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Kitzmiller v. Dover Area School District

Trial transcript: Day 7 (October 6), AM Session, Part 2


THE COURT: You may proceed, Mr. Thompson.

MR. THOMPSON: Thank you, Your Honor.


Q. Dr. Forrest, I'd like to focus your attention on Page 38 of your report, your expert report.

A. 38 of the report?

Q. Yes.

A. Okay.

Q. If you can read to yourself that first paragraph or parts of it to familiarize yourself with the compromise strategy.

A. Just the first paragraph?

Q. Read as much as you want to familiarize yourself with the so-called compromise strategy.

A. Okay. Just give me another minute.

Q. Sure.

A. Okay.

Q. In your expert report on Page 38, you refer to the so-called compromise strategy. Is that correct?

A. That's part of a quote I've used.

Q. Right. What is the compromise strategy?

A. Compromise strategy refers to the efforts in the State of Ohio. The initial efforts were to introduce intelligent design into the state science standards. When the effort to do that, in which the Discovery Institute was involved, by the way, with some Ohio supporters, when that effort ran into opposition, they changed their strategy so that rather than asking for intelligent design to be in the science standards, they simply asked that teachers be permitted to teach or discuss the controversy. That was the compromise.

Q. Do you think that the Discovery Institute tried to employ that strategy in this case?

A. In the Dover case?

Q. Yes.

A. I think that the -- first of all, I'm not exactly sure what you're asking me --

MR. ROTHSCHILD: Your Honor --

THE WITNESS: -- or how specific I need to be.

THE COURT: Wait. Hold on, ma'am.

THE WITNESS: I'm sorry.

MR. ROTHSCHILD: The question lacks foundation. I'm not sure what facts Mr. Thompson is referring to.

THE COURT: Well, the question was did she think that the Discovery Institute was employing that tactic in this case. How does that lack foundation?

MR. ROTHSCHILD: There's no foundation for this witness about what the Discovery Institute did or didn't do in this case. I'm not sure what he's referring to. I mean, there's the Discovery Institute large and their activities nationally, but I'm not sure if Mr. Thompson is referring to something they've done locally.

THE COURT: Well, the clarification subsequently was, in the Dover case, and he said, yes, in the Dover case. So the question is specific to Dover, as I understand it. Do you understand it to be that?

THE WITNESS: May I ask for a clarification?

THE COURT: You may.

THE WITNESS: I would like to have one.

THE COURT: You may.

THE WITNESS: Are you asking me if the Discovery Institute is working with the Dover board? Is that part of your --


Q. No. Maybe I should rephrase it then. You mentioned what the compromise strategy was. Correct?

A. In Ohio.

Q. In Ohio. And you then referred to some quotes that Stephen Meyer made regarding the Dover School Board. There's a quote right in that paragraph.

A. Yes, that's correct.

Q. And I'm asking you, was the compromise strategy attempted in the Dover School Board case of the curriculum change?

MR. ROTHSCHILD: Objection, Your Honor. It's still not clear what Mr. Thompson is asking, whether he's asking about Discovery Institute involvement specifically with this board, with this community, or whether he's just talking about, you know, the Discovery Institute in the air.

MR. THOMPSON: Your Honor, I'm referring to what she said in her report, Page 38 of her report where she discusses the compromise strategy and then makes some statements about whether it was being applied by Discovery or attempted to be applied by Discovery in --

THE COURT: So is the question whether the compromise strategy, as referenced on Page 38 of the expert report, was employed by the Discovery Institute in this case?

MR. THOMPSON: Yes, Your Honor.

THE COURT: Well, there we said it. There's the question.

THE WITNESS: Yes. Now I can address it, because I don't think we're talking about the same thing in each instance.

In the Ohio case, representatives of the Discovery Institute were working, they were publicly involved and they were working with supporters in Ohio, a couple of whom are on the Ohio Board of Education, and they were working together to try to promote intelligent design, to get it included into the science standards. When they encountered opposition, they changed their strategy. That's what happened in Ohio.

What I see happening with respect to Dover is that the Discovery Institute, regardless of what the Dover board may be doing or not doing, they are also trying to adjust their position strategically so as to -- I've seen them say some different things at different times.

What I'm referring to outside the quote -- there's the quote that refers to the compromise strategy that was devised in Ohio. What I'm referring to subsequent to that quote, in the lines just after it, are to the very typical strategic shifts that the Discovery Institute makes in the way they express their position. That is something that they have a habit of doing. And I think they have done that in this case.


Q. I think that answers the question. Thank you, Professor Forrest. In your testimony, you place a great deal of emphasis on peer review. Is that correct?

A. Yes, because the scientific community places a great deal of emphasis on that.

Q. And based upon your research, is it accurate to say that peer review has sometimes been used to obstruct the advancement of valid scientific ideas?

A. If I could get you to clarify what you mean by "obstruct."

Q. Prevent the scientific idea from gaining acceptance.

A. What the peer-review process is designed to do is to make distinctions, distinctions between scientific claims that are well-founded and scientific claims that are not. And so there are inevitably -- and I have scientist friends who have experienced this. Every scientist who submits materials for peer review gets rejections. So if you're referring to that, that's a very common practice.

Q. Well, one of the famous cases, I guess, is Gregor Mendel and his theory of genetics?

A. Gregor Mendel the monk?

Q. Yeah. Are you familiar with what happened there with his theory?

A. Not as it refers to -- not as it refers to obstructing publication. I'm not sure what you're getting at.

Q. Well, he had this theory and he gave it to a botanist to review, and it sat there for 40 years. Right?

A. Well, the case with Mendel is, I don't think anybody recognized the significance of his research at the time. It wasn't until well after the turn of the century that people understood the importance of his work. I don't think anybody was deliberately trying to obstruct his work for conspiratorial purposes. It was just that -- even Darwin didn't understand the significance of it. It took a little while.

Q. Now, we mentioned a letter that you had written to the House of Representatives and the Senate regarding the Santorum amendment. Do you recall that?

A. Yes. You said you have a copy.

Q. Yes.

MR. THOMPSON: May I approach the bench, Your Honor?

THE COURT: You may, the witness.

MR. THOMPSON: The witness.


MR. ROTHSCHILD: Mr. Thompson, can we have a copy?

THE WITNESS: This is not a copy of the letter, sir.


Q. Isn't that the letter?

A. A copy of -- Oh, oh, okay. I see. This is the letter with a number of signatories, yes.

Q. Yes.

A. Yes, yes, I'm sorry. Yes, I do recall this. This was not a letter I wrote.

Q. You are a signatory to that?

A. I'm a signatory to this, yes.

Q. Does that refresh your recollection?

A. Yes. Without being able to read it word for word, I do recall this letter being written.

MR. ROTHSCHILD: Your Honor, may counsel have a copy?

THE WITNESS: And could I keep a copy?

THE COURT: If they're going to ask you questions, if he's going to ask you questions, you're certainly entitled to a copy. Let's let Mr. Rothschild look at it first.

MR. ROTHSCHILD: Just give me a moment, Your Honor.

THE COURT: Certainly.


Q. This letter was dated -- strike that. This letter was signed by several individuals in the scientific community.

A. Excuse me, are you going to question me about the letter? If you are, I'd like to have a copy, please.

THE COURT: You can approach the witness, and if there's something that --

MR. THOMPSON: It's going to be pretty general, Your Honor.

THE COURT: Well, if you need it to ask questions, you can stand near the box. You can look on it, and then you can give it to the witness if you only have one copy.

THE WITNESS: May I have just a moment to review it?




Q. This letter, as I indicated, was sent as a joint letter from scientific and educational leaders to the Senate and to the House of Representatives.

A. I believe it was sent to the conference committee. Representative Boehner was one.

Q. It was Honorable Edward M. Kennedy, Chairman?

A. Yes, conference committee.

Q. And then the Honorable John Boehner, Chairman. One from the House of Representatives and one from the Senate?

A. That's correct. I think his name is pronounced Boehner, but I'm not sure.

Q. And the purpose of that letter was to try to prevent adoption of the Santorum amendment. Is that correct?

A. That's correct.

Q. Now, there was another letter you sent to Simon Blackburn. Do you remember that letter?

A. I do.

Q. And that was a letter to a particular participant or potential participant in this conference that was going to be put on by Bill Dembski. Is that correct?

A. The Nature of Nature conference at Baylor.

Q. Right. And do you remember why you wrote that letter to Mr. Blackburn?

A. Yes. I wrote the letter as a professional courtesy to a fellow philosopher to inform him of the nature of the event in which he would be participating.

At that particular time people did not realize that this was a conference that had been organized by creationists. And I thought, as a member of Professor Blackburn's discipline, having the knowledge of what this event was about, as a professional courtesy, I would make him aware of that.

