, and maybe there's a way that you can have some kind of stipulation that you want to enter into the record, and you can do that orally, that sets ground rules, if, in fact, you're agreeable to enter in your report and the supplemental report and the ancillary non-referred to exhibits.

I understand Mr. Rothschild's point. I also understand, Mr. Thompson, your point, that it is unorthodox inasmuch as the testimony was limited and didn't encompass the entire report, you do not want the entire report to go in.

So if we can firewall, if you will, that, then I think there's probably a way to do that. But you're capable fellas, and maybe you can work out a way to do it. Mr. Gillen is smiling. He likes that perception.

MR. GILLEN: I'll take any compliment, Your Honor.

THE COURT: Anything you can get. Any other exhibits? I have none on cross.

MR. THOMPSON: We do not have any exhibits on cross, Your Honor.

THE COURT: All right. Does that encompass, other than those disputed areas which we'll circle back to later in the proceedings, Mr. Rothschild, that's everything?

MR. ROTHSCHILD: Yes.

THE COURT: All right. Then I think we're prepared to have cross examination of this witness.

MR. ROTHSCHILD: One more point, Your Honor. As with Mr. Miller, Dr. Miller, if we could submit to aid in your reading the transcript of demonstratives used with Dr. Forrest, not as exhibits in evidence, but as an aid to your consideration of the issues.

THE COURT: The demonstratives were principally the timeline and the intersecting graphs as to the -- why don't you want to reduce them and give them numbers?

MR. ROTHSCHILD: I don't mind doing that at all, Your Honor. I'll do that.

THE COURT: I'm thinking, for your own purposes, maybe that makes sense. I didn't think of them, but I would certainly like -- I didn't think of them as exhibits. But I'd like to have them. Inasmuch as you're going to submit them, why don't you assign them exhibit numbers, and when we circle back on this other issue, let's deal with that.

MR. ROTHSCHILD: The other demonstrative was the comparison charts between creation and science and intelligent design, the six topics.

THE COURT: Do you want to say something?

MR. THOMPSON: We have no objection to that. However, we do have an objection to the graph which listed the various Supreme Court cases. That's the graph you were talking about?

MR. ROTHSCHILD: We did not use that.

THE COURT: I'll probably be reading them anyway, if I haven't already. All right. Let's proceed with cross examination.

(Whereupn, Jennifer Miller, having been previously duly sworn, testified as follows:)

CROSS EXAMINATION

BY MR. GILLEN:

Q. Good afternoon, Mrs. Miller.

A. Good afternoon.

Q. Pat Gillen, attorney for the Defendants. I took your deposition. I'm going to ask you a few questions today about your direct testimony. You testified that you've been a biology teacher at Dover since 1993, correct?

A. Yes.

Q. And prior to 2003, the issues that have brought us here today, the biology text, the biology curriculum were not on the radar for you as a teacher at Dover, correct?

A. Correct.

Q. But you have testified about a meeting you had with Bert Spahr, head of the department, in the spring of 2003; correct?

A. Yes.

Q. And there was mention of a memo that was generated in connection with Mrs. Spahr's discussions with Dr. Peterman, correct?

A. Right.

Q. I'd like to ask you to look at that. Again, if you would, and Plaintiffs' counsel has kindly agreed to put it up on the screen for ease. For the record, Mrs. Miller, this is Defendant's Exhibit 1. It's also a Plaintiffs' Exhibit 26.

And they've kindly agreed to project it for ease of reference, if that helps you. I want to ask you a few questions about that. You remember Bert Spahr telling you she had a discussion with Mike Baksa, and she took it to Dr. Peterman, correct?

A. Yes.

Q. And if you look at that memo, Exhibit 1, you'll see that there's a reference to the instructions that Dr. Peterman passed on in the memo. Would you read, if you would, the first paragraph into the record, please?

MR. SCHMIDT: Your Honor, I'm not sure whether there is an objection or request for clarification. Mrs. Miller did not testify about this memo, and it hasn't been established that she ever received this memo at any time contemporaneously with its having been published. I think that should be established as the foundation.

THE COURT: That sounds like a foundation objection. All right. I'll sustain it on that basis. Why don't you try to establish a foundation prior to questioning her further?

MR. GILLEN: Okay.

BY MR. GILLEN:

Q. I do remember -- let me ask you this, Mrs. Miller. You testified that Bert Spahr came back to you with instructions on how to continue teaching evolutionary theory in your class, correct?

A. After this conversation?

Q. Yes.

A. We had a conversation. I think it was again at a department meeting that this topic came up and that we were to be on guard, but continue teaching as is, yes.

Q. And Bert Spahr told you to essentially continue teaching evolution as you taught it, correct?

A. Correct.

Q. Now I want to ask you, did she continue to -- did she tell you to continue teaching creationism in the classroom?

A. No.

Q. But you mentioned creationism, correct?

A. No, not specifically, no.

Q. Is it your testimony that you had no discussion with Bert Spahr about teaching creationism in connection with your presentation of evolutionary theory?

A. Yeah, I -- I know that somewhere in here, it says -- I remember reading -- let me see if I can find it. She explained to Mr. Baksa that all biology teachers state that another theory of evolution is creationism, but creationism per se is not taught since it's not addressed by the standards.

So when I saw this memo for the first time, I had some misgivings about that, because I disagree that we state that another theory of evolution is creationism, but I do agree that creationism is not taught.

Q. And that was the point of my questions. Getting again to what you discussed in connection with evolutionary theory, I just want to make sure that I'm clear on the way you present the subject matter. I think you said this morning that you tell the students you don't care what they believe about how life begins, is that correct?

A. Yes.

Q. And you don't get into the origins of life question, correct?

A. Correct.

Q. And you said that you don't get into sort of the microbiological part of that process, the cells and development of cells, is that correct?

A. Correct.

Q. And you said that you focused on change within species or change in species, correct?

A. Yes.

Q. You used the example of diversification of finches, correct?

A. Correct.

Q. And you don't focus on change between species, it's more how one finch becomes another if isolated in the Galapagos Islands, correct?

