

  
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF 
PENNSYLVANIA

Case Number 4:04-CV-02688
TAMMY J. KITZMILLER, et al., Plaintiffs  
vs.
DOVER AREA SCHOOL DISTRICT;
DOVER AREA SCHOOL DISTRICT BOARD OF DIRECTORS, Defendants

AFTERNOON SESSION

TRANSCRIPT OF PROCEEDINGS OF BENCH TRIAL

Before: HONORABLE JOHN E. JONES, III

Date : September 28,

Place : Courtroom Number 2, 9th Floor Federal Building Walnut Street 
Harrisburg, Pennsylvania

COUNSEL PRESENT:

ERIC J. ROTHSCHILD, ESQ. WITOLD J. WALCZAK, ESQ. STEPHEN G. HARVEY, 
ESQ. RICHARD B. KATSKEE, ESQ.
For Plaintiffs

PATRICK T. GILLEN, ESQ. RICHARD THOMPSON, ESQ. ROBERT J. MUISE, EQ
For Defendants

Lori A. Shuey, RPR, CRR Official Court Reporter

INDEX

WITNESSES

For Plaintiffs: 
Julie Smith 
Christy Rehm
Beth Eveland 



  

   (The following discussion occurred in chambers:)


    Let's go on the record. We are in chambers, and this is 
the matter of Kitzmiller, of course, versus Dover Area School 
District. We have assembled as planned with respect to the issue of 
certain subpoenas that have been issued to reporters Joseph Maldonado 
and Heidi Bernhard-Bubb.

Present in chambers are counsel for both the plaintiffs and the 
defendants, and in addition to that, let me ask that you enter your 
appearances specially, presumably as counsel for the individuals we 
referred to in our orders collectively as "reporters."



    I'm here, Niles Benn, on behalf of both of the reporters, 
Heidi Bernard-Bubb and Joseph Maldonado. And with me is Terance Barna,
an attorney in my office, as well.



    All right. Now, previously, on September 12th, the Court 
entered an order which went to the motion for reconsideration. That 
related specifically to -- filed by the reporters. That went 
specifically to our August 2nd order which, in effect, said that the 
reporters would have to testify at certain depositions. Subsequently, 
the reporters were, if memory serves, approximately eight days ago, 
subpoenaed to testify by the plaintiffs in the case-in-chief. Yet 
another motion to quash or for alternative relief was filed by the 
reporters through Mr. Benn's office. By our order of last Thursday 
-- the date escapes me, I think it was Thursday -- the Court denied 
relief in that matter. The Court was advised that yesterday, on 
September the 27th, the reporters, both of them, showed up at the 
appointed times for their depositions as appropriately scheduled by the
defendants, and I'm advised -- and I'll correct this if I'm wrong 
-- that both reporters cited the reporter's privilege that they consider
to exist under the First Amendment so that they would not answer 
any questions at those depositions. We're brought here today by that, 
as well as the fact that I presume you're here because the reporters
have been properly subpoenaed to appear in the plaintiffs' 
case-in-chief. Now, have I mischaracterized anything from your 
standpoint? 



    No, everything that you said is correct, Your 
Honor. 



    Now, the most salient question then is, with 
respect to the reporters' appearance today, is it your understanding 
that the reporters are intending to invoke the same privilege cited 
by them yesterday, if called, when called, to testify by the 
plaintiffs?



    Yes.



    All right.



    But that's the reason why I had asked if we could have 
this conference.



    The floor is yours.



    Thanks. I'm not here to discuss law. I think we have 
discussed the law ad nauseam with respect to briefs, argument. I 
certainly understand the opinion and orders that have been rendered by
the Court, and I appreciate them.

And I don't want there to be a misunderstanding in terms as to this
case being wrongly focused. And what I mean by that, with regard to
all of you in this room is that we've got approximately 40 people from
the media that are observing this trial in the courtroom, plus 
outside of the courtroom.

In speaking for myself, it would be my humble opinion that if these 
parties were called to the stand to testify and refuse to testify, 
as I just indicated to you, Your Honor, that I think the focus of 
this trial all of the sudden isn't addressed as to intelligent 
design, but rather the media is going to be very much concerned in 
terms as to these stringers, not full-time employees, not employees at
all, standing up for what they think is right. And I really truly 
believe in my heart of hearts the focus gets misdirected. I really 
truly do mean that, because I don't think that should be the focus 
of this case.

As a result of that, Mr. Barna and I have spent days in an effort 
to try to see if there was a means by which we could somehow 
ameliorate the problem so that, in a certain sense, everybody gets 
what they want. I clearly will not get what I want, because at the 
end of the day, if I agree that my reporters are going to testify 
predicated upon something that I want to propose here, that's more 
than I would want, because I stand by the fact and they stand by 
the fact that there's a reporter's privilege here.

They refuse to testify at a deposition, and my suggestion to them 
was that if we were capable of resolving something as a result of 
this conference, that they would then attend a deposition, because I 
believe the defendants would have a right to cross-examine them or 
otherwise examine them prior to them taking the stand. And based upon
that, they would then testify in court.

But we have several issues. One is that when we filed our motion to
quash last week, quite honestly, we thought we did it in a timely 
fashion because we filed it only after we were served with the 
subpoena. Your Honor summarily dismissed that motion to quash, so, in 
effect, if my reporters were to be called upon to testify today by 
the plaintiffs, they're undressed. They've got no protective order at 
all. They're just regular people. Because the order I believe that 
you had previously entered related to the deposition and not related 
to their appearance in court. So that raises an issue for us because
clearly we would otherwise object to them taking the stand under the
order as it currently exists or the motion that you're -- your 
position that the motion to quash could not stand.

I interpret the order and the amended order to mean that Your Honor,
in a sense, has addressed them as fact witnesses. I don't think you
actually come out and use the word "fact witnesses," but as one 
reads the order, that's the implication. And you initially had 
indicated that you did not feel that the reporter's privilege stood 
in this kind of a case.

These two newspapers respectively go to approximately 89 municipal meetings
in terms of different municipalities and school districts. And 
ironically -- in a sense, I have to commend both Mr. Maldonado and 
Ms. Bernard-Bubb because, again, they're paid per story. They get 
anywhere between $40 and $50 a story. They might make $300, $400 a 
week if they write X number of stories, and that's it. And the 
stories that they write predominantly are municipal stories.

She's a full-time mom. She's breastfeeding. She has a seven-month old 
child, and so she works at night when her husband is at home. He's 
a schoolteacher. Mr. Maldonado owns a little deli in the market in 
York, and he home-schools his son, his youngest son who has learning 
disabilities. And he's been doing that for the last three years. So 
this is just supplemental income to them because they're not very 
wealthy people. But yet without a lot of education in terms of 
journalism, they believe that what they're standing for is the right 
thing.

I don't have control over them as I would an employee of the Daily 
Record or the Dispatch because they are stringers and independent. So 
having said that, their fear is that because of all those 
municipalities that they cover and the school districts that they 
cover, that at least in the Middle District Court, should a matter 
come up similar to this case, then they are exposed as a fact 
witness.

I've related to them, quite frankly, this is the first case we've 
ever had in federal court in the years that I've been doing 
newspaper law, and most of our cases are in county courts, and so, 
you know, there's a different issue there. But having said that, the 
concern that I have is that there is a precedent being set in the 
counties that these people otherwise work.

So how do I make it better? Well, we provided an affidavit, and 
that affidavit indicated that we, if called upon to testify, would 
validate the authenticity of the articles that were written. We did 
that, in effect, to offer to both sides so that we wouldn't 
otherwise have to testify. Accepted by the plaintiffs, not accepted by
the defendants. Defendants wanted to have the right of 
cross-examination.

And at the time when you wrote the original order and you used the 
words "perceived, saw, and heard," we were concerned, as you well 
know, with the word "perceived" in terms as to what's the thought 
process. And there was dialogue on the phone amongst all of us, and 
you made it very clear that you did not want any testimony that 
would otherwise relate to biases and prejudices. And, in fact, when 
you reviewed the notes of the reporters, you had also indicated that 
your review of Heidi Bubb's notes and the e-mails clearly evidence 
that there was no bias in the writings, those writings.

The concern that we currently have is that the order reads, in 
effect, that they have to testify as fact witnesses, predicated upon 
my interpretation, as to what is otherwise unpublished material so 
that, for example -- just using this for example.



    That's not my intention.



    No, no, but I --



    Well, that's not my intention. And I wanted to let you 
go as far as you could, and I think I have to interject and I 
want to interject and I want to be clear, because I think it's 
important that I do that. Let me address a couple points that you 
made.

First of all, I understand and deeply respect the position that 
you're in in this case. And by saying that the motion was untimely, 
it was not legally untimely, it was untimely in my view only in the
sense that it came, as I said, on the eve of trial, when we knew 
that there was going to be an issue with respect to their testimony 
at trial. It was an attempt to bring this to a head. It was 
successful in that respect. It was not successful in solving the 
problem, but it was successful to bringing it to a head. So to that
extent, I succeeded, good, bad, or indifferent.

With respect to the point that you made as it relates to their 
testimony at trial, that is a very valid point. However, I will tell
you that the sense of my opinion as it related to their deposition 
testimony and as reconsidered and as honed in the reconsideration, was
that it was meant to apply -- the general thrust of that, the 
protections, if you will, in that opinion were meant to apply in the
same sense to their testimony at trial, if they chose to testify, 
and they would be protected in every way by the Court, and they 
would not be questioned in the broader sense. So it would not revert
back to an unprotected realm, if you will, at the time of trial.

To be as clear as I can be, at issue in this case -- and I can't 
particularly be concerned about precedential value. I understand your 
concern in that regard. I have to try this case the best way that 
I know how. The concern in this case, and it is a vital concern by
all parties, is that we have, as you well know, to restate the 
obvious, we have newspaper articles within which there are quotes from
individuals. Those quotes go, at least in one sense, to the purpose 
behind the policy that was enacted by the Dover School Board.

The simple issue here, because it is the Court's understanding that 
these individuals have denied that they made these remarks, is from 
the plaintiffs' standpoint how can they get something that is, in my 
view, on the purpose test, which clearly goes to the truth of the 
matter asserted, how do they get these newspaper articles into 
evidence? Well, they can't, in my view, without the reporters 
testifying.

The defendants might say that even with the reporters testifying, they
can't get them in. I think that's their argument. But at the very 
least, in my view, and I think the plaintiffs might agree with this,
the reporters would have to testify.

I didn't say this strictly in the opinion, perhaps, but my opinion 
was not meant to allow the testimony of the reporters to go in any 
way, in particular, outside the four corners of the affidavits 
rendered by the reporters. I can't say that to the word, and that's 
why the opinions were crafted the way that they were. The Court has 
to have some discretion on the questioning.

But I was as clear as I could possibly be that what is at issue 
here would be, for example, the particular events that the reporters 
wrote about and questions such as -- simple questions, did they attend 
the meeting, did they hear them say the comments, did they write the
story immediately after, did they take notes at the time of the 
meeting.

I thought my opinion was clear in that regard, and as you 
appropriately characterize, no questions as to bias or motivation or 
reasons to misrepresent quotes would be allowed in. There I believe 
we would decidedly fly in the face of established case law.

I did not view and do not view the law as providing that there is 
some exhaustion requirement, although I understand some cases have said
that. In this particular fact situation -- and I do think, I will 
say, on the issue of precedent, you can distinguish cases of -- and 
I'm not so sure I would be as fearful as some might be as to 
precedential value. I think this case is somewhat distinguishable, and 
I don't know that a judge in another situation would knee-jerk allow 
this type of testimony. We are in a very unique situation here, and 
that's what we have.

Finally, the last thing that I want to do -I'm answering soliloquy 
with soliloquy here. I'm not sure if this is a dialogue. Finally, I 
am acutely cognizant of the fact that this trial has abundant media 
coverage, and it is surely not my intent to force a constitutional 
confrontation with two reporters and to create a side show that we 
don't need to. That's why we're meeting in chambers.