Q. And your purpose of doing that was to in some way persuade him not to attend?

A. No. Did you read the letter, sir?

Q. Yes, I did.

A. Okay. In that letter, I specifically say, my purpose is not to persuade you not to go because I understand that you are already committed. It specifically says that.

Q. But you ask him or invite him to talk to other people about it?

A. Yes. I didn't want him just to take my word for what was in the letter. The thing that was proper to do is to refer him to other people who could corroborate what I was telling him.

Q. Do you know if he did attend that conference?

A. He did not attend. He declined to attend.

Q. Was part of the reason for his declination the fact that he received this information from you?

A. Yes. It was the fact that he had read the letter. May I give you more information about that?

Q. I'm trying to speed it up. Your attorney can ask it.

A. There's a bit more to the story.

Q. If it's not a complete answer, certainly you should give a complete answer.

A. Dr. Dembski acquired a copy of that letter and, without my permission, posted it on his Web site. Accusations were made that I had persuaded -- that I had written to a number of people persuading -- asking them to jump ship and not to go to the conference. That accusation does not reflect the contents of the letter. So I would like to clarify that.

Q. There were other attempts to -- there were attempts from other evolutionists to contact potential attendees at that conference?

A. I know what I did. I don't know what other people did.

Q. Now, you claimed in your direct testimony that you did some kind of a Medline search on the issue of intelligent design to see if there were any peer-review articles out there?

A. Yes, I did that several times.

Q. And I believe you gave us the phrase that you did the search on?

A. No, I said I did a key word search and a subject search.

Q. What was the key word search?

A. I was working with the reference librarian at the library where I teach, and we used a variety of key words. We used intelligent design, design theory, all of the variations of that.

Q. And you claim that you did not find any peer-review articles?

A. There were none.

Q. You did not find the article by Behe and Simon about simulating evolution by gene duplication of protein features that require multiple amino acid residues?

A. I found a number of articles by Professor Behe, but they were not articles that used intelligent design as a biological theory. He has done some bona fide scientific work.

Q. That was in protein science in 2004?

A. That was a recently published article that came out since I've done my work and my research. I'm aware of that article.

Q. Are you aware of a peer-review article by Chiu, C-h-i-u, and Lui, L-u-i, entitled, Integrated Use of Multiple Inter -- excuse me, Use of Multiple Interdependent Patterns for Biomolecular Sequence Analysis?

A. I believe I ran across that one.

Q. Okay.

THE COURT: Easy for you to say.


Q. But you did not mean to reference it in your report?

A. Excuse me?

Q. You didn't reference it in your report?

A. This is one of a number of publications that intelligent design proponents have claimed support intelligent design. They have all been reviewed by qualified scientists, and I'm aware of that fact and I'm aware of their findings that these articles do not actually support intelligent design theory.

Intelligent design theory is based on the supernatural, and so it's not likely that you'll have scientific evidence that will support that.

Q. Well, whether it's based on supernatural is an issue that we have in dispute. But you did not find that article when you did your peer-review search?

A. That article was not out yet, I don't think.

Q. What about Thornhill and Ussery, A Classification of Possible Routes of Darwinian Evolution?

A. Yes. That's by Dr. David Ussery and Dr. Thornhill, yes.

Q. And that was devoted to analyzing Dr. Behe's concept of irreducible complexity?

A. They were responding to Dr. Behe's claims about that.

Q. And so that would be a yes to my question?

MR. ROTHSCHILD: A yes to what?

THE WITNESS: I'm sorry, what --


Q. The question was, they were responding to analyzing Dr. Behe's concept of irreducible complexity?

A. Yes, that's what they were doing, yes.

Q. Okay. And did you come across two articles by Douglas Axe appearing in the Journal of Molecular Biology?

A. I did.

Q. One was Extreme Functionality -- excuse me, Extreme Functional Sensitivity to Conservative Amino Acid Changes on Enzyme Exteriors?

A. Yes. In fact, I e-mailed Dr. Axe to find out his position on whether those articles support intelligent design theory.

Q. And did you find an article by Douglas Axe entitled, Estimating the Prevalence of Protein Sequences Adopting Functional Enzyme Folds?

A. Yes. I found essentially all of Dr. Axe's publications.

Q. And so those intelligent design scientists have been writing in peer-review magazines, have they not?

A. Those are not --

MR. ROTHSCHILD: Objection. Mischaracterizes -- it's an improper question. It lacks foundation. He's characterizing them as intelligent design scientists. I think Dr. Forrest is testifying there's nothing about intelligent design in those articles.

MR. THOMPSON: That wasn't my question, Your Honor. My question, those intelligent design scientists.

THE COURT: Well, you characterized them as intelligent design scientists, and Mr. Rothschild's objection is that they're not intelligent design scientists, all of them, at least.


THE COURT: So I think the question in that sense needs to be rephrased.

MR. THOMPSON: I can change it, Your Honor.

THE COURT: I'll sustain the objection.


Q. Those scientists that I just mentioned have been publishing in peer-review magazines. Is that correct?

A. They publish their legitimate scientific research data in peer-review magazines -- I'm sorry peer-review journals. Those are not articles that support intelligent design theory.

Dr. Axe's work, as I understand it, as my coauthor has reviewed and evaluated it, it's perfectly solid scientific work. There's nothing in it that supports intelligent design theory. And Dr. Axe himself declined to say that it did when I specifically asked him to do that or what was his position.

Q. Are you familiar with instances where peer review has been used to obstruct advancement of the intelligent design theorists?

A. I would not put it in your terms, but I'm aware of cases in which articles have been declined through the --

Q. Excuse me? I didn't hear that.

A. I'm aware of instances in which articles reportedly have been declined through the peer-review process, but I'm not sure that I would put it in exactly the terms that you just did.

Q. So there have been instances where articles submitted by intelligent design theorists have been declined from publication in peer-review journals?

A. Dr. Behe has submitted articles which were declined because they don't produce any data, did not produce any data to support intelligent design. What he typically writes is responses to his critics, which is not the same thing as a peer-reviewed science article.

Q. Are you familiar with instances where persons who have advanced intelligent design theory have been retaliated against by the scientific community?

A. No, sir, I'm not.

Q. Are you familiar with the instance involving a biologist by the name of Richard -- or Dr. Sternberg?

A. I'm familiar with the instance in which Dr. Sternberg published an article in the journal of which he was editor, the Dr. Meyer's article. I'm familiar with that.

Q. Right. And Richard Sternberg is a trained evolutionary biologist. Are you familiar with that?

A. Yes. He's also a member of a creationist organization.

Q. And he was an editor of the peer-review journal, Proceedings of the Biological Society of Washington?

A. Yes, sir. And I believe he's also on the editorial board of a creationist publication, as well.

Q. And one of his responsibilities was to oversee the publication of peer-reviewed technical articles?

A. That was his responsibility as editor of the Proceedings of the Biological Society of Washington. He was the -- I believe, the editor in chief, I believe.

Q. And he allowed the article by Stephen Meyer, who we know, entitled, The Origin of Biological Information and the Higher Taxonomic Categories, to be published after a peer review. Correct?

A. There are quite a number of questions surrounding his allowing publication of that article, but, yes, it was published in the Proceedings.

Q. And as a result of that, there were allegations of retaliation against Richard Sternberg. Are you aware of that?

A. I am aware that Mr. Sternberg has made allegations. Yes, I'm aware of the fact that he has made allegations.

Q. Okay. And those allegations involve transfer to a hostile supervisor, removal of his name from the placard on the door, deprivation of work space, loss of his keys. Are you aware of those allegations?

A. I know that he's made those allegations, but that came up at a period when I was very busy preparing for this trial, so I did not specifically follow up on those allegations. I do know that on a television show he made allegations against the National Center for Science Education which happened to be false.

Q. Well, are you -- strike that. Do you know that those allegations were investigated by the United States Office of Special Counsel?

A. I do know that. I don't know that they ever issued a formal report about it.

Q. Well, are you aware that the report did substantiate claims of retaliation by Richard Sternberg?

A. I would not say --

MR. ROTHSCHILD: Objection, Your Honor. He's characterizing a document without giving it to the witness.

MR. THOMPSON: I'm just asking if she's aware, Your Honor.

MR. ROTHSCHILD: He's not referring to specific statements in the report.

THE COURT: Well, I don't know that he has to show her the document. You can answer the question. If you need clarification, you can ask for it. I'll overrule the objection. You can answer the question.

THE WITNESS: I'm aware that allegations were made. I'm not aware that they have been substantiated.


Q. Well, you indicated that one of the allegations was that the NCSE helped devise a strategy to remove Dr. Sternberg?

A. I didn't specifically say what the allegation was. I said he made allegations on the Bill O'Reilly Show, which was the show he was on, that were false.

Q. Do you know those allegations?

A. I believe he talked about the NCSE's working with the -- I don't have a transcript in front of me, so my memory may not be exactly accurate here. I think he was referring to an allegation that he made that the National Center for Science Education was instrumental in getting the article repudiated, I believe. I would have to go back and check. But I did watch the interview, and I do recall noting that what he was saying was not correct.

