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Kitzmiller v. Dover Area School District

Trial transcript: Day 20 (November 3), AM Session, Part 1


(9:22 a.m., convene.)

THE COURT: All right, good morning to all. We resume with continued cross examination of Mr. Baksa. And Mr. Rothschild, whenever you're ready you may proceed.

MR. ROTHSCHILD: Thank you, Your Honor.

(Mr. Baksa resumes witness stand.)



Q Good morning, Mr. Baksa.

A Good morning.

Q When we left off yesterday we were discussing an aspect of what was approved on October 18th, which is the note that origins of life is not taught. Do you remember that?

A Yes.

Q And as we discussed, that means that in addition to whatever effect it had on intelligent design, it also means that teachers in Dover won't teach what we call macro evolution and speciation, correct?

A They -- in the past they had not taught that.

Q Okay. And that was something that when the board found out about that, that was something that satisfied some of their concerns, correct?

A Yes.

MR. ROTHSCHILD: Your Honor, may I approach?

THE COURT: You may.


Q Mr. Baksa, what I've just given to you is what we've marked as plaintiff's exhibit 31, which is the Miller and Levine textbook for 2004 that is now being used in Dover High School. Could you turn to page 381 of that book?

If you look at the bottom of the page, there's a heading "Descent with Modification"?

A Okay.

Q And it says, "Darwin proposed that over long periods natural selection produces organisms that have different structures, established different niches, or occupy different habitats. As a result, species today look different from their ancestors. Each living species has descended with changes from other species over time. He referred to this principle as descent with modification."

Under the board's policy that origins of life is not taught, that aspect of evolution cannot be taught to the Dover High School students, correct?

A That I wouldn't know. The teachers make decisions on the content in the chapters and the material -- they choose the material they use to teach to the instructional goals that they've set for the course. Whether they would include this information, I wouldn't know that.

Q Okay, but it does say each living species has descended with changes from other species over time. Do you -- you understand that to be speciation, right?

A Yes.

Q Okay. And as we've discussed, under the board s policy stating that origins of life is not taught, speciation is out, right?

A Well, again, I would defer, I mean that's -- I m not a science teacher, and the manner in which they would use this content, I wouldn't know. I don't know if there's an appropriate manner they would be able to use with the curriculum change or not. I think they would be the best to determine that.

Q Certainly any science teacher faced with a policy from the board that says origins of life is not taught, and the understanding that, by that, the board means no speciation or macro evolution, a teacher would have reason to believe that he or she couldn't teach this aspect of the Miller-Levine textbook; would you agree?

A My understanding from what -- in my meeting with teachers is that the curriculum change would not affect any of the past instructional objectives they've had, or the teaching that they've done in the past. They would teach the same course, same materials, same instructional goals as they had in the past even with the new curriculum change.

Q But you would agree that whatever their practice was in the past, that discretion has now been removed from them and now it is policy, origins of life is not taught?

A Yes.

Q And if you could turn to page 40 It's headed, The Process of Speciation. Based on your understanding of the note origins of life is not taught, that subject matter is also off limits for the teachers, isn't it?

A Again, I don't know how the teachers would use this content and if it would be permissible or not. Again, that would be their -- their professional judgment on choosing the materials and the content.

Q Including their judgment about what the board's policy means, correct?

A I would think they would have to make a judgment on that.

MR. ROTHSCHILD: Matt, could you pull up exhibit P-210.

May I approach, Your Honor.

THE COURT: You may.


Q Mr. Baksa, do you recognize P-210?

A Yes.

Q Could you turn to page 13 of that document. Actually, if you could turn to page 12 first.

A Okay.

Q And you see that it's section 3.3, Biological Sciences? of the textbook. 4 A Yes.

Q And it has objectives for grade ten and grade 12?

A Yes.

Q And if you turn over to the next page, under subheading D, there are instructional goals for the theory of evolution?

A Yes.

Q And for tenth grade, which is the second to the right column, it says, "Explain the mechanisms of the theory of evolution," right?

A Yes.

Q And under that it says, "Analyze data from fossil records, records, similarities in anatomy and physiology, embryological studies and DNA studies that are relevant to the theory of evolution." You understand that those are all types of evidence that are relevant to the issue of macro evolution, don't you?

A Yes.

Q And based on what we've discussed, the note origins of life is not taught, these aspects of the standards would be outside the Dover High School curriculum, correct?

A No. My understanding is, I remember in one of the meetings with the board curriculum committee, I remember Mr. Eshbach saying that when talking about common ancestry, that the way they presented it is the evidence in DNA. And I remember his explanation of how they present it, that linkage was satisfactory to the board. So I do remember our teachers talking about they do teach about the DNA.

Q You were here when Mr. Bonsell testified, right?

A Yes.

Q And what he said was his understanding of what the teachers do, and what was memorialized in the note origins of life is not taught, is that the teachers would only teach micro evolution, change within a species, correct?

A Yes.

Q And not the fact that different species had common ancestors, correct?

A Correct.

Q And if he had that understanding, it's reasonable to believe the teachers had that understanding, wouldn't you agree?

A Well, the teachers did say they were teaching DNA as to demonstrate common ancestry. And they did say that to the board curriculum committee.

Q You would agree at best there's a -- there's uncertainty about whether teachers can teach these various pieces of evidence for common ancestry?

A My understanding is that the -- even as we were drafting the language with the teachers, that the teachers did not feel that the new language would in any way inhibit them or prohibit them from teaching any of the content that they ve taught in the past.

Q Could you go down to the third bullet point under D in the second to right column.

A Okay.

Q It says, "Compare modern day descendents of extinct species and propose possible scientific accounts for their present appearance." Would you agree that that is an analysis that relates to the issue of speciation?

A From that, I wouldn't know.

Q And then if you go over to the objectives for twelfth grade, under D, "Analyze the theory of evolution," it says, "Examine human history by describing the progression from early hominids to modern humans." Do you see that?

A Yes.

Q So that would require students to learn about common ancestry of humans with prior species, correct?

A Well, I don't know -- I don't know that -- I'm not familiar with the term hominids, if that is a species that is different, in this standard, to modern humans. So I don't know how our staff does approach that and if that would present a problem to them.

