Kitzmiller v. Dover Area School District
Trial transcript: Day 16 (October 27), AM Session, Part 2
THE COURT: Be seated, please. All right Mr. Harvey, you may continue.
EXAMINATION CONTINUED BY MR. HARVEY:
Q. Mr. Buckingham, just to go back on a few points, we talked about a newsletter. Do you remember looking at that, the February 2005 newsletter that you said you weren't that familiar with, do you remember that?
A. Yes.
Q. That was discussed at a board meeting, wasn't it? Do you remember that?
A. I know the thought of a newsletter being published was discussed. What would be in it I don't think was at that time.
Q. You seconded the motion for approval of that newsletter. Isn't that true, Mr. Buckingham?
A. I don't remember that.
Q. Just to be real clear about this testimony, we talked about a statement to the effect of, "Two thousand years ago a man died on a cross, can't someone take a stand for him?" You remember that, right?
A. With regard to taking God out of the Pledge, yes.
Q. Let's be very clear about this. It's your contention that that was said at the time of the Pledge, not in June of 2004, correct?
A. Yes.
Q. And also to be very clear there was a statement about this country not being founded on Muslim beliefs and our being founded on Christianity and the children should be taught as such. Do you remember that? You remember testifying about that, right?
A. Yes.
Q. And to be very clear about this, it's your contention that that was said at the time of the Pledge, not in June of 2004, right?
A. It was actually said after the board meeting in a conversation between myself and Joe Maldonado.
Q. At the time of the Pledge? That's your convention that it was at the time of the Pledge that you said that to Mr. Maldonado after a board meeting, correct?
A. Yes, that's how I recall it.
Q. And very clear, you didn't say that in June of 2004? That's your testimony, isn't it?
A. Yes.
Q. And with respect to creationism, it's your testimony that creationism was never said by any board member, including you, at any board meeting, isn't that correct?
A. That's true.
Q. And is it your testimony that creationism was never said to any reporters after any board meeting?
A. That's true.
Q. And is it your testimony that you never talked about creationism or to your knowledge none of the board members ever talked about creationism among themselves, is that your testimony?
A. Yes.
Q. Please go to what's been marked as P-54.
A. Before I look at this I need to clarify that we talked about that we did not want to have, teach creationism, that aspect, but not in favor of having it in the curriculum or something like that.
Q. Please turn to exhibit P-54.
A. I'm there.
Q. This was an article that was in the York Dispatch on June 15th of 2004, isn't that right?
A. Yes.
Q. And it's by Ms. Bernhard-Bubb, correct?
A. Yes.
Q. And I'd like to know whether you read this article at or around June the 15th of 2004.
A. No, I did not.
Q. If you'd turn to the second page of the article, the fourth full paragraph down, there's this statement, "'Nearly two thousand years ago someone died on a cross for us. Shouldn't we have the courage to stand up for him?' he asked." And that's referring to you? It's your, you claim that this article is just wrong about this, isn't that right?
A. That's right.
Q. The reporter was just making it up? That's your testimony?
A. I'm saying I didn't say it then.
Q. The reporter was just making it up. Isn't that what you told us earlier?
A. I didn't read the whole article, but if you're saying I said it then, if she's saying I said it then, yes.
Q. And how about the next statement? It says, "Board members Allen Bonsell and Noel Renwich agreed with Buckingham, saying creationism should be taught to balance evolution." Was that, is that a true statement there, that was said at the board meeting, Mr. Buckingham?
A. No, it's not.
Q. And how about the statement after that, "Buckingham apologized for offending any teachers or residents of the community with his remarks, but was unapologetic about his belief that the country was founded on Christianity and not other religions, and that a 'liberal agenda' was chipping away at the rights of Christians in this country." Do you see that?
A. Yes.
Q. It's true that that was said at the meeting, wasn't it?
A. I remember giving an apology. I don't remember saying that whole thing.
Q. So it's your testimony then that this, except for the fact of the apology, that what's reported here, that statement I just read, is not correct? That's your testimony?
A. I remember apologizing for the tone of my voice at the time. That's the only part of that I remember saying.
Q. So but are you saying that for the rest of that statement that I read with the exception of the apology is incorrect? Is that your testimony?
A. I'm saying I don't remember it.
Q. So you might have said it, you just don't remember it?
A. I don't remember it.
Q. Please turn to what's been marked as P-53.
A. I'm there.
Q. And this is an article by Joseph Maldonado dated June 15th, 2004, correct?
A. Yes.
Q. And it's from the York Daily Record?
A. Yes.
Q. And did you read this at or around the time it was published?
A. No.
Q. Now, if you look, I want to ask you about some of the statements that you attributed to you in here. If you go to the third paragraph it says, "'Nowhere in the Constitution does it call for a separation of church and state,' he said," and you see that's referring to you. Do you see that?
A. Yes, I do.
Q. And is it your testimony that you didn't say that at the June 14th board meeting?
A. I said that with regards to taking "under God" out of the Pledge.
Q. Okay, so let me see. This statement here "Nowhere in the Constitution does it call for a separation of church and state," you said that at the time of the issue about taking the word "God" out of the Pledge of Allegiance, is that what your testimony is?
A. I'm not sure about -- I know this. It could have been that meeting where we had a vote. I'm not sure if that's the meeting. I'm not sure if that's one -- I know that that at one of the meetings when we had our vote and Angie Yeungling changed her vote because Jeff Brown through a temper tantrum and scared her, I asked her, I said, "How could you do that?" She said, "I was afraid." I said, "Of what?" She said, "I thought he was going to have a heart attack," and she said to me, "Separation of church and state, Bill." And Joe Maldonado was standing there, and if that would be the meeting, then I said that then to her, and he overheard it.
Q. I think the meeting you're referring to was the one on August the 2nd, not that one --
A. Okay.
Q. So what about the statement that says, two paragraph down that says, "Buckingham said while growing up his generation prayed and read from the Bible during school. Then he said liberals in 'black robes' were taking away the rights of Christians." Do you see that?
A. I see that.
Q. You said that at the June 14th board meeting, isn't that correct?
A. No, I didn't.
Q. And then the next statement on the page, and this is a different article, it says, "'Two thousand years ago someone died on a cross,' he said. Can't someone take a stand for him?'" Do you see that?
A. I see that.
Q. That's being attributed to you?
A. Yes, it is.
Q. And it's your testimony you didn't say that?
A. Not at that meeting.
Q. And so Mr. Maldonado has this wrong, and Ms. Bernhard-Bubb also has this wrong, correct?
A. They sat beside each other at the school board meetings, they look at each other's notes, they talk during the meeting. The same company owns both newspapers. It's not much of a stretch to see how the same story would get in both papers.
Q. You've given that some thought, haven't you, Mr. Buckingham?
A. I've thought that for years.
Q. No, you thought about your answer here today, didn't you, before you testified so you'd have an explanation, isn't that right?
