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Kitzmiller v. Dover Area School District

Trial transcript: Day 4 (September 29), PM Session, Part 1


THE COURT: All right. Now, Mr. Gillen, cross-examine.

MR. GILLEN: Thank you, Your Honor.



Q. Good afternoon, Ms. Brown.

A. Good afternoon, Mr. Gillen.

Q. Pat Gillen for the Defendants.

A. I remember, sir.

Q. Thank you very much. I'm going to ask you a few questions about your testimony here in court today. Towards the closing portion of your testimony, you testified that two members of the board had asked you if you were born again, is that correct?

A. Actually, there were three, but two within the past -- the last year I served on the board.

Q. Who were they?

A. The two who asked me within the last year of my tenure? Mr. William Buckingham and Mrs. Jane Cleaver.

Q. And those are the two you referenced in your departing speech from the board, correct?

A. Yes, they were.

Q. I want to ask you a few questions about that. You testified today that the people on the board were your friends, correct?

A. They had been my friends.

Q. Okay. Now the conversation with Jane Cleaver, isn't it true that, that took place in her home?

A. Yes, it did, sir.

Q. And you had come over to her house to speak with her because she was a new board member, correct?

A. Yes.

Q. You invited the conversation, didn't you, Mrs. Brown?

A. I most certainly did. I so indicated in my deposition, sir.

Q. That's right, that's right. And I want to place that statement in context today. In fact, you went to her home, and you saw a beautiful carving of the Lord's Supper, correct?

A. The Lord's Last Supper, yes, sir.

Q. You began to talk to Mrs. Cleaver about religion, didn't you?

A. No, I did not speak to her directly about religion. What I spoke to her about was my liking for the carving. I had never seen such a beautiful carving. And I did make reference to the fact it was of the Lord's Last Supper. And the conversation segued from there.

Q. You concede that conversation about the art is not about a religious object?

A. It most certainly is within that context.

Q. Okay. And it was in that context that Mrs. Cleaver discussed her religious convictions, correct?

A. Yes, it began with her discussion of a trip, I believe, that she and her late husband had made to the Holy Land, sir.

Q. And it was during that discussion of her religious convictions that she asked you?

A. Yes, she did, sir.

Q. So your friend asked you about your religious convictions in her home, correct?

A. Yes, she did, sir.

Q. And that conversation was not for business, correct?

A. Yes, it was, in one sense, sir.

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

THE COURT: You may.

MR. GILLEN: Thank you.


Q. Mrs. Brown, I'm giving you a copy of your deposition.

A. Oh, thank you. I can read it. Thank you.

Q. Yeah, I have the full pages, and I truly regret any inconvenience.

A. That's all right.

Q. If I could have, I would have adjusted --

A. What did you wish me to look at, sir?

Q. I would ask you to look at page 67 of your deposition testimony, Mrs. Brown.

A. What portion of the page, sir?

Q. I would ask you to begin looking at the page on line 13. I will read the question that I asked you during your deposition. Let me see, if you have this discussion with Mrs. Cleaver, and you say, it was kind of a -- just an exchange between the two of you? Would you read your answer, Mrs. Brown?

A. I said, beyond the school board business, yes.

Q. So the discussion was beyond the school board business, correct, Mrs. Brown?

A. Yes, but it was within the framework of school board business that I was at her home, sir.

Q. But you told me that it was beyond the school board business, correct?

A. It was beyond the scope of what I was there for, yes, sir.

Q. Okay. Now you've also testified that Mr. Buckingham once asked you if you were born again, correct?

A. Yes, sir.

Q. I'd like to place that comment in context as well. Now you said Mr. Buckingham was your friend today in court, is that correct?

A. That is correct, sir.

Q. I would ask you to turn to page 86 of your deposition, Mrs. Brown. And if you would, just -- don't worry. If you would, just take a moment and look over from pages 86 through 88.

A. Yes, we were referencing a policy committee meeting.

Q. Now if I'm not mistaken, Mrs. Brown, in your deposition, you testified that you did have a discussion with Mr. Buckingham on one occasion where he was kind enough to offer you a ride home from the school board meeting, correct?

A. From the policy committee meeting. He was a member of the policy committee, sir.

Q. Okay. And while he's giving you a ride home, he did ask you about your religious convictions, correct?

A. Yes, he did.

Q. And that is the occasion in which Mr. Buckingham asked you if you had been born again, correct?

A. Yes, that is correct.

Q. So Mr. Buckingham, who you've testified is your friend, is kind enough to drive you home from a board meeting. You're having some discussions about the current state of culture and morality?

A. Yes, sir.

Q. And he asked you about your religious convictions, correct, Mrs. Brown?

A. That is correct, sir.

Q. So on the day that you resigned from the board, and you read your speech, and you said two people asked you if you were born again?

A. Yes.

Q. And you thought that was inappropriate, correct?

A. Yes, I did, and I still do, sir.

Q. You think it's inappropriate for a friend to ask you about your religion?

A. Yes, I do.

Q. Okay. You don't ask anyone about religion?

A. No, I do not, sir.

Q. Is religion something that shouldn't be discussed at all?

A. I would not presume to discuss religion under normal circumstances except within my own family, sir.

Q. Did you ever tell Mrs. Cleaver that you were offended?

A. No, I did not, sir.

Q. Did you ever tell Mr. Buckingham that you were offended by his question to you while he was taking you home?

A. I did say to him, I don't think we should be discussing this. But, no, sir, I did not tell him I was offended.

Q. Mrs. Brown, I believe you testified that you came on the board, and you were elected president, correct?

A. That was during my third term, yes -- beginning.

Q. I'm sorry. Go ahead.

A. It was at the beginning of my third term, yes, sir.

Q. Okay. Now I believe you said, subsequently, Mr. Bonsell became president, correct?

A. Yes, two years later, sir.

Q. Then you were nominated for vice president, correct?

A. Yes, I was.

Q. But you were not elected?

A. No, I was not.

Q. Isn't it true, Mrs. Brown, that from that day forward, you didn't get along with the board?

A. No, it is not true, sir.

Q. Isn't it true that from that day forward, you had recriminations for your fellow board members?

A. No, sir, that is not true. Were that the case, sir, I would have resigned immediately after that election.

Q. Let's talk about your participation in the board, please. I believe that you said that you ran for the board, along with some of these people who are currently on it; Mr. Bonsell, correct?

A. Yes, sir.

Q. All right. You ran for the board with him, correct?

A. That is true, sir.

Q. And your platform was one of fiscal responsibility, correct?

A. Fiscal responsibility, academic accountability, among other things, sir.

Q. You had also worked with his father, Don Bonsell, correct?

A. Yes, I did, sir.

Q. Both of you and Don Bonsell shared a concern for fiscal responsibility while you shared terms on the school board, correct?

A. Yes, sir.

Q. Later you ran with Sheila Harkins, correct?

A. Yes. But I must correct, you sir. I did not run with Mr. Bonsell, Sr.

Q. No, no, correct. I didn't mean to create that impression. You ran with Alan Bonsell, correct?

A. Yes, sir.

Q. And Sheila Harkins?

A. And Angie Zeigler Yingling, sir.

Q. So that's a yes to Sheila Harkins?

A. Yes, sir.

Q. You didn't run on a religious platform, did you?

A. Most certainly not, sir.

Q. Now when you were first elected president of the board, it was a contentious proceeding, wasn't it?

A. Yes, it was.

Q. In fact, Barrie Callahan and two other board members stepped out, isn't that true?

A. That is true.

Q. They refused to come in until you had been selected president?

A. Very true.

Q. And some of the people who selected you president were Alan Bonsell, Sheila Harkins, and Angie Yingling, correct?

A. Yes, sir.

Q. You've referenced a contentious board meeting that had to do with the pledge of allegiance, correct?

A. Yes, sir.

Q. And during that -- the issue in that meeting was whether or not the board should pass a resolution in favor of keeping under God in the pledge, correct?