Q Sitting here today you don't know whether under the policy established by the school board, whether teachers could teach, consistent with that policy, the objective -- this objective in the Pennsylvania state standards?

A Right. I would have to rely on the teachers, whether they felt there was anything that prohibited them from teaching any of the standards.

Q And as we discussed, the teachers would have to make a judgment whether, in doing that, they would be violating the board's policy, correct?

A Correct.

Q Going back to the October 18th meeting. You did observe Mrs. Yingling, Angie Yingling, being told that she would be an atheist or unChristian if she did not vote for the intelligent design resolution?

A No.

Q Mr. Baksa, could you turn to your March deposition, page 174. And, Mr. Baksa, you were under oath that day when you -- when you gave your testimony at that deposition?

A Yes.

Q And you did your best to tell the truth?

A Yes.

Q Could you look at the question on line ten of page 174. I asked you, "In articles, after the resolution was voted on, Angie Yingling has been quoted as saying that members of the board suggested that she would be atheist or unChristian if she didn't vote for the intelligent design resolution. Did you observe any remarks of that kind?" And you answered, "Yes."

Is that right?

A Yes.

Q And that was your truthful testimony that day, correct?

A Yes. And what I'm answering is you began the question -- this is my understanding -- you said, "In articles after resolution." I did read about that in the articles and that's how I answered the question.

Q Mr. Baksa, I asked you, did you observe any remarks of that kind?

A And I'm telling you, I understood that question to be preceded within articles, because then you asked me about Casey Brown, whether I did anything, but you don't use the word "in articles" in there, and I said no, I did not hear any personal remarks to board members.

Q In any event, you're not aware of anybody trying to correct that allegation by Ms. Yingling in that newspaper, is that true?

A Yes.

MR. ROTHSCHILD: May I approach?

THE COURT: You may.

MR. ROTHSCHILD: Matt, could you pull up P-91.


Q Mr. Baksa, do you recognize P-91?

A Yes.

Q What is it?

A It's an e-mail to me from Brad Neal, one of our Social Studies teachers.

Q And then also a response from you to Mr. Neal, correct?

A Yes.

Q And what Mr. Neal -- and this e-mail was sent to you in the morning of October 19th?

A Yes.

Q And that was the morning after the resolution was passed, correct?

A Yes.

Q What Mr. Neal wrote to you is, "In light of last night's apparent change from a, quote, standards-driven, close quote, school district, to the quote, living word-driven school district, Mr. Hoover and I would like some direction in how to adapt our judicial branch unit. It's apparent that the Supreme Court of the United States has it all wrong. Is there some supplemental text that we can use to set our students straight as to the, quote, real, close quote, law of the land? We will be entering this unit within the next month and are concerned that we would be polluting our students minds if we continue to use our curriculum as currently written in accordance with the PA standards."

That's what Mr. Neal wrote to you?

A Yes.

Q And you responded to him, right?

A Yes.

Q And what you wrote is, "Brad, all kidding aside, be careful what you ask for. I've been given a copy of the Myth of Separation by David Barton to review from board members. Social Studies curriculum is next year. Feel free to borrow my copy to get an idea of where the board is coming from. Thanks." That's how you responded, right?

A Yes.

Q You responded to the Social Studies teacher, I have some information, I'll let you know where the board is coming from.

A Yes.

Q And when you talked about getting a copy of this book, Myth of Separation, by David Barton from board members, I think you told me at your deposition it was actually a particular board member.

A I believe Dr. Nilsen gave it to me and told me that it came from Mr. Bonsell.

Q Right. And you did take a look at that book, right?

A I didn't -- I glanced through it.

Q And you understand that this book was an argument against the principles of separation of church and state, right?

A Yes.

MR. ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.


Q Mr. Baksa, what I'm going to hand you is exhibit P-179, which is the Myth of Separation by David Barton. And this was the book that you were passing on to Mr. Neal so he would get an idea where the board is coming from on the issue of Social Studies curriculum, correct?

A Yes.

Q Can you turn to page 46 of the book. And if you look at that --

A Yes.

Q -- last paragraph, could you read the first sentence of that?

A The very last paragraph?

Q Yes.

A "The doctrine of separation of church and state is absurd; it has been repeated often; and people have believed it. It is amazing what continually hearing about separation of church and state can do to a nation."

Q And then if you go to the next page, page 47, the title of the chapter is, "We Are a Christian Nation," correct?

A Yes.

Q And then if you could turn to page 82 of the book. The last sentence of the chapter reads, "Our fathers intended that this nation should be a Christian nation, not because all who lived in it were Christians, but because it was founded on and would be governed and guided by Christian principles." Correct?

A Yes, sir.

Q And then if you could turn to page 260, this is a paragraph -- a chapter titled "The Solution." If you look in the first full paragraph, what Mr. Barton writes in the book that Mr. Bonsell is recommending is, "We must recall our foundation and former values and establish in our thinking the conviction that this nation's institutions must return to their original foundation -- the principles expressed through the Bible." Is that correct?

A Yes.

Q And one more passage. This is at page 264.

A Okay.

Q I'm sorry, 265. And what Mr. Barton recommends is part of the solution is that -- if you could highlight that first sentence -- "Morality acquired only with emphasis from religious principles must again become an emphasis in education." This is where the board was coming from, right Mr. Baksa?

A Mr. Bonsell -- my understanding is that when I received the book from Mr. Bonsell, and in my earlier conversations with him when I first came to Dover, I did have conversations and Mr. Bonsell expressed to me a desire to make sure that our students learned about the founding fathers in the constitution. I mean that's the extent of my knowledge of, you know, his emphasis on the founding fathers.

Q And this book?

A Yes.

Q And the emphasis on the founding fathers in this book is about this being a Christian nation and that morality in education should be acquired only from religious principles, right?

A Well, I haven't read the whole book to agree with the emphasis. Certainly the passages you pointed out point to that.

Q And so these are the two areas of curriculum that Mr. Bonsell has devoted his attention to, alternatives to the theory of evolution, and telling the students that this nation was founded as a Christian nation and must return to that condition.