A. Correct.

Q. And that's always been your teaching practice, correct?

A. Yes.

Q. And it is today, is that correct?

A. Yes.

Q. In addition, you don't focus on what we might consider the cosmological dimension of the question of origin of life, the conditions in the universe that are conducive to life, is that correct?

A. Correct.

Q. You don't recall any specific instruction from Dr. Peterman to you about how to teach evolutionary theory, is that correct?

A. Correct.

Q. And you remember Bert Spahr telling you essentially to continue teaching as you were?

A. Yes.

Q. Now you've testified you remember a meeting with Alan Bonsell in the fall of 2003?

A. Yes.

Q. And there was a discussion of how teachers addressed origins of life?

A. Correct.

Q. You explained that you did not address the origins of life, correct?

A. Correct.

Q. And the other teachers in the department agreed?

A. Yes.

Q. It was a cordial meeting?

A. Yes.

Q. And you left on good terms feeling he was satisfied?

A. Yes.

Q. Creationism was not mentioned during that meeting?

A. Correct.

Q. And you can't remember any discussions of changes to the biology text or biology curriculum between that meeting and the end of 2003?

A. Correct.

Q. You do remember though that Bert Spahr remained somewhat concerned, is that correct?

A. Yeah, I would say so. Yes.

Q. And just to elaborate and be fair, I mean, she had non-tenure teachers, and she was concerned about what this issue might mean for them, correct?

A. Correct.

Q. You also testified that there was a board curriculum meeting in the spring and summer of 2004?

A. Yes.

Q. And I don't know if you remember this, but one of the books discussed was the family and consumer science textbook?

A. Correct.

Q. You remember Sheila Harkins pointed out to the teacher in that area that there was really a very slight difference between the old book and the new book?

A. Yes.

Q. Mr. Schmidt showed you this morning the curriculum that was -- the curriculum as changed on October 18th, 2004. I wanted to ask you one question. At the top of that column that Mr. Schmidt showed you today, there was a reference to times, weeks, classes. It's the first column to the extreme left of the curriculum chart. And it says there are 19 days. But you don't spend 19 days presenting evolutionary theory, correct?

A. No, not typically.

Q. Right. This 19 days was put there when you developed this curriculum, correct? You put that there?

A. Yes, uh-huh.

Q. But it wasn't changed to reflect your change in practice more recently, including your practice with the 2004 text, correct?

A. Recently, it has. I have submitted a new one, yes.

Q. Okay. So -- and that's what you described today, you got a revised curriculum that's now in front of the board, correct?

A. I'm assuming. We gave it to Mr. Baksa, so I don't know happens to it after that.

Q. And for the record, to be clear on this point, the purpose of those revisions is to bring Dover's biology curriculum, its curriculum guide into closer alignment with the changed state standards, correct?

A. No, it was just strictly for time, to more -- when we put that 19 days in, it was -- we had taken -- at one point, there was a science project basically that all 9th graders had to do.

We took that out and we started to rearrange things and probably just sort of dumped days here and there. So a lot of them ended up in evolution. So that's why that states 19 days, because of taking that out. So we have recently, I believe at the beginning of this year, just resubmitted one that more accurately reflects the number of days spent on topics.

Q. And that's one or two days, correct?

A. I think it says five, maybe now.

Q. Okay. And that's been drafted between your depositions -- between the spring of 2005 and this day today?

A. Correct.

Q. Okay. Good enough. You testified about a meeting that was held with the board curriculum committee on June 2004?

A. Yes.

Q. And there was discussion of this mural that's been referenced here during that meeting, correct?

A. Yes.

Q. And you remember Bill Buckingham saying, how can you say you don't teach origins of life if that mural is in the classroom, correct?

A. Correct.

Q. I think you said there was a heated exchange between Bert Spahr, Mrs. Spahr, and Bill on that issue?

A. Yes.

Q. Nonetheless, they parted shaking hands, correct?

A. Yes.

Q. And this was consistent with your sense that the meeting had been productive and that you had explained your position to the board curriculum committee, correct?

A. Correct.

Q. Now there were other meetings in the spring of 2004, correct?

A. I remember the one that you just said about with Mrs. Harkins and the family consumer science books.

Q. Okay. So that would make two?

A. Right.

Q. Okay. Good enough. And, you know, insofar as it relates to the biology curriculum, over the course of these meetings, there was kind of a compromise that began to be worked out with the teachers, is that correct?

A. Correct.

Q. And the teachers said that they'd be willing to point out that Darwin's theory is not necessarily a fact?

A. Yes.

Q. That there were parts of Darwin's theory that don't have as much evidence as others?

A. Correct.

Q. Essentially, that you would make students aware that there were gaps and problems, correct?

A. Which is something that we've always done, yes.

Q. Exactly. Thank you. And by way of compromise, you suggested maybe putting what you had always done in the curriculum, is that correct?

A. Correct. Well, I don't know if we suggested it, but it was -- I don't know who drafted the language, gaps and problems, but somehow that came out of those, yes.

Q. Okay.

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

THE COURT: You may.

BY MR. GILLEN:

Q. Mrs. Miller, if you would, I'd ask you to turn to page 56 of your deposition, line 4.

A. Okay.

Q. I just want to make sure the record is clear on this point. If you look at 55, 24, page 55, line 24, through 56, 3, my question to you is simply, during these curriculum meetings, was a compromise worked out where what the teachers did would be put in the curriculum?

A. I believe so, yes.

Q. Now at the end of that June meeting, you were assured that the department would get the text that had been recommended by the department, correct?

A. Yes.

Q. And that was the Miller and Levine text, 2002 edition?

A. Correct.

Q. Now talking about the way in which the text jived with the state standards, the 1998 -- when the state standards were recalibrated, the 1998 edition of Miller and Levine didn't jive so well with the state standards, correct?

A. Correct.

Q. Because there had been a shifting of some topics between different subjects by the state standards, correct?

A. I don't think by the state standards necessarily. We didn't have published state standards necessarily before that. So I don't know if, you know, we can compare it to something old to say there was a shift.