A. To pass a resolution to send a letter of support to the Supreme Court.

Q. Support for what?

A. To keep under God in the pledge of allegiance, sir.

Q. Thank you, Mrs. Brown. And you read an address at that meeting, didn't you?

A. I did, sir.

Q. And that address mentioned the founding fathers, correct?

A. It did, sir.

Q. Is there anything wrong with Mr. Bonsell's references to the founding fathers?

A. No, sir.

Q. You voted in favor of the resolution keeping under God, supporting keeping under God in the pledge?

A. Yes, I did. As I stated in my deposition with you, it is one of two votes that I deeply regret.

Q. Let's look at the biology text issue here. The text was not purchased in 2003, correct?

A. No, sir, it was not.

Q. And that was because of fiscal concerns, correct?

A. Yes, it was.

Q. In fact, there was discussions that the teachers weren't using the book that they had at present?

A. Yes. It did not match the academic standards put forth in Chapter 4 from the State Department of Education, sir.

Q. So there was a discussion that the teachers weren't using the book that they presently had, correct?

A. Yes, because it did not fit the new science standards, sir.

Q. They weren't using it, Mrs. Brown?

A. That's correct, sir.

Q. Barrie Callahan wanted to buy the books?

A. Yes, she did.

Q. You saw that Barrie Callahan is pretty much a spender, didn't you?

A. Yes, more so than I was, sir.

Q. And that was her general attitude toward school board budget matters, correct?

A. Yes, sir.

Q. So you differed with Mrs. Callahan on that issue?

A. Yes, I did.

Q. In 2003, Mrs. Callahan was joined by other board members, Larry Snook and Lonnie Langione, in criticizing the board, correct?

A. Yes.

Q. You believed that they were politically motivated, correct?

A. At one point in time, I did, sir.

Q. In fact, you've testified that you say, when the three of them came up to the podium, you shut your ears?

A. Very often, I did, sir.

Q. You've testified to meetings with the teachers about the selection of the text, correct?

A. Yes, sir.

Q. At those meetings, other texts, including consumer sciences, were also at issue?

A. Yes, sir, I believe there were three texts.

Q. And Bill Buckingham has head of the curriculum committee in 2004 when these discussions took place?

A. Yes, he was, sir.

Q. Now Mr. Buckingham was in a new position because he hadn't been on the board curriculum committee before, sir?

A. He had been appointed to the board, sir.

Q. Board curriculum committee?

A. He had been appointed to the board itself prior to running for election, sir.

Q. I didn't ask you about that, Mrs. Brown. I just asked you --

A. I misunderstood, sir.

Q. Okay. Then forgive me if my question was imprecise. I asked you if this was the first time Mr. Buckingham had served on the curriculum committee, correct?

A. In 2003, yes, sir.

Q. In 2004, he was the head of the committee?

A. Yes.

Q. He was in a new position?

A. Yes, sir. And I believe my answer was imprecise. The end of 2003 or the very beginning of 2004 when the president made the committee selections. My apologies.

Q. I appreciate that accuracy. And he said at that meeting, he didn't have a chance to review the text?

A. To which meeting are you referring, sir?

Q. The meeting of the board curriculum committee on -- in June of 2004?

A. I believe it was prior to that, sir. I may be incorrect. But he did indicate his unfamiliarity with the text.

Q. And this is the meeting at which the teachers gave their recommendation of the Miller Levine text?

A. Are we referring to a board meeting, sir, or a curriculum meeting?

Q. The board curriculum committee meeting and the teachers are discussing the pros and cons of the Miller and Levine text. Do you recall that discussion?

A. Among others, yes.

Q. Now when Mr. Buckingham said that, there was subsequently a board meeting in June, the first meeting in June?

A. Yes, sir.

Q. And Mr. Buckingham indicated that he couldn't bring the book up to a vote because he hadn't had a chance to review it?

A. Yes, sir.

Q. And Barrie Callahan was in the public comment section or the seating for the public?

A. Yes, sir.

Q. And she voiced objections, correct?

A. She brought it up at the public comment section at the beginning of the meeting, sir.

Q. So did Larry Snook, correct?

A. Yes, sir.

Q. Now you've testified about a meeting in which Mr. Buckingham made a, what should I say, as you testify, an unkind comment to your husband, correct?

A. Yes.

Q. And you've said at that point, you felt like hitting him, didn't you?

A. Yes, I did. I said that in my deposition.

Q. And during these discussions in June, it was evident to you that Mr. Bonsell was interested in intelligent design, correct?

A. That was not the term that was used, sir.

Q. Mrs. Callahan, I ask you to look at your deposition.

A. I beg your pardon?

Q. If you look at your deposition, on page 144 --

THE COURT: I think you have the wrong name. I beg your pardon.

MR. GILLEN: Forgive me, Mrs. Brown. 144. Thanks, Judge.

THE COURT: You've been so polite to each other, I thought I'd help things along.

MR. GILLEN: It's been a long week. It's been a long week, and it's only Thursday, Judge.


THE WITNESS: Which portion of the page, sir?


Q. I want to make sure I give you enough to look at so you've got some context. If you look at 143, and take a quick look over that, you'll see it's in reference to the June meeting?

A. I'm sorry. I thought you said 144.

Q. I did, but upon reflection, if you would start at 143, it will give you the date I'm talking about, that's June 2004?

A. Yes, sir.

Q. And if you would read over onto page 144. I direct your attention to line 6?

A. On which page, sir?

Q. 144.

A. My response to Mr. Bonsell's reference point?

Q. Yes.

A. Yes, sir.

Q. The question I asked you at that time was, Do you remember Mr. Bonsell saying anything at these June 2004 meetings? If you would, Mrs. Brown, if you'd read your answer beginning on page 6 -- or line 6 at page 144?

A. Mr. Bonsell's reference point, I believe, was intelligent design. I may be in error. I believe from what I heard that Mr. Bonsell favored giving the two viewpoints of intelligent design and, as they termed it, Darwinism. Do you wish me to continue, sir?

Q. No, thank you. Now after that, there was another meeting between the board curriculum committee and the teachers, correct?

A. Yes, sir.

Q. And at that time, the teachers expressed that they taught evolution, as you said this morning, with a small e?

A. Yes, sir.

Q. And you understood that to mean, teachers focused on adaptations more of the animal and plant world, correct?

A. Yes, sir, Darwin's theory of natural selection, sir.

Q. And they told Bill that in 20 odd years of experience, they had perhaps half a dozen questions about origins?

A. That is correct, sir.

Q. And all the teachers were very clear that they did not teach the origin of life?

A. Yes, sir.

Q. Teachers said it was their custom to tell students who asked questions about that to talk to their parents, their family, their pastors, correct?

A. That is correct, sir.

Q. Bert Spahr indicated at that meeting, as you have today, that the text didn't jive with state standards, correct?

A. The text we had at that time, sir. Yes, sir.

Q. Now at the conclusion of this meeting, Mr. Buckingham indicated that he could deal with that, correct?

A. Yes, he did.

Q. And you believed that the text would be purchased, correct?

A. I did indeed, sir.

Q. And the text was purchased, Mrs. Brown, correct?

A. Eventually, sir, it was.

Q. Around this time, you heard of a supplemental text that was under consideration, Of Pandas and People, correct?

A. Approximately one month later, sir.

Q. That would be July?

A. The latter part of July, sir.

Q. That's your recollection?

A. To the best of my recollection.

Q. And it was your understanding that Mr. Buckingham wanted the text Of Pandas used side-by-side with the biology text recommended by the teachers, correct?