A Well, I don't remember Mr. Bonsell ever telling me that we need to -- this nation is a Christian nation and we need to return to that. I remember him talking about making sure that we devoted sufficient time to teaching about the founding fathers and the constitution.

Q And the one book that he gave you to explain what he meant was this book, the Myth of Separation?

A That's correct.

Q After the October 18th meeting you prepared a draft statement to be read to the students, correct?

A Yes.

MR. ROTHSCHILD: Matt, could you pull up D-65.

May I approach, Your Honor?

THE COURT: You may.

MR. ROTHSCHILD: Could I approach and get the other copy of the book?


MR. ROTHSCHILD: Appreciate it.


Q D-65 is your first draft of the statement that would be read to students.

A Can I read it?

Q Yeah, sure.

A Yeah, that's my original draft.

Q And then as you said, Mrs. Miller -- you gave it to Mrs. Miller to review.

A Yeah. Well, I think I gave more than one -- I might have given it just to Mrs. Miller but I might have given it to all of the biology teachers though Mrs. Miller.

Q Certainly Mrs. Miller, right?

A Yes.

Q And you directed her to review it, correct?

A Yes.

Q And she made some suggestions about how to edit it, correct?

A Yes.

MR. ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.

MR. ROTHSCHILD: Matt, could you pull up exhibit, defendant's exhibit 90.


Q And exhibit D-90 has your handwritten notes on it, correct?

A Yes.

Q Okay. And it says, "Teachers response to the original draft by M. Baksa -- or Mr. Baksa"?

A Yes.

Q And the bolded text is -- reflects the teachers edits, correct?

A Yes.

Q And, for example, in the first paragraph it adds the words "eventually take a standardized test" and that's in there because actually they weren't going to take a standardized test for a few years, right?

A That's right.

Q And then if you go to the next paragraph, Mrs. Miller, or the teachers added the language to your language, "Darwin's theory is a theory," by saying, "there is a significant amount of evidence that supports the theory, although" -- and then it continues with your language -- "it is still being testing as new evidence is discovered." Right?

A Yes.

Q And then the teachers also added some text in terms of how intelligent design was going to be presented, correct?

A Yes, and that the theory is not a fact.

Q Okay. And actually that is not entirely their language. If you go to your draft exhibit D-65.

A Okay.

Q You had the language, "the theory is not a fact, nor the only one." And they just changed that to "the theory is not a fact," correct?

A Yes, it's correct that they didn't delete it.

Q Right. And they -- you had language in your draft about intelligent design being another theory of evolution. And they changed that to be an explanation of the origin of life that differs from Darwin's view, right?

A Yes.

Q Now, the version that you drafted didn't become the final version, correct?

A Right.

Q And the version that we see on defendant's exhibit 90, which incorporates some suggestions by the teachers, also didn't become the final version, correct?

A That's correct.

MR. ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.


Q Mr. Baksa, I've shown you defendant's exhibit 91.

A Yes.

Q And that has your handwritten notes on it, correct?

A Yes.

Q And it indicates that there are edits by you and the board?

A Correct.

Q And when we talk about the board here, who on the board is editing these drafts?

A The board, I believe we were in the executive session, and the board -- I distributed the initial draft to the board and asked for their feedback. And then I remember suggestions from Mrs. Harkins and Mrs. Geesey.

Q So when we see lines striking some of the text here, those reflect suggestions by Mrs. Harkins and Mrs. Geesey?

A Correct.

Q And the rest -- and the rest of the board in executive session agreed with those changes?

A Yes.

Q And let's look --

A Well, my edit is the -- in the first paragraph, the deleted first sentence is a board edit.

Q Right.

A My edit -- I believe the second paragraph is my edit.

Q All right. Let's discuss the first edit first. You had actually suggested this language, "Darwin's theory of evolution continues to be the dominant scientific explanation of the origin of species." Right, that was in your original draft?

A Yes, sir.

Q And when the teachers reviewed it, they didn t excise that language.

A Yes.

Q You had every reason to believe that's actually an accurate portrayal of Darwin's theory of evolution, right?

A Yes.

Q But the board required you to take that out.

A Yes.

Q If that language had been left in, students would have learned from their teachers, or whoever read the statement, that Darwin's theory of evolution is the dominant scientific explanation of the origin of species, right?

A Yes.

Q And you would agree that the message to the students -- and this language did not make it into the final version, correct?

A Correct.

Q And you would agree with me that the message to the students about the soundness of the theory of evolution is very different without this language than with it, wouldn't you?

A Well, this is a one-minute statement, and the teachers are teaching the content in Miller and Levine, which I think reading those chapters, the students would get that information.

Q Okay. But this is the first thing that students are told when they start the subject of the theory of evolution, correct?

A That's correct.

Q You thought it was a good idea, and the teachers agreed with you, to communicate to the students this is the dominant scientific explanation, this is what the scientific community accepts, right?

A That's correct.

Q But the board didn't want that language in, correct?

A That's correct.

Q Okay. And then there's the strike of the language, "There is a significant amount of evidence that supports the theory." And you said that was your own edit, right?

A Yes.

Q Now, that was something that Mrs. Miller or the teachers added to your draft statement, correct?

A Yes.

Q And you recognized them to be the scientific experts in the community, right?

A Yes.

Q And you had no reason to doubt that this is actually an accurate portrayal of Darwin's theory, because Darwin's theory is a theory, there is a significant amount of evidence that supports the theory, although it is still being tested as new evidence is discovered. You had no reason to believe that this wasn't an accurate statement of Darwin's theory of evolution?

A Correct.

Q But you removed this language, right?

A Yes.

Q And you did that because that's -- because the board didn't want language like that, right?

A Well, the -- actually, the board only had my copy, and this was now the board's edit and the teachers edit that I'm combining, so I don't think the board ever saw that language. But from my meeting with the board previously where they striked out "dominant scientific explanation," I didn't think they would be supportive of that language, so I took it upon myself to delete that language.

Q Because you thought that reflected the board's views?

A Yes.

MR. ROTHSCHILD: May I approach, Your Honor?

THE COURT: You may.


Q Mr. Baksa, I've shown you two exhibits, the first is defendant's exhibit 96. And do you recognize that as a handwritten note -- handwritten notes of a conversation you had with Mr. Buckingham?