Q. Well, are you aware that the Office of Special Counsel did, in fact, confirm that there was retaliation sponsored by the NCSE?

A. The NCSE --

MR. ROTHSCHILD: Objection, Your Honor. Hearsay. And I renew my objection. I mean, he's characterizing a report that has presumably specific findings, and I'm not sure why he wouldn't make that available to the witness, which she has already said she hasn't seen.

MR. THOMPSON: Your Honor, she can answer whether she's aware of it or not. There is a report out there. We can get it during a break. But I don't know if that's really necessary.

THE COURT: I think we're now right on the edge, if we haven't already gone afield, of what's appropriate with this witness's testimony. And we may be beyond direct, but that objection hasn't been interposed. I could raise it sua sponte, but I'm not going to do that at this point.

If you're going to ask questions generally, you may certainly do that. And to that extent, I'll overrule the objection. However, if you've got a document in your hand and you're asking questions from that document -- and it looks to me that at least at times you are -- fairness would dictate that you let the witness see the document and review the document so we don't play cat and mouse.

MR. THOMPSON: Right. Your Honor, I don't have the actual report in hand. I have some statements that were made regarding the reports. But I know the report is on the Internet, and I can get a copy of it. I don't know if we have to go that far at this point because I'm wrapping up my --

THE COURT: Well, you're stuck with the answers you get.


THE COURT: I mean, you're going to have your own case-in-chief, and you may or may not consider that something that you want to put in. I mean, we're into the yes/no realm as it relates to the question. So I'll overrule it. We've got to move through this witness. We've been on this witness now a day and a half almost. So let's keep moving.


Q. Aside from Richard Sternberg, Dr. Sternberg, are you aware of any other allegations of retaliation against biologists, scientists, who have advocated the intelligent design theory?

MR. ROTHSCHILD: Your Honor, I will now object to exceeding the scope of direct. Thank you for the suggestion. It's going well beyond.

THE COURT: As I said, I think Mr. Thompson has walked it to the line. I'm going to let him finish this line of questioning. I'll overrule the objection, despite my invitation for you to object.

MR. ROTHSCHILD: I'm a good listener, Your Honor.

THE COURT: Be careful what you wish for. You may answer the question.

THE WITNESS: Could you explain to me specifically what you mean by "retaliation"?


Q. Acts similar to what Dr. Richard Sternberg alleged.

A. I haven't seen anything that quite comes close to that. There have been cases in which a number of -- well, there are not that many. University faculty have received quite a bit of strong criticism for talking about intelligent design in improper settings.

MR. THOMPSON: Thank you, Your Honor. Thank you for your indulgence.

THE COURT: All right, Mr. Thompson. That will complete the cross-examination. Any redirect, Mr. Rothschild?

MR. ROTHSCHILD: Yes. Thank you, Your Honor. May I approach the witness?

THE COURT: You may.

MR. ROTHSCHILD: Matt, could you pull up the two graphs of comparing creationism and intelligent design.



Q. Dr. Forrest, is it accurate to say this graph indicates that "creation," or as you've used the word its "cognates," appears probably between 150 and 180 times in those first four drafts that you reviewed?

A. That's correct. That's what the graph shows.

Q. And I've placed before you a copy of P11, which is the 1993 version of Pandas. And could you tell me how many pages this published version has?

A. Counting everything with the index --

Q. Why don't we just go through the text before the references.

A. Just the text?

Q. Yes.

A. Okay.

Q. Or, actually, I'm sorry, why don't you include the references and glossary.

A. Everything, counting everything, index and everything, it's 170.

Q. Were the drafts that you reviewed of approximately the same length as the final version?

A. Pretty much, just about.

Q. So is it fair to say that "creation" appears about once per page in these drafts of Pandas?

A. Yes, on average.

Q. Mr. Thompson asked you about James Dobson and also Mr. Kennedy. Those are leaders of religious organizations?

A. Yes.

Q. And they are strong supporters of intelligent design. Correct?

A. They are.

Q. And they don't -- do they otherwise support scientific research generally as part of their mission?

A. Not as far as I know.

Q. Dr. Forrest, could you open your book -- or, actually, let me just hold that question for a moment. Mr. Thompson asked you about the concept of secular humanism.

A. Yes, he did.

Q. That's a philosophical position. Correct?

A. Yes.

Q. Should that be taught in science class?

A. No.

Q. Is the humanist manifesto that Mr. Thompson referred to also a philosophical position?

A. It is.

Q. Should those principles be taught in science class?

A. Certainly not.

Q. In your view, is intelligent design a philosophical or a theological position?

A. It's a religious position which overlaps philosophical, too.

Q. Should that be taught in science class?

A. No.

Q. As regards the theory of evolution, does the scientific community that studies it begin their research into it by looking at passages of Scripture and then looking for scientific evidence that's consistent with that Scripture?

A. No.

Q. Is that what major figures in the intelligent design movement have described themselves as doing?

A. Yes.

Q. Mr. Johnson?

A. Yes.

Q. Mr. Dembski?

A. Yes.

Q. Could you now open your book, Creationism's Trojan Horse, to Page 241. And, actually, if you see at the beginning of 240, when Mr. Thompson was asking you about the Santorum amendment, he had you read from the text beginning on Page 240 through the numbered items on 241. Do you recall that?

A. Yes.

Q. Okay. And then he asked you to stop reading at that point?

A. Yes.

Q. Could you read the next paragraph? It begins with the words, I will read.

A. Yes. This is Senator Santorum's words. Quote, I will read three points made by one of the advocates of this thought, a man named David DeWolf, as to the advantages of teaching this controversy that exists. He --

Q. That's enough. Who is David DeWolf?

A. David DeWolf is a law professor at Gonzaga University. He is also a fellow of the Center for Science and Culture and is one of the -- is integrally involved in the intelligent design movement.

Q. That's the same Center for Science and Culture that prepared the Wedge document?

A. Yes.

Q. The title, Creationism's Trojan Horse, why did you select that?

A. That was actually suggested by Oxford University Press. And my coauthor and I considered it and decided that that was an apt description.

Q. Why?

A. Well, the story of the Trojan horse is the story of the Greeks offering a wooden horse, a Trojan horse, to the city of Troy, ostensibly as a gift, something that would have positive value for them. And, in truth, what that gift contained was something that worked to the destruction of the city. That's the story.

Q. And why is that an apt title for your book about intelligent design?

A. Well, what the intelligent design movement is saying is that they are offering a cutting-edge, new scientific theory that will balance the curriculum and present an alternative scientific theory.

In truth, it is no such thing. It is a religious belief which is being described as a scientific theory, but, in truth, it is not. It would not be beneficial to teach this to children as science.

Q. When this book was published and you accepted the title suggested by your publisher, did you know that the book Of Pandas and People had, in fact, been drafted as a creationist book using the term "creation" and "creationist" throughout?

A. When I wrote this book?

Q. Yes.

A. No, I didn't know that.

Q. Is it fair to say that the metaphor is even more apt now?

A. I would say so.

MR. ROTHSCHILD: No further questions, Your Honor.

THE COURT: Any recross, Mr. Thompson?

MR. THOMPSON: Just one bit, Your Honor.

THE COURT: There's not much scope to work within.

MR. THOMPSON: I know, the book.



Q. I want you to go to Page 241 that was referred to by your counsel. And you were reading a part of the report of the Santorum amendment.

A. Yes.

Q. I would like you to read the last paragraph, which purports to be comments by Senator Santorum.

A. Just the very last one?

Q. Yes.

A. (Reading:) I think there are many benefits to this discussion that we hope to encourage in science classrooms across this country. I frankly don't see any downside to this discussion, that we are standing here as the Senate in favor of intellectual freedom and open and fair discussion of using science, not philosophy and religion within the context of science, but science as the basis for this determination, end quote.

MR. THOMPSON: Thank you. That's all, Your Honor.

THE COURT: All right. We thank you, Professor. That will complete your testimony. You may step down. The plaintiffs may call their next witness.

MR. SCHMIDT: Your Honor, plaintiffs call Jennifer Miller.

THE COURT: All right.

JENNIFER MILLER, called as a witness, having been duly sworn or affirmed, testified as follows:

THE CLERK: State your name for the record and spell it, please.

THE WITNESS: My name is Jennifer Miller, capital J-e-n-n-i-f-e-r, capital M-i-l-l-e-r.

THE COURT: You may proceed.

MR. SCHMIDT: Your Honor, Tom Schmidt for the plaintiffs.