A. No, I've said that to different people on different things. When I was a policeman we ran into the same thing.
Q. Now, if you look down farther on that page there's a statement that says, "But in reference to its teaching of Darwinism he said, 'I challenge you, the audience, to trace your roots to the monkey you came from.'" Do you see that?
A. I see that.
Q. And that's something that you in fact said at the June 14th board meeting, didn't you?
A. To Lonnie Langioni.
Q. Well, you told me the same thing on June the 7th.
A. Okay, that was when I said it. That's what I'm saying, I said it when I was talking with Lonnie.
Q. But you're telling us you said that one time to Mr. Langioni, right?
A. Correct.
Q. And that was at a public board meeting, correct?
A. Yes, it was.
Q. So that other people could hear it, correct?
A. Yes.
Q. And your testimony is you only said it that one time, not any other time?
A. That's true.
Q. Then if you turn the page on this article what's been marked as P-53, the third and fourth and fifth full paragraphs, it says, "Also during public comment Buckingham's wife Charlotte Buckingham argued that evolution teaches nothing but lies. After quoting several verses from the Book of Genesis in the Bible she asked, 'How can we allow anything else to be taught in our schools?' During her time she repeated gospel verses telling people how to become born again Christians and said evolution was in direct violation of the teachings of the Bible." Do you see that?
A. I see that.
Q. And that's an accurate statement about what your wife said at that meeting on June 14th, isn't that correct?
A. As I've testified before, she spoke in a biblical way. I can't remember exactly what she said.
Q. So you're not saying that this didn't happen. You're just saying you can't remember the exact words she used, correct?
A. I'm not going to say it happened if I don't know it did. I'm saying she spoke in a biblical manner, and that's what I remember.
Q. Now, if you turn to, continue down that page, there's the eighth and ninth paragraphs down, it says, "During the meeting Buckingham told those in attendance that he has been asked to tone down his Christian remarks, and then, 'But I must be who I am and not politically correct,' he said." You said that at that meeting, didn't you, Mr. Buckingham?
A. What I said was I was asked to tone down my voice when I spoke at people, because that was what I apologized for, because sometimes it appeared that things would come out the wrong way. It sounded like I was upset more than I was, and it offended some people, and that's what I apologized for, and I was talked to about that.
Q. And but you also said that you had been asked to tone down your Christian remarks. Didn't you say that at --
A. No, sir, I didn't.
Q. So it's your testimony that that part of the article that's been marked as P-53 is just wrong, correct?
A. Yes.
Q. Now, I'd like to show you an article, turn to page P-56. It's not an article, it's a letter. Do you see that?
A. Oh, I'm sorry, I'm there.
Q. Are you at P-56? That's actually a letter to the editor from one of the plaintiffs in this case, Beth Eveland, dated June the 20th, 2004 that was in the York Sunday News. Do you see that?
A. Yes, I do.
Q. Did you read this article at or around the time it was in the York Sunday News on June the 20th?
A. No, sir, I did not.
Q. And if you look at it, Ms. Eveland, if you look at the first paragraph, she says, and she's referring to someone something that she read in the paper, that she was upset with your comments as quoted in Wednesday's York Daily Record, "This country wasn't founded on Muslim beliefs or evolution."
MR. GILLEN: Your Honor, just for the record I want to preserve my objection. This is different in time from the newspapers. It's a letter to the editor, and I preserve our standing hearsay objection.
THE COURT: Well, it is different, Mr. Harvey. Do you want to respond to that?
MR. HARVEY: Yes, Your Honor. It's impeachment. I'm going to ask him if he knew that people in the community were making, were talking about this and were aware of this, and I want to know whether he knew that at the time. It goes to show, it goes directly to voracity.
THE COURT: All right. Then the objection is overruled.
Q. Mr. Buckingham, looking at the first paragraph here, it's Ms. Eveland is talking about something that was quoted in the York Daily Record, and it's the same statement that we talked about before, "This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity, and our students should be taught as such." Do you see that?
A. Yes, I do.
Q. Were you aware in or around the time of this newsletter or any time in the summer of that people in the community thought that you had made a statement about Muslims and Christianity and teaching our students Christianity in the summer of 2004? Were you aware of that?
A. No, I wasn't, but the way the papers report things, it wouldn't surprise me.
Q. Well, I want to look at something else, Mr. Buckingham. Let's look at what's been marked as P-55.
A. I'm there.
Q. Now, this is a piece that was in the York Sunday News on June the 20th, 2004, the same day as Ms. Eveland's letter. Correct?
A. Could you repeat that? I was looking at this.
Q. Yes. This is a piece that was in the York Sunday News on June the 20th of 2004, the same day as Ms. Eveland's letter that we just looked at.
A. I see that.
Q. And I'd like to know whether you read this at or about the time it was published.
A. No, I did not.
Q. Well, Mr. Buckingham, I'm going to read this article to you, because I want to talk about it for just a couple of minutes. "You have to give Dover area school board member William Buckingham this much, he's not afraid to speak his mind. He doesn't shy away from public controversy even when the limelight could prove uncomfortable.
"Earlier this year he said he was taking a leave of absence from the board to check into a drug rehabilitation program. He said he'd become addicted to pain medication prescribed for chronic back illness. That took guts. It would have been easy to say he was being treated for an unspecified medical problem. Instead, he took the opportunity to warn the community about the perils of prescription addiction.
"Over the last couple of weeks Mr. Buckingham has garnered headlines for his public contentions that Dover Area High School biology textbooks should present a 'balanced' view of human origin, including both evolution and creationism. It set off a torrent of community debate and criticism, in part because of the stridency of his rhetoric, 'This country wasn't founded on Muslim beliefs or evolution. This country is founded Christianity, and our students should be taught as such. Two thousand years ago someone died on a cross. Can't someone take a stand for him?' Obviously William Buckingham can." End of quotation from P-55. Did I read that correctly?
A. Yes.
Q. Now, this article is essentially applauding you for having the courage of your convictions. You would agree with me on that, right?
A. Appears to be, yes.
Q. And yet you didn't know that this was printed in the local newspaper that was delivered to your house at the time, did you?
A. No, I didn't. Again, the same publishing company owns the Sunday News.
Q. And in fact no one brought this to your attention at any time until your deposition on January the 30, 2005. That's what you're claiming here, isn't it, Mr. Buckingham?
A. What was the date of the deposition?
Q. January the 3rd of 2005?
A. I don't remember knowing about this article and I know I didn't read it.
Q. Excuse me?
A. I don't remember knowing about this article and I know I didn't read it.
Q. Well, I asked about this at your deposition on January 3rd, and you told me you had never heard of it before until I showed it to you at your deposition. You had never heard of any of this before until I showed it to you at your deposition on January 3rd, 2005. Do you remember that?
A. No, I don't.
Q. Well, let's turn to your deposition. January 3rd, pages 45 and 46. Well, actually we need to start, I'm sorry, at page 43 to get the full context. Line 21.