A Yes.

Q And what he's doing there is suggesting language about the intelligent design aspect of the statement, correct?

A Yes.

Q And it says, "In an effort to gain an understanding of what intelligent design actually involves" -- I think that's an addition to the previous sentence about Pandas, and then, "As is true with any theory, you are encouraged to keep an open mind." Correct?

A Yes.

Q And then if you look at defendant's exhibit 97, that language is in fact added to this draft version, right?

A Yes.

Q And that language became a part of the final version?

A Yes.

Q And then if you go above that in defendant s exhibit 97, you see there's a strike of the word "yet." Correct?

A Yes.

Q Your draft, the one you prepared and that the teachers reviewed, said, "Gaps in the theory exist for which there is yet no evidence." Correct?

A Yes.

Q But the final version just says, "Gaps in the theory exist for which there is no evidence." Correct?

A Yes.

Q And when you struck that language, that was, again, doing the will of the board members, correct?

A Yes.

Q Mr. Buckingham's will?

A Yes.

Q And you would agree with me that, again, that change in the sentence conveys two very different things to students, right?

A Yes.

Q Because your version actually says, hey, you know, there's certain things we don't know, there's yet no evidence, it may come, right?

A Yes.

Q But the language as it reads in the final version just says there's no evidence, right?

A Correct.

Q So to summarize, the board took out language proposed by the administration and by the science faculty that would suggest that the theory of evolution is a sound theory; would you agree?

A I agree that the board took out language that I think my understanding is that they felt, and one of their main concerns was they felt that the Darwin's theory was being overstated in the text. And my understanding is that language in this statement, they were again concerned about maybe the same issue, not overstating Darwin's theory.

Q You didn't feel that way about the statement that you and Mrs. Miller developed? You didn't feel like it was overstating it?

A No, I agreed with the original language that I proposed.

Q And also with Mrs. Miller's suggestion?

A Yes.

Q And obviously the teachers felt better about this language, about the theory of evolution, than what they ended up with, right?

A Well, I don't know that, but certainly some of their suggestions weren't included.

Q And what was left was the language that is pretty negative about the theory of evolution.

A Well, I wouldn't characterize it as negative.

Q There's gaps, right? Theory not a fact?

A There's gaps in Miller and Levine's textbook.

Q Right, but it's only -- and I'm not suggesting there aren't gaps, but it's only the things in the draft statement that were negative about evolution, not positive about evolution. That's how it ended out, right?

A I don't see it that way -- I mean. I don't see it that way. I see that the edits that were done by the board or the absence of some of the language that the teachers wanted included, that that language would have been stronger in support of Darwin's evolution, and the language that was ultimately adopted isn't as strong, but I don't see it as negative.

Q In any event, from the teachers perspective, the end result was that language they had suggested and language you had suggested that they were comfortable with, was excluded from the final statement?

A Some, yes.

Q You can understand why the teachers wouldn't want the public, including their students, to believe they had ownership over this process?

A Well, if you're going back to, you know, their reaction to Dr. Nilsen's press release, again, I even thought that the press release was simply what was being reported in the papers was that teachers weren't involved, that we weren't answering any of their questions. It sounded like we weren't working with them, that they had nothing to do with the process. They certainly had something to do with the process. Did it result in language here in the statement exactly as they would have wanted it? No, it didn t, you know, there were edits to it.

So there's involvement that way, and I don't -- I didn't think the press release tried to make a point of saying that the teachers had signed on fully supportive of everything that happened, just that they -- they were aware of what was happening.

Q They were aware, they made suggestions, and many of their important suggestions were rejected, right?

A That some of their language was not included, that's correct.

Q And in fact, it's fair to say that from the perspective that they were operating from, the statement got worse from the time you gave it to them, until the final version?

A Well, again, some language that they wanted was not included. I don't ever remember having a conversation at the end of the day after the final language was drafted, with their opinion of what finally was done. So I don't -- I can't answer, you know, how they felt at the end of the day with the final language.

Q Now, you agree that students are not told that any other theory taught in science class in the Dover School District is a theory, not a fact, right?

A I'm not aware of any.

Q And students are not told that other theories have gaps, correct?

A I'm not aware; I don't know.

Q Or because they're theories, they're still being tested?

A Again, I'm not aware of that, right.

Q And no one has ever explained to you why evolution is being singled out from all of the scientific topics taught to Dover students in this way?

A By?

Q Why?

A I said by, singled out by?

Q Singled out by the board and the administration, why evolution is being singled out for this treatment, different from all the other scientific concepts taught to Dover students.

A Just -- I just know the concerns that were expressed to me from some board members that they felt that it was overstated in the textbook and they had that concern.

Q And nobody has explained why, you know, you know, a half dozen or dozen other scientific theories that are presented to Dover students aren't also -- the students aren't also told them about them; it's a theory, not a fact. You don't know why evolution gets that special treatment?

A That's correct.

Q And obviously there's no language in the statement suggesting that there are any gaps in intelligent design, right?

A No.

Q Now, further down the road, after this statement was in effect, you actually warned the science teachers that they could be putting themselves in a risky position by standing up to the board on the issue of what is being taught in biology class, correct?

A I had a conversation with -- a private conversation with Mrs. Miller at which the teachers had been on a couple forums for discussing the issue, and the implementation of the new curriculum change and talking about ID. And I felt that it was -- wasn't necessary for them to put themselves in the middle of this. The board had made a decision. Once a board makes a decision, whether you agree with that decision or not, it's our responsibility to implement that and not continue to publicly protest their decision.

Q And the reason you were telling them this is because you were looking out for them, right?

A Well, yeah, I didn't think they needed to put themselves in a risky position, correct.

Q And one of the things that you thought might put them at risk was the position they took about not reading the statement, correct?

A No, they were okay about that, because they had -- they had requested from Dr. Nilsen that they not read the statement, and Dr. Nilsen granted that request. What happened after that is they had agreed to distribute the opt-out forms to students, and never communicated to Dr. Nilsen or myself that they weren't going to do that. And I explained that a legal -- were there to be given a legal opinion about their actions and whether that constituted insubordination or not was iffy, and that they put themselves at risk by doing something like that and not communicating.