A. Yes, it was.

Q. And when you heard of Of Pandas, you picked up a copy -- let me ask you this. Mike Baksa called you and told you that Of Pandas was being discussed among the board curriculum committee, correct?

A. I believe that's correct.

Q. And you went down and picked up a copy and took a look at it, correct?

A. No, I did not. My husband picked up a copy from Mrs. Harkins.

Q. Oh, okay. Good enough. So you got a copy, and you and your husband looked it over, correct?

A. We read it.

Q. And as you noted, it didn't contain any reference to God, correct?

A. No, it did not, sir.

Q. Or creationism?

A. No, sir, it did not.

Q. Or a literal interpretation of the Bible?

A. No, sir, it did not.

Q. But you did see it as giving a supernatural explanation, correct?

A. Yes, I did, sir.

Q. Now the next meeting was in August 2004, correct?

A. Yes, sir.

Q. And you testified today that, in your opinion, the text that were flashed up here on the screen was being considered for purchase, is that correct?

A. I'm sorry, sir. I don't understand.

Q. Well -- and I'm trying to understand your testimony today here, Mrs. Brown. Documents were flashed on the screen with your handwritten notation, August 27th, 2004?

A. Yes, sir.

Q. And those related to biology texts, correct?

A. There was a reference to one text on the second page, sir.

Q. Well, how about that first page? Wasn't that a list of three base texts that were used at private schools?

A. Non-public schools, according to that.

Q. So you had the first page with three texts listed, correct?

A. Yes, sir.

Q. And then, as you've noted, there was a second page with another text?

A. Yes, sir.

Q. Is it your testimony that people were considering purchasing another textbook on August 27th, 2004?

A. No, sir, it is not my testimony.

Q. So what was discussed?

A. To the best of my recollection, as I said, sir, I found that material by accident, and I turned it over immediately. I didn't even know it still existed. In trying to place it in context, looking back on my calendar, I have a curriculum committee meeting list for that date, which is the date at the top of the material. It was clipped -- it was stapled together.

I remember a discussion of the text listed on the front page. Mr. Baksa gave us the information. These were samples of texts that were in use in neighboring districts or non-public schools, to the best of my recollection. I was not there for the whole meeting. I do not remember any discussion of the subsequent pages.

It may well have occurred when I was not at the meeting. But I do not remember a discussion of that material, sir.

Q. Okay. And I want to be fair to you, but I want to be clear as well. The text that was recommended by the science faculty was purchased on August 2nd, 2004, correct?

A. In the ballpark. It was approved.

Q. Okay. And I won't hold you to the dates. But in early August, the text was purchased?

A. Yes.

Q. Okay. Now what I want to be clear on is the date on that piece of paper, Mrs. Brown. The date that was on that piece of paper that was flashed on the screen was August 27th, 2004?

A. Yes, sir.

Q. Those documents relate to textbooks, and my question to you is, is it your testimony --

MR. ROTHSCHILD: Objection, Your Honor. It mischaracterizes the evidence.

MR. GILLEN: You want to flash them up on the screen?

MR. ROTHSCHILD: If he is referring to all of the documents, that's not an accurate characterization of the evidence.

MR. GILLEN: Forgive me if I was imprecise.

THE COURT: I'll sustain the objection to the extent that it might have been too broad. Why don't you rephrase?

MR. ROTHSCHILD: Thank you, Your Honor.



Q. Mrs. Brown, forgive me if I was unclear. We're talking about the first two documents that was flashed up. The first one had the date of August 27th, 2004, on it and referenced three textbooks that were being used in private schools?

A. Yes, sir.

Q. You remember that document?

A. Yes.

Q. And the second was another text?

A. Yes.

Q. Is it your testimony here today that those texts were discussed at the August 27th, 2004, meeting?

A. I have tried to be clear. To the best of my knowledge, that was the day, and I extrapolated that, very honestly, based on the dated material, which I always date, and the fact that I had a curriculum committee meeting listed for that day.

I believe it was a curriculum -- the curriculum committee meeting where I left early. I was unable to stay. So the only recollection I have of that material is receiving it from Mr. Baksa and a discussion related to the textbooks he had found in use.

I have no memory, no recollection, sir, of the subsequent pages of the document. I only know that they were stapled together in my file.

Q. So you don't know if those texts were discussed on August 27th, 2004, correct?

MR. ROTHSCHILD: Objection, Your Honor. He mischaracterized the testimony.

THE COURT: No, I'll overrule the objection. That's appropriate cross. You can answer the question.

THE WITNESS: Would you repeat it, sir?

MR. GILLEN: Certainly.


Q. You don't know if those texts were discussed on August 27th, 2004, correct?

A. To the best of my recollection, I believe they were.

Q. Based on what?

A. Based on knowing who was using them, remembering the explanation that Mr. Baksa gave for the handwritten portion, the title Modern Biology from the Christian School of York, based on the fact that I had dated it August 27th, and when I checked my calendar to try and frame the reference, sir, I found a notation that stated there was a curriculum committee meeting.

As I have stated, sir, there were two curriculum committee meetings where I was only present for part of the meeting, and I believe that was one of the two. That is to the best of my recollection. I have no recollection of discussion relating to the second, third, or fourth pages, sir.

Q. Did you discuss at the meeting the texts that were listed on the first two pages?

A. Only -- my recollection is that Mr. Baksa made a report simply telling us what was being used. I believe the texts he referenced were also in use by some other schools. That is the best of my recollection. I may be in error, sir.

Q. Okay. Good enough. You learned about a possible change in the biology curriculum in September 2004, correct?

A. Yes, sir.

Q. And Mike Baksa gave you some potential language, correct?

A. Yes, some proposed language.

Q. And you didn't like the language that was proposed, correct?

A. That is correct, sir.

Q. And you suggested changes, correct?

A. I made suggestions, yes.

Q. And as we saw today, the language you suggested referenced gaps in Darwin's theory, correct?

A. Yes, I did.

Q. And it referenced a variety of explanations for the origins of life, right?

A. Yes, it did, sir.

Q. Now on the night of the October 18th, 2004, meeting, the board voted on the proposed curriculum change, correct?

A. Yes, it did, sir.

Q. And Angie Yingling voted for the change, didn't she?

A. Yes, she did.

Q. She later told you that she was afraid that her business and personal life would be affected if she didn't?

A. Yes, sir, she did.

Q. You think or you've offered your opinion that board members were voting on the curriculum change for religious reasons, correct?

A. That is my opinion, sir.

Q. Now you know that Noel Weinrich has been someone who's expressed support for creationism, correct?

A. That is correct, sir.

Q. And Sheila Harkins has made it clear that she believes in evolutionary theory as a scientific theory, correct?

A. That is correct, sir.

Q. Now Noel voted against the curriculum change, correct?

A. Yes, he did.

Q. And Sheila voted for it, correct?

A. Yes, sir.

Q. So aren't you just speculating?

A. No, sir.

Q. Why not?

A. Mr. Weinrich told me why he voted against it, sir.

Q. Did he tell you he was voting against it for religious reasons?

A. He voted against it on principle. Did you wish an explanation, sir?

Q. No. I just find it odd that you think you know why people voted on that night?

A. Sir, I have never claimed to know why Mrs. Harkins voted the way she did. I only know Mr. Weinrich told me personally why he chose to vote the way that he did. I cannot give you a reason why Mrs. Harkins voted the way she did.