But I'll tell you that if it's their persistent position that they 
don't want to testify, then we'll go on the record -- now, I'm not 
going to put them on the witness stand. I don't think it's necessary
to do that. I would bring you and the reporters, I will tell you, 
to the bar. I will swear them in, I will have them sworn in. I 
will ask you the question whether they're going to testify. I will 
allow them to speak for themselves on that point, and then we'll 
decide what we're going to do at that point.

I don't know what else to do, but I'm not going to go through the 
charade of having them take the stand and assert, you know, as 
articulately as they can the privilege that they believe that they 
can avail themselves of.



    That's fine.



    I interrupted you, but I think it was necessary to do 
that.



    Well, let me share with you why I have the issue that I 
have. About a week and a half ago I had a telephone dialogue with 
Eric because I had proposed to Eric the possibility that in light of
your most current order and because you took out the issues of 
biases and things of that nature and because we're going to be 
called to trial by Eric, that maybe he should be speaking to Pat to
see whether they would be willing to accept the affidavit in lieu 
of the testimony.



    I think we're beyond that.



    Well, and then what happened was, we had a conference 
call, Eric, Pat, several others in Pat's office and myself and Terry.
They indicated that they would not. And then in the course of that 
conversation, the defendants counsel had stated, for example, we would 
like the opportunity to ask if they heard Mr. So and So say 
something, why didn't they write that. That's what I'm concerned about
with respect to --



    I'm not going to allow that question.



    But you weren't at the deposition, meaning you don't know 
that that question wouldn't be allowed and quite frankly yesterday you
were in trial.



    I said, though, very clearly in the last order, I 
thought, in the September 12th order, that I would be available. And 
I thought, when I heard that the reporters, quite frankly, appeared 
for depositions, that when I was on a break, I was going to hear 
an accumulated list of questions that were objected to and that I 
would have to rule on those questions.

Now, I don't have time to preside over a deposition at this late 
date. And I know that you respect that. You're experienced counsel 
and you know that. I do know from my private practice experience 
that I was extremely loathed to get a judge on the telephone in 
mid-deposition. That could be one of the most unhappy experiences that
a lawyer would have.



    You got it.



    Depending on the time of day and the personality of the 
judge.



    Especially after your last opinion on my case, I 
don't want to call you at all.



    As you see, I'm far more genial than I express in 
writing. What I invited by that opinion, though, was that I would be
available -- and I believe in an issue that is as important to the 
reporters and to you, as their counsel, as this, it is appropriate 
for you to stop a deposition on a question like that, instruct your 
witness not to answer, and allow the Court to rule on it. I was 
inviting you to do that. Now, I understand what your reasons are for
not doing that, and I think you can do that.

Now, if you're telling me that you have problems with certain 
anticipated questions but not others and if you're telling me that 
the reporters would not exercise the privilege if they were kept 
roughly within the confines of their affidavits --



    I go beyond that. I'm willing to have them testify as to 
what they wrote in the article and basically forget the affidavit.



    That's fine.



    That means everything that's set forth in that article.



    Well, then I think we've clarified that point. Then I 
think you should reschedule the depositions and try to do that.



    Well, if I can interject -- I mean, this is kind of like 
my last hurrah.



    We could only hope not.



    It depends what happens next week. Because we don't have 
an order with respect to trial testimony -- and we don't, except for 
the fact that, again, they're naked.



    I'll produce that order, if necessary.



    Well, let me share with you where I'm coming from, because
I think what I've done here -- and obviously I can't do your job. 
But what I'm proposing here, if you could just evaluate it.



    Depending how long this trial goes, you might be my guest
in terms of doing my job.



    All I'm doing is adding something to what it is that you 
basically have already written. And if I could just read this. You 
have no idea how long it took us to write this. Because I think it
does exactly what you just said.

It says, Wherein an affidavit is provided in lieu of testimony to 
support a newspaper article or newspaper articles, the reporter shall 
be obligated to testify as to the facts set forth in the articles, 
i.e., what was seen and heard as related in the newspaper articles.

By doing so, the reporters would be verbalizing the contents of said 
affidavit -- I think, actually, they were your words when we had the 
telephone conference -- by testifying as to what appears in the 
newspaper article or articles, unless such affidavit is otherwise 
accepted by all parties as validating and authenticating the contents 
of the newspaper article or articles in issue. Meaning if they accept
it, it becomes moot.

However, no testimony shall relate to unpublished material or 
information or to the reporters' motivations, bias, mental impressions, 
or other information extrinsic to what the reporter saw and heard, 
and the reporter shall not be obligated to reveal any confidential 
sources.

What I've tried to do here is to say, they'll testify as to 
everything that appeared in those articles. And how I then distinguish
this case from maybe my next case is, where an affidavit is 
provided and the Court or the parties don't accept the affidavit.

What I've done is, it says that there's no extraneous unpublished 
material questioning. That's the clarity that I need. And then, quite 
frankly, my mindset is, if the issue of the defendants is that we 
were biased in our reporting because we either misquoted somebody or 
whatever, well, this isn't a jury trial. You're trying this case. 
You're either going to believe the reporters or you're going to 
believe Mr. Buckingham or Mr. Bonsell or whomever when they say, I 
didn't say that. But my concern is that I have to have some degree 
of certainty by your order that they can't ask any questions as to 
unpublished materials.



    Are you suggesting that this language
should apply to both the depositions and the trial testimony? 


    Meaning if you could adapt language similar to this for the 
trial testimony and I agree, I have no problem in them being at a 
deposition prior to trial with the same kind of language relative to 
that. I will appear at a deposition prior to trial. I would like to
do that, because of my own health conditions, maybe on Friday in 
terms as to a deposition, if that works within anybody's schedule, 
and then maybe the latter part of next week. Because what I did 
was, I put my surgery off until next Friday to get this done.



    Well, the problem Friday, I assume you fellows are getting
out of here on Friday, but I'm not sure of that.



    Or we could do it Monday.
I mean, whatever works. 



    Well, we do have Friday morning
off.



    Right.



    Although you may have something scheduled in terms of 
pretrial planning. I'm not sure. Do you know?



    I have a plane flight.



    I was not going to be here.



    Do we need the whole team?



    I was the one going to take the deposition.



    Yeah, Ed was there yesterday.



    Alternatively?



    Well, we'll do what we have to do.



    Scheduling usually isn't my pay grade, but, you know, you 
can figure that out. Go ahead.



    Judge, if I may, there are some things here that we can
agree with, but there are others that we can't. And this is why, 
in our opinion, Judge. You know, if our clients are believed, the 
reporters did talk to them but took misrepresentative statements so 
that they left things out to put them in a false light and in so 
doing have created articles that, if they were admitted for the truth
of the matter asserted, would be misrepresentative.



    Well, that's what I'm not going to get into. And I 
understand and I respect that argument. But I think I've got to 
line-draw here someplace. And I understood that argument before. And 
what I don't want to do here is turn this into an oral argument on
things that I've already decided. And I know you respect that.

I think there is a privilege here, and I think the privilege 
sometimes gets drawn in what appears to be an ad hoc manner. But my
job is to find where to put the line down in this case. To 
traipse into the area of why they selectively used a quote as 
opposed to not using other things that were said I think is to get 
on a very slippery slope. It really almost precipitates a bias line 
of questioning, and I'm not going to allow it. I am trying to 
narrowly draw this.

I understand that that's not what the defendants want in this case, 
but I don't think it's called for. And, as a matter of fact, I 
think if I did that and I ordered that and if -- I assume that the 
reporters would not testify and I would predict, if it went to the 
Third Circuit on that basis, I would be reversed. I don't think that
that's a fair area of inquiry to get into.

This looks artificial when you're dealing with a fact witness, but 
these are fact witnesses who are also reporters, and I am straining 
to try to find a fair way to do this. I believe that to the 
extent -- and I've said this now several times -- that the reporters' 
testimony is necessary in order to invoke the residual hearsay 
exception under Rule 807, that the defendants have to have an 
opportunity to examine the reporters on the same topics and subjects 
that I would allow the plaintiffs to question them on during their 
case-in-chief, nothing more and nothing less.

So I'm inclined to accept this language, you know, not word for 
word, only to the extent where it states, rather generically, "wherein
an affidavit is provided," I would take that sentence and simply say
that affidavits have been provided, rather than "wherein." It's 
somewhat artificial or a little strained as it relates to this case.

The rest of it I don't have any problem because I think it does 
not do violence to my opinions. And this gets into a semantical 
exercise to some degree but one that is important, I understand, to 
the reporters. We have got to cut the Gordian knot here. Either --



    We can live with this, and they would testify if we had 
language similar to this.



    Well, my intention would be to enter an order that is a 
wrap-around order, if you will, that is, in effect, a 
re-reconsideration of the order on the depositions but also speaks to 
the trial testimony in chief. And it will be abbreviated because of 
the time constraints on me, but we'll issue it forthwith, and it 
will indicate that you're going to -- they're going to sit for 
depositions under those circumstances.



    Can I ask whether that would be reported?



    In what sense? When you say "reported," what do you mean 
by that?



    "Reported" meaning in the books.



    Oh, published. 
When you say "reported" and you're talking about reporters, then I'm 
thinking, I have enough work in this case. No, we wouldn't publish 
it, but there are reporters who can access the CM/ECF system.



    No, the reason why I'm asking whether it would be 
published, I don't know whether your original opinion --



    You're worried about the precedential value. No, it's not 
my intention to publish it. I have no need. However, good or bad 
news travels fast, and in the legal realm it will be cited by 
somebody someplace.



    You have no idea.



    Oh, you'd be surprised.



    Your Honor, just in an effort to avoid needless procedure
or inquiry, if I could just get a sense for what you have in mind
and intend by the order. If they show up for deposition and begin 
to testify about an article about June 14th, --



    Hypothetically?



    Hypothetically. Would we be at liberty to say, did you 
hear anything else, did you see anything else? 



    No, because
-- and I know this is difficult, but it goes like this. And this is
the best I can put it, other than what I tried to do in my 
opinion. We have articles. We have a situation where the declarants, 
the quoted individuals, have apparently denied -- either denied, I guess
-- I'm not sure about this. This is my understanding, either denied 
that they said what was reported in the articles or said that they 
were statements taken out of context. And they can speak for 
themselves. And that's one of the reasons that I'm line-drawing here. 
They can say that, and I'll take that under consideration.

But from the reporters' perspective, were they at the meeting. The 
obvious answer is yes, but they haven't answered that under oath. Did
they hear the statement that is included in the article? Perhaps 
where were they standing in the room, did they utilize a tape 
recorder for the purpose of taking down the statement or did they 
use a tape recorder and did they take notes contemporaneously with 
the statement. How long after the meeting did they write their 
article, did they use the tape recorder, did they use notes as it 
related to that statement. Those are the types of inquiries that 
relate specifically to the contents of the article.

To allay Mr. Benn's concerns, I think it is not fair game to talk 
about all the other things that they heard and why they wrote the 
article the way they did and why they excluded quotes. I sincerely 
believe that that gets into journalistic integrity, and that's 
problematic, and it's not my intent to allow that, nor would I allow
any questioning on anything personal to the reporters. I think I 
spelled that out in detail in the prior orders.

We are going to simply have them testify for the purpose of 
authenticating the contents of that article, nothing more, nothing 
less, because I really believe that to do more than that is to 
create, I think, a precedent which would have reporters called -- Mr. 
Benn, I think, fears that even this would do that. I don't share 
that fear. But to go any further than that would mean that a 
reporter's veracity could be questioned each and every time something 
like this comes up. I strain mightily not to have to do that. 
That's what I'm talking about. Now, I don't know if that clarifies 
it.



    It does, Your Honor, I think in large measure. And I 
would ask this, with your leave, would it suffice to preserve my 
objection that I object here in chambers on the record?