A. I'm there.
Q. I asked you the following questions, and did you give the following answers:
QUESTION: Let's take a look at that. It's June the 20th, York Sunday News. Please take a moment to read that. Have you had a chance to read that editorial of June 20th, 2004 in the York Sunday News?
ANSWER: Yes, I have.
QUESTION: Have you read it before today?
ANSWER: I don't remember reading this.
QUESTION: Did anybody mention this to you?
ANSWER: I would have to say no. I remember, I would have to say no.
QUESTION: It says here that in addition to applauding you for the forthright way in which you dealt with your personal issues relating to Oxycontin, it says that you had made the following statements, 'This county wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity, and our students should be taught as such.' And it also says, 'Two thousand years ago someone died on a cross. Can't someone take a stand for him?' Do you see that?
ANSWER: Yes, I do.
QUESTION: Did you make either of those statements?
ANSWER: Not at this time.
QUESTION: So 'This country wasn't founded on Muslim beliefs or evolution, this country was founded on Christianity.'
ANSWER: I never said that.
QUESTION: You never said that at all?
ANSWER: Not to my knowledge.
QUESTION: You never said the statement about Muslim beliefs or evolution, you never said that at all? Is that your testimony?
ANSWER: I don't recall saying that, no.
QUESTION: How about back in 2003 in relation to the Pledge of Allegiance? Did you say then?
ANSWER: I don't think I did.
QUESTION: The other one, 'Two thousand years ago someone died on a cross. Can't someone take a stand for him?' Did you say that?
ANSWER: That goes back to the taking out of the Pledge.
QUESTION: So it's your testimony that you didn't make either of these statements at any time in the period of June of 2004?
ANSWER: Correct.
QUESTION: Did it ever come to your attention that the paper was reporting that you had said these things in June of 2004?
ANSWER: Not that I recall.
QUESTION: So you were totally unaware, when did you learn -- I mean, you know, sitting here today you know now that the paper was reporting that you said these things in June of 2004. Did you know that before today, before this deposition?
ANSWER: I don't think I did.
QUESTION: Did you read the complaints in this matter?
ANSWER: Yes, I did.
QUESTION: It's in there. Did you see it in there?
ANSWER: Yes.
QUESTION: So you must have known it then, right?
ANSWER: Well, I didn't see this until today. I thought you meant this.
QUESTION: So that's amazing. Before today you didn't even know that these things were being reported about you, is that correct?
ANSWER: That's true. That's true."
That was your testimony, wasn't it, Mr. Buckingham?
A. Yes.
Q. Now I'd like to turn to another article that was reported in the paper. This is what's been marked as Plaintiff's Exhibit 60.
A. Pardon me? 60?
Q. Six zero.
A. I'm there.
Q. This is a letter to the editor from Dover area school district board member Heather Gessey, and it's dated June the 27th, 2004, and it was printed in the York Daily Record. Do you see that?
A. Yes.
Q. Did you read this at or around the time it was printed?
A. I did not.
Q. It's a response to Ms. Eveland's letter, and in it Ms. Gessey says, "You can teach creationism without it being Christianity." That's in the last paragraph. Do you see that?
A. I see it.
Q. So as of this time, June the 27th, 2004, there was another board member who was using the word creationism with respect to what the board wanted to do, right?
A. I don't read her mail. I don't know about this.
Q. And you never heard Ms. Gessey use the word creationism?
A. No.
Q. In other words, that's what you're saying here today, that you never heard her use the word creationism?
A. That's true.
Q. And you're sure the board members didn't talk among themselves about promoting creationism? Is that your testimony?
A. I'm positive.
Q. Now, I'd like to show you what's been identified as Exhibit P-145. You're going to need to look at the monitor, or at the monitor right in front of you, which is the television screen.
(Video of television interview shown at 11:10 a.m.)
Q. That was you speaking, wasn't it?
A. It certainly was.
Q. And you were speaking to a reporter for Channel Fox 43, isn't that right?
A. That's true.
Q. And that was in June of 2004?
A. Approximately, yes.
Q. And in it you said, "The book that was presented to me was laced with Darwinism from beginning to end." Isn't that what you just said on the --
A. Yes.
Q. Do you need to see it again?
A. No.
Q. Now, that's basically the same statement that was reported in the newspapers, isn't it?
A. Pretty close.
Q. And at first you told us you couldn't remember making that statement?
A. At first --
Q. When we first talked about --
A. Excuse me, when you first talked about that, I forgot about the interview.
Q. And --
A. And what happened was when I was walking from my car to the building, here's this lady and here's a cameraman, and I had on my mind all the newspaper articles saying we were talking about creationism, and I had it in my mind to make sure, make double sure nobody talks about creationism, we're talking intelligent design. I had it on my mind, I was like a deer in the headlights of a car, and I misspoke. Pure and simple, I made a human mistake.
Q. Freudian slip, right, Mr. Buckingham?
A. I won't say a Freudian slip. I'll say I made a human mistake.
Q. So, Mr. Buckingham, I guess what you're telling us then is that when you gave that statement that we just looked at on the video monitor, at that time you were aware that the board, that the local press had been reporting that you used the word creationism, isn't that correct?
A. Through talking with the board members through our own conversations, yes, but not through reading any of their papers. I knew whenever we said intelligent design, creationism would crop up in the newspaper the next day, and it was a common problem we were having and we didn't know how to overcome it. So we actually stopped talking to the reporters.
Q. So it's your testimony now, now you're claiming that in June of 2004 you did know that the papers were reporting that you used the word creationism, isn't that correct, Mr. Buckingham?
A. That's not what I said. I said they were reporting that the board was talking about putting creationism into the curriculum.
Q. And what I'm saying to you, Mr. Buckingham, is what you're telling me is that in June of you knew there were reports in the newspapers that you and other board members had been talking and using the word creationism, I'm not asking you to admit that you used the word creationism. All I'm saying is that you knew in June of 2004 that it had been reported in the papers.
A. I knew that it was reported that the board was using that word when we weren't. Specifically I don't know who they were talking about. I just knew it generically they were talking about the board using the word creationism instead of intelligent design.
Q. Now, the second statement you said there on the tape was you said that, he had quoted you saying as, "It's okay to teach Darwin, but you have to balance it with something else, such as creationism." That's a correct statement?
A. I thought that's what we were just talking about.
Q. That's what you just said? I mean, I just want to confirm that's what you said on the monitor?
A. That was me on the monitor.
Q. Now, that's actually very similar to what was reported in the newspapers, isn't it?
A. That doesn't make it accurate.
Q. Well, I'm just asking you if it's very similar to what was reported in the newspapers.
A. It's similar.
Q. And so what you're telling us is that you made a statement very similar to what's reported in the newspapers, but the newspapers had it wrong when they reported it, and you misspoke when you spoke to the reporter from Fox 43, is that your testimony?
A. Because of the situation I was involved in at the time of the interview with Fox 43 -- I said that the atmosphere of the interview with Fox 43 was completely different than the atmosphere of a board meeting, and through kind of, I kind of felt like I was ambushed, I misspoke.