Q. I'm sorry. Continue.

A. I'm finished, sir.

Q. Okay. Mr. Weinrich told you on more than one occasion that he believes in creationism, correct?

A. Yes, sir.

Q. And he voted against the curriculum change, correct?

A. Yes, he did, sir.

Q. Mrs. Brown, I'm going to ask you to take another look at the chart that you were shown today that you turned over reasonably, and I thank you for that, which, along with that packet of documents that's referenced August 27th. And in consideration for your eyesight, the Plaintiffs have kindly agreed to project that chart again.

A. Yes, sir.

Q. Do you recall seeing this document on or about the curriculum meeting that you seem to recall toward the late summer of 2004?

A. Sir, I have told you. The only recollection I have is of the packet of the information, in the first page of that packet, I remember discussion of that. I do not recall any discussion on the second page, the third page, I believe this is the third page, and the fourth page. I only remember discussion on the first page itself. When I found it, I didn't recall anything at all and I still do not, sir.

Q. Okay. Let me see if I can jog your memory. If I can't, I'll stop here. If you would direct your attention to the one, two, three, fourth column over and the second down. If you'd look at that. Do you remember any discussion of people saying that Darwin believed in a designer?

A. No, I don't, sir.

Q. All right. Let me just ask you to look down at the last part, in case it may prompt your recollection. Do you recall anyone talking about Darwin and intelligent design as being different theories of evolution?

A. As relates to this particular page, no, I do not, sir.

Q. How about generally? Do you recall people discussing intelligent design as another theory of evolution?

A. Another theory of evolution?

Q. Do you recall any discussion along those lines?

A. Not as another theory of evolution, sir.

Q. Today you referenced that Mr. Bonsell had expressed an interest in prayer in the schools and the Bible, correct?

A. Yes, sir.

Q. Was there ever any policy put in place requiring prayer in the schools?

A. No, sir, there was not.

Q. Was there any policy put in place requiring Bible readings in the schools?

A. No, sir, there was not.

Q. You testified that you spoke about the founding fathers, correct?

A. Yes, I did, sir.

Q. And, in fact, you referenced the Treaty of Tripoli, signed by President John Adams, when you discussed the pledge, correct?

A. Yes, sir, November 10th, 2003.

Q. When you left the board, Mrs. Brown, you indicated that you would pray for everyone?

A. Yes, I did, sir.

Q. Did you regard that as an inappropriate expression of religious conviction at a public school board meeting?

A. Given the tenor of what had happened, no, sir, I did not.

Q. Today you testified that Bill Buckingham said you were an atheist?

A. Yes, sir.

Q. Mrs. Brown, I took your deposition on May 16th, 2005?

A. Yes, sir.

Q. And I wanted to get your side of the story. You were under oath when I took your deposition, correct?

A. Yes, sir.

Q. And I asked you about comments directed to your religious convictions?

A. Yes, sir.

Q. As we know, you told us about your conversation with Jane Cleaver in her home, right?

A. Yes, sir.

Q. You told me how Bill Buckingham asked you a question after he was kind enough to give you a ride home?

A. That is correct, sir.

Q. Today you reference a comment that you attribute to Mr. Bonsell, right?

A. Correct, sir.

Q. Mrs. Brown, you never told me on May 16th, 2005, that Bill Buckingham called you an atheist.

MR. ROTHSCHILD: Objection, Your Honor. What question is he referring to in the deposition? It depends how the question was asked.

THE COURT: Are you trying to impeach her?

MR. GILLEN: Yes, sir.

THE COURT: Well, that's not the right way to do it, so you're going to have to go to the deposition and do it that way.

MR. GILLEN: That's fine.

THE COURT: The objection is sustained.

MR. GILLEN: Thank you.


Q. Mrs. Brown, I direct your attention to page 216 of your deposition.

A. Could you give me a line, sir?

Q. Sure. Start looking at page 216, line 6, and you'll see we're referencing your speech. And there you mentioned the comments, if you look at 216 and 217, you'll see that you told me there about the comments you attributed to Mrs. Cleaver and Mr. Buckingham, correct?

A. Yes, sir.

Q. And you'll see there's -- if you'll turn then to page 220, line 22. And the question on line 22 is, Apart from this comment which you've mentioned, were there any other comments? You asked me, By this individual? And I asked you, Well, from board members directed to your religious beliefs?

A. And I answered, yes.

Q. Right. And then I asked you, You have mentioned two; one by Mr. Buckingham and one by Mrs. Cleaver. Besides those, any additional ones? And you said, One in the hallway. And that's what you testified today about Mr. Bonsell, correct?

A. Yes, sir.

Q. That's all you told me, Mrs. Brown, is that correct?

A. That is correct, sir.

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

THE COURT: All right. Mr. Rothschild, any redirect?



Q. Hello again, Mrs. Brown. Did Mr. Weinrich explain to you why he voted against the curriculum change that was voted in on October 18th?

A. Yes, he did, sir.

Q. And what did he tell you? What did he tell you about his views?

A. We had an extensive conversation. I believe it was within two or three days of October 18th.

Q. What did he tell you?

A. He told me that, while he viewed -- he favored creationism, that is his belief, he felt that what the board was trying to do was wrong and illegal, sir.

Q. Did he explain why he thought it was wrong?

A. Here, I'm attributing, okay. Mr. Weinrich was a very strong believer in the separation of church and state as to constitutionality of things, what was in the constitution and what was not. He took his oath as a municipal officer very seriously, as did I. We often had conversations about that. School board directors are considered municipal officers.

Q. This is what he conveyed to you?

A. Yes, sir, to both my husband and to myself.

Q. Did Mr. Weinrich oppose the policy at the October 18th meeting, speak up against it?

A. He did indeed, sir.

Q. You spoke up against it as well?

A. Yes, I did, sir.

Q. And did one or more of the teachers speak up about what their position on the policy?

A. They were very concerned about it. They felt, because it was to be included in the curriculum instructional guide -- excuse me -- the curriculum planned instructional guide, that they were being asked -- they were being put into a position where they might be in violation of the law.

Q. At that meeting, did anyone who voted for the change in the curriculum explain why that change was a good thing for the students?

A. No, sir, no one did.

Q. Did anyone in the board at that meeting explain what intelligent design is?

A. No, sir.

Q. Did anyone who voted for the curriculum change explain why intelligent design is good science?

A. No, sir.

Q. Were any outside speakers brought in to inform the board on the subject of evolution -- I'm sorry, the subject of intelligent design or the other proposed changes to the curriculum guide?

A. Not that I am aware of prior to the policy being implemented, sir.

Q. So that's at the meeting or prior?

A. Correct, sir.

Q. The October 18th meeting?

A. Yes, sir.

Q. Other than Pandas, did the board members receive any materials explaining intelligent design before they had to vote?

A. Not that I am aware of, sir.

Q. Did anyone describe what the problems in evolution were that were being referred to in the curriculum change?

A. At no time, sir.

Q. Ms. Brown, at the beginning of your cross examination, Mr. Gillen asked you about the two conversations you recalled about being asked whether you were born again?

A. Yes, sir.

Q. And in the case of Mr. Buckingham, it was a conversation that occurred on a ride home from a, I think you said, a curriculum committee meeting?

A. A policy committee meeting, sir.

Q. So that's not -- that's different from the curriculum committee meeting?

A. Very much so, sir.

Q. He actually asked you to refer to pages of your deposition where you gave testimony on that subject, correct?

A. Yes, I did.

Q. Could you turn to page 86 of your deposition? And tell me when you're there, please?

A. I'm there, sir.

Q. Matt, you can put it up on the screen as well. Ms. Brown, I'm going to read the questions that Mr. Gillen asked you, and I'd like you to read the answers.