    That's fine. And I note that, and that's why I wanted to
do this on the record. And I understand that you object to that, 
and I understand the defendants have interposed not only this 
objection but they have also argued against that. And to the extent 
that this really clarifies and reasserts what I have in my prior 
orders, I think you've preserved your position as it relates to that,
and I understand that position.



    Thank you.



    Anything from the plaintiffs?



    We have no objection to the proposed modification, Your 
Honor.



    All right. So with that brief change to what is a little
bit awkward in the first sentence, the "wherein" -- and I don't mean 
that facetiously, but just as it relates to this case, because this 
almost looks like it's a contracted or --



    I understand. I just wanted to make sure the word 
"affidavit" was in there.



    We will recite that. We will get a clarifying order out.

Now, for the purpose of -- because this is a very public trial. 
What's your intention, what are your thoughts regarding how we should 
address this? Because it's known that this is a festering controversy.



    That's an interesting question. I mean, if we're not called
today, which we're not going to be, I don't know that it really is
an issue. We just had dialogue in chambers, the judge is going to 
be entering an order, and after we receive the order, we'll be able 
to make a decision in terms of where we proceed.



    Well, I don't know about that. I think you can assume, 
unless you doubt my word, I'm going to issue an order -- and I'm 
very serious -- I'm going to issue an order and that order will be 
forthwith. I would prefer that --



    We can say that we've restricted the order in such a 
fashion that we believe the reporters will testify.



    If I might be so bold, that we are satisfied with the 
resolution.



    Thank you.



    We expect an order that is consistent with our 
understanding of an agreement that we reached -- I will let it to you
to address that. And my intention would not be to address this 
again in open court this afternoon. We would just move on. You have 
other witnesses, I assume, to present, and we can move through this. 
I'm simply saying I don't want wiggle room that we're waiting to 
see, because I've had that experience now before.



    If you indicate to me as you have, that this is 
satisfactory to you, I will indicate that we are satisfied with the 
prospective order that we understand the Court is going to enter and 
that our clients will be testifying at deposition and at trial.



    Because I'll adopt this, but I don't want to do this 
again.



    I understand.



    And you don't want to do it again, I know, I recognize.



    Your Honor, just one other clarification question. With 
regard to asking what they saw and heard with regard to all of the 
statements and the articles, I would assume that's statements made 
after the gavel banged and the meeting was over. Some of those 
quotes are afterwards.



    Yes.



    But can questions be asked as far as the context of 
those statements? THE COURT: Ask the question that you want to ask.



    When so and so said this thing, you know, it was in 
response to what, what question or what else was being talked about 
when this statement was made.



    No. That's too amorphous a question. The issue here, I'll 
restate, is the veracity of the articles themselves, did the reporter 
hear the statement as reported. If it was taken out of context, 
we're not going to delve into that in this examination. The 
individual who believes -- who was quoted and believes the statement 
was taken out of context or flatly that he didn't or she didn't say
it and it's inaccurate will have the opportunity to say that during 
the defendants case-in-chief or at any other time during the trial.

We're not going to side door, you know, a bias argument by going 
into context. Context is a dangerous thing as it relates to what 
we're doing here. So, no, it's -- we presume that the statement was 
likely given to the reporter upon a question being asked by the 
reporter, although it could have been volunteered. That's of no 
moment.

The issue is, did the reporter hear the statement, was it reported 
adequately, not was it reported out of context, but did those words, 
as quoted, come out of that individual's mouth. Now, I can't be any 
clearer than that. All right?



    Your Honor, one thing I might ask, since it is perhaps 
likely that issues are going to arise during the deposition, I'm 
wondering if we could now attempt to schedule the deposition at a 
time when everybody, including Your Honor, might be available to 
intercede.



    Well, what's your next day that would be available if not
Friday?



    Monday.



    Well, Monday I'll be in chambers in Williamsport all day.



    I cannot do it Monday because I couldn't get here on 
Sunday. My wife is going out of town, and I have to watch all the 
kids. I could do it Tuesday, I could do it Wednesday.



    Tuesday and Wednesday is a Jewish holiday for me. I can't 
do it.



    How about tomorrow?



    I'm leaving tomorrow.



    Well, look, if it's any weekday other than next Friday 
when I will not be available -- I'll be traveling next Friday -- I'll 
be available. And, you know, we'll work through that issue. And if 
you're otherwise taking the deposition and we're at trial, I'll tell 
you that we'll construct some mechanism -- and we kind of talked about
this a little bit yesterday -- where you hold the thought if counsel 
instructs the reporters not to answer because it's a problematic 
question, and we can circle back and we'll deal with that later.

I understand those things could come up in the course of the 
deposition, and I'll rule on those as I can if I'm not instantly 
available. So whether I'm sitting at trial or not -- and likely it 
will be a day when I'm sitting in trial -- we'll deal with it.



    How about later today?



    You work that out. Let's get back on the record here, 
because we've got people waiting and I want to get going. You'll 
have to work that out. But I will tell you in concluding that if 
it is at night, if you do it at night, I will give you my home 
number, and you can contact me so we get this finished. If we have 
to do that, we'll do it so we get it finished. I will not attend 
the deposition, though. I stopped doing that when I got this job. 
Anything else? 



    No. Thank you, Your Honor.



    Thank you, Your Honor.



   (The discussion in chambers was concluded.)



    We return in session, and I want to apologize to the 
assembled spectators and, of course, to the media. We handled a 
matter in chambers that you'll become aware of in an effort to 
resolve a problem, and I think we did. These things arise during 
trials from time to time. That is the first time that we've had 
that type of matter in this trial. We may have others as the trial 
unfolds. But it was a necessary exercise. And we try to keep them 
at a minimum and we will keep them at a minimum during the trial.

But with that, we will go back to the plaintiffs. You may call your
next witness.



    Your Honor, the plaintiffs would call Julie
Smith.


   JULIE SMITH, called as a witness, having been duly sworn or affirmed, testified as follows:


   DIRECT EXAMINATION BY MR. HARVEY:



   Please tell us your name.


   Julie Ann Smith.


   Where do you live, Ms. Smith?


   Honey Run Drive, York, Pa.


   And is that within the area covered by the Dover Area School District?


   Yes, it is.


   And how long have you lived there?


   Fourteen years.


   Do you have any children?


   Yes, I have two children.


   How old are they?


   My daughter Katherine is 16, and my son Michael is 19.


   Your daughter Katherine, what school does she attend?


   Dover High School.


   What grade is she in?


   She's in eleventh grade.


   Please tell us what you do for a living.


   I'm a medical technologist.


   And please summarize for us your educational background.


   I graduated high school in 1979, and I graduated at York College with a degree in medical technology in 1984.


   Now, did there come a time when you learned that the Dover Area School District Board of Directors was considering approval of a biology textbook?


   Yes.


   And tell us, when did you learn that?


   I learned that in June of '04.


   And what was the basis for your knowledge?


   I read it in the paper.


   Do you remember what you read?


   Yeah, I read it in the York Daily Record, and, yes, I do remember.


   Please tell us what you remember learning at that time.


   That the school district was very concerned about approving a biology text that did not include creationism.


   And do you remember anything else that you learned at that time?


   Not right off the top of my head.


   Okay. Did there come a time when you learned that the school district board of directors had approved a biology text?


   Yes, they did in August.


   And what was the basis for you learning that at that time?


   I read about it in the paper.


   And did there come a time when you learned that the school district board of directors was considering a supplemental textbook?


   Yes.


   And what was the basis for your knowledge of that?


   I learned that from the paper, also.


   And what did you learn?


   That they were going to have Of Pandas and People in the classroom as a supplemental text to the biology book.


   And did you learn about where that book was going to come from?


   It was donated.


   Now, did there come a time when you learned that the board had made a change to the biology curriculum?


   Yes.


   And approximately when was that?


   In October, I believe it was, in '04. It was in the newspaper that they were going to be teaching their intelligent design from Of Pandas and People.


   And did you attend that board meeting?


   No.


   And did you learn anything else from reading the newspapers at that time?


   Well, that they were going to read the statement in the classroom, yes.


   Okay. Now, I'd like to ask you to take a look in the notebook at what's been marked as P127.


   Yes.


   Can you tell us what it is?


   It's the newsletter that came to the house in the mail that told -- that had the statement included that they were going to be teaching in the biology class.


   Now, do you know approximately when you received this?


   Well, it says it was February, so I'm assuming it was February.


   Did there come a time when -- let me withdraw that. Do you believe that the board's actions in this case, the change to the biology curriculum and its other actions, have caused you harm?


   Yes, I do.


   And can you tell us what harm you believe that it has caused you?


   Late in '04 my daughter came home from school, and I was discussing kind of what was going on in the district with her. And she looked at me and she said, Well, Mom, evolution is a lie, what kind of Christian are you, anyway, which I found to be very upsetting.


   Did you ask her why she said that?


   Yeah, I asked her why she said that, and she said in school what they had been talking about or amongst her friends and what's going on. She seemed to be under the impression that as a Christian, she could not believe that evolution was a science that, you know, was true.


   And how did that harm you?


   Well, it goes against my beliefs. I have no problems with my faith and evolution. They're not mutually exclusive.


    No further questions of this witness. 



    All 
right. Cross-examine, Mr. Thompson. 



    Thank you, Your 
Honor. 



   CROSS-EXAMINATION BY MR. THOMPSON:



   Mrs. Smith, my name is Richard Thompson. I represent the defendants in this case. And do you recall in April where your deposition was taken by another member of the Thomas More Law Center, Patrick Gillen? Do you remember being involved in that deposition?


   Yes, I do.


   Were you present in court for all the testimony that has been given in this trial?


   No.


   When did you get to court?


   Tuesday morning.


   Now, whose testimony have you heard so far?


   I heard some of Ken Miller's. I heard Barrie Callahan, Bryan Rehm. I heard the gentleman this morning.


   Okay. You were asked to become a plaintiff in this case by the ACLU, were you not?


   No.


   Didn't someone from the ACLU call you?


   Yes, they called me. But I was actually asked by my friend at work, who said to me, would you be interested in having the ACLU contact you, and I said yes.


   And so the ACLU contacted you, and you agreed to become a plaintiff in this case?


   Yes.


   Now, will you agree with me that the policy which is the subject matter of this lawsuit, the curriculum change in the biology for ninth grade, took place on October 18th, 2004?


   Yes.


   That's when the board passed the resolution that changed the biology curriculum?


   I believe so, yes.


   And that policy was implemented for the first time in January of 2005. Is that correct?


   That's correct.


   In January, 2005, where was your son?


   My son was in college.


   So he had already graduated from Dover High School?


   Yes, that's correct.


   And in January, 2005, where was your daughter?


   She was in school.


   What grade?


   She was in grade ten.


   So you will agree with me that this biology curriculum really only affected, as far as the statement was read, ninth-grade biology students?


   No, that's not true.


   So the statement was read to other classes?


   No, but it would affect all the students at the school.


   Well, listen to my question. This policy provided that the statement was read to ninth-grade biology students. Do you agree with that?


   I agree it was read to ninth-grade biology students.


   Okay. And your daughter had already graduated from the ninth grade?


   That's correct.


   So at the time that this policy was implemented, both of your children were out of the ninth grade?


   That's correct.


   Neither one of them would be subject to the statement being read to them. Is that correct?


   That's correct.


   Okay. Now, you indicated to your lawyer that you got involved because of newspaper articles that you read?


   That's correct.


   Okay. Now, is it an accurate statement that in the year 2004, prior to you becoming a plaintiff in this case, you had never attended a single board meeting --


   That's not correct.


   -- in 2004?


   In 2004, that's correct.


   Okay. Just please answer my question and then your attorney can ask you to explain if he wants to. So in 2004, prior to this -- prior to you becoming a plaintiff, you never attended a board meeting in that year?


   In that year.


   Okay.


   Before that, yes.


   In 2003, you never attended a board meeting. Is that correct?