Q. So but what I'm asking you is what you're saying is that the local reporters, actually more than one local reporter, had it exactly backwards, that they were reporting that you were saying creationism when you weren't saying creationism, and then you went on 43 and you had it yourself backwards and you said creationism when you didn't mean to say creationism, is that your testimony?
A. Due to the different atmosphere I was placed in, I think that was the first time I was ever interviewed by anyone since I had been on the school board, and I think it was a combination of fright, the change in the atmosphere, and I was just like I said I felt like I was a deer in the headlights of a car, and I concentrated so hard on not saying creationism, I made a human mistake and I said it.
Q. Let's take a look at the tape again. Matt, would you play that one, P-145 one more time?
(Video segment of television played at 11:16 a.m.)
Q. You didn't look like you were very pressured to me. Is there something in that tape that suggests to you that you were feeling pressured at the time?
A. I can't help how it looks. I'm telling you I felt pressured at the time.
Q. Nobody was forcing you to make that statement to the television reporter, were they?
A. I was kind of trying to be the nice guy. They were between me and the door. I didn't want to be rude. I tried to do something that probably I wasn't equipped to do, because like I say I think that was the first time I had ever been interviewed, and I misspoke under the pressure and the different atmosphere that I hadn't been in before. I just misspoke, made a human mistake. I'll accept that.
Q. Wouldn't you agree with me, Mr. Buckingham, given that you said creationism to the reporter from Fox 43, that you most likely said creationism at the board meetings in June of 2004?
A. Absolutely not.
Q. Let's test your memory on a different subject. You remember that there was a board meeting on August the 2nd, 2004, isn't that right?
A. Yes, sir.
Q. And at that board meeting -- actually let's turn to the minutes of that, which is P-67. Now, at that board meeting the board voted on approval of the 2004 edition of Biology by Miller and Levine, right? That's the issue, one of the issues the board took up on August the 7th, 2004?
A. Yes.
Q. And you and two other board members voted against approval of the biology textbook, isn't that true?
A. Yes, sir.
Q. And those two other board members were Mrs. Harkins and Mrs. Gessey?
A. Well, there were, actually Angie Yeungling did, too, and then when Jeff Brown threw his tantrum, she panicked and asked for a re-vote because she was afraid.
Q. So because she was afraid to oppose or not approve the biology textbook, right?
A. She was afraid of Jeff Brown. She was afraid he would hurt her or have a heart attack or something, and --
Q. She was unwilling to stand with you and Mrs. Harkins and Mrs. Gessey against approval of the biology textbook, correct?
A. She was afraid.
Q. I'm just saying she was unwilling to stand with you, take a stand with you and Mrs. Harkins and Mrs. Gessey against the biology textbook?
A. Take Jeff Brown out of the mix and she was willing to stand with us.
Q. Okay. So if it hadn't been for Mr. Brown she would have been willing to stand with you against approval of the biology textbook by Miller and Levine?
A. She actually did that in the first vote.
Q. Okay. Now, but just to be clear you were clearly against approval of the biology textbook by Miller and Levine on August the 2nd, 2004, isn't that right, Mr. Buckingham?
A. I'm sorry, could you -- I missed the second thing you said.
Q. I just want to make it clear, you were, clearly voted against approving the Miller and Levine Biology textbook on August the 2nd, 2004, isn't that right, Mr. Buckingham?
A. Yes.
Q. But actually at your deposition when I asked you about this, you told me that you voted for the textbook, isn't that correct?
A. I think eventually I did.
Q. When I first asked you about this, you told me that you voted for the textbook, isn't that right?
A. I'm not sure that's right.
Q. Please take the January 3rd transcript and go to pages 32 and 33.
A. I'm sorry, 32?
Q. Yes. Line 16.
A. I'm here.
Q. I asked you the following questions and you gave the following answers:
" QUESTION: Was the purchase of a new biology textbook approved at one of the meetings of the board in June of 2004?
ANSWER: It was approved, but I'm not sure when.
QUESTION: I think it was approved in August.
ANSWER: Could be.
QUESTION: We'll get to that, but I'm sure. Did you vote for that? Did you vote for that?
ANSWER: In August?
QUESTION: Yes.
ANSWER: Yeah.
QUESTION: You voted for the new biology textbook?
ANSWER: Absolutely. To the best of my knowledge I did. It was always our intent to buy that book."
That was the testimony that you gave when I asked you these questions on January 3rd, correct?
A. Yes.
Q. And in fact at the meeting on August the 2nd you told the board that you were not going to vote in favor of approval of the biology textbook by Miller and Levine unless the board also approved a companion text that covered the subject of intelligent design, isn't that correct?
A. That's true, and there were two reasons for that.
Q. And in fact the biology textbook that you didn't want to approve was the one that had been recommended by the faculty and the staff, isn't that correct?
A. Are we talking the 2004 edition now?
Q. Yes.
A. Yes.
Q. Now I'd like you to turn in your notebook to what's been marked as P-795.
A. I'm sorry, P what?
Q. 795.
A. I'm sorry, I can't find anything close to that.
Q. It's not in your notebook?
A. P-795?
Q. Yes. Your Honor, may I approach the witness?
THE COURT: You may.
A. I'm sorry, I see it now.
Q. Mr. Buckingham, I'd like you to take a look at that. That's an article that appeared in the Daily Record Sunday News on August the 4th of 2004, and I'd like to know whether you read it at or around that time.
A. No, I didn't.
Q. Because you just weren't reading any of these articles at this time, right?
A. That's true.
Q. If you look at, if you go to the second column in this, the first and second paragraph? It's on the screen, and it's also, if you can read that, it says, "Buckingham then said if he didn't get his book, the district would not get the biology book. Buckingham has been a staunch advocate for the teaching of creationism alongside evolution," and I'd like to know, you did say at that board meeting that if you didn't get your book, the district would not get the biology book. You said that, didn't you?
A. Yes, I did.
Q. And then if you go to the last column, the second to the last and the third to the last paragraphs, it says, "The board is still considering approving the companion book for use in the classroom. During the meeting Bonsell and Renwich promised Buckingham that the intelligent design book would get a fair review." That's a fair statement of what happened at that board meeting, isn't that right, on that issue?
A. I don't remember that.
Q. Well, do you see the next line, it says, "'Six votes are not out of the question,' Bonsell said." Do you see that?
A. Yes, I do.
Q. Do you remember Mr. Bonsell saying that at the board meeting?
A. No, I don't.
Q. Let's talk about that companion text. The text was Of Pandas and People, right?
A. Yes.
Q. It's the book we looked at earlier?
A. True.
Q. And you actually learned about Pandas and People from the Thomas More Law Center, isn't that right?
A. Yes.
Q. And the person you learned about it from was Mr. Thompson?
A. Yes.
Q. And in fact Mr. Thompson was the one who recommended Pandas to you?
A. He didn't recommend it. He told me there was a book there. I asked him if he knew of any books anywhere that dealt with an alternative scientific theory, and he mentioned the book to me. He didn't recommend it at all.