Q. I take your point. What happened is, the state standards came out and they allocated different topics to different subject matters, and it was inconsistent with your prior practice, correct?

A. I'm not sure of what you mean by saying different topics, how it subjected it to different topics.

Q. Sure.

A. We saw where there was an emphasis, so that we made sure that our curriculum reflected what was in the state standards.

Q. Well, let me ask you this. Topics that had previously been considered in connection with the biology course were now shifted to other areas, correct?

A. No, I don't say they were shifted to other -- like, for example, DNA wasn't shifted to chemistry or anything like that. I mean, that didn't happen.

Q. Okay. How about environmental science? Wasn't there some reallocation of topics between biology and environmental science?

A. There was a separate set of standards on environmental science where, before we had talked about that in biology.

Q. Okay. Good enough. So there was a movement of some topics from biology to environmental science under the state standards, correct?

A. Yeah, there was a separate set of environmental and ecology standards.

Q. And part of your justification for the 2002 edition, its purchase, was that, that edition of the text, as you saw it, jived more perfectly with the state standards, correct?

A. Correct.

Q. Now during the time of these meetings with the board curriculum committee, you recall receiving some DVD's and videotapes for review?

A. One DVD, yes, or a video. I don't remember if it was DVD or video.

Q. Do you recall that there were a couple of them, two DVD's and one video?

A. The only one I remember is Icons of Evolution.

Q. That's the one you watched, correct?

A. Yes.

Q. You remember that Bill Buckingham provided that tape for your review?

A. Mr. Baksa gave it to us, so I'm not sure where he got it, but Mr. Baksa gave to us.

Q. But you undestood it had come ultimately from Mr. Buckingham?

A. From a board member, yes.

Q. Did you think it was someone other than Mr. Buckingham?

A. I don't remember if we were told at that point who it came from.

Q. If you'd look at page 56, line 17?

A. Say the page again, please.

Q. Certainly. Page 56, line 17.

A. Okay.

Q. At that time at least, you answered, I am remembering Buckingham that got the tape and gave it to us.

A. Okay.

Q. As you sit here today, you have no reason to remember otherwise, do you?

A. No.

Q. Okay. You remember that, as you recall it, Bill Buckingham focused on an area, a topic, origins of life that you weren't actually teaching?

A. What do you mean, he focused on? In a meeting or --

Q. It was your understanding he was focused on a topic that you weren't actually teaching, correct?

A. As far as his concerns with the textbook?

Q. Yeah.

A. He had some concerns, like I said, that were only the teacher edition and some concerns with man's evolution, which, yes, we didn't teach.

Q. Now you've also today had some product information about a text that's put out by Bob Jones University text?

A. Yes.

Q. And but you don't remember any discussion of that text at the board curriculum meetings, do you?

A. No. I remember it being handed out. And I think it was Mr. Baksa saying that this was obviously one we couldn't use.

Q. And when he said that, it was because with reference to its religious content, correct?

A. Correct.

Q. I think you also testified today there were two charts that Mr. Schmidt showed you, but you don't remember discussion of those either, right?

A. No.

Q. You attended a board meeting, a board curriculum committee meeting on or about June 14th, 2005, correct?

A. Correct.

Q. And you remember Alan Bonsell mentioning intelligent design?

A. I think that was in my notes from that board meeting, correct.

Q. Remember Alan Bonsell saying that the paper should stick to reporting facts?

A. I think so, yes.

Q. And that he had a sense that, because the papers weren't reporting facts, there was distrust between families, parents, students; correct?

A. That's what I had in my notes, yes.

Q. You don't remember anything else that Alan Bonsell said at that June 14th, 2004, board meeting, correct?

A. I remember looking at my notes that, as you said, I had intelligent design theory with a question mark. So I don't know if that was the first time it was brought up or -- looking at it now, I don't remember why I had that question.

Q. Mr. Schmidt asked you this morning about a survey of textbooks that had been done by Mr. Baksa?

A. Yes.

Q. Prior to you selecting the Miller and Levine text, you had reviewed a number of texts that had been sent by vendors, correct?

A. Correct.

Q. Mr. Baksa knew you had already reviewed some text in order to make your selection of Miller and Levine, correct?

A. I'm assuming, yes.

Q. Turning back again, and forgive me for shifting gears, to the June 14th, 2004, board meeting. You don't remember anything that Sheila Harkins said at that meeting, correct?

A. Nothing in particular, no.

Q. Or anything that Angie Yingling said?

A. No.

Q. Or anything that Jane Cleaver said?

A. No.

Q. Or anything that Noel Weinrich said, correct?

A. No. I remember notes saying, I don't know if it was this meeting or not, somewhere that Noel said something about all teach of a creation. I'd have to look at my notes to know if it was at that meeting or not.

Q. Now at the June meeting of the board curriculum committee, you had been assured that you would get your text, which at that time was the 2002 edition of Miller and Levine, correct?

A. Correct.

Q. But in July, you learned that there was a new and more recent edition of the Miller and Levine text, the 2004 edition, correct?

A. Correct.

Q. And as you testified this morning, you came into the office and inspected it for changes as it related to the presentation of evolutionary theory?

A. Correct.

Q. At that time, you thought that the changes addressed Bill Buckingham's concerns, correct?

A. Correct.

Q. One change pointed out that there were gaps in the evidence, correct?

A. I'd have to see the paper to know for sure, but --

Q. Well, if you look at your deposition, page 74. And you'll see on page 73, I asked you a question. Let me ask you, in terms of concern that had been expressed about presenting theorist fact, did you see changes presenting the manner of presentation of evolutionary theory? And you answered, yes. And even a lot of Mr. Buckingham's concerns that he had given us originally was some of the reference to man's evolution were taken out. You know, the wording was less controversial.

A. Okay.

Q. Is that your answer today as you sit here?

A. Sure.

Q. Now it was around that time that Mike Baksa gave you the text Of Pandas and asked you to review it and give your opinion on the book?