   No, I had attended board meetings previously.


   I didn't ask you that question. I asked you, in 2003, did you attend a board meeting?


   I'm going to say I don't remember which board meetings I attended.


   In --



    Objection. Arguing with the witness and beyond the
scope --



    I'm asking questions.



    Excuse me, and beyond the scope
of direct.



    Wait, wait. One at a time. Let him finish, Mr. Thompson. 
Finish the objection.



    Objection, arguing with the witness and beyond the scope 
of direct.



    I don't find it beyond the scope of direct. It's 
appropriate cross-examination. It's overruled on that basis. We're 
getting argumentative only because I think the witness and counsel are
talking over each other. Each of you let the other finish before 
you start talking.



    I apologize, Your Honor.



    There's a great temptation in cross-examination to talk 
over. That happens. So let's get a question on the floor. Why don't 
you restate your question, Mr. Thompson.



    Okay.



   BY MR. THOMPSON



   Is it true that you did not attend a board meeting in the year 2003?


   I'm not going to say that's not true. I don't remember which board meetings I attended. I did attend some before '04.


   Is it true that you didn't attend a board meeting in 2002?


   I told you I don't remember which year I -- I attended board meetings during the construction project, so when that was, that's when I was there.


   And that was the year 2000, was it not?


   I don't remember.


   Mrs. Smith, I'm going to hand you --


   Your Honor, may I 
approach the witness? 



    You may.



   BY MR. THOMPSON


   Mrs. Smith, I'm going to hand you what purports to be your deposition that was taken by Patrick Gillen. I would like you to direct your attention to Page 13, and I would like you to read out loud the question that you are asked starting with Line 18 and all the way down through that page and then going on to the next page, Page 14, and reading from Line 1 through Line 4. And please read it out loud.


   You want me to read out loud starting on 18?


   Line that starts with Q, which represents the question that was asked by Mr. Gillen, and A represents your answer. Would you please read it out loud.


   "Let me just make sure I get you there and go on. You attended board meetings. Give me a sense of which ones you attended. They were not the board meetings" --


   Now give me your answer. So that the record will reflect, that was the question and now your answer, starting with Line 21.


   You want me to read it?


   Yes.


   "They were not the board meetings, and we were not discussing intelligent design. When I went to some board meetings, it was several years ago. We were discussing the building project, and it has nothing to do with the intelligent design."


   And then go on to the next page, and the question that Mr. Gillen asked you starting on Line 1?


   "That is all I am trying to get a sense for. I am not familiar with the dates for the building project. Was that '03 or '02?"


   "Was that 2003 or 2002," is that right, the question?


   That's correct.


   Okay. And what was your answer?


   "I would say more like 2000."


   So was that an accurate reflection of your memory at the time that the deposition was taken?


   Yes.


   Okay. Does that seem right that the board meetings that you attended prior to being a plaintiff in a lawsuit was in the year 2000?


   If that's what I said, that's what I recalled at the time, yes.


   So based upon the response that you gave to your attorney, is it a fair statement that you began as a plaintiff in this case in December, 2004, without ever having personally witnessed the actions of the Dover School Board as they debated and enacted the policy on which this lawsuit is based? MR. HARVEY: Objection. It's compound. 


   BY MR. THOMPSON


   Can you answer that question? 



    Now, wait. She's not 
going to answer it until I rule on the objection. Elaborate on your 
objection.



    I think there are several predicates to that question. He
asked whether you were present at any of the board meetings while 
they debated and then enacted this resolution, and I'm not aware of 
any testimony that they debated the resolution.



    Well, I think it's a fair characterization that there was 
discussion about the
policy. I'll overrule the objection. You can answer
the question. Do you recall the question?



    No.



    Let's have the question read back, please.



   (Previous question read back.)



    That's correct.



   BY MR. THOMPSON


   In fact, all of the information upon which you -- strike that. In fact, the information that you were getting about what the school board was doing in 2004 came from newspapers. Is that correct?


   That's correct.


   And I believe in your deposition you indicated that you looked at the morning newspapers almost on a daily basis?


   That's correct.


   And when you were looking at the morning newspapers, that you got very upset about what you read regarding the Dover School Board and the policies that they were debating. Is that correct?


   That's correct.


   What were the two -- what were the newspapers that you were looking at during this time?


   I read the Daily Record every morning.


   What about the York Dispatch?


   Not regularly, no.


   Okay. So that it would be a fair statement that even though what you were reading in the newspapers got you upset, that you never personally attended one of the board meetings in that year?


   That's correct. There were personal issues in my life at that time where I was not able to do that.


   And it is true that you never spoke to any of the members of the Dover School Board about the issues that concerned you. Is that correct?


   That's correct.


   You never called them. Is that correct?


   That's correct.


   You never e-mailed them. Is that correct?


   That's correct.


   Did you write letters to the editor about what the school board was doing?


   No.


   So that the first time that the school board would know that you were upset with their actions is when they learned of you being a plaintiff in this lawsuit. Is that correct?


   That's correct.


   Okay. Now, did you ever speak to any of the teachers at Dover High School before you became a plaintiff in this case?


   No.


   Did you ever speak to any of the reporters who had written the stories about what the Dover School Board was doing during this time?


   No.


   Did you ever receive any minutes or notes about what the Dover School Board was doing during this time?


   No.


   You never sent anyone e-mails or any other communication regarding this issue. Is that a fair statement?


   That's a fair statement.


   In fact, one of the issues in this case is this book Of Pandas and People. Is that correct?


   That's correct.


   You never looked at the book Of Pandas and People before you became a plaintiff in this lawsuit, did you?


   I didn't feel that I could look at it. It was in -- I guess it was in the library at the school, but I was not aware if we could go in the school library and take out books or not.


   Well, did you make any effort to go and look at it?


   I really wasn't interested.


   Now, your attorney referred to a newsletter that you received in February. Do you have a copy of that newsletter in front of you?


   Yes.


   And I believe you indicated that you thought the newsletter was sent in February, 2002?


   No.


   Excuse me, 2005. Excuse me.


   Correct.


   Okay. Could we have that newsletter? I would like you to read from that newsletter on the top left-hand side in that box. Read it out loud, please.


   "This newsletter has been produced to help explain the changes in the biology curriculum. Unfortunately, a great deal of misinformation has been spread regarding this policy. We hope this publication will help those interested better understand the substance of the policy while eliminating any misconceptions some may have about the curriculum change. We sincerely appreciate your understanding on this matter."


   Thank you. It was through this policy that you first learned about the statement that was going to be read. Is that correct?


   No, I believe -- no, I heard about it before.


   But did you actually see the statement before?


   I don't think so.


   So this was the first time that you saw the statement that was going to be read to the students in the ninth-grade biology class. Is that correct?


   I believe so.


   Okay.


   As far as I can tell.


   And so this newsletter was actually providing information to the residents of Dover as to what the actual newsletter was -- excuse me, what the actual statement was going to say. Is that correct?


   Yes.


   Okay. So you had no problem with the fact that the newsletter was being produced, even though you had a problem with the policy. Is that correct?


   No.


   Now, there's a bit of street wisdom, and I don't know whether you agree with this or not, and that street wisdom is, don't believe everything you read in the newspapers. Have you ever heard that?


   Yeah, I've heard that before.


   Okay. And so if you don't believe everything in the newspapers, don't you think before you became a plaintiff in a lawsuit that you should have taken some personal action to verify whether things that were produced in a newspaper were really accurate?


   I did talk to people in the district, other people in the district.


   Who did you talk to?


   People that I work with, other people in the district.


   But you never even saw the policy until that newsletter came out. Is that correct?


   I got my information from the newspaper, yes.


   And the newspaper. Now, have you ever had involvement with newspapers before? Have you been interviewed? Have you been interviewed by news reporters before?


   No.


   But would it be a fair statement to say in the normal experience that newspaper reporters might spend five, ten, or fifteen minutes interviewing a person and then only put one line of that interview in an article?


    Objection. No foundation that she has any experience as 
referred to in the question.



    Do you want to respond to that Mr. Thompson?



    Well, I think it's common experience and it's knowledge,
it's common sense.



    Now I think we're going afield. I'll sustain the 
objection. We're now clearly outside the scope of direct, the 
objection is sustained. 



   BY MR. THOMPSON


   Well, you said that you were upset by the policy because it conflicts with your religion?


   I said I was upset about it because I didn't find a problem with it with my religion. It does not -- I'm getting confused. I have a problem with it because my daughter came home from school and she says to me, What kind of Christian are you, anyway? So that's why I have a problem with it.


   If you recall your deposition -- and I certainly will give you an opportunity to look at it if you don't recall it -- the incident that you're referring to, also you received information that your daughter was a member of a Bible club. Right?


   Yes.


   And up to that point, you were not even aware she was a member of a Bible club. Isn't that correct?


   That's correct.


   And that it was -- she had a lot of friends who went to Protestant fundamental churches. Is that correct?


   Yes, she does.


   And she received that information from her friends, her Protestant friends in school or in the Bible club. Isn't that correct?


   I would assume that's where she got her information, from the Bible club at school. Plus they talked about it.


   And the fact that someone believes in intelligent design does not make that inconsistent with the Catholic faith, does it?


   I spoke to my deacon about this situation, and all I know is what he told me.


   Is he a theologian?


   He's a deacon at St. Rose Catholic Church.


   Do you know if he has any particular expertise in Catholic theology?


    Objection again. Beyond the scope of direct, Your Honor.



    She brought the issue up of religion, Your Honor, and 
I'm exploring that.



    Well, I think it is beyond the scope, again, the 
colorable scope of direct, and I'll sustain the objection. This is 
not a deposition. This is testimony in the case-in-chief, and we're 
afield.



   BY MR. THOMPSON


   Now, the book Of Pandas and People, you don't mind that book being in the library, do you?


   No, I don't have a problem with it being in the library.


   You heard yesterday, if you attended the deposition of -- excuse me, the testimony of Mr. Rehm's, that the science teachers, in a compromised move, had agreed to put Of Pandas and People in the science class. Did you hear that? 


    
Objection, Your Honor. Mischaracterizes the testimony.



    In what sense?



    I believe Mr. Rehm testified
that the teachers did not agree to put the materials in the science 
class. 



    Your Honor, my understanding in --



    And --



    Now, wait, Mr. Harvey. Let Mr. Thompson speak. One at a 
time.



    Your Honor, my memory, if it serves me correct, Mr. 
Rehm testified that they had reached a compromise with some of the 
board members that they were going to allow the book Of Pandas and 
People in the science classroom.



    My recollection is that he may not have used the word 
"compromise," he may have used the word "concession." I'm not sure 
that there's a distinction as it applies here. I'll overrule the 
objection. Did you hear Mr. Rehm's testimony yesterday?



    Yes.



    Well, then go ahead.



   BY MR. THOMPSON


   Whether it's "concession" or "compromise," did you hear that the teachers had agreed to put Of Pandas and People in the science classroom?


   I don't remember exactly what he said yesterday.




    No further questions, Your Honor.



    All right. 
Thank you,
Mr. Thompson. Any redirect? 




    No, Your Honor.



    
Then, ma'am, you may step down.

That will complete your testimony. And I don't think we have any 
exhibits to enter, do we? 



    That's correct, Your Honor.
P127 is already in evidence.



    You may call your next 
witness.



    Your Honor, the plaintiffs call
to the stand Plaintiff Christy Rehm. 


   CHRISTY REHM, called as a witness, having been duly sworn or affirmed, testified as follows: 



    Your Honor, again, may I make sure that she has the binder 
of exhibits? 



    You certainly may. 



   DIRECT EXAMINATION BY MR. HARVEY


   Please tell us your name.


   Christy Rehm.


   Are you married, Mrs. Rehm?


   Yes.


   Tell us the name of your husband.


   Bryan Rehm.


   Please clarify for us one important question, and that is, exactly how old are your children?


   My children?


   Yes.