Q. Well, he was the first one to tell you about it, isn't that right?
A. Yes, he did.
Q. And you bought a copy, right?
A. Yes, I did.
Q. And you gave your copy to Dr. Nilsen?
A. Yes, I did.
Q. And the school board asked the teachers what they thought about Pandas, right?
A. I'm sorry, I didn't hear the first part of your question.
Q. And the school board asked the science teachers what they thought about Pandas?
A. I think Dr. Nilsen might have at that point.
Q. You didn't know that the school board asked the teachers, the science teachers, what they thought about the book Pandas?
A. Eventually that happened, but --
Q. Okay. Well, you know that the teachers, the science teachers at Dover High School were against Pandas. That's true, isn't it?
A. Yes.
Q. And the board didn't talk to anyone else outside of the board or the science teachers about Pandas such as professional educators or scientists, isn't that right?
A. Not to my knowledge.
Q. Now, I'd like to talk to you about the specifics of how the curriculum change came about. Earlier today we talked about a curriculum committee meeting that was held in June of 2004. Do you remember that?
A. Yes.
Q. And the next curriculum committee meeting after that June meeting was on August the 27th. Do you remember that?
A. Yes.
Q. And the purpose of that meeting on August the 27th of the curriculum committee was to discuss Pandas, right?
A. I have a question about whether or not that was the 27th or 24th, but they're in the ballpark one way or the other.
Q. Well, let's take a look at what's been marked as P-68. It's in your notebook, and Matt, could you bring it up?
A. Okay.
Q. Take a look at P-68. Does that refresh your recollection that was meeting was on August the 27th?
A. Yes.
Q. Okay, and the purpose of that meeting on August the 27th of the curriculum committee was to discuss the textbook Pandas?
A. Yes.
Q. And the science teachers were present at that meeting?
A. Yes.
Q. And in addition to you, Mrs. Harkins was present at the meeting?
A. Yes.
Q. And Casey Brown was present at the meeting?
A. Yes.
Q. And when I say the science teachers, I mean Bertha Spahr and Jen Miller in particular were there, right?
A. I need to tell you I wasn't there for the whole meeting. I had a doctor appointment. I was there for a short while and left.
Q. Okay. Now, this is -- and at the meeting what was discussed while you were there was your proposal to have Pandas used as a companion text to the biology textbook by Miller and Levine, correct?
A. The proposal at that time I believe was that the Pandas book would be used as a reference book, and -- yes.
Q. Well, no, actually the idea of using Pandas as a reference book was a compromise that was adopted at that meeting, isn't that right, Mr. Buckingham?
A. I'm not sure.
Q. You actually went into that meeting wanting Pandas to be used as a companion text to the biology textbook by Miller and Levine, right?
A. I don't recall that that's true.
Q. You don't know one way or another?
A. I don't think it's true. I don't know.
Q. Well, the point is that the teachers were clearly against using Pandas as a companion text, right?
A. Yes.
Q. But they were agreeable as a compromise to use it as a reference text in the classroom, right?
A. Eventually.
Q. Now, the next meeting of the curriculum committee was on October the 7th. Do you remember that?
A. I can't be sure of the date.
Q. Okay. Well, I'll tell you what. Let's look at what's been marked as P-75.
A. I see that.
Q. Does looking at P-75 help you to remember that the next meeting of the curriculum committee was on October 7th?
A. Yes.
Q. And actually unlike the previous two meetings, the teachers weren't invited to this meeting, isn't that true?
A. I didn't set the meeting up. I know they weren't there. I don't know if they were invited or not.
Q. That's fair enough to say they weren't there, right?
A. Yes.
Q. None of the teachers were there, correct?
A. I don't remember any of them being there.
Q. And since the teachers worked for the school district, when they're asked to come to a meeting they usually show up or have some good excuse, right?
A. I don't know. Makes sense to me. I don't know.
Q. Now, I'd like to show you what's been marked as P-81. Do you recognize that document?
A. Yes, I do.
Q. That actually sets forth the positions on the various constituencies on the subject of the proposed curriculum change as of October 7th, right?
A. Yes.
Q. And if you turn to page P-82, it's just like P-81, except next to Mr. Bonsell's name there's some handwriting?
A. Yes.
Q. It says, "Including, but not limited to intelligent design."
A. I see that.
Q. Now, at this point in time, October the 7th, you wanted the biology curriculum changed to include a reference to intelligent design, isn't that true?
A. Yes.
Q. And there were other board members who agreed with you about that?
A. Yes.
Q. In fact, Mrs. Harkins agreed with you?
A. Yes.
Q. Mrs. Gessey agreed with you?
A. Yes.
Q. Mrs. Cleaver agreed with you?
A. Yes.
Q. Angie Yeungling agreed with you?
A. Yes.
Q. Mr. Renwich agreed with you?
A. Yes.
Q. And Mr. Bonsell agreed with you?
A. As I recall, yes.
Q. And as of October the 7th of 2004 all of the board members were in favor of this proposal to include a reference in intelligent design in the biology curriculum except for Casey and Jeff Brown, right?
A. I think that's a fair statement.
Q. And the matter actually came up for a vote at the next meeting of the board, which was October the 18th of 2004?
A. I misspoke. Jeff Brown at this point was in favor of intelligent design being added to the curriculum, and that he said he had a dream and God told him to vote against it. So he changed his mind.
Q. That's not what you told us at your deposition, is it, Mr. Buckingham?
A. I don't remember what I told you at the deposition. I just know what I'm telling you now.
Q. Please turn to page 92 of the January 3rd deposition.
A. I'm there.
Q. Actually beginning on page 91, line 21, I asked you the following questions and you gave the follows answers:
" QUESTION: Now, at least at this point of October 7th you were the one who wanted intelligent design included in the revised curriculum?
ANSWER: I was one of the people that did. I wasn't the only one.
QUESTION: Who were the others?
ANSWER: Sheila Harkins, Janie Cleaver, Heather Gessey. Was Heather Gessey there then? I'm not sure if Heather Gessey was on the board then. I know she wanted it.
QUESTION: I believe she was.
ANSWER: Okay, she wanted it. Angie Yeungling indicated she did. Noel Renwich wanted it. I guess that's about it.
QUESTION: What about Allen Bonsell?
ANSWER: Allen wanted it.
QUESTION: So that's everybody but the Browns wanted it?
ANSWER: I guess so.
QUESTION: You just told me that that's at the time of the October 18th, do I understand that correctly?
ANSWER: No, we're talking about October the 7th, aren't we?"
That was your testimony at that point, Mr. Buckingham?