A. Yes.

Q. Now I know that prior to 2004, you were using the 1998 edition of Miller and Levine, correct?

A. Correct.

Q. And then you -- the department selected the 2002 edition of Miller and Levine?

A. Correct.

Q. It was the same book, new edition?

A. Correct.

Q. But you had never used Of Pandas before, correct?

A. Correct.

Q. There was the subsequent meeting of the board curriculum committee in late August of 2004?

A. Yes.

Q. And the topic of that meeting was generally Of Pandas, correct?

A. Correct.

Q. I think you said, Bill Buckingham, Sheila Harkins and Casey Brown were there?

A. Yes.

Q. Alan Bonsell was there?

A. Yes.

Q. Rich Nilsen and Mike Baksa?

A. Yes.

Q. Bert Spahr and yourself?

A. Yes. And I believe I said Rob Eshbach was, too.

Q. You think so?

A. I think so.

Q. Good enough. You brought certain reservations about the text to the attention of the board, correct?

A. Correct.

Q. One was the readability, which you talked about today?

A. Yes.

Q. Also had some reservations about the science?

A. Yes.

Q. You remember Bert providing information to the effect that she thought indicated the teaching of intelligent design was illegal?

A. She had papers with her. I don't know if they were her thoughts, but there were papers that she had gotten from the Internet, correct.

Q. And she communicated that information to the board?

A. Correct.

Q. She also expressed concern again for untenured teachers?

A. Yes.

Q. There was a back and forth between Mrs. Spahr and the board members about that issue, correct?

A. I think so, yes.

Q. And the nature of it was essentially this, the board was saying, you're telling us it's illegal, and we're hearing that we can present this legally, correct?

A. Yes.

Q. At that time, you got the sense that Alan Bonsell was viewing intelligent design and creationism as two different things, correct?

A. I would say so, yes.

Q. And in connection with these meetings, Dr. Nilsen distributed an opinion from the district solicitor, Stock and Leader?

A. Yes.

Q. To the effect that intelligent design could be presented legally, correct?

A. Re-reading that, I'm not -- it was a lot of legal jargon, so I'm not exactly sure what that memo said, but, yeah, it was handed out, and I was very confused to what it said even to this day.

Q. Sure. I wouldn't hold you to any legal conclusion. But you remember the opinion being passed out to the persons present at the meeting, correct?

A. Yes, I do remember that opinion being passed out, yes.

Q. With reference to Mr. Bonsell's belief that intelligent design could be presented legally in a biology classroom, you had the impression that Bill Buckingham shared that view, correct?

A. Yes.

Q. Casey Brown, on the other hand, seemed concerned that there was a gray area there concerning whether intelligent design might be considered creationism, correct?

A. Yes.

Q. Now there was also discussion of whether and how the text Of Pandas could be used in connection with classroom instruction, correct?

A. Correct.

Q. And you know, at one point, Dr. Nilsen suggested perhaps using it as a reference text, correct?

A. Correct.

Q. Now the science faculty wasn't keen on that, but they thought it might be a workable compromise, correct?

A. Correct. If we had to have the books, at least having them as a reference and not handed out to each student would be more acceptable.

Q. And that discussion was kind of like, well, along these lines, we could either assign it to the students, we could have it as a reference in the classroom, we could have a reference set for each student, correct?

A. Yes, I believe so.

Q. And Bill Buckingham at that meeting expressed his view that each student should be assigned a copy of Of Pandas, correct?

A. Correct.

Q. He then left early for a doctor's appointment?

A. Yes.

Q. At that point, Alan Bonsell said that not every member of the board is in agreement with Mr. Buckingham considering whether assigning the text would be the best use of Of Pandas, correct?

A. Correct.

Q. He said maybe it would better be used as a reference text, correct?

A. I believe -- yes. Uh-huh.

Q. And again, you left this meeting, as you had prior meetings, thinking that it was generally positive and that some progress had been made, correct?

A. Sure.

Q. You attended a second board meeting in September 2004 -- won't hold you to the dates, but I can tell you that it was September 14th, 2004, correct?

A. Sure, I'll go with your numbers.

Q. And let's take the date out of it so the record is clear. You do remember going to --

A. I have notes from it, yes.

Q. -- a board meeting. Okay. Barrie Callahan was there?

A. I'd have to look at my notes.

Q. That's all right. Well, we did look at your notes at your deposition. If you want to look at your deposition, page 86, line 24?

A. Okay.

Q. And just look page 86 over, Jen -- excuse me, Mrs. Miller.

A. Okay.

Q. Looking at that now, do you recall that Mrs. Callahan was present at the meeting?

A. Yes, I have some notations that she spoke.

Q. She was asking questions about Of Pandas, correct?

A. Yes.

Q. And Larry Snook was there making comments about the cost of the book?

A. Yes.

Q. Larry Snook was a former board member?

A. Yes.

Q. Ultimately, no public funds were used for the purchase of the book, correct?

A. Correct.

Q. In fact, later you learned that Of Pandas had been donated to the district?

A. Correct.

Q. After that, Mike Baksa presented a proposed curriculum change from the board curriculum committee to the science faculty, correct?

A. Yes.

Q. On or about short meeting held on October 8th, 2004?

A. Correct.

Q. The draft provided that students would be made aware of gaps and problems in Darwin's theory, correct?

A. By the board curriculum committee?

Q. The board curriculum committee proposed change that Mike passed onto you on October 8th, 2004? The draft included language to the effect that students would be made aware of gaps and problems in Darwin's theory, correct?

A. It also included the words intelligent design.

Q. We'll get there, Mrs. Miller. Just answer my question. That's a yes?

A. That was in there, yes.

Q. And you were okay with the part about gaps and problems because that was consistent with what had been discussed?

A. Right, that was our compromise from before, yes.

Q. Understood. Understood. Then the draft also provided that students would be made aware of other theories of evolution, correct?