Q. Are you employed by the Dover Area School District?

A. Yes.

Q. In what position?

A. Biology teacher.

Q. How long have you worked for the Dover Area School District?

A. This is my thirteenth year.

Q. What courses do you teach?

A. Currently I teach biology, honors biology, and anatomy and physiology.

Q. Do you have any seniority within the science department at the Dover Area School District?

A. Our department head, Mrs. Spahr, has been there for, I believe, 41 years, and I am next under her with 13 years.

Q. In connection with this litigation, did you produce documents in response to written discovery that was sent by plaintiffs to the defendant, Dover Area School District?

A. Yes.

Q. I may ask you some questions about documents.

MR. SCHMIDT: And, Your Honor, may I approach the witness with a binder of exhibits?

THE COURT: You may. And that reminds me, we did not take up any exhibits, my omission and yours, too, Counsel, with respect to Dr. Forrest. And I think that's probably a good thing so that we can move along, but I'll rely on you to pick that up at some opportune time. Principally, I'll rely on plaintiffs' counsel. There may be some defendants' exhibits. I think there are. You may proceed, Mr. Schmidt.

MR. SCHMIDT: Thank you, Your Honor.


Q. Ms. Miller, let me ask you a few questions about your own educational background. Where did you receive your own undergraduate degree?

A. Elizabethtown College.

Q. When did you receive the degree?

A. 1993.

Q. What was your major?

A. Biology.

Q. Did you attend any postgraduate courses?

A. Yes.

Q. Did you receive a degree?

A. Yes.

Q. In what?

A. I have a master's of education.

Q. From what institution?

A. Penn State.

Q. When did you get it?

A. 1999.

Q. What was the principal subject area of your master's?

A. A focus in teaching in the curriculum.

Q. Are you certified to teach by the Commonwealth of Pennsylvania?

A. Yes.

Q. When did you obtain your certification?

A. 1993.

Q. Must you be certified to teach in Pennsylvania?

A. Yes.

Q. How are you certified? I mean, what is the nature of your certification?

A. You have to have a degree in the area that you are going to teach, and then you have to have two examinations. They're called the NTEs. One is in your subject area. Mine was biology. And you also have to have an exam in general knowledge of education.

Q. Must you do anything after you receive your certification to maintain it?

A. Yes.

Q. And what have you done to maintain your certification?

A. Every five years you have to have so many credit hours or in-service hours or credits to maintain your certification.

Q. And have you done that since you became a certified teacher in Pennsylvania?

A. Yes.

Q. I'm going to ask you some questions now about events at the Dover Area School District.

A. Okay.

Q. First of all, I think you've indicated this in your testimony, but you have taught always in the senior high school. Is that right?

A. Yes.

Q. Do you remember a time in the spring of 2003 when you spoke to the department chair, Mrs. Spahr, about a board member and concerns about how biology is taught at the area high school?

A. Yes.

Q. What do you recall about that conversation?

A. Mrs. Spahr mentioned to us, I believe it was probably at a department meeting, that she had received a memo or had been speaking to administration about a board member's I guess wanting equal time with creation and evolution.

Q. Let me ask you a few questions about that conversation. First of all, you said she had spoken or had some communication with administration. Did she mention anyone in particular in the district administration?

A. I believe she said Mr. Baksa.

Q. And who is Mr. Baksa?

A. Our assistant superintendent.

Q. Is he the assistant superintendent now?

A. Yes.

Q. And did Mrs. Spahr identify the board member that was the subject of this conversation?

A. I don't remember at that time, no.

Q. Can you remember anything more that she said than that a board member wanted equal time for the teaching of creationism?

A. I think she was unsure as to what that meant. And I think she may have mentioned something, you know, that we need to be on our guard or something to that effect.

Q. Let me ask you a few questions now about how you teach evolution within your biology classes.

A. Okay.

Q. Let me go back to be sure it's clear. You teach two biology classes or two sorts of biology. Is that right?

A. Yes.

Q. Biology I?

A. Yes.

Q. Is there another biology course that you teach?

A. Just honors biology, which is still the same students, just a higher level.

Q. Both classes are taught in the ninth grade at the present time?

A. Yes.

Q. How do you go about teaching evolution to your biology students?

A. Day one I ask them for their definitions of evolution because I think there are a lot of misconceptions as to what evolution means. So we get their definitions. And I basically state that evolution means change over time, and that's how we're going to approach evolution.

And then we give -- I have the students come up with examples of how things changed over time. And most of them can give me examples that things have changed over time. So I, you know, tell them that basically there is a lot of controversy over beliefs, I guess, how life began.

And I basically say that we're not going to touch on how life began. I think I basically say, I don't care how you believe life began, we're going to look at what has happened to life since it got here, however it got here, and move on from there.

Q. There's a phrase that I'll ask you questions about as we go forward, but it has certainly come up in this litigation, the phrases "origin" or "origin of life." Is that something that you teach in the ninth-grade biology class?

A. No.

Q. Do you teach something about the origin of species in ninth-grade biology?

A. Yes.

Q. Can you tell me a little bit about that?

A. The origin of species, sometimes called speciation, for example, would be -- and I'll use Darwin's finches as an example, that they were finches and now are isolated on different islands, the Galapagos Islands, and have become different species of finches, still a finch but different species of finches. To me that's speciation.

Q. Are you familiar with state standards for teaching biology in the public schools in Pennsylvania?

A. Yes.

Q. Would you turn in your book to Plaintiffs' Exhibit 210. There are tabs on the side. Can you identify what's been marked as Plaintiffs' Exhibit 210?

A. Yes. Those are the state standards in science and technology.

Q. If you look at the first page, is there a date on the bottom?

A. January 5th, 2002.

Q. When did you become aware that there were state standards for the teaching of biology in Pennsylvania's public schools?

A. They went through several revisions, but I believe somewhere around summer of 2001 is when we got our final copy of the state standards in science.

Q. And in your work as a teacher at Dover, do you refer to or rely on the state standards?

A. Yes.

Q. In what way?

A. We are required to teach to the standards. In each subject area, we must make sure that students are competent in those standards in the area that we teach. We also, when these came out, we made sure our curriculum was aligned to the state standards. And at that time we did some changing and rearranging of some things because of the state standards.

Q. Let me ask you a few questions about that. You said that "we" made some changes to the curriculum. Were you personally involved in that process?

A. Yes.

Q. Tell me what you did.

A. Looking at the state standards and their emphasis, I guess you want to say, we -- at that time we taught biology to tenth graders, and we had an earth science class in ninth grade. And we also saw that the standards were -- there's a whole other set of standards on environment and ecology, so we felt that students needed environment and ecology, so we moved our biology classes to ninth grade to then offer an environment and ecology class in tenth grade.

We also looked at, again, where our emphasis was in biology to make sure that we -- I remember taking some things out that we currently taught in biology and making sure we hit things that were in the standards.

Q. At the time the standards came out in 2002 or somewhere in that neighborhood -- you can correct me if you can -- did the Dover Area School District participate in a field test of an examination in high school biology?

A. Yes.

Q. Tell us about that.

A. Currently we have standardized tests in math and English. And it's to eleventh graders. And the proposal at that time was to take a standardized test in science in the tenth-grade year, and they were field testing the examination, and we were involved in that field test. Several of our classes took the field test, I guess to look at data and that kind of thing.

Q. And in teaching to the standards, is it anticipated that at some time public school students in Pennsylvania will be tested against the standards in biology?

A. Yes.

Q. When do you anticipate that that test will first be used?

A. I believe 2007.

Q. Did your experience with the field test of that assessment examination affect how you taught biology at Dover High School?

A. Yes.

Q. In what way?

A. We felt that the field test that our students were given -- we had a chance to, you know, look over some questions, and we thought that especially some of the essay questions were very heavy in evolution.

Q. Could you turn to Page 13 of Exhibit 210.

A. Okay.

Q. If you look at the subsection that starts with the capital letter D --

A. Yes.

Q. -- is that section that carries on to the next page the state standard for the teaching of evolution in high school biology?

A. Yes.

Q. Now, I noticed that the standards, if you look back to the beginning, appear to be focused on teaching biology in tenth grade.

A. Yes.

Q. Is that right?

A. Yes.

Q. Was the Dover School District free to move the biology course to ninth grade?

A. The test was in tenth grade, so as long as they covered this material before the test in tenth grade, yes. At that time that's what the test was supposed to be.

Q. When you, at the Dover High School, separated biology and environmental sciences, you devised two curriculums, one for each course. Is that right?

A. Yes.

Q. Did the curriculum that you worked on after the standards came out include material on evolution for ninth-grade biology?

A. Yes.

Q. Do you know if the curriculum for environmental science, which is to be taught to tenth graders, includes information or material on the subject of evolution?

A. That I'm not sure of, no.

Q. When you structured the curriculum for ninth-grade biology, did you put the unit on evolution at any particular time?

A. It's currently at the end. We're on semesters, so we work from August to January, and then again we teach it from January to June. So it would have been at the end of our studies.