A. At that point, excuse me, Jeff Brown was in favor of intelligent design, and he had his dream and changed his mind.
Q. So you're telling me that the testimony we just read is wrong?
A. I'm telling you what I remember about why Jeff Brown changed his mind.
Q. That means that the testimony that you gave at your deposition on January 3rd on this point was wrong, correct?
A. It was as accurate as I could make it with the best of my knowledge, information, and belief at that time.
Q. Now, the biology curriculum change was voted on at the board meeting on October the 18th. That's true, isn't it?
A. I'm not sure about the date again.
Q. Well, Matt, could you pull up what's been marked as P-88? Mr. Buckingham, if you'd look at what's been marked in your book as P-88, that's the minutes of the October 18th board meeting?
A. I'm there.
Q. And if you go to what has the Bates numbers and 158, 159, and 160, you'll see there's all the voting -- I'm sorry, it begins on page 158, the voting on the curriculum change.
A. Yes.
Q. Does that help to refresh your recollection?
A. Yes, it does.
Q. It was in fact October 18th that you voted on that?
A. Yes.
Q. Now, the standard practice for the Dover area school district board of directors was to have two meetings a month, isn't that true?
A. That's true.
Q. Would you agree with me that it was the standard practice that the first meeting be a planning meeting and the second meeting to be an action meeting?
A. That usually was what took place, yes.
Q. Now, but the proposed change to the curriculum was not on the planning meeting agenda for the October 4th meeting that preceded this October 18th meeting, was it?
A. No, it was not.
Q. So you deviated from the standard practice in the manner in which the curriculum change came up for approval or consideration at the October 18th board meeting, true?
A. Yes, we did.
Q. And ultimately the resolution to change the biology curriculum passed by a vote of 6 to 3, isn't that right?
A. Yes.
Q. And the three people who voted against it were Mr. Renwich and Mrs. Brown and Mr. Brown?
A. That's true.
Q. Now, I'd like you to take a look at what's been marked as P-135.
A. Could I clarify my answer?
Q. Sure.
A. There was a reason why we did that on the 18th the way we did it. We had, it was problematic for us to get a full board there. I was having health problems, Janie Cleaver was in and out of Florida, she was having problems with her house. She was going to move to Florida. Noel Renwich was going to move to Lancaster County to take a job. We didn't want to have to start this at square one again. We wanted to bring this to a vote when the full board was there. That's why we did it that way.
Q. Well, actually you wanted to make sure that it would pass while there was still all the people that you had that would support you in changing the biology curriculum, isn't that right? That's what you mean?
A. We wanted the full board to be there to exercise their right to vote the way they wanted to, and we had difficulty getting the full board there for a while, and we knew on the 18th we expected everyone to be there. So we brought it up then.
Q. And was there something that prevented you from putting it on the planning meeting agenda for October 4th so the public could have been alerted to this?
A. I think it had to do with when Mrs. Cleaver was going to be able to get back. She was having trouble, she had storm damage to her house, and because this was such an important issue we felt that with her time on the board, she deserved a right to be able to be there and vote.
Q. So because it was such an important issue, you decided to deviate from your standard practice --
A. That's not --
Q. -- to give the public an opportunity to know what was going on and be heard, is that correct?
A. We deviated from our standard practice in order to bring this up before a full board.
Q. Let's look at what's been marked as P-135, and Matt, if you would turn to page 22, and Mr. Buckingham, that's the Bates number 61646 in your binder.
A. P-135?
Q. P-132.
A. 132?
Q. Yes.
A. If you recall from my deposition, I have a problem hearing sometimes and I don't pick up everything. Okay, I'm here.
Q. If you turn to the page that's marked, that's got a Bates stamp in the right-hand corner that says 1646, the number of pages into this document. I can help you find it if you need me to.
A. I don't see it, I'm sorry.
Q. Your Honor, may I approach?
THE COURT: You may.
A. Thank you.
Q. Now, Mr. Buckingham, if you would look at the language on the bottom of the page? In fact, I'm going to ask Matt to highlight the language on the bottom of page. All the way across if you can do that. This is the, this was what was approved by the board on October 18th. This is the end result, isn't that right?
A. Yes.
Q. And there's a reference in there to, "Note, the origins of life is not taught." Do you see that?
A. Yes, I do.
Q. You know what that means, don't you?
A. Yes, I do.
Q. That means that the school teachers, the science teachers are not permitted to teach that one species came from another species, correct?
A. We were talked about origins of life, yes, and that was put there because some of the teachers voiced concern that if we had intelligent design included that that would be, they would be forced to teach intelligent design, and that was put in there to kind of make them feel better about not having to teach intelligent design. We kept telling them we don't want them to teach it, but they kept insisting if it was in the curriculum they had to teach it. So that was put in there for their benefit.
Q. But the words, when it says origins of life, I guesses that the only point I want to clarify with you, is that that means, that's a reference to specifically the concept that one, that any species originated or began with a previous species, right? Common ancestor, right?
A. Yes.
Q. Now, do you know what the district curriculum advisory committee is?
A. Yes, I do.
Q. And that's a group that's comprised of citizens and others who review curriculum changes and help advise the board on when there's going to be proposed curriculum changes?
A. Yes.
Q. Now, the district curriculum advisory committee was not given a chance to meet and voice its, have its voice heard on the subject of this biology curriculum change that was approved on October 18th, was it?
A. Understand that when I became the chair of the curriculum committee I had almost no experience on the school board. I was put in charge of a curriculum committee, and I didn't understand the process I was supposed to go through. I didn't even know what this committee was until after the fact.
Q. Okay, but the fact is it wasn't given a chance to review the proposed curriculum changes like it should have?
A. That's correct.
Q. But as a matter of fact a couple of members from the board, the curriculum advisory committee did submit comments for consideration of the board on October 18th? Do you need a minute, Mr. Buckingham? Do you need a glass of water?
A. I'm just getting a lozenge. I'm okay.
Q. As a matter of fact -- tell me when you're ready. You all set?
A. Go ahead.
Q. As a matter of fact a couple of members of the district curriculum advisory committee did make comment on an individual basis about the proposed curriculum change, is that right?
A. I don't even know who was on the committee, so I can't tell you that.
Q. Why don't you take a look in your book at what's been marked P-151.
A. I'm there.
Q. Have you seen this document before?
A. I don't remember it.
Q. So you didn't know that at least two members of the curriculum advisory committee were against the proposed curriculum change or at least wanted a chance to meet as a committee and consider it. You're telling us you didn't know that?
A. I wasn't aware of that.
Q. Now, earlier we talked about Mr. Renwich, and you told us that on October 7th Mr. Renwich was in favor of including a reference to intelligent design in the biology curriculum.
A. Yes.
Q. But actually on October 18th he voted against it, isn't that right?
A. Yes, he did.
Q. And he voted against it because the teachers were against it, right?
A. I don't know why he voted against it. I just know he did.
Q. Well, do you remember discussing this at your deposition?
A. Actually I don't.
Q. Turn to page 122 of your deposition on January 3rd.
A. 122?
Q. Yes. Line 15, tell me when you're there.
A. I'm there.
Q. I asked you the following questions and you gave me the following answers -- line 12, I'm sorry.
" QUESTION: Do you remember anything else that was said at the meeting?