A. Yes.

Q. And again, you were okay with that because that had been discussed previously?

A. Correct.

Q. But the draft also referenced making students aware of intelligent design, correct?

A. Correct.

Q. And it listed Of Pandas as a reference text?

A. Correct.

Q. And you were not okay with that, correct?

A. Right.

Q. For the reasons you explained this morning?

A. Yes.

Q. Okay. Good enough. And you were upset because you thought this matter had been addressed in the August meeting, correct?

A. Correct.

Q. And likewise, Mrs. Spahr, Bert Spahr, the head of the science department, was also upset and angry for the same reasons, correct?

A. Correct.

Q. You were okay with the use of Of Pandas as a reference text. That had been talked about in August of 2004?

A. Yes. If we had to compromise, we would be willing to do it, yes.

Q. Sure. Sure. And -- but you were not comfortable with the idea that teachers would be required to teach intelligent design, correct?

A. Correct.

Q. And the placement of the term intelligent design in the curriculum, along, as you saw in that draft, led you to question whether or not you'd be required to teach intelligent design, correct?

A. Correct.

Q. When Mike gave you the draft, he asked you for feedback, correct?

A. Yes.

Q. And --

A. Now that's the draft of what was read, correct, or this draft?

Q. The draft of the curriculum, he asked you for feedback on that?

A. Yes.

Q. The thrust of the feedback provided by the department was to take out the reference to intelligent design and the reference to the text Of Pandas in the curriculum, correct?

A. Correct.

Q. Later, you learned that the board curriculum committee didn't accept those changes suggested by the science faculty, correct?

A. Correct.

Q. During the period after Mike had passed this draft curriculum change on to you, Rich Nilsen came to you and spoke with you about the matter?

A. Yes.

Q. He indicated that Alan Bonsell was thinking maybe to put a note, attend -- append a note to the curriculum indicating that origins of life are not taught?

A. Correct.

Q. You remember Dr. Nilsen telling you that Alan Bonsell thought this would address your concerns?

A. Yes.

Q. Dr. Nilsen at that time also explained that he thought that, if the students were going to be able to take the text Of Pandas home, it should be listed as a reference, correct?

A. Yes.

Q. You expressed concerns again about being required to teach intelligent design theory, correct?

A. Correct.

Q. You also expressed concern about the district being a test case concerning the legality of teaching intelligent design?

A. Yes.

Q. You were concerned about personal liability, not just the liability of the district, correct?

A. Correct.

Q. I think the next major thing that Mr. Schmidt asked you about was the board meeting on October 18th, 2005. You remember that Bert Spahr addressed the board at that meeting?

A. Yes.

Q. In connection with her statement, she equated intelligent design with creationism?

A. I don't remember word-for-word her statement, but --

Q. No, nor would I ask you. But you remember, she said that teaching intelligent design was unlawful, she thought, correct?

A. I think -- again, that there was too much similarity there, that we were uncomfortable with that. So if creationism is illegal to teach, therefore, since intelligent design was close enough to be uncomfortable, we were unsure of where that left us.

Q. Right. So there had been no cases on teaching intelligent design?

A. Correct.

Q. But it was her view that it was nonetheless illegal, correct?

A. I guess that was the -- yeah, that's what's being tested here, so --

Q. And that was the thrust of her comments that night to the board, correct?

A. I would say so, yeah.

Q. And she had a concern for untenured teachers, correct?

A. Correct.

Q. Now there were three versions of the curriculum that were before the board that night, correct?

A. Yes.

Q. One was labeled Roman 11-A, correct?

A. Yes.

Q. And I'm not sure these will be helpful, but that's listed over there as Defendants' Exhibit 60. And then there was one that was listed Roman 11-B, correct?

A. Yes.

Q. And then on the night of the meeting, you received another version, which was Roman 11-C?

A. Right.

Q. And for the record, Roman 11-A is Defendants' Exhibit 60. Roman 11-B is Defendants' Exhibit 61. And Roman 11-C is, I believe, Defendants' Exhibit 68. I'll check that later. Now I want to ask you a few questions about Roman 11-C. As you sit there on the stand, Mrs. Miller, can you see that?

A. I can't read what's in black.

Q. You know what. And that's unfortunate. If you look in your book at Exhibit 68, I believe you'll find it. Thank you, Mr. Schmidt. For ease, it's being projected by Plaintiffs' counsel, for which I'm grateful. If you look at that, Mrs. Miller, do you remember that document?

A. Yes.

Q. And that was the document that Dr. Nilsen presented to the science faculty on the night of the October 18th, 2004, board meeting?

A. I believe so, yes.

Q. And if you look in the lower left-hand corner, you'll see that it has a note which provides that origins of life is not taught, correct?

A. Correct.

Q. If you look at the language of the bottom of the column entitled unit content, concepts process?

A. Yes.

Q. It's difficult to see in any event. But you'll note that on your printed copy, it provides that the students will be made aware of other theories, correct?

A. Correct.

Q. It omits the reference to intelligent design, correct?

A. Correct.

Q. Then the final difference that is blocked out and significant in terms of our discussion today is that, if you look at the materials resource column on the right-hand side, it retains the reference to the text Of Pandas, correct?

A. Correct.

Q. You remember that Dr. Nilsen or -- no, actually it was Mr. Baksa, I believe, who passed this onto the science faculty on the night of the meeting?

A. I believe so, yes.

Q. You remember that Rich Nilsen had spoken with you about appending the note which provided that origins of life was not taught?

A. Yes.

Q. Now throughout these discussions in the spring and summer of 2004, the position of the faculty had always been that you didn't teach origins of life, correct?

A. Correct.

Q. So when this came up, you can't recall exactly what you said, but in your deposition you testified, probably to the effect of, the note is no big deal, we don't teach it anyway, correct?

A. Correct. But there was some questions we had, if that limited us to certain things that could or could not be said in the classroom. Even though we had already done it, putting that in the curriculum, did that limit topics that could be discussed.

Q. Sure. I understand that. And we'll ask you a few questions about that. But for present purposes, the note, origins of life will not be taught, reflected the teaching practice of the science faculty, correct?