Q But you also, I mean, you told me at your deposition they were putting themselves at risk by taking the position not to read the statement, right?

A I don't believe I said that.

Q Could you turn to page 98 of your March 9 deposition. At line ten I asked you, "Is one of the things that they had done that you thought might put them at risk, does that include the position they took that they did not want to read the statement?" And you answered, "Yes." Correct?

A But if you read further, I kind of clarify that and again I go back to saying, if you look at line 17, I say, "Because I felt that they did not have -- it wasn't the statement so much as we had come to an agreement about the procedures for implementing the reading of the statement at a meeting with the teachers, we reviewed how we were going to do that, and they were in agreement with that. After that, they submitted a request not to have to do that, and the superintendent responded that he would make that accommodation in this particular instance. What they failed to do was on Friday they were to distribute the forms for students to be excused from classes without informing anybody of that. I felt that that action was risky in that there was an administrative understanding for them to do so, and they didn't do so. And if examined by counsel, that could be determined to be an act of insubordination which would put them at risk." So I think I clarified it.

Q Sure. But in any event you felt that, as a general matter, that they needed to be careful in terms of standing up to the board on the biology curriculum, correct?

A Yes.

Q And similarly, you felt that you would be putting yourself in a risky position if you stood up to the board about the biology curriculum, isn't that right?

A No.

MR. ROTHSCHILD: No further questions.

THE COURT: Redirect, Mr. Gillen?

MR. GILLEN: Thank you, Your Honor.



Q Good morning, Mike.

A Good morning.

Q Mr. Rothschild has asked you a number of questions and I want to make sure the record is clear on some of your responses.

The first area I would like to ask you about is your attendance at the seminar given at Messiah College in 2003. As a result of your attendance at that seminar, did you learn anything about the legality of teaching creationism?

A Just that teaching creationism would be illegal.

Q And did that information received at that seminar shape your actions at every stage in this process that we scrutinized in this litigation?

A Yes.

Q And at any point in that process did you entertain an illegal objective?

A I'm sorry?

Q At any point in that process did you believe that you were entertaining an illegal objective?

A No.

Q Mr. Rothschild has questioned you about Allen Bonsell's objections to evolutionary theory. When Mr. Bonsell expressed his objections, did he accompany his objection with more specific information?

MR. ROTHSCHILD: Objection, Your Honor. He's been leading every question in this redirect.

MR. GILLEN: All right, let me rephrase, I suppose.

THE COURT: So you concede the point?

MR. GILLEN: I guess. I'm not sure it's leading. It's a preliminary.

THE COURT: Saving me ruling on the objection.

MR. GILLEN: I'm eager to save you work, Judge. You'll have enough soon enough.


Q Let me ask you this, Mike. In your conversations with Mr. Bonsell about his objection to evolutionary theory, did he give you additional information?

A When Mr. Bonsell was expressing his concerns to me about the treatment of evolution in the text, my understanding is that he also talked about having read an article about -- that cast out on carbon 14 dating. He did talk about seeing a video that showed an earlier, a bear changing through evolution into a whale, which he thought was improbable. And but just generally thought that the treatment in the book portrayed it as a fact with no room for any doubt whatsoever on any aspect of the theory.

Q How about discussions of the statistical improbability of cellular life, biological life emerging? Did he ever provide you with information about that?

A No.

Q Okay. Did Mr. Bonsell ever discuss with you how he describes evolutionary theory to his children?

A No.

Q Did he ever explain whether he taught his children about the statistical improbability of life?

A No.

Q Ever tell you how he explains to his children about problems in evolutionary theory?

A No.

Q Was there ever any discussion about what he tells his children about gaps in evolutionary theory?

A No.

Q I would like to ask you to look at defendant's exhibit 286.

A Do I have that?

Q I believe Mr. Rothschild provided you with a copy.

THE COURT: If you could ask Matt to put that up on the screen. It's helpful to me, if you don't mind.

THE WITNESS: I don't think I have that.

THE COURT: It should be on your screen if you can see it. If not we can get you a hard copy.

MR. GILLEN: Thank you, Your Honor.


Q Can you see it, Mike?

A Yes.

Q You've been asked some questions about this. I want to ask you a few more. What knowledge concerning creationism or the teaching of creationism did you have at the time that you drafted this document?

A Well, I'm -- at this point I had gone to Messiah, and there the presenters were -- you know, did put forth that thought, the discussion of other theories or other explanations other than Darwin, that those made for a good discussion in the classroom. And at this time I did know that the teachers had been giving some explanation before they started teaching evolution that they were mentioning creationism.

Q When you drafted this document, did you believe that it would require a departure from existing practice in the classroom?

A No.

Q Mr. Rothschild has noted that the language of exhibit 286 includes "demonstrate awareness." Was there any particular reason that you used that language in this draft document?

A Well, I remember -- I remember when looking at the language of all of the other -- for instance, right above "students will be able to list," and what I tried to do is simply, when you write instructional objectives for students you put some type of action verb in there that students will list or demonstrate or identify. So I was just trying to duplicate the language that you use, the verbiage you use when you create an instructional objective.

Q Well, there's been a great deal of discussion of the curriculum change that was adopted by the board on October 18 .

Do you see a difference between the language you employed in this document and the language that's incorporated in the curriculum change that was actually approved by the board?

A Yes.

Q Tell us what that difference is.

A Well, the language simply says, "Students will be made aware of," and the language "to demonstrate anything" is removed.

Q Mr. -- now, let me ask you this, is that language choice on your part related to the distinction you ve addressed between teaching and making aware?

A Well, if you have language in there that says to demonstrate, then you don't -- that language could lead you to believe that students will be assessed in some way to be able to demonstrate that. So students -- we weren't teaching it. They weren't going to be assessed, so that language wasn't necessary.

Q Let me ask you to look at defendant's exhibit 19, and --

A Is that -- do I have that?

THE COURT: Let's put that up too, please.


Q You should, Mike, it's this.

A Okay. I have it.

MR. GILLEN: Thank you, Matt.