Q. Why did you put it at the end of the biology course?

A. I would say two reasons. One, because of where it fell in the textbook and you need some of the other -- for example, if you look at the standards, it says that they're to analyze DNA studies and look at some -- somewhere it says about mutations and gene recombination, and we wouldn't get to that. You need the background in DNA and genetics before you get to that, so it's after those units.

We also thought that it made sense to be at the end also because I think evolution is -- bears heavily on environment and ecology and how populations change and how they compete for resources and things like that. So it lent itself to be at the end because then the next step that they would have would be their environment course.

Q. Now, you said a moment ago that you worked on the changes to the high school curriculum once the standards were published?

A. Yes.

Q. I want to ask you for the details of the changes, but in that process, was there any involvement by board members in changing the biology curriculum?

A. No.

Q. What happened to the changes you proposed?

A. We wrote up a curriculum of studies and then submitted them to the administration. And I believe they are voted upon or approved by the school board.

Q. Do you know whether the board actually voted to approve the changes?

A. I'm assuming so, yes. I wasn't at the meeting where it was done.

Q. To be clear about my question so there's no confusion, whether or not the board voted to approve them, was there any involvement of a board member or board curriculum committee in developing those changes?

A. No.

Q. Did you continue to teach from that biology curriculum from whenever it was approved, I gather in 2002 until -- or through the year 2004?

A. Yes.

Q. Now, I'm going to go back to the chronology.

A. Okay.

Q. You've mentioned a conversation with Mrs. Spahr in the spring of 2003?

A. Yes.

Q. Do you recall any meeting in the fall of 2003 involving a board member who expressed concerns about how evolution was taught at the Dover High School?

A. Yes.

Q. Who was the board member?

A. Mr. Bonsell.

Q. What was his position on the board at that time?

A. At that time I believe he was head of the curriculum committee.

Q. Did you have a meeting with Mr. Bonsell?

A. Yes.

Q. Who else was at the meeting, if you recall?

A. I believe Mr. Baksa, and I can't remember if Dr. Peterman, who was our principal at the time, was there. She may have been. But I remember most, if not all of the science department was there, also.

Q. Was Mrs. Spahr there?

A. Yes.

Q. Were there any other board members besides Mr. Bonsell?

A. No.

Q. To your knowledge, at that time were there other board members who were members of a curriculum committee?

A. At that time I wasn't aware of what the curriculum committee was, no.

Q. Did you know, at the time of the meeting, whether Mr. Bonsell had a child who was attending the Dover High School?

A. Yes.

Q. What do you know about the child, what grade?

A. He was in ninth grade that year.

Q. Had that child taken a biology course at the time of this meeting?

A. No.

Q. Was that something the child would have taken in the course of the ninth grade?

A. Yes, I believe he was scheduled to take it in the spring.

Q. Did Mr. Baksa or anyone else say anything to you to prepare you for the meeting or that you at least understood to be preparation for the meeting?

A. Yes.

Q. Who said what?

A. I believe at this time is when we mentioned about the statement earlier that I wasn't aware of who the board member was that made the statement about equal time with creationism and evolution. And at this time I believe -- whether it was Mrs. Spahr, Mr. Baksa, made us aware that it was Alan Bonsell that made that statement.

We also were told by Mr. Baksa just some background on Mr. Bonsell, that he was what Mr. Baksa said, a young earth theorist or young earth creationist, didn't believe in some of the fossil records or some of the dating of fossil records, I believe. So that was the background we were given.

Q. What was your understanding at the time of what it meant to be a young earth creationist?

A. Basically that -- I believe they believe that the earth is somewhere around 10,000 years old, didn't believe that the earth was as old as some of the carbon dating and things like that that the evidence shows.

Q. At the time of this meeting -- and I think you've said this already -- you were the senior biology teacher. Is that right?

A. Yes.

Q. Did you become the principal spokesperson for the science department in whatever discussion took place at this meeting?

A. As far as in the biology curriculum when he was asking questions about how we taught evolution, then, yes, I became the spokesperson for that.

Q. Can you summarize what the questions or concerns were that were expressed by Mr. Bonsell at that meeting?

A. His concern was, again, how we taught evolution. And I explained how we taught evolution just as I explained to you, day one where we go with evolution. We did explain that we teach the origin of species, not necessarily the origin of life. His concern was definitely with the teaching of the origin of life.

He was concerned that we would convey something to the students that was in opposition to what their parents were conveying to them at home and didn't want to pit the teachers in the middle of, you know, having the students say, well, somebody is lying, basically.

So, again, we reiterated that we don't teach the origin of life. We stick with the origin of species. And I remember, at the end of that meeting, that we thought everything was okay. And I remember him even saying that, you know, he agreed with that part of what we taught, too. He was okay with that part.

Q. Now I'm going to take you forward in time.

A. Okay.

Q. Do you recall a meeting in the spring of 2004 with a board curriculum committee?

A. Yes, several of them.

Q. Do you recall the first such meeting? Or what meeting do you recall, at least, as the first one?

A. The first one that I can remember was sometime April, I would say. We were -- there's a rotation of getting new textbooks. And the science department was up in that rotation for getting new textbooks, and we were sort of justifying which textbooks we wanted, how they were significantly different from the previous textbook, why we needed new textbooks, and that kind of thing.

Q. Let me ask you two quick background questions. Do you recall what textbook was in use by the biology teachers in the beginning of 2004?

A. Yes.

Q. Which was it?

A. It was the -- I believe it's 1998 was the last time we ordered the books, edition of Miller and Levine's book.

Q. Okay. Was that book up for replacement in the -- I'll call it the ordinary cycle before early 2004?

A. Yes.

Q. When did it first come up for replacement?

A. It would have been the year before that.

Q. And to your knowledge, was that decision to purchase new books postponed for some reason?

A. Yes.

Q. Do you know what the reason was or were you ever told by anyone?

A. I think it was -- my recollection is that to save money, they were going to put off ordering any textbooks that year, so no one got any textbooks that year. I remember a discussion of a fund balance was going to be used to order textbooks the next year. So no one got textbooks.

Q. Now, in 2004, was the subject of this first meeting you recall with the curriculum committee the justification for purchasing a new book?

A. Yes.

Q. Did you do any work to provide that justification?

A. Yes.

Q. Can you turn to what's been marked as Tab 148, which is also Plaintiffs' Exhibit 148.

A. Okay.

Q. Is this the document that you prepared --

A. Yes.

Q. -- to justify the purchase?

A. Yes.

Q. And was it prepared around the time of the meeting in the spring of 2004?

A. Yes.

Q. Was one of the reasons that you suggested a new textbook to bring it into line with the new curriculum which was based on the new state standards?

A. Yes.

Q. Does that appear anywhere on this page?

A. Number 3, the order of the textbook aligns itself to our curriculum.

Q. At the end of that meeting, what was your understanding about what would happen next with the textbook requisition for biology?

A. That they would be put before a vote of the school board.

Q. When was the next meeting that you recall having with the curriculum committee in the spring of 2004?

A. Sometime very close to the -- if not the last day of school, somewhere around the last day of school in June of that same year.

Q. Who was at that meeting?

A. It was the curriculum committee, which would at that time have consisted of Mr. Buckingham, Mrs. Harkins, Mrs. Brown, I believe Mr. Baksa was there, and I know at least Mr. Eshbach, myself, and Mrs. Spahr were there.

Q. At this meeting what were you told was the subject of discussion?

A. We had gotten a list of concerns by Mr. Buckingham on how the textbook presented evolution.

Q. Let me ask you to turn to Tab 132.

A. Okay.

Q. I'm showing you what's been marked as Plaintiffs' Exhibit 132 and ask if you recognize this document.

A. Yes.

Q. What is it?

A. That's the list of concerns we had gotten given to us by Mr. Baksa.

Q. Now, before I ask you some questions about this list of concerns, were you in attendance at a school board meeting on June 7th?

A. I don't believe so.

Q. Do you recall hearing from anyone that there was a discussion about a mural at the school board meeting on June 7th?

A. Yes.

Q. Was there a discussion about a mural at the board curriculum committee meeting that you're now testifying about near the end of school that June?

A. Yes.

Q. What was that discussion?

A. My recollection is that someone mentioned something about a mural, I don't know, held up a picture or something like that at a previous board meeting. And at the June -- I think it's somewhere around June 14th meeting of the curriculum committee, Mrs. Spahr asked Mr. Buckingham where he had gotten that picture of the mural.

Q. Let me ask you if you knew, when she asked that question, what mural she was referring to.

A. Yes.

Q. What was the mural?

A. It was a mural done by a senior as his senior project that showed basically the evolution of man. It was donated to the school or to a teacher because it was so big he couldn't basically take it home with him, so it was donated to him and it was in the back of his classroom.