A. Sure.

Q. Okay. You remember that when Dr. Nilsen had made you aware that Mr. Bonsell was considering placing the note, he thought it was a good idea, that it would alleviate some of the faculty's concerns?

A. Yes, he said that. I wasn't exactly sure what that meant, but, yes.

Q. And you remember likewise that Dr. Nilsen had talked to you again, as he had throughout the summer, about using Of Pandas as a reference text, correct?

A. At the meeting that I had with him?

Q. Yes.

A. Yes. He explained that, if the students are taking it home, then it has to be listed so that we're covered if a parent asks a question about it, that it's in the curriculum.

Q. Okay. Now we know that there were a whole bunch of parliamentary maneuvers on the night of meeting, correct?

A. Yes.

Q. And that the final curriculum change, which is at issue in this litigation, was produced as a result of that process, correct?

A. Correct.

Q. And if you look here at this demonstrative, which is, or actually, the curriculum change that Mr. Schmidt showed you earlier today, what I want you to do is, just look at Roman 11-C and ask you this. The principal difference is that Roman 11-C was changed to include the reference to intelligent design, isn't that correct?

A. What was passed, you mean?

Q. Yes.

A. Yes.

Q. In the final version?

A. Yes.

Q. And the science faculty was disappointed with that outcome, correct?

A. Correct.

Q. You felt that you had tried to compromise, and still they had put intelligent design in the curriculum, is that correct?

A. Correct.

Q. Apart from that though, you had agreed to make the students aware of gaps and problems, correct?

A. Correct.

Q. Make them aware of other theories? In fact that was in the text, correct?

A. Right, it talks about Lamarck as a pre-cursor to Darwin's theory of evolution.

Q. Sure. And you had agreed to make use of -- or to the use Of Pandas as a reference, correct?

A. I guess. Again, if it had to be there, I don't know if we agreed to it, but if it had to be there, then at least, as just sitting on a shelf in a classroom was better than handing it out to each student.

Q. Sure. Now you've also testified about a comment that Heather Geesey made at the meeting to the effect of someone being fired?

A. Yes.

Q. And I take it from your testimony this morning that you were under the impression it was a comment directed to the teachers, correct?

A. Correct. She said, the teachers will be fired.

Q. That's what you say she said?

A. Yes, that's what I remember she said because --

Q. She denied it.

A. I understand that, but I jumped up to the podium. So if she said someone else, I don't know why I would have stepped up unless she said it about me.

Q. Nor would I deprive you about your understanding, but she has denied that, correct?

A. Correct.

Q. And the next day, she circulated a note saying, that's not what I meant?

A. Correct.

Q. Are you aware that Mrs. Geesey requested a transcript of the tape in the aftermath of the allegations that she threatened the teachers with firing?

A. No.

Q. Do you have any idea why she requested a transcript if she was trying to cover it up?

THE COURT: Hang on a minute.

MR. SCHMIDT: The question was, did she know something, and the answer was, no, and then the follow-up question asked for more information about what she's testified she didn't know. So lack of foundation.

MR. GILLEN: I'll withdraw the question, Your Honor.

THE COURT: All right.

BY MR. GILLEN:

Q. The next development in the story, from your standpoint, Mrs. Miller, if I'm correct, is the development of the statement, correct?

A. Correct.

Q. In that, after the board meeting, you had told Mr. Baksa that you wanted specific direction if intelligent design was mentioned in the curriculum, what the teachers were to say, what exactly word-for-word the teachers were to say, correct?

A. Correct.

Q. And subsequently, Mike Baksa produced a draft statement which he passed on to you for your review, correct?

A. Yes.

Q. You've testified today that you reviewed that statement for its accuracy, scientific accuracy, correct?

A. Correct.

Q. You added the definition of theory to the statement?

A. Yes.

Q. You took the use of the term theory away from intelligent design, correct?

A. Correct.

Q. And that's because you viewed intelligent design as addressing the origin of life not evolution, correct?

A. It also said that it was something -- the original said something like, I don't know, be made aware of other theories of evolution, including intelligent design. And, to me, if intelligent design is saying evolution did not occur, then it can't be a theory of evolution.

Q. Is it your understanding, Mrs. Miller, that intelligent design says that no evolution occurs?

A. If it says that -- if it says that it was created by some intelligent being, then things couldn't have evolved.

Q. Let me just ask you the question again, and I would never take away your answer. Just answer yes or no, if you would. Is it your understanding that intelligent design holds that no evolution takes place?

A. See, I have conflicting views here. According to -- at that point, what I -- I have two -- when I read Of Pandas and People, then I would say the answer to that is, yes. Listening and hearing to some of what Dr. Behe said since then, he does agree with parts of the theory of evolution. So I think there's two -- to me, there's two conflicting things there.

Q. Is it your understanding that the text Of Pandas denies that any evolution takes place?

A. I'd have to look at parts of it to know exactly. But again, as far as origins of life are concerned, yes.

Q. You've only read parts of it, correct?

A. I read the first six chapters, yes.

Q. You objected to the press release that was issued by the district in November 19th, 2004, correct?

A. Correct.

Q. And I want to make sure that I understand your testimony correctly. You thought it created the impression that the science faculty had been involved in the curriculum change, more specifically, the inclusion of intelligent design, correct?

A. Correct, and that we agreed with it.

Q. And that was your view of what the press release conveyed?

A. Yes.

Q. And that was the basis for your objection?

A. Yes.

Q. There was a board meeting on November 9th, 2004, correct -- well, let's say, there was two board meetings in November. The second one, you attended it, correct?

A. What -- I don't know. What date was it?

Q. Sure, sure. I understand. It's hard to remember. I just want to get a few points. If you turn to your deposition, page 143, line 12.

A. Okay. This says, a November 1st board meeting?

Q. You're right. You attended that meeting, correct?

A. It looks like it, because I have notes from that meeting.

Q. Sure. And you recall Alan Bonsell more or less asking for more civility at the meetings?

A. I'm looking to see, since I don't remember.

Q. If you look at 144, it may be of assistance; 144, beginning at line 9.

A. Yes, now I see that. I said that he was not happy with the last board meeting.

Q. Barrie Callahan was there also?

A. Since I can't be sure, I won't --

Q. Okay. And I don't mean to test your memory actually. I just want to get a few points that you recalled and, therefore, can testify to. If you look at 145, line 17, Jen?