   I have a 14-year-old daughter, Alix, an eight-year-old daughter Paige, a seven-year-old son Ian, and a 15-month-old son Lucas.


   And where does your family live? I mean your immediate family, you and your husband and your children.


   Rock Creek Drive, Dover, Pennsylvania.


   And how long have you lived there?


   Approximately five years.


   And had you lived in Dover previously to that in your life?


   Yes. I grew up in Dover, I attended Dover High School, graduated from Dover High School. My family, my extended family, lives in the Dover area, including my grandparents, my parents, and other relatives. My parents currently still live in the Dover area.


   And please tell us where your children are right now in school, the grades, please.


   Grade level, okay, yes. The oldest is in ninth grade, the next one is in the third grade. I have a first-grader, and then obviously the baby is not in school yet.


   And the oldest three children, do they attend the public schools in Dover?


   Yes. Two of them, my oldest is at the high school, the Dover High School, and then I have -- the next one is at the Weiglestown Elementary School. And my son is hearing-impaired, so he is charged with the education of Dover School District, meaning that they have to provide his education, but he actually attends classes at a hearing-impaired classroom.


   And your daughter that's in the ninth grade, is that at the Dover High School?


   Yes.


   And is she taking biology now?


   Yes, she is.


   Please summarize for us your educational background.


   As I said, I graduated from Dover High School. I attended Lock Haven University and Millersville University. I received a BA from Millersville University in English, and I also have a degree in journalism, as well. I later got a teaching certification and attended Penn State University where I received my master's degree.


   Do you work outside the home?


   Yes, I do.


   What do you do?


   I'm a teacher, an English teacher.


   Where do you teach?


   In a public school system outside of York County.


   And what grade do you teach?


   High-school level, so tenth through twelfth grade generally.


   Did there come a time when you learned that the Dover Area School District Board of Directors was considering a change to -- was considering approval of a biology textbook?


   Yes.


   Do you remember when that was?


   It was sometime in 2004. It was prior to the June meetings because my husband was a teacher at the school, so I often heard things that he would come home and tell me. So I knew that there was some discussion over the biology book, so sometime before that. I can't tell you exactly when.


   Did you attend a meeting of the Dover Area School District Board of Directors on June the 7th of 2004?


   Yes, I did.


   And why did you attend that meeting?


   Well, because, like I said, my husband had been a teacher at the school, and he had sort of been directed by the high school principal to attend the meeting in support of the different things that were happening. There were other textbooks that were being adopted and controversies over them, and, you know, it was sort of a rallying thing, I suppose. And I went along because I live in the district, I pay taxes in the district, my children attend school in the district. I'm an educator, and I was curious about what was happening.


   And can you recall anything that happened at that meeting on June the 7th?


   I recall a lot of things that were happening at that meeting.


   Please tell us what you can remember about that meeting.


   Okay. Some of the -- I attended a lot of meetings, so facts blur together. What I do recall, I -- as my husband said yesterday, I was pregnant at the time, so I have some reason to remember certain things. But I recall Barrie Callahan speaking about the textbook. It was the first time that I had really ever been around Barrie Callahan, so she strikes me -that memory strikes me because my mother had known her previously. And she was speaking about the textbook, just questioning them. I don't remember her exact words. But I do know that she was upset with them about this textbook, the textbook process, the students not having a textbook. Obviously it was very distressing for her that the students in the biology class did not have a textbook.


   Do you remember if any board member spoke back to her in response to her questions?


   Yes. Bill Buckingham said to her -- and I know Bill Buckingham because at the time he lived down the street from my grandparents and for many years lived there. And he responded to her basically saying that there's, you know, a problem with the textbook, it needs to be balanced, comments about laced with Darwinism, it needed to be balanced with creationism. Comments of that nature is what he had said to her.


   Do you remember --


   I'm sorry.


   I'm sorry.


   And I distinctly recall Barrie Callahan sort of throwing her hands up in the air and saying, Oh, so this is about evolution. That was very distinct in my mind, just her mannerisms as she said that.


   Do you recall a young man by the name of Max Pell speaking at that meeting?


   Unfortunately I was in the restroom at the time that Max Pell was speaking because -- my husband told you I was eight months pregnant. I was actually nine months pregnant and due any day, so I spent quite a deal of time in the restroom. But I had excused myself to go to the restroom just after Barrie did this whole thing. In fact, I may have been walking out of the room at the time and in close proximity to her. And so at the time when Max was speaking -- I believe that there were people who spoke in between she and Max Pell. But at the time when he stood to speak, I was in the restroom and sort of coming back from the restroom, so I don't really recall exactly what his comments were. I know him because he was my husband's student, though.


   Do you recall any other board members saying anything during the course of any discussion about the biology textbook?


   Well, like I said, I was reentering the room from the bathroom, so I was sort of in the doorway. And I obviously didn't know what Max had said to the board but that he had spoken to the board. So the comments that were coming back were, I assume, directed at him. But there were comments from Bill Buckingham about brainwashing, and I remember hearing that, the whole thing about brainwashing, because it dealt with going to college and getting this education and students who go to college become brainwashed. And I was very upset by that because I attended college and I don't feel as if I were brainwashed. And also I recall Alan Bonsell making a comment about, you know, there are only two theories, there's this theory evolution and there's this theory creation, and if you're teaching only those two theories, then there's not a problem.


   Do you recall anything else Mr. Bonsell said?


   At this time, no.


   Do you remember anything else that was said by any members of the public at that meeting?


   At that meeting. Currently, I don't.


   I'd like you to take a look at what's been marked as Exhibit P46. It's in the notebook in front of you. Just take a moment to look at it.


   Okay.


   Do you have that in front of you?


   Yes.


   Have you ever seen it before?


   This article, yes.


   Did you see it at or around the date that it was published?


   Yes, I did.


   What's the date on it?


   The date is June 9th, 2004.


   Who is the author?


   The author is Joseph Maldonado.


   And can you tell us what publication its from?


   Yes. It is from the York Daily Record.


   Now, did you just have an opportunity to read it just a moment ago?


   Just now I skimmed it, yes.


   Take another moment to look at it if you need to, but I would like to know whether it refreshes your recollection about anything else that happened at that meeting.


   Yes.


   Okay. Tell us what else -- after looking at that article, do you remember anything else that happened at the meeting?


   Yes, I do recall Bill Buckingham making comments about, you know, the apes and monkeys -coming from apes and monkeys. And I also --



    Your Honor, again, objection. It appears she's going to be 
reading from the article with her testimony.



    I'm sorry.



    It's a little hard to do this, but we'll sustain the 
objection. Mr. Muise's objection is well-founded. Let me explain how 
we can do this, how we must do this.

When your counsel asks you the question, you may review the article, 
take a look at it, see if it refreshes your recollection. It's 
important that having refreshed your recollection, if it jogs something
or re-creates a memory, that you testify in answer to Mr. Harvey's 
question. Do not look back and read from the article as you're 
testifying, please. All right?



    Yes. Sorry.



   BY MR. HARVEY


   Now, do you remember anything else that happened at that meeting?


   Yes. I remember comments about our country being founded on Christianity and not needing to teach the faiths of other people. And I remember talking to my husband about that in the car ride home, as well, because we're both teachers and I was -- when I hear things like that, I immediately think of my students, and I was thinking about the diverse group of students that I have in my classroom, who all have different religious viewpoints, and how difficult that would be to tell one student that, you know, we can't express your belief, but we can express that person's belief in the classroom. And I just find those things to be very upsetting when I hear things like that being said.


   Now, do you remember if you attended another meeting of the Dover Area School District Board of Directors approximately a week later on June the 14th?


   Yes, I did.


   And why did you attend that meeting?


   Well, because there wasn't really a clear resolution to what had occurred the previous meeting. In addition, I was very angry when I left the June 7th meeting just because of the demeanor of the school board and the things that were being said. And, honestly, I thought that maybe it would set me into labor because of, you know, being angry, and at that point in time I was past my due date, in addition to caring about my children's education and everything I said previously.


   Now, tell us what you can recall of the June 14th, board meeting.


   Again, there were many, many things that happened at that school board meeting, and I can tell you that I was very much interested in what was being said. And so I pretty well made sure, at the beginning of that meeting, which went on for quite a long time, that I wouldn't miss anything, so I took care of my bathroom needs beforehand. And I recall the meeting starting with Bill Buckingham sort of -- I'm sorry, Trudy Peterman spoke about her -- actually, hold on. Give me one second to think about this. Yes, Trudy Peterman spoke. She was the high school principal at the time. And I know that she spoke because the thing that she said seemed very similar to her graduation speech that she had said just previously. My sister had graduated that year, and I attended the commencement ceremony. And she had talked about Visigoths and things like that that she had spoken about in her commencement speech. And essentially she was speaking up for the teachers and the biology textbook. And after she had spoken, Bertha Spahr also spoke, as well. She's the department chairperson, and, actually, I had her as a science teacher. And she presented information to the board, documents, that she and I believe other members of the science department had researched on, I guess cases that had been set down before on creationism in the public school system or something of that nature, just to show them that, you know, if they were still considering this idea, that they might, I don't know, be met with some litigation or something. After she spoke, Bill Buckingham had made a comment to her about her -- where did she get her law degree from. Can you give me one second? I'm wondering if I'm getting my meetings mixed up.


    Objection, Your Honor. This is running into a narrative.



    Well, I think it's still responsive to the question. Do 
you want to put a question on the floor?



    She was just thinking.



   BY MR. HARVEY


   Did you need to think and change your testimony in any way?


   I just wanted to make sure that I wasn't getting my meetings mixed up.



    You can finish your answer. Do you want to 
finish the answer, or is that your answer?  


    Yes, that's 
my answer. I'm sorry, I recall something else, as well. I recall 
Charlotte Buckingham, who is Bill Buckingham's wife, speaking at that 
meeting, as well.

Essentially there were a lot of people in the community who were 
standing and speaking at this meeting because they wanted to warn the
school board that they were not in favor of any legal action coming
against the community, against the school board. They were afraid for
their tax dollars.

And Charlotte Buckingham I recall really being the only person who 
got up to stand in defense of the school board, and she was Mr. 
Buckingham's wife, or is Mr. Buckingham's wife. And she quoted 
Scripture, Old Testament, actually, all Old Testament Scripture about 
why the school board is right, basically. And she also talked about 
school prayer and the need for school prayer in that speech that she
had prepared.

In addition, Reverend Warren Eshbach stood
up and spoke at that meeting, as well, sort of urging the school 
board not to proceed with this. And many other members of the 
community spoke, as well.



   BY MR. HARVEY


   Did your husband speak?


   I recall my husband speaking. In fact, he hadn't prepared to speak, but he was very upset, as many people in the audience were, and he stood up to speak. I don't remember his exact comments, but, again, it was a warning to the school board and -actually, not necessarily a warning, but just sort of reiterating what science teachers do in their science classes and how there is really no conflict here with the textbook.


    
Objection, Your Honor. It's a
narrative. The question was, did your husband speak.



    Yes,
he spoke.



    My next question was going to
be simply if you could tell us what -- but I think she's already 
told us what she can recall her husband said.



    Well, that answered the next question. That moots the 
objection, and you can move to the next question.



   BY MR. HARVEY


   Do you remember Bill Buckingham speaking at this meeting?


   Oh, yes. There were not many meetings where Bill Buckingham did not speak. And, actually, at that meeting -- I believe the beginning of the meeting was an apology, actually, which he had prepared in advance apologizing to the members of the community if he had said anything that offended them. And it seemed to me sort of an inappropriate apology because -- or maybe "inappropriate" is not the correct word, but not a sincere apology because almost immediately after he had given his apology, he started doing the same things that he had always done, which was to demean the public, to say negative comments.


   Do you remember specifically anything he said?


   Yes. He made comments like, years ago someone died on the Cross, can't we take a stand for Him. He made comments about the liberals in black robes coming and taking away our freedoms in the school. He made many, many comments at that meeting.