ANSWER: By?
QUESTION: Anybody about the board resolution. For example, did Mr. Renwich say why he wanted to take the word intelligent design out?
ANSWER: He said he was in favor of the concept of intelligent design, but he didn't like the manner in which we brought it to where it was. He wanted more involvement from the teachers in the process.
QUESTION: He was upset that the two school teachers were being disregarded, isn't that correct?
ANSWER: In his opinion they were, but they weren't.
QUESTION: That's what he was saying at the meeting?
ANSWER: That was his perception.
QUESTION: Well, in what sense weren't they being disregarded?
ANSWER: They weren't being disregarded. That was just his perception that they were.
QUESTION: I know, but they didn't want reference to intelligent design, correct?
ANSWER: That's true."
That was your testimony, wasn't it, Mr. Buckingham?
A. Yes. Yes.
Q. Now, the sentence about including intelligent design, the reference to intelligent design in the biology curriculum, was added by you and Mr. Bonsell and Mrs. Harkins at a curriculum committee meeting not attended by the teachers, specifically October 7th, correct?
A. That's true.
Q. And at the October 18th board meeting Mrs. Spahr, who was the head of the science department at the high school, says that the board, the teachers had only agreed to Pandas as a compromise to address your concerns that the students have alternative materials to review. You recall that, don't you?
A. I don't remember that.
Q. Well, why don't you look -- one second, please.
Q. So you're not saying she didn't say that. You're just saying you don't remember, you're not disputing that?
A. I don't remember hearing that.
Q. I'd like you to take a look at what's been marked as P-798.
A. I'm sorry, I can't find it again. I'm sorry, I have it. I have it.
Q. You have that document?
A. Yes, it's at the back.
Q. That's an article from the York Daily Record on Wednesday, October 20th, 2004, isn't that right?
A. Yes.
Q. By Lori Lebo and Joseph Maldonado?
A. Yes.
Q. Do you remember reading it at the time?
A. No, sir.
Q. Well, if you look in the last two paragraphs of this article it says, "Both the American Civil liberties Union and the Americans United for the Separation of Church and State, who say they were closely monitoring the situation in Dover, points out that if the school district were to lose a legal battle, its taxpayers could end up footing the cost of legal bills." Do you see that?
A. Yes, I do.
Q. And do you remember being told that?
A. Yes, I do.
Q. And in fact you said in response to that, "'My response to that is what price is freedom,' Buckingham said. 'Sometimes you have to take a stand.'" That's what you said, isn't it?
A. Yes, it is.
Q. And in fact you said that to a reporter?
A. I don't remember if I said that to a reporter. If they overheard me saying it, or I don't know -- I remember saying it, but --
Q. But you might have said it to a reporter, right?
A. I don't know who I said it to.
Q. And that was what you wanted to do, Mr. Buckingham, is with respect to this biology curriculum change, you wanted to take a stand?
A. That wasn't the stand I was talking about. The stand was against the ACLU and the Americans United for the Separation of Church and State coming into areas and bullying the municipalities into doing what they want done.
Q. Now, Mr. Buckingham, you were advised in this process by two different organizations, one was the Thomas More Law Center, and the other was The Discovery Institute, isn't that right? Right?
A. I was advised by the Thomas More Law Center, and I was sent information by The Discovery Institute.
Q. Well, there came a time in the process when someone from The Discovery Institute contacted you, right?
A. Yes.
Q. And that man's name, that was an attorney by name of Seth Cooper, right?
A. That's true.
Q. And he sent you some materials?
A. Yes.
Q. With a DVD and a video and a book maybe?
A. Sounds right, yes.
Q. And then you gave those materials to Dr. Nilsen, who gave them to the science department, right?
A. I gave them to Dr. Nilsen and asked him to give them to the science department, yes.
Q. And to your knowledge those materials were never reviewed by the board, were they?
A. I don't know if anybody else on the board looked at them or not. I think after the science teachers were done with them, some board members did take them and look at them.
Q. That's not what you told us at your deposition, is it, Mr. Buckingham?
A. I don't know what I told you.
Q. Turn to page 101 of your deposition on January the 3rd.
A. I'm there.
Q. Actually to give context we should probably start on page 100, and I asked you beginning on line 24, and I was referring to the materials from The Discovery Institute:
" QUESTION: Where are they now?
ANSWER: They were turned over to Dr. Nilsen. He turned them over to someone in the science department. That's the last I saw them. I donated those to the school.
QUESTION: Were they ever reviewed by the board?
ANSWER: Not to my knowledge."
Do you remember giving that testimony then?
A. They weren't reviewed by the full board. Individual members, I don't know for sure, but I think a few individual members might have.
Q. Let's turn to the second deposition, which is marked the 31st, at page 27.
A. Page 27?
Q. Yes, sir.
A. I'm there.
Q. I asked you, let's begin on page 26 to give this a little context. Line 22, didn't I ask you the following questions and you gave the follow answers:
" QUESTION: What was presented to the board as a group to help them decide how to vote?
ANSWER: The books were presented to the board. The information that was sent to us by The Discovery Institute was provided to the board.
QUESTION: The materials from The Discovery Institute were not provided directly to the board, correct?
ANSWER: I am a board member. They're provided to me and I turn them over to the school.
QUESTION to the administration, correct?
ANSWER: Yes.
QUESTION: You don't know what efforts, if any, other that board members took to review those materials?
ANSWER: I can't speak for them.
QUESTION: You don't know?
ANSWER: True."
A. That's true. I don't know that they did. I'm just saying they may have. I don't know that they did.
Q. Now, let's talk for just a minute about not the substance but the circumstances of your conversations with Mr. Cooper of The Discovery Institute. After he called you, he introduced himself on the phone, didn't he?
A. Yes, he did.
Q. And the first thing you said to him was that you wanted legal advice, isn't that true?
A. I don't know if that was the first thing I said, because I didn't know who or what he was.
Q. Well, if you look again at the March 31st deposition transcript, on page 35?
A. I'm there.
THE COURT: Mr. Harvey, within about five minutes if we could take a break?
MR. HARVEY: Yes, Your Honor, I'll have a logical stopping point.
THE COURT: That's what I wanted. That's fine, thank you.
Q. Let's start on page 34, line 4:
" QUESTION: What did you talk about with Mr. Cooper?
ANSWER: He explained to me he was an attorney, and I know when I found out he was an attorney I wanted to get legal advice as far as he could provide as far as intelligent design was concerned, and we talked about intelligent design and we talked about the gaps in Darwin's theory of evolution.
QUESTION: Did he offer legal advice when he called that first time?
ANSWER: Yes, he offered to represent us.
QUESTION: Was that the first thing he said?
ANSWER: That was not the first thing he said, no. The first thing he said obviously was, 'Hello, my name is Seth Cooper, and I'm an attorney with The Discovery Institute. This is what we're all about.'"
( LAUGHTER FROM SPECTATOR GALLERY.)