A. Right, there it is.

Q. I'm sorry, Mrs. Miller.

A. Yes, I see that.

Q. Okay. And at that meeting, she gave her opinion that the curriculum change was contradictory, correct?

A. Correct.

Q. And she thought that was so because the note provided that origins of life was not to be taught, correct?

A. Correct.

Q. And the subtitle Of Pandas indicates it deals with the question of biological origins, correct?

A. Correct.

Q. Casey Brown was also present at that meeting?

A. I believe so. I remember reading that.

Q. She said the students were being ridiculed as a result of the curriculum change?

A. Yes.

Q. She told the board that they should do onto others as you would have them do onto you, correct?

A. I believe so.

Q. It was your understanding she was saying that the board should, you know, the board members and members of the community should have a civil exchange, correct?

A. Correct.

Q. There was a later meeting of the science faculty with the administration in November, around November 24th, 2004?

A. Yes.

Q. There was some discussion of the statements the science faculty had released in response to the press release issued by the board, correct?

A. Correct.

Q. At that meeting, Dr. Nilsen said that the purpose of the press release was to protect the teachers, correct?

A. Correct.

Q. Do you recall Mr. Bonsell saying that he was surprised with the reactions of the teachers, he thought that they had been cooperating throughout, correct?

A. Now I'm remembering that's two different meetings. We had one meeting just with Dr. Nilsen and Mr. Baksa, and we had one meeting later with Mr. Bonsell.

Q. For the purpose of my question, let's look forward to the one with Mr. Bonsell. Do you recall Mr. Bonsell saying that?

A. Say it again, please.

Q. Saying he was surprised at the reaction of the teachers to the press release because he thought they were on board?

A. Yes.

Q. And it was at that point you said, we were on board except when you put intelligent design in the curriculum, correct?

A. Correct, we tried. We told him that we'd compromise up to the point that you put in intelligent design. At that point, we stopped compromising.

Q. Add we sit here today, Mrs. Miller, the board has purchased the text that was recommended by the faculty, correct?

A. Correct.

Q. The text Of Pandas is not in the classroom as a reference, it's in the library, correct?

A. Correct.

Q. We know that the curriculum changes resulted in a statement that's read in the biology class in the beginning of the section dealing with evolutionary theory?

A. Correct.

Q. That statement was intended to be read by the teachers, correct?

A. Correct.

Q. But so far, for reasons you've stated this morning, the teachers have not read that statement?

A. Correct.

Q. Dr. Nilsen has also directed that creationism is not to be taught, correct?

A. I believe that's in the -- there.

Q. And that intelligent design is not to be mentioned, correct?

A. It's mentioned because it's read to the students.

Q. Right, except for the statement, there's not to be any discussion of it, correct?

A. Correct.

Q. That the religious beliefs of the teachers are not to be taught?

A. Correct.

Q. And that the religious beliefs of the board are not to be taught?

A. Correct.

Q. You comply with those directives, Mrs. Miller?

A. Yes.

Q. You believe the other teachers do as well?

A. Sure.

MR. GILLEN: I have no further questions.

THE COURT: All right. Thank you, Mr. Gillen. Redirect. Mr. Schmidt.

MR. SCHMIDT: During cross examination, Mr. Gillen mentioned a document, an opinion letter from the solicitor. I wonder, before I begin my questioning, whether I could see a copy of that document.

MR. GILLEN: If I can find it. Can we take a minute?

THE COURT: Sure. Do you need it for redirect?

MR. SCHMIDT: Your Honor --

MR. GILLEN: It's hard to know until he sees it. While Mr. Schmidt proceeds, I'll look for it, Judge.

THE COURT: Why don't you start. We're putting inordinate pressure on Mr. Gillen to find something.

MR. SCHMIDT: I don't mean to do that.

THE COURT: And it's much harder when everyone in the courtroom is focusing on your efforts. So we'll take the spotlight off Mr. Gillen, and we'll go to Mr. Schmidt, and we'll start redirect, and we'll see if he can locate it.

MR. SCHMIDT: All right.

REDIRECT EXAMINATION

BY MR. SCHMIDT:

Q. Ms. Miller, a few questions. This morning, I asked you about actions that the teachers were involved in over the course principally of 2004. Mr. Gillen asked you questions about those. And the general topic was compromises that the teachers, especially the biology teachers, made with both administration and the board?

A. Correct.

Q. Did the teachers initiate any of the actions that come under that heading of compromises?

A. No.

Q. Were those compromises by the teachers always in response to a proposal or some initiative that was put forward by the curriculum committee or the administration?

A. Yes.

Q. As a biology teacher and the senior biology teacher, did you believe that any of those steps that you took as compromises were necessary to take?

A. No.

Q. And did you take those steps because you were an employee of the school district and it looked like those things were going to happen anyway?

A. Sure.

Q. And you were going to make the best out of a bad situation?

A. Correct.

Q. Is that fair?

A. Yes.

Q. I think Mr. Gillen asked you whether Mr. Bonsell mentioned intelligent design at the June curriculum committee meeting that we've at least tagged as probably around June 14th?

A. I think it was the board meeting not the curriculum --

Q. Board meeting?

A. Yes. My notes are from a board meeting, yes.

Q. Was there any discussion about what intelligent design meant at that time or was it just mentioned?

A. I don't remember any -- in my notes, all I have is a big question mark.

Q. I think this morning you said your first substantive information about intelligent design was when you saw Of Pandas and People?