   Now, did you attend any other meetings of the Dover Area School District Board of Directors that summer?


   No, we didn't attend that summer.


   And did you attend any meetings that fall?


   Yes.


   Did you attend the meeting on or about October the 18th of 2004?


   Yes, we did.


   And can you just tell us briefly what you can recall about that meeting?


   Well, there was -- at this point in time it was the change in the curriculum that was being proposed and voted on that evening. And, again, this was a heated meeting. There were many members of the community who stood to speak, science department members. Jen Miller spoke, although I didn't really know who she was at the time. I recall her speaking on behalf of her biology course. I recall Bertha Spahr again speaking. My husband again spoke at this meeting. And, again, other members of the community spoke at that meeting.


   Did you and your husband stay for the whole meeting?


   No, we didn't.


   Now, during the time that you were at the meeting, did you hear any discussion among the board members about the reasons for the proposed change to the biology curriculum?


   During the board meeting?


   Yes.


   No.


   Did you attend a meeting the following week, on or about November the 2nd, 2004?


   Yes.


   And can you remember anything from that meeting?


   Yes. I recall Noel Weinrich who had spoken at other meetings, as well, was upset about the vote that they had taken and was sort of urging them to rethink the vote.


   Do you remember anyone requesting access to --


   Oh, yes.


   -- a tape of the October 18th meeting?


   Yes. Because my husband and I had left early -- we had our infant with us and he needed to get home -- we had heard that there were comments that were said after we left about teachers should be fired if they don't listen to the school board's directive. And we wanted to hear that for ourselves, so my husband had previously requested the tapes and then at that meeting he stood again to request the tapes. In addition, Barrie Callahan had stood to request the tapes at that meeting, as well.


   And do you remember if any members of the school board spoke in response to either your husband or Barrie Callahan with respect to the subject of the tapes?


   Yes. Barrie -- I'm sorry, Alan Bonsell said very clearly that -- Dr. Nilsen had said something, as well, about the tapes, that it's not policy or something like that, that this is not past practice, this is not policy, this is not standard policy to release tapes to the public. And additionally, Alan Bonsell made the comment that they couldn't release the tapes because after speaking with their solicitor, there would possibly be legal issues, ramifications if they released the tapes.


   Now, I'd like to just ask you just a couple more questions. Mrs. Rehm, do you believe that the board's actions with respect to the change to the biology curriculum have caused any harm to you?


   Yes, absolutely.


   And can you please tell us how you have been harmed?


   Well, in numerous ways. First, as a teacher, professionally, I feel that teachers in general are harmed, myself, as well, because there's a dichotomy here in what they're saying about this statement that they have passed on intelligent design as they're not teaching it. On the other hand, they've said that it enhances state standards and critical thinking. In my mind, everything that you do in a classroom is teaching. And I don't necessarily think that's just in my mind. I believe that's true of all educators. The way I dress when I go to work tells my students something. The statements I make or the statements that I do not make in my classroom tell my students something. So I think we're charged with, you know, having an ethical decision to make when we walk into the classroom, the things that we say and the things that we do, and so I think that's very important. But you can't say when you walk into a classroom, you're not teaching. And if that's what's happening in the Dover school system and my children are in that school system, that they're routinely establishing practices that is not teaching in the classroom, then that's shameful. In addition, I have a child who is in the ninth-grade biology class, and this has spilled over into other classes. It's not just the biology class that has been affected by this. My child has heard comments from other students, school board member students in her classroom about evolution being against their religion, and do you think we came from monkeys, how can you think we came from monkeys. It used to be a weekly occurrence. It's now a daily occurrence, and my daughter comes home from school upset about these comments that are being made to her and, you know, is looking for guidance on how to respond to these questions. Also, intelligent design is not a scientific concept. It's a religious concept. And because I don't subscribe to that particular brand of religion, I feel that I and my daughter, my family, are being ridiculed, and my daughter feels the pressure. I reserve the right to teach my child about religion. And I have faith in myself and in my husband and in my pastor to do that, not the school system.


    Thank you. No further questions.



    All right. Before we start the cross-examination, I think 
this will be an appropriate time for our afternoon break. We'll take 
that break for approximately 20 minutes, no longer than that, and we 
will return with Mr. Muise's cross-examination of the witness. We'll 
be in recess. (Recess taken.) 



    Mr. Muise, you may 
cross-examine. 



    Thank you, Your Honor.



   CROSS-EXAMINATION BY MR. MUISE


   Good afternoon, Ms. Rehm. Your oldest child is 14 years old. Is that correct?


   Yes.


   And your child's name is Alix?


   Yes.


   And Alix is presently in the ninth-grade biology class at Dover High School?


   Yes, she is.


   And my understanding from your husband's testimony yesterday is that she hasn't yet reached the section in biology that deals with evolution. Is that correct?


   Yes. After looking at her syllabus, it appears that evolution comes later in the course. I wouldn't say at the end, but closer to the end of the course.


   And so she hasn't heard this one-minute statement be read in the class yet?


   She has not, no.


   Now, you testified about two -- or several meetings, but two meetings in particular I want to ask you some questions about. And those are the meetings that occurred on June 7th of 2004 and then the meeting on June 14th of 2004. Okay?


   Yes.


   I believe you described these meetings as involving some heated exchanges between some board members and the public. Is that correct?


   Yes.


   And it's my sense from your testimony that the majority of the statements that you appear to find objectionable were statements made by Mr. Buckingham?


   No. There were statements made by many of the school board members that I found objectionable. It's just that Mr. Buckingham always seemed to say very inappropriate things. But in addition, Alan Bonsell said very inappropriate things, and Noel Weinrich said very inappropriate things. It's just that I didn't give much credit to Noel Weinrich's comments because he would say things like, Darwin's at least what, 60 years old, a theory becomes a theory if you say it over and over again. Those are the kind of things he would say. But they were all very outspoken.


   Now, the controversy on the June 7th and June 14th meeting was surrounding the selection of a biology textbook. Correct?


   June 7th and June 14th?


   Yes.


   Yes.


   And the biology textbook that was in question at the time, I believe it was the version of the Miller-Levine biology book. Is that your understanding?


   It very well could be. I'm not sure what the edition in debate was.


   But the statements that you testified to and the controversy that you were describing was surrounding the purchase or selection of that particular biology book for the school district. Correct?


   Yes, it was definitely the Miller-Levine textbook. I don't know what the edition was or the copyright date or any of that information, but I do know that it was that biology textbook that was being debated very rigorously.


   And, in fact, the school district purchased the Miller-Levine biology book to be used as the primary text for the ninth-grade biology class. Correct?


   Yes.


   And that would be the textbook that your daughter Alix will be using?


   Yes, with the dragonfly on it.


   She already has the book?


   She has the book, yes.


   Have you looked through it?


   Have I looked through the book? Yes, I have looked through the book.


   Do you have any objections with the book?


   No, I don't.


   She wasn't given a copy of Pandas and People, was she?


   No, she was not.


   So the only required textbook for that class was that biology book that was creating all the controversy on June 7th and June 14th. Is that correct?


   To my knowledge, the only required book is that book, in addition to supplemental materials that the instructor has.


   Now, you made a comment in your direct testimony that intelligent design conflicts with your brand of religion.


   Yes.


   Is intelligent design another brand of religion?


   No. What I'm saying is that I believe intelligent design, as well as the ideas of creationism, in particular, the Young Earth creationists, which, I'm sorry, I don't agree with. don't agree with the age of, you know, the earth and their opinion. There are things that I do not believe. And I do not believe the same things as the board members who adopted that statement.


   And so your understanding is intelligent design is the same as Young Earth creationism?


   Well, to my understanding, intelligent design just presupposes that everything in life is too complex, that it has to be designed. But I also know that creationism was used repeatedly with the term -or, I'm sorry, not with the term "intelligent design." Intelligent design came up after the fact. But I do know that, in its original context, it was creationism that was being used. And when I think of creationists, again, I think of Young Earth creationists, and I do not subscribe to that way of thinking.


   And so, again, you're associating Young Earth creationism with intelligent design?


   There is a connection in my mind, yes.


   If you could be shown that intelligent design does not require the action of a supernatural creator and, in fact, is based on observable and empirical facts, would you change your opinion?


   I believe that if intelligent design could be proved to be scientific, then I would believe it would belong in a science classroom. Would I believe it? I don't know that scientifically I'm qualified to say, you know, that I believe many scientific concepts because I'm -- I'm not a scientist. But I suppose that if intelligent design could follow scientific methods, then -- and it were proven to be scientific by scientists, it was accepted by scientific communities, then I would have no reason not to accept that.


   I want to explore your understanding of what has actually taken place in this ninth-grade biology class that your daughter Alix is presently taking. Is it your understanding that Darwin's theory of evolution will be taught in this class pursuant to the Pennsylvania academic standards?


   I would hope so. And as far as I know, that is the case, because Dover says that it is a standards-based school, and so I assume that when they say that and they say that students have to pass certain material before they can be advanced into new material, that they would have to be abiding by the state standards.


   And I take it from your answer you have no objection to that?


   To following state standards, no, I have no objection.


   And so it's your understanding that the Pennsylvania state standards require students to learn about Darwin's theory of evolution and eventually take a standardized test of which that theory is a part of it?


   Yes, the PSSA test, yes.


   And you have no objection to that?


   To my students taking a PSSA test, well, you know, I -- being an educator, I'm not in love with PSSA tests or standardized tests. But if you're asking me if I object to my daughter taking a standardized test with that information on it, of course not. I would hope that they would provide lots of academic information on those tests.


   And is it your understanding that because Dover is a standards-driven district, that they're going to focus their class time on preparing students to achieve proficiency on those standard-based assessments?


   I'm sorry, can you repeat that?


   Yes. Is it your understanding that because Dover is a standard-based district, the class instruction is going to focus on preparing students to achieve proficiency on those standard-based tests that we were just describing?


   Not only is that my understanding, but that is what I would expect.


   And you have no objection to that?


   No, I don't.


   Is it your understanding that because Dover is a standards-driven district, that students will not be tested on the intelligent design theory?


   As I know it and as it is written, there is no test on intelligent design.


   And from your previous answer, I believe you do understand that the Dover School District purchased, for its ninth-grade biology class, the edition of the Miller and Levine biology book. Correct?


   Yes.


   And you have no objection to that book being used in the class?


   No, I do not.


   Is it your understanding that this biology book provides thorough coverage of Darwin's theory of evolution?


   Actually, did you ask me if it's my understanding or if --


   If it's your understanding. I mean, you have to testify about your knowledge, ma'am.


   Okay. What I've seen of actually Darwin in the textbook, in my opinion, is actually quite slim. It follows state standards, of course. And, actually, to me, it gives more of a historical context of Darwin than anything as far as what I have read. And I did look at that section, and I looked basically through the book. And it appears to be historical mainly in context of Darwin's time frame and what he did for science.


   Has Dr. Miller left the courtroom?


   Maybe we should ask. So if you're asking me if I feel it's enough or if it's -- I'm not sure what it is you're asking me about that. I feel, actually, that there are topics that probably could be explored in more detail, but I understand that there are limitations within any textbook that you have to hit on core concepts. I believe that core concepts are covered, but I think that, in my opinion, what I've looked at, it's historical context.


   Is it your understanding that it presents Darwin's theory of evolution in a manner that is consistent with its standing in the scientific community?


   As much as I know about the scientific community -- and, you know, you have to remember that's not my discipline. But as much as I know about what the high school science standards say, it would be in standing with that. As far as the scientific community, I really can't go there, because I know that there is a lot more about Darwin than is in that textbook. I mean, I can absolutely say that without knowing everything about Darwin or knowing everything about science.


   Do you have any reason to believe that what's in the biology book is inconsistent with what the scientific community --


   Absolutely not, no. No, I would have no reason to believe that.


   Is it your understanding that the book Of Pandas and People was placed in the library for students to review?