Q If you look down that page there, Mike, you'll see a handwritten notation, "intelligent design instead of creationism."

A Yes.

Q Who put that notation there?

A I believe I did.

Q And why did you do that?

A At this meeting we were trying to come to some understanding of what would need to be done on a number of our parts for Bill to move forward for approval of the books. And there had been talk of creationism, and we said, well, teachers had been mentioning creationism, but we ll simply replace that with intelligent design instead of creationism.

Q And when you did that, did you think this change would have any impact on teacher instruction in the classroom?

A No, I didn't think they would do anything differently than they did before.

Q Did you think it would have any impact on what they taught and assessed in the classroom?

A No.

Q Speaking of intelligent design, did you ever -- did teachers ever communicate with you concerning whether they were trained to teach intelligent design?

A Well, I remember one of their concerns was that, when we were talking about the introduction of anything, is that their educational background and schooling is in the biological sciences and Darwin's theory of evolution, that they're not schooled in any other material and especially when it came down to the possibility of them having to answer questions, they didn't feel that they were able to answer questions about intelligent design.

Q At any point in this process did they give you a detailed scientific criticism of intelligent design theory?

A No.

Q I would ask you to look at defendant's exhibit 20. And if you direct your attention to the bottom most notation underneath the strike out. I'd ask you to read that, Mike, since you it's your writing and you should be responsible for it.

A Which part do you want me to read? What is --

Q It looks like it's "mention" to me, but I don't want to put words in your mouth. Underneath the strike out on defendant's exhibit 20.

A Oh, okay. "Mention other theories of evolution including but not limited to intelligent design, mentioned existence of," dot, dot, dot, I didn't complete that.

Q Did you put that note there?

A Yes.

Q And why did you do that?

A It was my understanding at the end of this meeting that we were going to, that we agreed to put some language into the curriculum, and I thought I remembered reading this back -- this was at the very end of the meeting, and I thought I remember reading this back and that everybody was in agreement with that.

Q Was there any particular reason that you chose the word "mention"?

A Because we weren't going to teach it, and teachers were mentioning creationism already, so we were just replacing that with intelligent design.

Q Let me ask you, there's been some discussion of the comparison between the 2002 and 2004 editions of the Miller and Levine, and at the time that review was conducted you had some complaints about the text from Mr. Buckingham.

So I want to ask you, did the comparison of the text influence the way you viewed Mr. Buckingham s objections?

A Well, I guess what was interesting is, if you look at all of Mr. Buckingham's original list, and when you go to those pages and those sections in the new edition of Miller and Levine, they actually were addressed. So some of his concerns about common ancestry and gaps and problems in overstating the evidence, that there was actually changes made that he had identified earlier.

Q You were questioned about some statements that Mr. Buckingham made at public meetings, and I wasn't quite clear on this and wanted to make sure the record was clear.

Do you ever remember Mr. Buckingham making a statement to the effect that the country wasn't founded on evolution?

A No.

Q Do you ever remember Mr. Buckingham mentioning Muslim beliefs and evolution in the same sentence?

A No.

Q Mr. Rothschild has questioned you about the meetings that the teachers attended and some concessions they made. I want to ask you about those meetings. When the fall 2003 meeting with Mr. Bonsell broke up, how would you describe the parting of the parties? Was it collegial, cordial or hostile?

A It was very friendly.

Q How about the meeting in June of 2004, same question, at the -- after that meeting when the parties broke up, how would you describe their attitude towards one another?

A Well, we felt we had an agreement to move forward for the text, so everybody was very satisfied with the results of that meeting.

Q Speaking of pressure, did there come a time when the teachers were asked to implement the board's policy adopted on October 18 , 2004?

A Yes.

Q And do you know whether they did so?

A They didn't want to read the statement, so we ended up reading that, and they didn't want to hand out the excusal forms, so we also did that then too.

Q So they did not feel pressure to do that so far as you know?

MR. ROTHSCHILD: Objection, calls for speculation, Your Honor.

MR. GILLEN: So far as he knows. He's entitled to his opinion.

THE COURT: I'll overrule the objection, but I ll clarify, if you know. Do you know?

THE WITNESS: Can you restate the question?

MR. GILLEN: I'll take the question as clarified by the Judge.


Q So far as you know, if you know, did the teachers feel pressured to implement the statement?

A No, I don't think so.

Q Mr. Rothschild asked you some questions about a document, defendant's exhibit 35. And your testimony I thought was somewhat confusing, Mike, no offense, but I want to ask you, did you ever read that document?

A I don't believe so.

Q That's what I thought. Did you collect that from your files for the purpose of complying with the discovery request?

A Yes.

Q Mr. Rothschild asked you some questions, I believe, about plaintiff's exhibit 73. This document is your September 20, 2004 memo to the board curriculum committee.

A Okay.

Q And he asked you some fair questions about the process whereby this document was produced. I just want to make sure the record is clear on this. If you look at the first page, Mike, with the Bate stamp number 28 on it, I'd ask you to read the description you provided beneath the re.

A "Attached is a recommended curriculum change for biology. The changes were reviewed by the science department."

Q And then if you would look at the attached document, and I think we all agree that the proper attachment is Bate stamp 29.

A Okay.

Q Looking at that, Mike, is the description of the document contained in the memo true and accurate to the best of your recollection?

A Yes, this is the language that the teachers would have proposed.

Q So based on that description do you believe that the teachers had reviewed this language in this document?

A Yes.

Q Mr. Rothschild has drawn attention to the concessions that the teachers made as the curriculum policy at issue was hashed out, and I want to ask you a few questions about that. From your perspective as the administrator, plainly someone who was in the middle, do you believe that the board made concessions in this process?

A Well, yeah, we ended up at a far different place than the board -- some board members originally intended us to go.

Q Well, let me ask you this. You've mentioned that the administration went on record in support of either of the two versions that the teachers were willing to work with. Am I correct that those are the versions that are Roman 11-B and Roman 11-C?

A Yes.

Q And I want to ask you now, why did you do that? Was it a principled objection to intelligent design or something else? What was the basis for your position?