A. Yes, sir.

Q. Beginning at line 22. Now if I understand you correctly, Mrs. Brown, it was some discussion of the biology text outside of this April meeting? If you could please answer?

A. I'm getting there. Mr. Buckingham and I had a discussion. He had -- okay. There are a couple words missing there. He had occasion to drive me home. I did not drive that day. He was kind enough to offer me a ride home. And during that ride, we discussed the role of faith in the schools.

Q. Do you recall what Mr. Buckingham said to you on that topic?

A. He felt that it was important to bring God back into the classroom.

Q. And when you had this conversation, did you have a sense for what he meant by that?

A. I am not sure how much clearer one can be, other than to say, we want to bring God and faith back into the classroom. What exactly do you want?

Q. That's what I'm trying to get. Did he make any specific recommendations for a course of action? Did he say the kids should pray again in school?

A. Yes, he did.

Q. Anything else, did he mention?

A. He felt that we should bring prayer and Bible reading back into the schools. It so happens that Mr. Buckingham and I are the same age. So we both remember that time period. And there was a discussion relating to the breakdown of society and morality. And Mr. Buckingham attributed that to the removal of prayer, the Bible, etc., from our school systems.

Q. And I take it, you had a discussion with him, and I'm sure that he did not hear just plain yeses from you. How did you respond to Mr. Buckingham?

A. I said very little. I responded when necessary because I was frightened.

Q. Just so that I understand you correctly, when you say frightened, did you mean you felt uncomfortable with this sort of --

A. I was physically frightened of what he was saying.

Q. Okay. What do you mean by that, Mrs. Brown? Did you feel threatened?

A. No, I wasn't in fear of him. I was frightened of what he was saying and what I saw as a possibility of what could occur.

Q. Is what actually occurred in Dover with the change of the biology curriculum the kind of thing you were frightened of?

A. Yes, sir, it was the beginning.

MR. ROTHSCHILD: I have no further questions.

THE COURT: Mr. Gillen, recross.



Q. Mrs. Brown, you said no one explained what the gaps were in Darwin's theory, correct?

A. Yes --

MR. ROTHSCHILD: Objection, Your Honor, mischaracterizes the testimony. That was not what she said and that was not my question.

THE COURT: Well, she answered the question.

MR. ROTHSCHILD: Your Honor, if I could clarify? I asked her whether anybody identified the problems in Darwin's theory.

THE COURT: I'll give you one more round on redirect if you want to clarify the answer. I'll overrule the objection. The answer stands. You can proceed.


Q. Didn't -- didn't the language you suggest have to do with gaps in Darwin's theory?

A. Yes, sir.

Q. Were you proposing language that you thought you had no basis for?

A. What I was trying to do was clarify to the best of my ability. I knew that we would be having a discussion on this, and I was trying to give a starting point of suggestions. If you notice, I did not mention intelligent design, sir.

Q. Do you know that the final statement passed by the board includes a reference to gaps in Darwin's theory?

A. Yes, I do, sir. It was not my original language though, sir.

MR. GILLEN: No further questions, Your Honor.

THE COURT: Now we'll break my general rule of two rounds each. Do you have any clarification you want --

MR. ROTHSCHILD: I won't let you break that rule, Your Honor. No reredirect.

THE COURT: Rules are sometimes made to be broken, but I appreciate that, Mr. Rothschild and Mr. Gillen. All right. That will complete your testimony. Ma'am, you may step down. Let's take the exhibits for this witness. They are as follows: P-21 and P-25 are the board issues. Are you moving for the admission of those?

MR. ROTHSCHILD: I am, Your Honor.

THE COURT: Any objection?

MR. GILLEN: No objection.

THE COURT: They're admitted. P-45, P-46, P-53, and P-54 are all articles. I assume we'll hold admitting the articles subject to additional testimony, is that correct?

MR. ROTHSCHILD: That's right, Your Honor.

THE COURT: All right. So you're not moving for the admission of those. P-660 is the packet of documents provided at the 8/27/04 board meeting. Are you moving for the admission of P-660?

MR. ROTHSCHILD: I am, Your Honor.

THE COURT: Any objection?

MR. GILLEN: We only object to the handwritten notation on the top.

THE COURT: You'll have to refresh my recollection. The handwritten notation?

MR. GILLEN: Sure. I have no problem with -- she was given the documents. We object to the handwritten notations, which is hearsay, and we don't believe that it was -- and there's no evidence so far as I can tell.

THE COURT: Was that the date, do you recall?


THE COURT: Do you want to redact it for the record?


THE COURT: No, I know you don't. I knew that, Mr. Rothschild. It may be after lunch, but I'm relatively quick in the uptake. Mr. Gillen, are you saying you want to redact it?

MR. GILLEN: Yes, because it is a hearsay statement. She has testimony in trial that's been subject to cross examination about her dating, but the statement itself is hearsay.

MR. ROTHSCHILD: Your Honor, the declarant was on the stand and verified this. I mean, I really don't understand --

THE COURT: I find it reliable. She said she got her date mixed up. She interposed another date. You had the opportunity to cross-examine her on a change in the date. I'm going to admit it. I don't think there's any reason to exclude it, so that's admitted without any necessity of redacting the exhibit. All right. P-73 is the memo regarding the biology curriculum dated 9/20/04.

MR. ROTHSCHILD: I move that in.

MR. GILLEN: No objection.

THE COURT: All right. That's admitted. P-681 is the letter dated from the witness, dated September 22, '04.

MR. ROTHSCHILD: We would like to move that in.

THE COURT: Or statement from the witness, I guess, better characterized, I think. Was it a statement or a letter?

MR. ROTHSCHILD: I think it was actually a -- it was 681, you said?


MR. ROTHSCHILD: That was Mrs. Brown's memorandum of September 22nd in which she responded.

THE COURT: Yeah, it's a memo. I mischaracterized it both ways as a memorandum. Are you moving for admission?

MR. GILLEN: No objection.

THE COURT: P-681 is admitted. P-75 is the memo from Baksa dated 9/28/04.

MR. ROTHSCHILD: We are moving that in.

MR. GILLEN: No objection.

THE COURT: That's admitted. P-84, A, B, and C, the memo to the board, again, from Baksa, with attachments.

MR. ROTHSCHILD: We are moving that into evidence.

MR. GILLEN: No objection.

THE COURT: That's admitted. P-151 is the Dover curriculum advisory committee comments. Moving for admission of that?

MR. ROTHSCHILD: Yes, Your Honor.

THE COURT: Any objection?

MR. GILLEN: I lost track of the number, Your Honor.

THE COURT: 151, Mr. Gillen. We're going rapidly.

MR. GILLEN: No objection, Your Honor.

THE COURT: All right. 151, P-151 is admitted. P-209 is the Dover biology curriculum guide. Are you moving for the admission of that?

MR. ROTHSCHILD: I am, Your Honor.

THE COURT: That's P-209 then. Mr. Gillen.

MR. GILLEN: No objection.

THE COURT: That's admitted. P-688 is the -- that is actually the resignation speech, as read into the record by the witness. Are you moving for that, admission of that?

MR. ROTHSCHILD: I am, Your Honor.

THE COURT: No objection.

MR. GILLEN: Make it easier to read. No objection.

THE COURT: All right. That's admitted. P-688 is admitted. Now I have no other Plaintiffs' exhibits. Do I have them all?

MR. ROTHSCHILD: You do have all of the exhibits that we would like to admit through this witness. There was an Exhibit 42 from either yesterday or the day before that we did have to redact. We have now provided redacted versions of P-42 to the Court, and we would like to move that into evidence.

THE COURT: Identify just what P-42 is for the record.

MR. ROTHSCHILD: It's the agenda from the June 7th board meeting.