   Yes.


   It's your understanding that no student was required to read any portion of the Pandas book?


   Right, just as no student is required to read anything that's in the library unless they choose to.


   You have no objection to Pandas being in the library?


   No, absolutely not. I don't object to Pandas being in the library, just like I don't object to, you know, any of the other books being in the library, as long as -- as long as it's the appropriate level and -- you know, I mean, there is a censorship process that goes into putting books in the library. So, I mean, as long as it has gone through that process and it's approved to be there, I don't have a problem with it being there.


   The statement that the school district developed to be read as part of the biology class, is it your understanding that the statement that was drafted in January, 2005, or for use in January, 2005, was modified in June of 2005? Are you aware of that?


   Can you say that again?


   I'm sorry, I wasn't that precise. The original statement that was drafted by the Dover School District was modified in June of 2005. Are you aware of that?


   Well, I'm aware that that statement was modified several times. In fact, there were different drafts of that statement that I had seen. The exact modification, are you telling me that from the time that they had approved it in October, it was modified before it was read in January? Because it was again read in, I believe, like May, and there was a change from that point in time, unless I'm incorrect and that is the change that I'm thinking of.


   Were you aware that there was a change made to the statement at one point to indicate that Pandas was in the library, as well as additional resources in the library addressing intelligent design?


   Yes, I am aware that there was a change.


   Are you aware of that change?


   Yes.


   Is it your understanding that some of these additional books that were put in the library are actually critical of intelligent design?


   Actually, I am, because I recall them -- an organization actually sending the library those books, because there was controversy in those books being put in there, too. And there were many members of the community who had called to see whether those books had actually gotten there or not, into the library, because we weren't certain that those books were going to be allowed in the library, permitted in the library.


   They're in the library?


   Well, a parent -- the books that are critical to --


   Yes.


   I'm assuming that they had gotten there.


   You never checked?


   There were a couple instances where friends of mine had tried to check on the status of the books in the library but were not permitted to go in at that time. So I am only assuming that those books are there now because I am being told that they are. But as for myself walking into a library and seeing them there, I did not.


   Do you have any objection to these additional books being placed in the library?


   No, I do not.


    No 
further questions, Your
Honor.



    Any redirect?



    No, Your Honor.



    Ma'am, you may step down. That
will complete your testimony, and you may call your next witness. 



    Your Honor, plaintiffs call to the stand Plaintiff Beth 
Eveland. 



   BETH EVELAND, called as a witness, having been duly sworn or affirmed, testified as follows:



    State your name and spell 
your name for the record. 



    Sure. My name is Beth 
Eveland, B-e-t-h, E-v-e-l-a-n-d. 



   DIRECT EXAMINATION BY MR. HARVEY"


   Please state your name.


   Beth Eveland.


   And where do you live, Ms. -- is it Ms. or Mrs.?


   Mrs.


   Mrs. Eveland.


   Colonial Road, Dover, Pennsylvania.


   And how long have you lived there?


   I've lived there approximately eight years now.


   Are you married?


   Yes, I am.


   Do you have children?


   Yes, I do.


   How many children do you have?


   Two.


   And how old are they?


   I have a seven-year-old daughter and a five-year-old daughter.


   And what schools do they attend?


   They attend the Leib Elementary School in the Dover School District.


   And do you have plans for your children to continue to attend public schools in Dover?


   Yes, I do.


   And what are those plans?


   To continue keeping them, you know, going through the Dover School District.


   And do you work outside the home?


   Yes, I do.


   And please tell us what you do.


   I am a legal assistant.


   Now, did there come a time when you learned that the Dover Area School District Board of Directors was discussing or considering approval of a biology textbook?


   Yes.


   And when was that?


   It was approximately June, 2004.


   And do you remember how you learned that?


   I had read an article in the York Daily Record.


   Now, I'd like you to look at what's been marked and is in the notebook before you as P46.


   All right.



    Excuse me, Your Honor. I just want to make sure 
that this testimony, to the extent it relates to the newspaper 
article, is subject to our standing objection.



    Well, what is 46?



    It's a June 9th article from the York Daily Record.



    Well, I don't know what the question is. It may relate 
to your standing objection, but we'll note that. We'll hold that 
thought, and you can proceed with the question, because all we have 
is the exhibit that is a newspaper article. So let's proceed with 
the question. There's no need to restate your objection, unless you 
want to
put a finer point on the objection. But at this point, proceed with 
your question.



   BY MR. HARVEY


   Did you read this article on or around June the 9th of 2004?


   Yes, I did.


   And following reading this article, did you attend any meeting of the Dover Area School District?


   Yes, I did.


   And approximately when was that?


   Approximately the end of June through the present.


   What I'd like to know is if you attended a meeting after this June 9th -- excuse me, this board meeting that's reported in this article?


   Yes, I did.


   And what was the date of the next board meeting that you believe you attended?


   It would have been approximately June 15th, June 16th.


   And can you tell us whether -- when you remember that you attended this board meeting?


   When I remember that I attended this board meeting?


   Yes.


   In preparation for trial, looking back through my deposition testimony and thinking about things that had happened, it occurred to me that, you know, I was there at that June meeting.


   And what is it about that June board meeting that made you remember that you were there?


   I remember Casey Brown, one of the board members at the time, discussing, during the board meeting with the board, that she felt they were, I'm paraphrasing, treading, you know, on -- they were treading closely to violating the Pennsylvania State Board of Education regulations on religion in the classroom.


   And do you remember anything that was said by any board members at that meeting that you attended in June of 2004?


   Yes, I do.


   What do you remember?


   I remember Bill Buckingham making the statement, years ago somebody died on the Cross, can't someone take a stand for Him.


   Now, what was your reaction to what you saw and heard at the board meeting on or about -- I think you said June the 15th or 16th? I think, for the record, it's established that it's June the 14th. But tell us, what was your reaction to what you heard?


   I was shocked. I was just utterly shocked.


   And did you do anything in response to that?


   Yes, I did. I had wrote a letter to the editor.


   And was that before or after you attended that board meeting?


   I wrote a letter to the editor -- I believe it was actually written before I attended the board meeting, but it wasn't published until after that June 14th board meeting.


   And where did you send that letter to the editor, which newspaper?


   I submitted it to the three local newspapers, York Daily Record, York Sunday News, and York Dispatch.


   And did you do anything, before you sent it to those papers, with the content of the letter?


   Yes, I did. I had e-mailed a letter basically stating the same thing in my letter to the board president at the time, Alan Bonsell, a copy to Dr. Nilsen, and I mailed a copy to Mr. Buckingham.


   Now, please turn to what's been marked and is in the notebook before you as P56.


   Okay.


   Do you have it in front of you?


   Yes, I do.


   And can you tell us what it is?


   It looks to me to be a copy of a letter to the editor that I wrote.


   And I'm going to ask you to read this letter into the record.


   Okay.


    Objection, Your 
Honor. This letter is hearsay.



    Say it again. I'm sorry.



    Objection, hearsay.



    Why is it hearsay?



    She's going to be reading in the letter, the contents of 
the statement. It's an out-of-court statement. They're obviously 
offering it for the truth of the matter.



    Who wrote the letter?



    She wrote the letter.



    Overruled.



   BY MR. HARVEY


   Please.


   "As a parent in the Dover Area School District, I must convey my shock and utter dismay at William Buckingham's comments regarding the search for new biology texts for the high school. I am especially upset with Mr. Buckingham's comments as quoted in Wednesday's York Daily Record: 'This country wasn't founded on Muslim beliefs or evolution. This country was founded on Christianity, and our students should be taught as such.' This statement is in direct contradiction to the mission statement of the Dover schools. "In partnership with family and community to educate students, we emphasize sound, basic skills and nurture the diverse needs of our students as they strive to become lifelong learners and contributing members of our global society. What a slap in the face to many of the parents and taxpayers of the Dover area. How sad that a member of our own school board would be so closed-minded and not want to carry on the mission of Dover schools. "His ignorance will not only hold back children attending Dover area schools, but also reinforce other communities' views that Dover is a backwards, close-minded community. If it was simply a matter of selecting a text that gives two contradicting scientific theories equal time, that would be an entirely different matter, but it's not. Creationism is religion, plain and simple. "Mr. Buckingham's comments offend me, not because they are religious in nature, but because it is my duty to teach my children about religion as I see fit, not the Dover Area School District during a biology class."


   Now, that letter was actually published in the paper?


   Yes, it was.


   And did you see it in the paper?


   Yes, I did.


   And did you read any response to your letter in the paper?


   Yes, I did.


   And can you tell us who submitted -- whose response did you read in the paper?


   It was a published response noting Heather Geesey as the author.


   And who is Heather Geesey?


   She is a member of the Dover Area School Board.


   And her response letter was published in what newspaper?


   I believe it was either the York Dispatch or the York Daily Record.


   And please turn to what's been marked in the notebook before you as P60.


   Okay.


   Does that help you remember, looking at it, what newspaper it was published in?


   It was published in the York Daily Record.


   And what is that that's marked as P60?


   It is a letter from Heather Geesey to the editor in response to my letter.


   And did you see it at the time?


   Yes, I did.


   Please read that into the record.


    Objection, Your Honor. Our standing 
objection, as well as she has not established a foundation that 
actually Heather Geesey wrote this article. She has no personal 
knowledge.



    Let me first view the exhibit. Do you want to respond to
the objection?



    Yes, Your Honor. We submitted an exhibit list to the 
other side, and we were told there were no authentication issues with
respect to any of this, so there's no question about the 
authenticity of this, nor do I understand -- and further, it's not 
offered for the truth of the matter asserted, so there's no hearsay 
objection.



    Well, on the authentication,
let's take it in two parts. My understanding was that there was not 
an authentication issue. That does refresh my recollection on that 
point. Now, if there's not an authentication issue, we'll move on to 
the second --



    Actually, Mr. Muise may be at a disadvantage here. I did
agree with Steve that we -he has an affidavit from someone who has 
indicated they have collected newspaper articles. So with respect to 
that issue, there's no objection. I have agreed that she has 
authenticated what she did to produce this article.



    All right. Very well. So there's no question then that 
this represents a letter written by Ms. Geesey to the York Daily 
Record. Is that correct from the defense standpoint?



    That is correct, Your Honor. That's the representation 
that has been made in an affidavit, and I accept it.



    Now, counsel for the plaintiff is indicating the letter as
being produced on the issue of -- or to show notice, obviously, on 
the effect prong. Do you want speak to that?



    Your Honor, I would also note that it's an admission of 
a party opponent.


    And I think it would come in under that basis, but that 
would be the hearsay justification or the justification that would get
around a hearsay objection. But the purpose of the letter is under 
the second prong. Is that correct?



    It is for that purpose, and it's also to show that Ms. 
Geesey talked about the statements that were made in this letter at 
this time. That's one of the issues in the case.



    So it could go to truth inasmuch as it's an admission. 
Is that correct?



    Exactly.



    All right.



    Your Honor, as you know, we've got the question of 
whether or not these are admissible for effect. Our position on that 
we've articulated. I don't know if you want us to argue at greater 
length or brief, but it's hearsay to the extent it's offered for the
truth of the matter asserted as effect.



    Well, I think that you reserved that argument. We've had 
that discussion. I'm inclined -- because it's a bench trial, I'll admit
it conditionally. Whether I'll consider it in my ultimate 
determination will be a function of the
argument that I'm allowing you to reserve and make.

But for the purpose of this witness, conditionally and subject to 
additional argument from counsel, we'll admit the letter and you may 
proceed.



    Thank you, Your Honor.



   BY MR. HARVEY


   Please read the letter.