A Well, in -- especially in schools, in that culture, whenever you implement a change, if the change is going to be successful and effective, there has to be a demonstrated buy-in by those that are going to be most affected. So it's absolutely critical that if the teachers are going to have something that's affecting their curriculum, that they're supportive of that, otherwise the chances of it being implemented the way it's proposed and being successful are severely diminished.

Q Mr. Rothschild asked you some questions about the Social Studies curriculum and a book that Mr. Bonsell provided. Let me ask you, did he ever ask you to implement any change to the Social Studies curriculum?

A No.

Q Are you familiar with the debate over the separation of church and state in legal cases?

A Not really.

Q Mr. Rothschild has questioned you about the various versions of this statement and the way they were drafted out. At the time that process was playing itself out, did you have an understanding concerning whether the board saw the statement as related to the text in its presentation of evolutionary theory as designed to address some aspects of the text they thought should be addressed?

A The statement --

Q Yes?

A -- addressing aspects of the text?

Q Well, what I'm asking you is, you talked about balance and so on in the presentation of evolutionary theory in the text. Did you see the statement as related to the board's view of the presentation of the evolutionary theory in the Miller-Levine text?

MR. ROTHSCHILD: Objection, Your Honor, leading.

THE COURT: Not only is it leading, but I think -- and I understand, Mr. Gillen, you're trying to clarify points in his testimony, but I think we're starting to plow up areas that have pretty well been clarified.

Why don't you rephrase. I'll sustain the objection. If you want to stay on that point, you'll have to rephrase, but we've been down this road.

MR. GILLEN: Well, if you believe we've been down the road, Judge, I'm not going to go down there again.


Q Let me ask you, Mike, one final question then, or a few. You've forthrightly given your opinion that the teachers were acting to promote what they saw as the best interests of the children in their judgment. And I would like to ask you for your same opinion with respect to the conduct of the board. Do you think the board was proceeding in a like manner?

A Yes.

Q Based upon your education and experience as an administrator, do you have an understanding concerning whether the board or the teachers have the final say when they differ in judgment concerning whether a given curriculum policy is in the best interest of the children?

A Yes.

Q What is your understanding?

A The board has the final say when it comes to curriculum.

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

THE COURT: Thank you, Mr. Gillen. Recross by Mr. Rothschild.

MR. ROTHSCHILD: Very brief, Your Honor.



Q Mr. Baksa, did you meet with counsel last night to discuss the testimony you had given in prior days or to discuss the testimony you would give today?

A Yes.

Q For how long did you meet?

A We met over dinner.

Q And did you discuss the testimony you had rendered over the prior days?

MR. GILLEN: Objection, Your Honor. I don't -- he can say whether we meet, he can't ask how long --

THE COURT: That's a yes or no question. You may answer the question. The objection is overruled to the extent that the witness can answer yes or no.

The objection, so you understand, Mr. Baksa, went to what was the substance of your discussion. But you may answer yes or no whether you discussed your testimony with Mr. Gillen.

THE WITNESS: From yesterday?




Q And did you discuss the questions he would ask you today on --

MR. GILLEN: Objection, Your Honor. He's not allowed to inquire into what we talked about. And what's more, it's my client, so whatever -- whatever I do to advise him is legal advice.

MR. ROTHSCHILD: Your Honor, again, it is a yes/no question. And furthermore, it is my view that it is what is improper to meet with Mr. Baksa while he was on cross, just as it was improper to meet with Mr. Bonsell after his cross was concluded.

THE COURT: Well, you've made that point. I understand that point, and that's for me to do with what I need to do with. But setting that on the side burner for the moment, the issue of whether they discussed his questions today may traipse over into the privilege.

MR. ROTHSCHILD: I think a yes/no answer to that question does not, Your Honor. That would be my position.

THE COURT: No, I'm going to sustain the objection, but I note your point.


Q Mr. Baksa, Mr. Gillen -- you testified under Mr. Gillen's redirect that the end result on what the policy would be was a far different place than some board members intended to go. What board members were you referring to when you made that statement?

A Well, when you look at what was originally proposed, Mr. Bonsell had mentioned, you know, a fifty-fifty split, side by side, time for time with evolution; that didn't happen. Our teachers taught evolution and nothing else at the end of the day.

Mr. Buckingham wanted the Pandas, side by side with Miller-Levine, and for teachers to be teaching out of both; that didn't happen, the book ended up in the library. So -- and the board wanted initially a discussion, we would mention other theories and there would be a discussion and then we'd get onto teaching. Well, at the end of the day we drafted a statement that did not allow for any discussion or any questions. So that looks very different than what some of the board members intended earlier on.

Q And Mr. Buckingham, in June, also mentioned having a textbook with creationism in it, correct?

A I remember him mentioning creationism at the board meeting in response to Mrs. Callahan's questioning why we don't have a textbook. I don't specifically remember that -- I mean, I don't remember the context other than him saying that.

Q Now, you have testified that it was your understanding that science teachers mention -- their prior practice had mentioned creationism, right?

A Yes.

Q Now, you never thought that they were mentioning or presenting creationism as a scientific proposition, did you?

A Well, I don't think I had any understanding other than they were mentioning that to accommodate possibly the beliefs of their students and to explain to them what they would be teaching, what they wouldn't be teaching.

Q They would be teaching the scientific theory of evolution.

A Correct.

Q They would not be teaching creationism.

A Correct.

Q And they were not presenting creationism as a scientific theory, correct?

A That I don't know.

Q Well, if you heard that they were presenting creationism as a scientific theory, you knew from attending Messiah College that that would be illegal, right?

A I knew that teaching creationism would be illegal, but the -- you know, all the information that I ever got from teachers was that they did mention it. What they said about it or -- I just don't have that information.

Q No reason to believe that they were presenting it as a scientific theory.

A Okay.

Q Do you agree with that?

A Well, again, I don't -- I don't have any other information than that they said that they did mention it.

Q Fair enough. And it is clear to you that intelligent design is being presented as a scientific theory to the students of Dover, correct?

A I don't know how the students would -- you know, the language talks about an explanation other than Darwin s. I'd have to go back and look at the statement language, but I don't think the statement language goes as far as to say intelligent design is another scientific theory. So what the students understanding would be after the statement is read, I wouldn't know that.