Q. Does each science teacher at the high school have his or her own classroom?

A. Yes. There may be a floater or two that goes between, but yes.

Q. You said that the mural was at the back of a teacher's classroom. Was it hanging on the wall, leaning against the wall? How was it --

A. I believe it was propped up on the -- there was a chalkboard on the back, and it was propped up on the chalk tray.

Q. Had you ever seen the mural yourself?

A. Yes.

Q. How big was it?

A. It took up the whole back portion of his room, so it was big.

Q. Do you remember a time when the mural was no longer in that classroom?

A. Yes.

Q. At the time that it was no longer there, did you know what happened to it?

A. No.

Q. Back to the meeting in June of 2004. Mrs. Spahr, as you've testified, asked Mr. Buckingham a question about having a picture of the mural. Who was Mr. Buckingham?

A. A member of the school board. At that time I believe he was head of the curriculum committee, also.

Q. What was his response to her question about having a picture of the mural, do you recall?

A. I think she asked where he had gotten it, and he didn't answer that. And she asked what happened to the mural, do you know what happened to the mural? I believe his words were that I gleefully watched it burn.

Q. The mural, as you've described it, depicts the evolution of man?

A. Yes.

Q. Was there some discussion of the evolution of man or monkeys and men or anything that related to that during this curriculum committee meeting?

A. Yes.

Q. Can you recapitulate a bit what that discussion involved?

A. Most of the discussion focused around, you know, again, I thought you didn't teach origins of life, how can this mural be in the back of a classroom if you don't teach that, what message does that send to the students if you're not teaching it but this mural is in the back, and, again, disagreeing with the whole idea that man evolved, I guess, or came from monkeys.

Q. Was that discussion about man's evolution and what was depicted on the mural associated in the discussion of Mr. Buckingham's concerns about the biology textbook that is reflected on what's been marked as Exhibit 132?

A. Yes.

Q. Explain that, please.

A. Some of his -- before this meeting we looked over his concerns and looked at the page numbers trying to just get a general sense of, you know, where his problems were, you know, trying to get an idea.

And there was -- I can't point them out specifically, but I know there were several of them -- I remember one of them, for example, said -- it was a teacher-to-teacher section, and it was asking the students -- a suggestion for the teacher to ask students to propose, for example, if humans were sent to another planet and subjected to the environment on that planet, what kind of -- what kinds of adaptations might they have at that new planet and how might they evolve, you know, to occupy that new planet. And that was one of his.

So that sort of related to, again, didn't necessarily believe that man evolved, and, you know, if we were asking students to do that, it showed that man evolved and that kind of thing. So it was related to that.

Q. Do you recall any comments that Mr. Buckingham himself made about the concerns that are listed on Plaintiffs' Exhibit 132, other than the ones you've already --

A. No, nothing in particular, no.

Q. What was your response to Mr. Buckingham's concerns?

A. We again reiterated how we teach evolution, sort of the same conversation that we had had with Mr. Bonsell the previous year. And we also pointed out that some of his concerns were in -- he had a teacher's edition, so some of his concerns were in the teacher's edition, and if he was worried about what students would see, they would not get the teacher edition, so they wouldn't see what was in the teacher edition.

Q. Do you recall which edition of the biology textbook you were referring to? I don't mean teachers versus student, but date.

A. 2002.

Q. Was that the one that had been under consideration up to that point?

A. Yes.

Q. Okay. I'm still at the spring meeting. Did you receive some other documents from either Mr. Buckingham or Mr. Baksa at that meeting?

A. Yes.

Q. I'd like you to turn to what's been tabbed as P136 and is marked as Plaintiffs' Exhibit 136.

A. Okay.

Q. Have you seen this document before?

A. Yes.

Q. Is that your handwriting in the upper right-hand corner, by the way?

A. Yes.

Q. Did you put that handwriting on there as part of the process of producing documents that I asked you about earlier?

A. Yes.

Q. What is this document?

A. This is a product profile of the textbook that I believe the Bob Jones University uses in their biology instruction.

Q. What were you told was the reason for giving you this particular document?

A. I just remember giving -- they were doing a survey, sort of, of different textbooks that were out there or different textbooks used, and I just remember getting this one as an example of one that's used in other universities or high schools, that type of thing.

Q. You said "they." Who did you mean?

A. I know Mr. Baksa gave this to us, so --

Q. Were you asked, as the senior biology teacher, by anyone in the school district administration or anyone on the curriculum committee to get other selections or suggestions for a biology textbook?

A. No.

Q. Turn, if you would, to the next tab in your book, which is Plaintiffs' Exhibit 138.

A. Okay.

Q. What is this document?

A. This was also given to us at that meeting by Mr. Baksa. It's a survey of biology books used in local -- in York County Christian schools.

Q. Do you know who assembled this information?

A. It was given to us by Mr. Baksa.

Q. At this same meeting?

A. Yes.

Q. There's handwriting at the top right corner. Was that your handwriting?

A. Yes.

Q. And did you put that on when you produced this document through discovery?

A. Yes.

Q. There is another place in the first line where there's handwriting that appears to be the title and publisher of a book. Whose handwriting is that?

A. Mine.

Q. When were you given that information?

A. I believe at that meeting that he was unsure of what the Christian School of York used and found out since then, and so we wrote it in.

Q. Did Mr. Baksa tell you at this meeting why he collected information about books being used in parochial or sectarian schools?

A. Not really, no.

Q. Did he ask you to do anything with this information?

A. No.

Q. Did you do anything with this information?

A. No.

Q. Okay. Turn to Tab 148, please.

A. Okay.

Q. Behind the tab are two pages marked as Plaintiffs' Exhibit 149. Have you ever seen these documents before?

A. I'm at Tab 149, not 148.

Q. I'm sorry, 149.

A. 149. Okay. Yes.

Q. When did you see them?

A. They were given to us somewhere around this curriculum meeting. I can't remember if they were handed out at that curriculum meeting or sometime before that curriculum meeting.

Q. And by "that curriculum meeting," again, we're talking about the one around the end of school in June, '04?

A. Yes.

Q. And the handwriting on the top of the first page is your handwriting. Is that right?

A. Yes.

Q. And put on this document when you were producing it in response to discovery?

A. Yes.

Q. Okay. Was there any discussion of the first page in Exhibit 149 called, Beyond the Evolution versus Creation Debate at the curricular committee meeting?

A. No, not that I can recall.

Q. Was there any discussion of the next page, which appears to chart out different views on the origin of the universe and life at that meeting?

A. No.

Q. Now, I'm going to take you to another meeting about this same time. Did you attend a meeting of the school board on June 14th, 2004?

A. Yes.

Q. Do you recall at that meeting a person named Charlotte Buckingham making a statement during the public comment portion of the meeting?

A. Yes.

Q. Tell us what you recall about her statement.

A. I remember her reading many Bible verses, I know some were from Genesis, and stating that basically this is the truth and how can we teach anything else.

Q. Was it your understanding at the time she made this public statement that it was related to something on the agenda of the school board?

A. Yes.

Q. What was it, as you understood it, that was on the agenda that she was speaking to?

A. I believe at that time it was the purchase of the textbooks.

Q. The biology textbooks?

A. Yes.

Q. Do you recall if Mr. Buckingham made any statements during the meeting of the school board on June 14th?

A. Yes.

Q. What do you recall he said?

A. I remember him -- again, I wasn't at the June 7th meeting, but because of statements he made at the June 7th meeting, that he was asked to sort of tone down some of his remarks that were made at the June 7th meeting. And he said something to the effect that I am who I am, and if you don't like it -- I'm going to state my beliefs, and if you don't like it, you can vote me out at the next election.

Q. Did he make any other statements about his beliefs or views on subjects pertinent to the purchase of the textbook?

A. Yes.

Q. What did he say?

A. I believe there were several. I remember him saying something about, again, this nation being founded on Christianity, and we should teach as such. I also remember him saying, 2,000 years ago, someone died on the Cross, shouldn't someone take a stand for Him now.

Q. Did he make any statements about the separation of church and state?

A. I believe so, yes.

Q. What did he say?

A. That the separation of church and state was a myth.

Q. Did the school board, on June 14th, take action on the purchase of a new biology textbook?

A. No, I don't believe so.

Q. Forward to the next meeting the following month. Did you have a meeting with anyone about the purchase of a new biology textbook?

A. Yes, sometime in the middle of July.

Q. Who did you meet with?

A. It was Mrs. Spahr, myself, Mr. Baksa, and Dr. Nilsen was sort of in and out at that meeting.

Q. Was this meeting at the school administration office?

A. Yes. I think it was in Mr. Baksa's office.

Q. What was your understanding of the purpose of the meeting?

A. At that point I believe that the purchase of the textbooks was tabled because we found out that there was a 2004 edition of the Miller and Levine textbook, where we had ordered the 2002 edition, so now there was a brand-new edition.

So we were in his office to basically -- we had a copy of the 2004 edition, and we were comparing the 2002 edition to the 2004 edition.