   "This letter is in regard to the comments made by Beth Eveland from York Township in the June York Sunday News. I assure you that the Dover Area School Board is not going against its mission statement. In fact, if you read the statement, it says to educate our students so that they can be contributing members of society. "I do not believe in teaching revisionist history. Our country was founded on Christian beliefs and principles. We are not looking for a book that is teaching students that this is a wrong thing or a right thing. It is just a fact. All we are trying to accomplish with this task is to choose a biology book that teaches the most prevalent theories. "The definition of 'theory' is merely a speculative or an ideal circumstance. To present only one theory or to give one option would be directly contradicting our mission statement. You can teach creationism without it being Christianity. It can be presented as a higher power. That is where another part of Dover's mission statement comes into play. That part would be in partnership with family and community. You as a parent can teach your child your family's ideology."


   And what was your reaction to that letter when you read it in the paper, Mrs. Eveland?


   That really concerned me.


   Why?


   That made me question, first of all, was she writing on behalf of just herself or on behalf of the whole school board since it was signed Dover Area School Board Director, and I sensed a religious intonation.


   Now, I'd like you to tell us, did you attend board meetings in after June?


   Yes, I did.


   And which board meetings did you attend?


   All of them.


   And do you believe that -- were you at the meeting on October the 18th of 2004?


   Yes, I was.


   And did you hear the board discuss any reason for adopting the proposed curriculum change?


   No, I didn't.


   Do you feel that you've been harmed by the board's actions?


   Yes, I do.


   And please tell us how you believe that you have been harmed by the board's actions.


   I feel it's my duty, as a parent, to introduce any kind of faith-based concept to my children, not the Dover Area School District. While my children are small, you know, this policy is district-wide, and there's nothing to prevent it from being trickled down into the elementary level. It's just something that I feel strongly that my husband and I, that's our task to bring faith to our children.



    Thank you. No further questions. 



    All right. 
Cross-examine, Mr. Muise. 



   CROSS-EXAMINATION BY MR. MUISE:


   Good afternoon, ma'am.


   Good afternoon.


   You said your oldest child is seven years old?


   Yes, she is.


   And what grade is she in?


   She's a second-grader.


   So she's seven years out from attending the ninth-grade biology class at Dover High School?


   That's correct.


   Now, you have an interest in science. Is that correct?


   Somewhat, yeah.


   I believe in your deposition you indicated in your day-to-day events you try to spark your children's interest in science?


   Yes, I do.


   And you believe it's important to make science interesting for your children?


   Yes, I do.


   You don't have any specific training in evolutionary theory. Correct?


   No, I don't.


   I want to get a sense for what your understanding is of what is going on in the ninth-grade biology class that your daughter will be attending several years from now. Is it your understanding that Darwin's theory of evolution is going to be taught pursuant to the state academic standards?


   It is my understanding, yes.


   And that students will be tested on subjects that are based on those standards, including the theory of evolution?


   Yes, that is my understanding.


   And it's your understanding that the students will not be tested on the theory of intelligent design?


   That is also my understanding, yes.


   Is it also your understanding that it is a standards-based district, so classroom instruction will focus on achieving those standard-based assessments in which they will eventually be tested on?


   Yes.


   And intelligent design is not part of those standard-based assessments?


   As far as my understanding, yes, it is currently not.


   And these board meetings that you attended in June, the controversy was surrounding the purchase of a biology text for the class. Correct?


   Yes.


   Do you know which book it was that the controversy was about?


   I believe at the time it was the Miller and Levine biology text.


   And isn't it true it was Mr. Buckingham's objections to that biology text which precipitated some of these statements that you were referring to in your direct testimony?


   That's correct.


   And what action did the board actually take with regard to the biology book?


   Well, with regard to the biology book?


   With regard to the biology book for the ninth-grade class.


   It's my understanding that they held off on the vote in June because there was a new edition that was going to come out. And they wanted to get the most current book instead of wasting money on an older book.


   And so they ended up purchasing the version?


   Yes, they did. Yes, they did.


   Have you seen that book?


   I have briefly looked at it.


   Now, my understanding is you went to these board meetings in June because of the controversy over the biology book?


   Yeah, part of it.


   You said you just skimmed this biology book that was at the center of the controversy?


   It was available on the table where the board was sitting, and I went up front and took a look at it for maybe a minute or two.


   In those two minutes that you spent actually looking at the book that was the center of this controversy, was there anything in that two-minute review that you saw that you objected to?


   No. I just basically looked through the table of contents quickly.


   Is it your understanding that that book that was eventually purchased by the Dover Area School District covers the theory of evolution consistent with its status in the scientific community?


   That's my understanding, yes.


   Now, these meetings that you attended, would you describe them as being fairly contentious?


   Fairly contentious, yes.


   Shouting matches, I believe the term you used in your --


   I think a circus-like atmosphere would be quite appropriate.


   Now, is it your recollection that the first time the Pandas book was mentioned was during the July meeting that you attended?


   I remember it being mentioned. I cannot give you a specific date. The dates run together after a while.


   How about mentioning the theory of intelligent design, do you recall when you may have heard that theory first mentioned?


   To the best of my recollection, it was first mentioned June, July sometime. At the time it seemed that creationism and intelligent design were kind of used hand-in-hand interchangeably.


   During these public comments that precipitated some of those statements that you were referring to, was it your impression that Mr. Buckingham and Mr. Noel Weinrich were taking the comments as being personally directed toward them?


   Not only them, but the vast majority of board members, yes, they were.


   So they saw them as being personal attacks against them?


   Yeah.


   Now, the first meeting you attended in July, you spoke with Joe Maldonado. Correct?


   Yes. And I believe the first -- as I testified earlier, the first meeting I actually had attended was the second meeting in June.


   I guess my question is, the first meeting that you attended in July --


   Yes, I had spoken to Joe Maldonado.


   And who is Joe Maldonado?


   It's my understanding he is a reporter with the York Dispatch.


   And during this conversation, he approached you and asked if you had read or were familiar with some comments that he had quoted in the paper, and those were Mr. Buckingham's comments. Correct?


   Yes, he had.


   And he asked you what your thoughts were about those comments?


   Yes, he did.


   And he also asked you if you would ask for Mr. Buckingham's resignation on the spot. Correct?


   That's correct.


   And you told him that you didn't think that was going to happen?


   I told him that I would just sit back and wait and see what happened.


   And your sense for why he asked you this was that you thought he was trying to elicit something sensational for his paper?


   There is that possibility of trying to elicit something sensational, but I think he was also trying to prepare for what might happen later on in the meeting since they tended to denigrate in shouting matches.


    May I approach this witness, Your 
Honor? THE COURT: You may.



   BY MR. MUISE


   Ma'am, I'm handing you what is your deposition testimony that you gave on March 28th of 2005. And I'd like you to read, if you look on Page 64, read from Line 18 through 25, and then we'll continue on the next page once you finish that.


   "The first board meeting I attended in July he approached me before the meeting started and asked if I had read the -- if I was familiar with the comments that were quoted in the paper. I told him just simply what I had read. "He asked me what I thought about it, and I said, The comments, I don't feel that is appropriate. He asked me if I asked for Mr. Buckingham's resignation on the spot. I told him I didn't think that that was going to happen."


   And the next line, Line 3, is a question which states, "When Mr. Maldonado asked you that question, do you have a sense for why?" Could you plead read your answer, which is Lines 5 through 8.


   "Yeah. Based on what was quoted in the paper, yeah, I think he was trying to elicit some sensational whatever for the paper. It was my first board meeting. I just wanted to sit back and see what would happen."


   Were you testifying truthfully during that deposition?


   Yes, I was, to the best of my knowledge.


   You've had additional discussions with Mr. Maldonado about the happenings with the board. Correct?


   Yeah.


   And you also had conversations with Ms. Heidi Bubb?


   Yes.


   And she's a reporter?


   Yes.


   For which paper?


   She's a reporter for the Dispatch. I said earlier Mr. Maldonado was for the Dispatch. I believe he is actually a reporter for the Daily Record.


   I believe you testified in your deposition that after the complaint was filed, you actually spoke with Ms. Heidi Bubb quite a bit?


   Yes, at the board meetings. Well, I don't recall whether or not I did say after suit was filed, but I'll take your word for it if it's in my deposition testimony.


   I'm sorry, ma'am, could you --


   I said, I don't recall whether or not I did say that I had spoken with her after suit was filed. I mean, if that's what it says in my deposition testimony, that's what I testified to at the time.


   Let's go to Page 68 of your deposition transcript, ma'am.


   Okay.


   On Line 16, the question was asked, "Can you recall generally when you spoke with her?" And in reference of the -- if you look above, it's referring to Ms. Heidi Bubb. Can you read what your answer was on Lines 17 through 21?


   "She would generally approach me after the meetings. Especially after the complaint was filed, I spoke with her a lot. She would ask me occasionally my thoughts, public comment, what I thought -- why I thought the board was doing what they were doing, those such things."


   Now, back in July or August, 2004, you had communications with the National Center for Science Education?


   Yes.


   I believe you joined the Listserv?


   Yes.


   And you also had a discussion with them regarding an interview with the AP?


   It was a brief e-mail exchange, but yes.


   Did you do that interview?


   No, I did not.


   Ma'am, do you understand that the statement that's going to be read to the students in the ninth-grade biology class was modified in June of 2005?


   Yes, I do.


   And do you understand that that modification indicated that the book Of Pandas and People would be in the library along with other resources regarding intelligent design?


   Yes.


   And is it your understanding that those other resources included books that are actually critical of intelligent design?


   Yes.


   Do you have any objection to that?


   No, I don't.


   Now, you testified about the harm that you've received based on these statements and the comments and the actions of the board. I'd like you to go to your deposition transcript, if you could, to Page 101.


   Okay.


   If you'd read from Line 16, which presents the question, until Line 2 of the next page.


   "Question: Is there anything else that the board has done here in connection with the curriculum change that provides a basis for your complaint? "Answer: From what I can see from attending the board meetings, I don't know, because so much of the curriculum debate takes place at non-public meetings that I am not aware of. And when board members are questioned at meetings, they really don't answer any questions. So it gives this whole illusion of secrecy to the process, which, you know, may be a big part of the problem. It may just be a big misunderstanding."


   Were you testifying truthfully when you answered that question?


   Yes, I was.


    No further questions, Your Honor.



    Redirect?



    No, Your Honor.



    All right. Then, ma'am, we thank you. You may step down. 
This is probably an appropriate time for us to end today. We will 
do so by admitting the exhibits that we need to, if we need to.

P46 is the York Daily Record article. I assume we're going to 
withhold admitting that pending further proceedings. Is that right, Mr.
Harvey?



    Yes. We'll move it in after another witness, Your Honor.



    P56 is the witness's letter to the editor. Are you moving
for the admission of P56?



    Yes, Your Honor.



    Now, you've stated an objection to that. The objection is 
noted. You don't have to restate it. And I will note the objection. 
Do you have any additional objections you want to make to that?



    Not at this time, Your Honor. That's it. 



    All 
right. It's admitted subject to the defendants' objection. P60 is the 
letter from School Board Member Geesey to the editor again. I think 
I noted that it was admitted. Over the objection already of the 
defendants, we'll reaffirm that, but you can make any other objections
you want to on the record, but I think that was thoroughly argued 
at that time.



    That's correct, Your Honor.



    All right. We will reconvene a little later tomorrow, at 
9:30 a.m., because of some matters that I must attend to, and the 
session will go longer. With everybody's indulgence, I would expect to
go to approximately 5 o'clock, no later than 5 o'clock tomorrow to make 
up for the time that we lose during the morning session. So we will
stand in recess until 9:30 a.m. on Thursday. We thank you all.



   (Whereupon, the proceedings were adjourned at 4:20 p.m.)

  





  

CERTIFICATION

I hereby certify that the proceedings and evidence are contained fully
and accurately in the notes taken by me on the within proceedings 
and that this copy is a correct transcript of the same.

Dated in Harrisburg, Pennsylvania, this 28th day of September, 2005.

Lori A. Shuey, RPR, CRR Official Court Reporter United States 
Courthouse Walnut Street, P.O. Box 983 Harrisburg, PA 17108-0983 
(717)215-1270