Q Now, the board sent a newsletter to the entire community of Dover, correct?

A Yes.

Q And it communicates to the community of Dover, including the parents of these school children, what's going on at Dover regarding this -- the teaching of evolution and the presentation of intelligent design, correct?

A Yes.

Q And in that document the board is very clear, intelligent design is a scientific theory, correct?

A Just from the documents that have been displayed during the trial here, I think I remember you pointing out that it says intelligent design is a scientific theory in that document.

Q You understand that to be correct?

A Yes.

MR. ROTHSCHILD: No further questions, Your Honor.

THE COURT: All right, Mr. Baksa, I just have a couple questions before we have you step down and end this interesting, but I'm sure unwelcome, interlude in your life.

My questions are these -- Matt, if I could ask you to put up 286 again, please, which is the curriculum from 03. I think -- I assume that's D-286.

Thank you.



Q I'm a little unclear, and if you answered this, Mr. Baksa, I'm sorry, I just didn't get it, but I'm a little unclear as to your recollection as to when you -- and I know you may not know precisely, but when did you develop that?

A I found the document, it was not dated, but when I found it there were papers with this document dated August of 2003.

Q All right. And tell me again what your best recollection is of the development of that.

A Well, I didn't remember it, developing it.

Q No, I recognize that, and I recognize you found it in your papers. But having found it, your recollection of developing it, if any, is what?

A Well, if I would have developed this, as I've said before, I would have developed this thinking that I might need to use language like this to address a concern of a board member.

Q So your best guess is August of 03 --

A Yes.

Q -- based on papers that surrounded this in the file?

A Yes.

THE COURT: All right. And if you could put up D-19, please.


Q There is a notation on this that I don't think you were asked about, and I presume it's your writing, but I want to ask you. If you would highlight for me what appears to be, on the left side it says, "no mural ever again," if I'm reading that correctly. Is that your handwriting?

A Yes.

Q What does that mean?

A These were some of the concessions that we were agreeing to, to move forward to purchase Miller-Levine. And Mr. Buckingham did not ever want to see a mural that depicted -- that was in the science class and was removed, he didn't want to see a mural like that ever again in the classroom.

Q So it was a concession that you were extracting from whom?

A That's Bill saying he didn't want to ever see a mural like that again. And --

Q Saying that to who?

A The science teachers. And then as a result of that, Mrs. Brown was going to develop language -- language in our gift policy that made sure that anything displayed in the classroom aligned to the content.

Q So the quid pro quo or the exchange, if you will, or an exchange for using the Miller and Levine textbook was that there would never be a mural of the type that depicted evolution portrayed again?

A Yes.

Q And was that agreed to?

A Yes.

Q And, again, in exchange for the book?

A Yes.

Q If I understand your testimony --

THE COURT: You can take this down. Thank you.


Q If I understand your testimony correctly, around October 19th of 2004, Mr. Bonsell gave to you and others the book, the Myth of Separation, is that correct?

A October 19th when?

Q I picked up that date from something in the testimony, and I'm not sure where I got it, but is that approximately the time that you received a copy of the Myth of Separation?

A I believe I received it my first year. So I started in 2002-2003, and sometime during that period, it might have been fall or spring.

Q Of?

A 2002-2003.

Q From Mr. Bonsell?

A I received that book then.

Q Was it later distributed to a wider group of people? I'm not sure why I have the date of October 19, 2004. Was it given -- was it distributed more widely in 2004?

MR. ROTHSCHILD: Your Honor, if I could be a little bit of help. That was the e-mail exchange between Mr. Neal --

THE COURT: Thank you, I combined the two. That s why I have that date. I apologize for that. So let me then clarify, because obviously I was confused.


Q Tell me when, again, because I'm unclear, and I'm sorry to have you repeat this, but tell me when you believe you got that book, the Myth of Separation?

A I believe I probably got it in the fall of 2002.

Q From Mr. Bonsell?

A Yes.

Q To repeat.

And if I understood your testimony correctly, you were aware that it was distributed -- that copies or a copy was distributed to someone else?

A What I know is that I had a copy. I don't believe I gave my copy to anyone. But Mr. Hoover, Doug Hoover is another Social Studies teacher, and I do know from talking to him that he had read it. Whether --

Q And that's what your note references in 04, if I understand it correctly?

A Yes.

Q But were other board members, to your knowledge, given a copy of that book?

A That I don't know.

Q You don't know that.

When you were given the book by Mr. Bonsell, do you remember the circumstances?

A Well, I believe I got it from Dr. Nilsen.

Q Dr. Nilsen, I'm sorry. And I do recall you now saying that, who had been given it by Mr. Bonsell.

When Dr. Nilsen gave it to you, was it with any instructions, if you can recall?

A I don't remember, just that this is an area Mr. Bonsell is interested in, I might want to take a look at it.

THE COURT: All right. Thank you, Mr. Baksa. I'll give counsel the opportunity to ask brief follow-up based on the Court's questions. Your witness, Mr. Gillen, you go first.

MR. GILLEN: Thank you, Your Honor.



Q Just one question, Mike. That was 2002, we're in 2005, just want to make it clear. Has Mr. Bonsell ever insisted that any faculty read that book for the purpose of a curriculum change?

A Not that I know of.

MR. GILLEN: No further question.

MR. ROTHSCHILD: No questions.

THE COURT: All right. Thank you, you may step down, sir.

We have a great number of exhibits. Let's take those before we take a morning break. All right, I have -- you both ready to go through this?

MR. GILLEN: Give me a minute, Your Honor.

MR. ROTHSCHILD: Your Honor, would it make sense to confer over lunch about exhibits and maybe we can --

THE COURT: That's fine. As I look at it, I m thinking the same thing, because we're going to impede our ability to continue to take testimony.

Why don't we take a 15 minute break at this point, and then you've got your next witness ready to go after that. Do you think we can get that witness on and off by lunch?

MR. GILLEN: I do, Your Honor.

THE COURT: Why don't we try to do that, and then we can start with your expert hopefully right after lunch. All right, we'll be in recess for 15 minutes.


(Whereupon, a recess was taken from 10:39 a.m. to 10:58 a.m.)


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