A. When you started reading I hadn't gotten to the page yet. I'm sorry, I'm lost where, I'm not where you are.
Q. Please go to page 34.
A. I'm there. I wasn't there when you started reading because --
Q. I apologize. It's disconcerting to hear laughter and not knowing what everyone is laughing about. Page 34, line 4.
A. Okay.
Q. Didn't I ask, didn't Mr. Rothschild ask you the following questions and you give the following answers:
" QUESTION: What did you talk about with Mr. Cooper?
ANSWER: He explained that he was an attorney, and I know when I found out he was an attorney, I wanted to get legal advice as far as he could provide as far as intelligent design was concerned, and we talked about intelligent design and we talked about the gaps in Darwin's theories of evolution.
QUESTION: Did he offer legal advice when he called that first time?
ANSWER: Yes, he offered to represent us.
QUESTION: Was that the first thing he said?
ANSWER: That was not the first thing he said, no. The first thing he said obviously was you was, 'Hello, may name is Seth Cooper, and I'm an attorney with The Discovery Institute. This is what we are all about.' Don't ask me, I don't remember anymore. I said, 'Great, I could stand to talk to an attorney right now.' I said, 'Here's what's going on,' I see, 'Legally how do you see us?' And he told me at that time that..."
And your counsel interjected so that you wouldn't disclose potentially privileged material, and then the next question was.
" QUESTION: Was the first thing after the pleasantries, the first thing you said in response to his introduction was, 'I want legal advice'?
ANSWER: To that effect, yes."
A. Yes, I do.
Q. And that was the testimony you gave then on March 31st?
A. Yes.
Q. And everything you talked about with Mr. Cooper had to do with the legality of intelligent design and the legalities of Darwin's theory and the legalities of teaching the gaps in Darwin's theory, isn't that correct, Mr. Buckingham?
A. Would you say that again?
Q. Sure. Everything you talked about with Mr. Cooper of The Discovery Institute had to do with the legalities of intelligent design and the legalities of Darwin's theory and the legalities of teaching gaps in Darwin's theory, isn't that true, Mr. Buckingham?
A. That was part of it, but he also gave me some background of what intelligent design was.
Q. Well, he didn't give you any advice other than legal advice, did he?
A. Not that I recall.
Q. And you didn't ask him for any kind of advice other than legal advice, isn't that true?
A. We got into intelligent design and what it was. How long was that? We didn't talk that long.
Q. The question was you didn't ask him for any other advice other than legal advice, isn't that correct?
MR. GILLEN: Objection, Your Honor. I simply think the question is unclear in that there's a distinction being posited between the legal advice and the discussion of intelligent design, and it appears to me that they were discussed together. If Mr. Harvey can make that clear, then I think the witness can answer the question.
MR. HARVEY: This was the basis for Mr. Gillen's claim of privilege when we sought to inquire of this witness at his deposition about his communications with The Discovery Institute. They claimed that they were seeking legal advice and only legal advice, and they received legal advice and only legal advice, and on that basis they asserted the privilege, and I'm just establishing here that that indeed is the fact.
THE COURT: Well, is the privilege being asserted?
MR. GILLEN: Yes, that's my purpose here is to ensure that the question is clear so that Mr. Buckingham doesn't -- as they state, it is my understanding that the deposition testimony substantiates that this discussion did take place, there was discussion of intelligent design and the law, but they were inextricably interwoven, and that's --
THE COURT: Well, I don't think the question was unclear, Mr. Gillen. It wasn't unclear to me. Do you want to read it back, Wes, please?
(The record was read back by the reporter.)
THE COURT: You can answer the question, sir. The objection is overruled.
THE WITNESS: Yes.
Q. In other words, you didn't seek any other type of advice other than legal advice. That's a true statement, correct, what I just said?
A. That's true, but also woven there was discussion on intelligent design.
Q. Well, he didn't give you any kind of advice other than legal advice, did he? Or are you telling us now that he did give you some other advice other than legal advice?
A. I think it was part and parcel legal advice, but intelligent design was part of it.
Q. That's what we discussed before, you discussed the legalities of intelligent design, correct?
A. Along with what it was.
Q. And he didn't give you any kind of advice about that other than legal advice, isn't that correct?
A. Well, what contemplates legal advice? I don't understand that. It's --
Q. Well, at your deposition you told us that he didn't give you any kind of advice other than legal advice. Isn't that true, Mr. Buckingham?
A. If you include intelligent design in there, yes, that's true.
Q. Well, just I guess we should be clear here, let's go to page 35 of your March 31st transcript.
A. I'm there.
Q. Line 5. Are you there?
A. Yes, sir.
Q. "Did you ask for any advice other than legal advice?" That was the question.
" ANSWER: Everything we talked had to do with legalities of intelligent design and Darwin's theory and the gaps. That was about it.
QUESTION: It was only about the legalities of Darwin's theory?
ANSWER: That's not what I said. I said the legality of Darwin's theory, gaps, teaching the gaps, and intelligent design being put into the curriculum."
That was the testimony you gave on that day, isn't it?
A. Yes.
Q. And you talked with Mr. Cooper of The Discovery Institute several more times after that?
A. We might have had two more, they were real quick discussions. There wasn't much to them.
Q. And at least some of those calls were between the June meetings and the October 18th meeting?
A. I don't remember when they were.
Q. Well, all of the calls that you had with Mr. Cooper concerned legal advice, isn't that true?
A. Yes.
Q. And he never gave you any kind of educational advice, did he?
A. Woven in amongst the legal advice was a discussion of what intelligent design was. Again, what is legal advice?
Q. If you'd please go to page 38 of your March 31st transcript?
A. I'm there.
Q. Beginning on page 38, line 4:
" QUESTION: In those subsequent phone calls, were they like the first phone call, always for legal advice?
ANSWER: Yes.
QUESTION: You were always asking for legal advice?
ANSWER: It was my understanding that once we had a legal advice umbrella so to speak, our calls were under that umbrella.
QUESTION: Did you understand the actual advice he was giving to be legal advice?
ANSWER: Yes.
QUESTION: He didn't give you restaurant recommendations?
ANSWER: No.
QUESTION: And even into the discussion of the curriculum issue you always understood that to be legal advice?
ANSWER: Yes.
QUESTION: Not educational advice?
ANSWER: No."
That was your testimony, wasn't it?
A. Yes.
MY HARVEY: And I just have one or more two questions, Your Honor, before we go to break.
THE COURT: Go ahead.
Q. And you recall that your attorneys at that deposition would not permit us to discover the substance of your communications with The Discovery Institute on the grounds of attorney client privilege between Mr. Cooper of The Discovery Institute and you as a member of the Dover area school district board of directors and head of its curriculum committee, do you remember that?
A. Yes.
MR. HARVEY: This is a good time to break for lunch, Your Honor.
THE COURT: Let's take our lunch break at this point. We will reconvene at 1:30 p.m. this afternoon for our afternoon session. We'll be in recess until then. Thank you.
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