Q. I'm going to take you back to what's been marked previously as the justification. You don't have to look for it. But you recall that you provided a written justification for why the school district should move from the 1998 edition to the then new edition of 2002?

A. Yes.

Q. The justifications related to the entire book. Isn't that right?

A. Yes.

Q. When you met with Mr. Baksa and Mrs. Spahr in July, 2004, did you compare the entire 2002 edition to the entire 2004 edition?

A. No.

Q. Did you focus on any particular part?

A. Yes, the evolution chapters.

Q. And what did you do in that comparison?

A. We basically read over the evolution chapters word for word and compared what it said in the 2002 edition versus what it said in the 2004 edition.

Q. I'm going to ask you to turn to Tab 150 and ask Matt to call up Plaintiffs' Exhibit 150. What is this document?

A. This is a written representation of the comparisons between the two books.

Q. Did you work on the preparation of this document?

A. Yes.

Q. Did Mr. Baksa work on it?

A. Yes.

Q. Did Mrs. Spahr?

A. Yes.

Q. Is this an accurate comparison between the two editions on the subject of teaching evolution?

A. Yes.

Q. At the same meeting did you receive a copy of the book entitled Of Pandas and People?

A. Yes.

MR. SCHMIDT: I think that's been marked and admitted, Your Honor, as Plaintiffs' Exhibit 11.

THE COURT: It has.

MR. SCHMIDT: May I approach the witness?

THE COURT: You may.


Q. Ms. Miller, I've shown you a copy of what's been marked as P11. Do you recognize that as a copy of Pandas and People?

A. Yes.

Q. If you would -- and I think this is probably in the record more than once -- but would you turn to the copyright page and tell us what the copyright date is on that book?

A. 1989 and 1993.

Q. When you were introduced, if that's the right word, to the book of Pandas and People, who gave it to you, Mr. Baksa or Mrs. Spahr?

A. Mr. Baksa.

Q. Did he say anything to you about why he was showing it to you or giving it to you?

A. Basically here's the book, I don't know, given to him, look over it, tell me what you think.

Q. Did you look it over?

A. Yes.

Q. Did you read the entire thing or portions of it?

A. There are introductory chapters, and then there are more in-depth chapters. I believe I read the introductory chapters. I think there are six of them.

Q. When Mr. Baksa gave it to you and said, look it over, tell me what you think, did he tell you at that time that this book was under consideration as a companion text to go along with the biology textbook?

A. No.

Q. Did he tell you at that time that Of Pandas was under consideration as a reference text to be placed anywhere in the school building?

A. No.

Q. What did Mr. Baksa tell you and Mrs. Spahr was going to happen with the biology textbook following your meeting in July?

A. I believe the next board meeting was sometime in the beginning of August, and it would be up -- the 2004 edition of the book would be voted on at that meeting.

Q. Would you have liked to have the textbook you were going to be using in the school year beginning in September in your hands before August?

A. Yes. We were concerned because, again, the students were coming to us at the end of August, and our textbooks were still not in place, and we would like time to look over the textbooks and prepare lessons and things from our new textbook.

Q. Now, I want to take you back to Pandas for a minute. You said you read parts of it but not the entire book.

A. Right.

Q. What was your impression of Pandas as a science book when you read the parts that you did?

A. Two things that I focused on. The first one was that when I read it, with my biology degree, I had trouble reading some of it. I thought it was very high-level text, and I was concerned. I didn't know what -- you know, where this textbook was going, you know, if students were supposed to be reading it, that it would be too high of a level for my ninth graders to read. I also had questions, I guess, on some of the science in it, some of the conclusions, I guess I want to say, that it made in the book and how science-related they were.

Q. Were you at all concerned about the fact that the book you were replacing was a 1998 copyright, this was a 1993 copyrighted science book?

A. Yes. There was a -- there was some discussion on, you know, even if it's an old -- at our first curriculum committee meeting, even if it's a newer book, if it's very similar to the old book, it doesn't necessarily warrant getting a new book. So here we had an outdated book, so, yes, we were concerned about the year.

Q. Did you do anything formal to sort of test your first impression that this might be hard going for a ninth-grade student?

A. Yes.

Q. What did you do?

A. I went online and found two different Web sites that allow you to do what's called a readability study of the text.

Q. Was doing a readability study something that you learned how to do when you got either your bachelor's or your master's degree?

A. Yes.

Q. Go on, now. What did you do when you had that material available?

A. Basically a readability study is you take random samplings from a text and you look at how many words are in a sentence, how many syllables are in each word, and you plug them in, and they -- it's a formula, and they spit it back to you, basically, on how -- what the level of the reading is, whether it's a third-grade level, you know, fifth-grade level, twelfth-grade level.

Q. Do you recall what the results were of the readability study you did?

A. Yes. Both of them that I did it was 12 plus, which would have been grade level 12 plus.

Q. Okay. Now, moving forward, did you learn sometime after the August school board meeting that the purchase of the 2004 edition of Biology had been approved?

A. Yes.

Q. Did you attend a curriculum committee meeting with the board curriculum committee members late in the month of August?

A. Yes.

Q. Who else was at the meeting?

A. Let's see. That was -- I believe the board curriculum members, I believe Dr. Nilsen was at that meeting, Mr. Baksa. I believe at that time it would have been our new principal, Mr. Riedel, and, again, at least Mrs. Spahr, Mr. Eshbach, and myself. There may have been other science department members there.

Q. What was the principal subject of the meeting on the -- is it the 30th of August?

A. I believe so.

Q. What was the principal subject of that meeting?

A. The Of Pandas book and how it was going to be used in the classroom.

Q. Was the Pandas book the first substantive contact you had had with intelligent design?

A. Yes.

Q. Was that subject something that was discussed at the meeting on August 30th, intelligent design?

A. Yes.

Q. Was there any concern expressed by anyone at that meeting about using a book that conveyed intelligent design material?

A. Yes.

Q. What was that discussion?

A. I believe it was Mrs. Spahr had documents that were evaluating whether or not you could present intelligent design in a science classroom. So there was some discussion of is it science, you know, is it appropriate to place in a biology -- or science classroom.

Q. As you recall that discussion and the concerns that Mrs. Spahr expressed, how would you describe those concerns in your own words? What was the problem with teaching intelligent design in a biology class?

A. It was -- intelligent design, you know, from the textbook says basically that life is, I guess, created by an intelligent designer. And we knew through my science classes and education classes in my undergraduate work that creationism was not allowed to be taught. And we just felt that it was too close to creationism to be comfortable in our classroom, to present it in our classroom.

Q. As a biology teacher, were you comfortable with your students having Of Pandas and People as a companion textbook?

A. No. I believe at that meeting sort of the end result was if we had to compromise, this book was coming as a reference text was our compromise instead of having it in the hand of every student.

Q. Why did you accept that compromise?

A. We felt like, again, we were, you know, all throughout this -- earlier we had agreed to say that we'd point out some areas of evolution that don't have as much evidence. That was our compromise first. And then this came, and we felt that it was being, you know, pushed, so we felt, well, if we compromise, maybe this will go away again.

Q. Even with the compromise that you've just described where it's in the class as a reference book and not a companion text, did you have any sense from the curriculum committee about how you were to use Of Pandas and People?

A. Not at that point. I think there were still questions of how we were to use it.

Q. Was there any discussion at the meeting on August 30th about changing the biology curriculum?

A. No.

Q. Going forward to another meeting. Did you attend the October 18th meeting of the Dover School Board?

A. Yes.

Q. Did the school board, at that meeting, change the biology curriculum?

A. Yes.

Q. Turn to Tab 135. What is that document?

A. Our biology curriculum.

Q. And if you would, turn to -- sorry, Your Honor. The page numbers are Bates stamped on the bottom. 1646, can you find that?

A. Yes.

Q. Does the change that was approved by the board on October 18th appear on that page of 136?

A. Yes.

Q. Where does it appear?

A. At the very bottom.

Q. This page is set up with a number of columns that convey the amount of time, the content and concepts that are to be taught, the state standard. Right?

A. Yes.

Q. And let me ask you about the state standard. There is a reference to a state standard in that column?

A. Yes.

Q. If we were to look at the state standard, would we find any mention there of intelligent design?

A. No.

Q. The next column talks about instructional strategies. What instructional strategy was to be followed?

A. Lecture.

Q. And what resource is identified?

A. Of Pandas and People.

Q. Is there anyplace else in the biology curriculum, if we went through it page by page, where we would find a resource identified by specific title other than Of Pandas and People?

A. Other than our textbook is listed. And we just generically said "textbook" because this is to stay throughout whatever textbook we use.

Q. Was there any comment made by a board member named Heather Geesey at the October 18th meeting about teachers being fired?

A. Yes.

Q. What do you recall she said?

A. My recollection is something was said, I believe it was by Mr. Brown, something about the addition of this being sued or something like that, do they have the right to sue us. And Mrs. Geesey said, well, if the teachers sue us, then they should be fired because they agreed with this.