A. Correct.

Q. That was at the July meeting with Mr. Baksa?

A. Correct.

Q. You were asked by Mr. Gillen about Bert Spahr's concerns with the teaching of intelligent design and it's legality?

A. Right.

Q. And I think he asked you whether she was concerned about several untenured teachers?

A. Yes.

Q. Were you concerned about the legality of teaching intelligent design?

A. Yes.

Q. Were you the subject of your own concern, if you will, even though you are a tenured teacher?

A. Absolutely.

Q. Did you have any concern for the students who were going to be in your biology class?

A. Yes. As I said this morning, I know a comment has been made that we're only mentioning it, but I'm a teacher, and everything I do in my classroom is teaching. If I don't make my students listen to the morning announcements, and I let them talk over the morning announcements, I'm not saying a word, but I'm conveying to them, I'm teaching them that it's not important to listen to the morning announcements.

So even by us reading it, I was concerned, again because there's, to me, I was uncomfortable mentioning it because I know that creationism can't be taught. So I was wondering, you know, this is a gray area. Of course, this is the first time it's being tested. So me on the front line, me saying it, I was concerned of what that meant for me legally.

Q. Can you think of any other situation in your experience at Dover Area High School where you were required to read a statement to students about what they were going to be taught?

A. No.

Q. Can you think of any other situation at the Dover Area High School where you were instructed to tell students that you would mention something, but you weren't permitted to expand on what you mentioned or answer any questions about it?

A. No.

Q. Did that bother you as a teacher?

A. Yes.

Q. Why?

A. Again, I'm the teacher in the classroom. If students have questions, I feel like they can come to me to get answers. And, again, it put me in a situation where things that I had done in the past, I was unsure if I was to continue to do those. I was unsure of what I could and could not say in my classroom.

Q. Is that why you were troubled by the note at the bottom of the curriculum that said, origins of life will not be taught?

A. Yes.

Q. Because you had been able to respond to students before, even if that was not a formal part of your teaching?

A. I think that I asked the question at one of our meetings about, I have my students do current events in science, and someone brought in a current event on a new fossil discovery of man. And I didn't know if I was allowed to discuss that because, to me, that hit on origins of life.

Q. When you asked for guidance from either the board or administration on that question, were you given a response?

A. I was given a current events policy from Mr. Baksa.

MR. SCHMIDT: Your Honor, back to the document. I don't know whether the opinion's been found.

MR. GILLEN: Yes. Under the reduced pressure produced by your sage directive, Your Honor, I found it. It was part of the Miller deposition exhibits, Exhibit 5, and is an e-mail from Steve Russell to Richard Nilsen, dated August 26th, 2004, which I gladly turn over to Mr. Schmidt.

THE COURT: Take a look at it and see if that raises any additional redirect.

MR. SCHMIDT: No further questions.

THE COURT: No questions. All right. That will conclude the examination of this witness. Ma'am, you may step down.

MR. GILLEN: Your Honor, can I ask for brief recross?

THE COURT: I'm sorry. I deprived you of recross. I will grant brief recross from Mr. Gillen. I apologize.

MR. GILLEN: That's quite all right.

RECROSS EXAMINATION

BY MR. GILLEN:

Q. Mrs. Miller, on redirect, you testified about, there's no other instance where you haven't been allowed to take questions, correct?

A. Correct.

Q. But you've already testified on my cross examination that you were concerned about liability in this area, correct?

A. Correct.

Q. You already testified that you told Mr. Baksa you wanted to know word-for-word what you were supposed to say if students asked about intelligent design?

A. Correct.

Q. Is there any way for Mr. Baksa, Dr. Nilsen, or anyone to know what questions the student would ask in the classroom?

A. I guess not.

Q. You mentioned that you raised questions about teaching about new developments in science, correct?

A. Teaching about what?

Q. New discoveries in science that might touch on your teaching of evolutionary theory, right, the fossil record?

A. Yes.

Q. Mr. Baksa told you, you could address those, correct?

A. He gave me the current events policy, and, yes.

Q. It's also true that it's been the practice of teachers to say, we don't address creationism, if you want to talk about that, you need to talk to your parents or your family, correct?

A. Correct.

MR. GILLEN: No further questions, Your Honor.

THE COURT: All right. Then that will conclude the questioning for this witness. We have a number of exhibits. Let's take them up now, as I did with the last witness. We'll just read them and then Plaintiffs' counsel can indicate their pleasure.

P-210 is the state standards for science and biology. P-148 is the letter to Mr. Baksa from the biology department. P-132 is the document created by Mr. Buckingham. P-136 is the Bob Jones University text, proposed text profile.

P-138 is the survey of biology texts. P-149 is Beyond the Evolution versus Creation Debate article. P-150 is the Baksa comparison of 2002 and 2004 editions. P-135 is the biology curriculum. P-692 is the statement versions. P-94 is the draft statement. P-98 is the corrections by Miller to the draft.

P-100 is the teacher's revision. P-110 is the memo regarding the biology statement. P-104 is the district press release. P-106 is the letter to Dr. Nilsen from the teachers. P-121 is the memo back to the teachers from Dr. Nilsen. All right. Do I have everything?

MR. SCHMIDT: That's my list, Your Honor. I think P-135 is identical to P-209, which has already been admitted.

THE COURT: All right. We'll strike that, 135. And are you moving for the admission of the remaining exhibits other than P-135?

MR. SCHMIDT: We have.

THE COURT: Any objection?

MR. GILLEN: I have no objection, Your Honor.

THE COURT: Then as read by the Court, they're all admitted, say, for P-135. Mr. Gillen, on cross, you referred to the Peterman memo, or memo to Peterman, which was D-1. And D-68 is the memo and attached planned instruction curriculum. That would be the second draft. Are you moving for the admission of those exhibits at this time or do you want to wait?

MR. GILLEN: I will wait, Your Honor.

THE COURT: All right. Do you have any exhibits then?

MR. GILLEN: I do not, Your Honor. Thank you.

THE COURT: All right. That will conclude the exhibits for that witness. Why don't we -- this is probably an opportune time for us to take a break. We're going to go to 4:30 today. We'll take about a 15 minute break, and then we'll take, what I would assume, might be your last witness of the day. All right. We'll be in recess.

(Whereupon, a recess was taken at 3:15 p.m. and proceedings reconvened at 3:35 p.m.)