THE COURT: All right. You took the handwriting off it, is that correct?

MR. ROTHSCHILD: That is correct, Your Honor.

THE COURT: Any objection to the redacted --

MR. GILLEN: No, Your Honor.

THE COURT: -- copy. All right. P-42 is admitted. Then no other Plaintiffs' exhibits for this witness. And then I show no exhibits referred by you, Mr. Gillen, on cross.

MR. GILLEN: That's correct.

THE COURT: So we have nothing else. So that will complete all the exhibits for this witness. And we are prepared then for your next witness?

MR. HARVEY: Your Honor, the Plaintiffs call to the stand, Jeff Brown.



having been duly sworn, testified as follows:

THE WITNESS: Jeffrey A. Brown, or Jeffrey Allen, whichever you prefer. J-E-F-F-R-E-Y. A-L-L-E-N. B-R-O-W-N.



Q. Mr. Brown, I was going to ask you your name, but then I realized you just said it. Are you married?

A. Yes.

Q. Please tell us the name of your wife?

A. Carol H. Brown.

Q. And Mr. Brown, did you ever serve as a member of the board of directors in the Dover Area School District?

A. Yes.

Q. Approximately what years?

A. From 1999 to 2004.

Q. And do you remember the date in 2004 when you resigned from the board?

A. October 18th.

Q. Who was the president of the board of the Dover Area School District on October the 18th, 2004?

A. Alan Bonsell.

Q. Do you remember when Mr. Bonsell ran for the board?

A. Yes.

Q. What year was that?

A. That would have been 2001.

Q. Did you run with him?

A. No.

Q. Do you recall a conversation with him when he was running for the board about what he wanted to do as a board member?

A. Yes.

Q. Please tell.

A. Sorry?

Q. Please tell us what you can remember he told you what he wanted to do as a board member?

A. He wanted to -- he did not believe in evolution. He wanted creationism taught side-by-side with evolution in our biology classes. He felt that taking school prayer and Bible reading out of school was a mistake and he wanted to see it reinstated at Dover.

Q. When was this conversation?

A. During the summer of 2001.

Q. Do you remember where that took place?

A. At his house.

Q. Do you remember why you were there?

A. Yes. My wife was running with Mr. Bonsell and two other people, Mrs. Harkins and Mrs. Yingling, as a slate of candidates, and I was involved in the campaign.

Q. Do you recall, did the board of directors ever have retreats?

A. Yes.

Q. Do you recall a retreat in January of 2002?

A. Yes.

Q. How is it that you recall that retreat?

A. The other day, Eric Rothschild showed us some documents from those retreats and it jogged my memory. I had forgotten them prior to that.

Q. And do you remember what Mr. Bonsell said at that retreat?

A. The -- we were asked as board members what were our areas of major concern, what would we like to see the board do. And Mr. Bonsell mentioned the teaching of creationism and Bible reading as two of the areas of his concern. Those were not the only ones. He also mentioned American history and school uniforms, as I recall.

Q. Mr. Brown, are you -- do you remember him saying that or are you just telling us what you saw in the documents?

A. No, I remember him saying those things. I had -- again, seeing it brought it back.

Q. Now do you remember a retreat of the Dover Area School District Board of Directors in March of 2003?

A. Yes.

Q. And can you tell us how is it that you remember that retreat?

A. Again, the same thing, the documents. It triggered it. It brought it back. And, yeah, I remember that.

Q. Do you remember what Mr. Bonsell said at that retreat?

A. He mentioned, again mentioned creationism. He felt it belonged in biology class alongside evolution.

Q. Do you recall an occasion when you were inside Dover Area High School with a man named Larry Reeser, another man named Noel Weinrich, and Mr. Bonsell?

A. Yes.

Q. And do you remember that you had a conversation in there about a piece of art?

A. Yes.

Q. And can you tell us, what was the piece of art that you had the conversation about?

A. It was a series of panels. It was painted on plywood, four-by-eight sheets of plywood. And it comprised a mural, a very large mural, obviously, that many sheets of plywood. And it depicted an ape at one end and a very recognizeable modern day man at the other and a series of evolutionary stages in between.

Q. Now do you remember when that happened?

A. It would have been -- it would have been in 2003, during, I believe it was during the summer, but I'm not positive.

Q. And do you remember the conversation that you had --

A. Yes.

Q. -- on the subject? Can you tell us what you can remember of that conversation?

A. Mr. Reeser gave the opinion that he felt the picture was offensive because it was -- it depicted male nudity. And all of us agreed with him, that it could certainly be taken as that. I didn't have a problem agreeing with him on that.

And then Mr. Bonsell, I remember -- I can't remember his exact words, but I do remember him literally like snorting through his nostrils and commenting on the subject matter, as Larry Reeser had said, the -- I don't think kids should be exposed to this kind of thing.

And then Alan volunteered the opinion, he didn't think they should be exposed to this kind of indication that this is where we came from, that sort of thing. I can't remember his exact words, but that was the gist of it.

Q. Who was the president of -- well, you already told us that Mr. Bonsell was the president of the board in 2004. Can you tell us, who was the head of the curriculum committee that year?

A. In 2004?

Q. Yeah.

A. William Buckingham.

Q. How did Mr. Buckingham get to be head of the curriculum committee?

A. The heads of committees are always appointed by the president, so Alan Bonsell would have appointed him.

Q. Do you recall a conversation with Superintendent Nilsen about the rotating nature of the presidency of the board of directors?

A. Yes.

Q. Tell us what you can recall about that conversation?

A. Well, it began with his complaint that we had instituted, beginning in actually December of 2001, we had instituted a policy where a person would serve one year as president, step down, and a new president would be elected. It was not set in stone that the vice president would automatically become the president, but that was pretty much the way it was understood.

The board always had the right to elect someone else. And Dr. Nilsen said that he found it very difficult to deal with, because each incoming -- each year, he had to deal with a new set of priorities. And he mentioned that my wife's priorities had been all-day kindergarten, world languages; Mr. Weinrich, who had succeeded her as president, his concerns had been the building project; and that Mr. Bonsell's concerns had been American history and creationism.

Q. Do you know what Mr. Bonsell's view on evolution is?

A. He regards it as fiction.

Q. How do you know that?

A. Because he told me.

Q. And do you remember when he told you that?

A. I can't give you an exact date, but it would have been -- I can't give you an exact date, no.

Q. Do you know what Mr. Buckingham's views on evolution are?

A. They're essentially the same. I think he described it as atheist propaganda.

Q. And how do you know that?

A. Because he said it in my presence.

Q. And can you remember when that happened?

A. It was an executive session. There were other people present when Mr. Buckingham made his statement. Now what Alan said to me was said in a more private conversation. It was at a board meeting, but I cannot remember when it was.

Q. In 2003, Mr. Bonsell was the head of the curriculum committee, isn't that true?

A. Yes.

Q. Did you ever have a conversation with Mr. Bonsell about why he wanted to be the head of the curriculum committee?

A. He had stated that, actually when he was still running for the board, he hadn't said he wanted to be the head of the curriculum committee -- well, maybe he did. At any rate, I remember him saying he wanted to be on the curriculum committee because he had concerns about the teaching of evolution and he wanted to see some changes in that area.

I am not positive he was more specific than that, but he had other statement -- it runs together in my mind literally.

Q. Do you ever remember a conversation regarding Heather Geesey and Mr. Bonsell and Jane Cleaver and Mr. Buckingham where they were talking about taking prayer out of school?