Q. Did you respond to that comment?

A. Yes.

Q. What did you do?

A. When she said that, it caused me to jump out of my seat, and I ran to the podium and basically said the teachers did not agree with this addition of intelligent design into our curriculum.

Q. At that meeting of the 18th, was there any discussion by the members of the board about why the curriculum change was being made?

A. No.

Q. Was there any discussion by any member of the board at any other time or any explanation provided about why the curriculum change was being made?

A. No. The only thing we knew was their problem with evolution and the origin of life.

Q. I've mentioned the board, but the school also has administration. Let me ask the same question. Was there ever any explanation given by the administration of the school district about why this curriculum change was being made?

A. No.

Q. Did anybody ever explain how it improved teaching science or biology in the school district?

A. No.

Q. Now, after the board meeting, a number of other things happened, and let me take you through a few additional exhibits. If you would turn to Exhibit Tab P692.

A. Okay.

Q. Have you seen a document, at least something containing this material, before?

A. Yes.

Q. What is it?

A. It was a draft sent to us, you can see at the top, by Mrs. Spahr of -- basically it says what's going to be read to all biology classes.

Q. Do you know who originated this draft?

A. Mr. Baksa.

Q. Were you asked to do anything with this draft?

A. Yes.

Q. What were you asked to do?

A. Look it over, make changes, tell me what you think again.

Q. All right. Who directed you to do that job?

A. Mr. Baksa.

Q. Turn now, if you would, to Plaintiffs' Exhibit 94, which is at Tab 94 in your book. You'll find it closer to the front.

A. Okay.

Q. Do you recognize this document?

A. Yes.

Q. What is it?

A. This is my notes of changes that I was instructed to make.

Q. What did you do with these changes?

A. I sent them, I think via e-mail, to Mr. Baksa.

Q. Turn, if you would, to Exhibit 98.

A. Okay.

Q. Is that the typed version of the handwritten changes we saw in the previous exhibit?

A. Yes. This is what I actually sent to him.

Q. All right. There's handwriting on this page. Do you recognize the handwriting?

A. Yes.

Q. Whose is it?

A. Mine.

Q. Some of the type on this page is in boldface. What does that signify?

A. I bolded the areas that -- where I may have added words or changed things around.

Q. Are -- well, let me ask you this question. What does your handwriting convey to the person looking at this document?

A. I went over how many things, I guess, that I had changed and circled those. And then I compared, I guess, my version with the version that was eventually -- I don't want to say voted on, but the version that was eventually presented and put in where things were taken out or where they removed pieces of mine and that kind of thing.

Q. There are some numbers and circles.

A. Yes.

Q. What do they signify?

A. I believe those were the changes that I made, or the boldface is the changes that I sent.

Q. Okay. And so when you say on this document they removed or they took out, that's what you were seeing as a comparison between your proposal and the ultimate version?

A. Yes.

Q. Okay. Let me ask you to turn to Tab 100 and just tell us what this is. Is that another review of --

A. Yes.

Q. -- this draft?

A. Yes. I believe this is almost a final copy, yes.

Q. Now, one more on this. If you would turn forward on Plaintiffs' Exhibit 110.

A. Okay.

Q. The first page of that is a memorandum --

A. Yes.

Q. -- from Mr. Baksa. You received a copy?

A. Yes.

Q. Dated December 7, 2004?

A. Right.

Q. And what is that forwarding and is that part of this exhibit?

A. Telling us that before we get to the chapters on evolution, we are to read this statement here.

Q. And is the document that appears behind this memorandum the final version of the statement that was to be read to students?

A. Yes.

Q. You've talked a little bit about your involvement in discussions with Mr. Bonsell, Mr. Buckingham, curriculum committee, where issues have come up about teaching evolution, issues have come up about how to use Pandas, and you described at least one or two compromises along the way.

A. Yes.

Q. Why did you work on the statement that was to be read to students?

A. I was directed to by Mr. Baksa, who is my superior. And the original version I thought held -- well, was lacking in some of the, I guess, validity, or some of the statements were inaccurate, I thought. So if it was going to be presented to the students, that it should at least be accurate.

Q. Okay. Turn, if you would, to Exhibit 104, which is behind Tab 104.

A. Okay.

Q. What is this?

A. This is a press release. I think it was on the Web site, district Web site, about --

Q. What was the -- sorry.

A. About the biology curriculum and what was to be read to the students.

Q. What is the date of the first posting of this press release?

A. 11/19/04.

Q. I'd ask you to look down to the last paragraph before the final indented material at the bottom that starts, In coordination.

A. Okay.

Q. Do you see that?

A. Yes.

Q. Will you read that aloud into the record?

A. (Reading:) In coordination with the science department teachers, the district solicitor, and the school board, Mr. Michael Baksa, the assistant superintendent in charge of curriculum, developed the following procedural statement that will be read to all students as the new biology curriculum is implemented beginning in January, 2005.

Q. Is that an entirely accurate statement?

A. We did not think -- we didn't like the "in coordination with the science department teachers" part.

Q. Did you believe that was an inaccurate statement?

A. Yes.

Q. What did you do about it as science teachers?

A. We wrote a letter to Dr. Nilsen, I believe, that stated that we weren't -- we think that the "in coordination with the science teachers" sort of misrepresented what factor we had to play in it.

Q. Let me ask you to turn to Tab 106.

A. Okay.

Q. What is this document?

A. That's the letter that we sent to Dr. Nilsen.

Q. Would you read this, since it's only one paragraph long, into the record, please?

A. Sure. (Reading:) Dear Richard Nilsen: Contained in the most recent press release regarding the biology curriculum, the following was stated: The assistant superintendent in charge of curriculum development, Mr. Baksa, in coordination with the science department teachers, the district solicitor, and the school board, has developed the following procedural statement to use in implementing the new biology curriculum language. The science department members strongly object to this statement. To reiterate what was verbally indicated to Mr. Baksa upon returning the draft of the procedural statement and in an effort to honor your request as not to be deemed insubordinate for input, the science department corrected the statement to ensure it was factually correct from a scientific standpoint. This was by no means giving our consent or agreement to the development of this statement. Since the science department had no input in this press release, we are asking a correction be released to the media.

Q. Did you help prepare this document?

A. Yes.

Q. Is your signature on it?

A. Yes.

Q. Did you send it?

A. Yes.

Q. The statement that was to be read to students was something that, as originally prepared, was to be read by teachers. Is that correct?

A. Yes.

THE COURT: If you have a substantial amount more, Mr. Schmidt, we probably should take a break. If you think you can wrap it up in the next five or ten minutes, your direct -- and I don't want to hold you to that.

MR. SCHMIDT: No, I'm willing to be held, Your Honor. I only have a few more questions.

THE COURT: All right. Well, let's wrap that up, and then we'll break and have cross this afternoon. You may proceed.


Q. Ms. Miller, did you actually read that statement to your students in the ninth-grade biology class?

A. No.

Q. Did you refuse to read it?

A. Yes.

Q. I'd like you to turn to a document that's been marked Plaintiffs' Exhibit 121.

A. Okay.

Q. What is this document?

A. This is a document sent to Dr. Nilsen where the science teachers were asking to be -- to basically opt out of reading that statement to the biology classes.

Q. Did you have a hand in preparing this document?

A. Yes.

Q. Do you agree with it?

A. Yes.

Q. Look down at the second paragraph from the bottom before the boldface. Do you see that?

A. Yes.

Q. Would you read that paragraph into the record?

A. The one that starts, Central to the teaching?

Q. Yes, please.

A. (Reading:) Central to the Teaching Act and our ethical obligation is the solemn responsibility to teach the truth. Section 235.10 guides our relationships with students and provides that the professional educator may not knowingly and intentionally misrepresent subject matter or curriculum.

Q. And why, guided by that principle, did you refuse to read the statement to your students?

A. By us reading the statement to our students, it essentially was -- it was going to be very contradictory to the students by saying, number one, that intelligent design is science, which we didn't believe it was, and that would be misrepresenting a subject matter.

And, number two, if I'm telling the students that I'm going to teach evolution, which is very important and they're going to be tested on it, but yet ask them to go and read Of Pandas and People, which says that evolution didn't occur, to me that's confusing for the students. It's contradictory to do both. Okay? For them to be tested on evolution but yet say evolution didn't occur confused our students and would misrepresent how important evolutionary theory is to the students.

MR. SCHMIDT: Nothing further on direct, Your Honor.

THE COURT: All right. Thank you, Mr. Schmidt. We will now recess for lunch until -- why don't we say about five of 2:00. That will give us an hour and a half. And we'll take up the exhibits first thing for Professor Forrest when we return. And obviously we won't have the exhibits for this witness until we finish direct and cross. So we'll be in recess until 1:55 p.m. this afternoon.

(A luncheon recess was taken.)


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