A. Yes.

Q. When was that conversation, if you recall?

A. That would have been in 2004, either in August or September.

Q. Tell me what you can recall of that conversation?

A. The -- they were talking among themselves. And I was only standing a few feet away. And we were stating -- it began with one of them -- it may have been Mr. -- I'm not certain who started the conversation. I know that the conversation concerned -- it began with the premise that taking prayer and Bible reading out of school had been a mistake and had caused a great number of problems.

And I cannot state which -- who said what. They were all part of the conversation. And they were nodding heads during the conversation. I came away with the feeling that they all agreed with the things being expressed. And there was no real concrete endeavor to, you know, they didn't discuss how they could put it back in, but they were all very much of the opinion that these changes had been a mistake. That was the word that was used, mistake.

Q. Do you recall a conversation in or around June of 2004 with Mr. Weinrich and Mr. Bonsell about the subject of intelligent design?

A. Intelligent design? No.

Q. Well, do you recall -- let me ask you another question. Do you recall a conversation with Mr. Bonsell and Mr. Weinrich in or around June 2004 about the origins of life?

A. Yes.

Q. Tell us what you can recall of that conversation?

A. They were addressing a -- I can't remember the fella's name, but it was a community member, and he had spoken -- Mr. Buckingham had objected to the book Biology as being laced with Darwinism. And this person, this member of the community, whose name escapes me, was defending Darwin's theory.

And Mr. Buckingham, Mr. Bonsell, and Mr. Weinrich were all addressing him during the public comment section. And --

Q. Let me just ask you.

A. Yes, you'll have to be more specific here.

Q. I'm not asking you about a board meeting.

A. You're not asking about a board meeting, all right.

Q. I'm asking if you can recall a conversation outside of a board meeting with Mr. Weinrich and Mr. Bonsell about the subject of origins of life?

A. Yeah, I can recall a conversation with them, but I'm not sure what specific one you're referring to. I'm sorry.

Q. Do you remember having a conversation with them outside the administration building in Dover?

A. Thank you. That's much more helpful. Yes.

Q. Tell us what you can -- when was this conversation?

A. It was, I believe it was the same day that we had toured the building. I believe it was later in that same day.

Q. And when was that?

A. Again, I'm not certain. It was -- it was in 2003, but -- and I believe it was in the summertime, but I can't be more specific than.

Q. Okay. Let's put that aside for now.

A. I'm sorry.

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

A. Yes.

Q. And did you attend that meeting?

A. Yes.

Q. And do you remember Barrie Callahan speaking at that meeting?

A. Yes, I do.

Q. And do you remember what Barrie Callahan said?

A. Not word for word, but she was questioning the status of the book, Biology; what was happening, why hadn't it been approved, things of that nature.

Q. Had Mrs. Callahan raised this before?

A. Yes, she had.

Q. And had anybody on the board offered support for her previously?

A. The previous -- I believe it was at the previous meeting, she had brought up the subject, and Mr. Buckingham had responded that the book is currently under review. And that was pretty much the end of it.

Q. And how many times before this meeting on June the 7th had she raised this subject of the Biology textbook?

A. Now that, I can't answer. It was probably more than that one time, but I can't be sure about that.

Q. Do you recall what was said by anyone on the board to Mrs. Callahan on June the 7th, 2004, when she raised the subject of the Biology text?

A. Vividly. Mr. Buckingham told her that he objected to the book and would not recommend it because it was, quote, laced with Darwinism, unquote.

Q. And do you remember anything else that Mr. Buckingham said in that conversation in response to Mrs. Callahan?

A. Nothing so vividly as that one. That one really sunk in.

Q. Do you remember any other members of the board speaking to Mrs. Callahan in response to her question?

A. On that particular instance? No, not off the top of my head.

Q. Do you remember a student named Max Pell speaking at that meeting?

A. That's the one. That's the person -- that's the community member whose name I could not remember, yes.

Q. Do you remember what Mr. Pell said on that occasion?

A. Not word for word, but the gist was, he was very supportive of Darwin's theory, and he didn't understand the objections to it. And Mr. Weinrich and Mr. Bonsell and Mr. Buckingham literally took turns arguing with him. The arguments took various forms depending who was speaking.

I remember Mr. Weinrich stating that, when you teach one theory, you're, in essence, teaching -- when you teach only one theory, you are, in essence, teaching it as fact. I remember him making that statement. But all three of them were supporting the addition or at least the possibility of the addition of creationism into the biology curriculum.

Q. Do you remember anyone discussing intelligent design at that meeting?

A. I'm not positive it was that meeting or not. There was one mention of the board, and I made it. But it may have been at the succeeding meeting. I'm not positive. There was no discussion of intelligent design, no.

Q. When was the mention of intelligent design that you have in mind?

A. At one point, Mr. Buckingham used the word creationism, and I suggested intelligent design. And I better explain that. At that point, I knew very little about it. I had seen the word in the newspaper article, Newsweek. I'm not sure where I saw it. But I was aware of the term. And my concerns at that time -- and you're going to make me give some background here -- I was very concerned that --

Q. Let me ask you a question. What was your concern at that time?

A. Thank you. My concern, as far as the opinions that were being given, was that we might be stating in our biology classes -- in fact, I was getting the opinion, impression from the board members opposed to teaching evolution that we were literally telling our students, evolution occurs without any form of plan, pattern.

There's no -- it's all accident. It's purely, that we're essentially talking about a universe with no greater purpose. And I felt, if that was indeed the case, then we were tramping on people's toes, because the fact of the matter is, whether there's a greater purpose or not is beyond the purview of science. It is -- we're in the realm of philosophy or theology, if you will. And I was concerned, if we were doing that, and I had read this term phrase, intelligent design, and I interpreted that as meaning simply a counter point. And I wanted to -- I didn't have a problem with the phrase intelligent design inasmuch as if it meant only that there is a body of opinion out there that feels this may not have all been blind chance.

If we were going to tell them one, I felt we were within our rights to tell them both. And I suggested that phrase to Mr. Buckingham. And Mr. Bonsell echoed it. Now this may have been the June 7th meeting. It may have been the June 14th. I cannot recall which one. That was the first time intelligent design was ever mentioned at a Dover board meeting, and there was nothing further said about it.

It was just my mentioning the phrase. Alan repeating what I had said, intelligent design. And that was it. It didn't come up again at that meeting.

Q. Do you recall a meeting of the Dover Area School District Board of Directors on June the 14th of that same year?

A. Yes.

Q. And did the subject of the Biology textbook come up?

A. Yes.

Q. Did the subject of creationism come up?

A. Yes.

Q. Tell us, if you can remember, how the subject of creationism came up?

A. It actually came up during the public comment section of the meeting, which is actually the first part of our meeting. Before we go into our regular agenda, we have public comment. And Mr. Buckingham's wife spoke for 15 minutes, which is 10 minutes longer than we normally give members of the public to speak, but there was no attempt from the chair to cut her off.

For 15 minutes, she essentially evangelized and stated that it was our duty, our responsibility to include creationism into the classrooms. I believe, but I'm not -- it seems to me she also mentioned Bible reading and prayer, but I can't be certain of that. I think she said it. I'm not positive.

But she definitely was speaking in favor of including creationism in our biology curriculum. And the public comment section actually spilled over into the board members got involved in it. And I began arguing that we can't teach creationism. And Mr. Buckingham became very upset with me, and said, 2000 years ago, someone died on a cross for us. Isn't it time we take a stand for him?

Q. Now I'd like to change the subject for just a second and talk about the textbook of Pandas. Have you ever heard of that?

A. Yes.

Q. When did you first learn about Of Pandas and People?

A. It would have been the Thursday before Mr. Buckingham proposed votes -- our meetings were always on Monday. The Thursday prior to that Monday -- this is very complicated, but I don't know the date off the top of my head. At any rate, on a Thursday, my wife got a phone call from Mr. Baksa, the assistant superintendent, who told her that Mr. Buckingham had this book, Of Pandas and People, that he was recommending the district buy as a supplemental biology text.

Q. Let me stop you right there and see if we can clarify the date of this before you continue. There was a meeting of the Dover Area School District Board of Directors on August the 2nd, 2004, at which there was a discussion of approval of a biology textbook. Do you recall that?

A. Yes.

Q. Now where was this telephone call that you were just relating in relation to that August the 2nd meeting?

A. That was the Thursday prior to that date.

Q. Okay. Now tell us how you learned on the Thursday prior to the August 2nd meeting about the textbook, Of Pandas and People?

Q. From my wife. She took the call. She relayed it to me. I came home from work. I don't think she had the car that day. And she asked me if I would go to the administration building and pick up a copy, because she was livid. She was on the curriculum committee. And Mr. Buckingham was proposing buying a book to add to the curriculum and not even consulted with her.

Q. Was this what she told you on that occasion?

A. That's what she told me, yes.

Q. And then what did you do?

A. I went to the administration building to see Mr. Baksa, and he said, I don't have a copy. I think Dr. Nilsen does. I went to Dr. Nilsen's office. He said, no, I gave my copy to Sheila Harkins.

Q. Then after Mr. Nilsen told you that, what did you do?

A. Dr. Nilsen called Sheila. She was at home. He asked her, could I come over and pick up the book. She said, yes. So I went to her house.

Q. Did you have a conversation with Mrs. Harkins at her house?

A. Yes.

Q. And did you discuss the subject Of Pandas and People?

A. Well, I couldn't really discuss it -- well, okay. Only in the sense that they wanted to buy the book. I hadn't read it yet, obviously.

Q. Do you remember what she said to you in that conversation?

A. I remember that conversation pretty vividly. The first thing I said -- she said -- the first thing she said to me was, I think we should buy this book. I looked at her. I said, Sheila, you don't even want to buy the books that we're supposed to buy, why do you want to buy this book that we don't even need and the state is not requiring us to buy.

She said, read the book. I said, fine, I plan to read it, but why are you so in favor of buying this book? She said, just read the book. And I told her at that point, I said, I can't support buying a book that is not required by the state, because we had just, to get our budget passed, we had just cut our library funding in half.

We had -- we were discussing and later passed a motion whereby volunteers for the district would be required to pay $10.00 a head toward the costs of defraying the costs of the background checks that were required, due by law.

I said, you can't stand there and cut library books in half and make people pay $10.00 a head to work for the district for free, and then buy a textbook that you don't even need. I said, if we do this, we're likely to get sued. Initially my argument was, misuse of tax payer funds.

She started going on about how this book was such an eye opening thing of what's wrong with evolution and so on and so forth. I told her, I said, Sheila, we can't touch that subject.

I said, with all the statements that Bill has made that have been in the press and have actually gone wire service, I said, if we even touch this subject, we're going to end up in court. And she remained adamant. She was in favor of buying the book. I took it home, and I got to the second paragraph --

Q. Well, let's stop right there. You took the book home with you, is that your testimony?

A. Yes.

Q. Did you read it when you got home?

A. Yes.

Q. And how long did it take you to read it?

A. All weekend. Casey and I traded back and forth.

Q. Did you discuss it?

A. Yes.

Q. Tell me, what was your reaction to the book?

A. By the second paragraph, I felt they were calling me an atheist because I believe in evolution. And that made me furious. I remember talking to Casey and, you know, she made the comment, it's bad science and worse theology. And I said, absolutely. That was pretty much our take on it.

Q. Now was the board -- excuse me, was the book discussed at the next meeting of the board on August the 2nd?

A. Yes.

Q. And do you remember if Mr. Buckingham took a position on that book?

A. Oh, yes.

Q. And can you tell us, what was his position?

A. All right. Mr. Buckingham introduced the motion to buy the textbook, Biology, which was on our agenda. And we only had eight members there. Mrs. Cleaver was not present. The -- we took the vote. Four members, Mr. Buckingham, Mrs. Harkins, Mrs. Yingling and Mrs. Geesey all voted, no, they would not buy the book. Mr. Bonsell, myself, Mrs. Brown, and Mr. Weinrich all voted, yes. The motion failed. It was a four, four tie.

At that point, Mr. Buckingham stated that he had five votes to buy the book, Of Pandas and People, as a supplemental text, but because the administration had refused to recommend it under state law, it would require six votes. And he didn't have the sixth vote. And what he said -- and he said this in a public meeting -- I will bring this up at a future meeting.

I will first introduce a motion to buy the book Of Pandas and People. He was very explicit about this. If it gets the necessary six votes, I will then introduce the motion to buy the book, Biology, by Prentice Hall. And I will release my votes to vote for it.

If, however, it fails to get six votes, I will not release my votes for the book, Biology. And at that point, I got extremely angry and we engaged in -- I demanded to know what would happen if I were to read this book and feel it was not worth the tax payer's money. And he looked me right in the eye and said, then you don't get your book. And he said, and I quote, either I get my book or you don't get yours.

Q. Did the book, approval of the Biology textbook came -- was it approved at that meeting?

A. Eventually, yes. Mrs. Yingling changed her vote.

Q. Now do you recall, moving away from that meeting, do you recall an executive session -- first of all, tell us, what is an executive session of the board of directors?

A. All right. We are allowed to call -- under the Sunshine Act of Pennsylvania, we must conduct our meetings in public, in the sunshine. But there are specific exemptions. If we are discussing legal matters or personnel issues or contractual matters or discipline for minors, we go into what's called executive session.

The board, the superintendent, sometimes other administrators, if needed, will be present. But it's not -- there are no reporters present. The public is not. It's essentially out of the sunshine, to use the legal term.

Q. Do you recall an executive session of the Dover Area School District Board of Directors where it was a donation of Of Pandas and People to the School District was discussed?

A. Yes.

Q. Tell us what you can remember about that discussion?

A. I believe this was in September of 2004. By this time, Bill was resigned to not getting his books through the school board. And Mr. Buckingham stated in this executive session, and I'm pretty certain it was in September, that he was soliciting donations to buy the books to be donated to the school to be placed in the classrooms.

And I told him, you might have a problem with that. I said, if you want to put it in the library, no problem. We have a standing policy for, you know, accepting donations to the library. I said, but there's no policy on donating books directly to the classroom. And he looked me right in the eye and said, I am not asking people to contribute money for these books if they're just going into the library.

I want them in the classroom. I said, well, I'm just telling you what the policy is. And I dropped the subject because by that time, relations between Mr. Buckingham and I were pretty poisonous anyway and I didn't need to get into it any further. And at that point, Mrs. Cleaver and Mr. Bonsell both said that he should put them down for a donation.

Q. Did you later learn that the Pandas had been donated to the school district?

A. Yes.

Q. When did you learn that?

A. I believe it was the first meeting in October of 2004. Dr. Nilsen made a statement to the board during our public meeting that the books had been accepted and that the teachers have -- I believe he used the phrase have no problem with their being placed in the biology classrooms as reference books.

Q. Now did you attend the meeting of the board on October the 18th of 2004?

A. Yes.

THE COURT: Mr. Harvey, if you're going to get into a new line of questions, why don't we take this opportunity to take our afternoon break. And we'll break for about 20 minutes at this juncture, and then we'll return. And I would remind you that, if it works well, counsel, I would intend to go to 5:00, or as close to 5 as we can get this afternoon. So we'll recess for about 20 minutes.

(Whereupon, a recess was taken at 2:57 p.m. and proceedings reconvened at 3:25 p.m.)


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